395 Mass. 484 | Mass. | 1985
Sidney Chemick is employed by the Commonwealth as a court officer in the Hampden County Superior Court. He is a “member in service” of the State employees’ retirement system as that term is used in G. L. c. 32 (1984 ed.). He is also a veteran. Court officers are classified in Group 1 of the retirement system. G. L. c. 32, § 3 (2) (g). McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 780 (1975). The maximum retirement age for employees in Group 1 is seventy. G. L. c. 32, § 1. The employment of court officers is also governed by G. L. c. 221, § 72, which provides in part that
In 1977, the Legislature enacted a statute entitled “An Act permitting certain employees to continue working after they have reached the mandatory retirement age.” St. 1977, c. 735. The statute amended G. L. c. 32, by inserting a new § 90F. That section provides in pertinent part: “Any member in service, classified in Group 1 shall continue in service, at his option, notwithstanding the fact that he has attained age seventy; provided, however, that he is mentally and physically capable of performing the duties of his office or position. Such member shall annually, at his own expense, be examined by an impartial physician designated by the retirement authority to determine such capability.” G. L. c. 32, § 90F (1984 ed.). In 1978, the Legislature enacted a similar statute amending G. L. c. 32, by inserting a new § 90G. St. 1978, c. 557. That section is, in all relevant aspects, identical to § 90F, except that § 90G applies only to veterans.
On or about June 24, 1984, Chemick attained seventy years of age. Pursuant to G. L. c. 32, §§ 90F and 90G, he applied to the State Board of Retirement (board) to be allowed to continue in service past the maximum retirement age of seventy. On or about May 7, 1984, Chemick received notice that the board had approved his continuance in office for one year beyond the maximum retirement age.
The only issue presented is whether the Legislature, by enacting G. L. c. 32, §§ 90Fand90G, intended to create an exception to the mandatory retirement age for court officers established by G. L. c. 221, § 72. We conclude that the Legislature did not intend to create such an exception.
General Laws c. 32 establishes a contributory retirement system for employees of the Commonwealth. The statute classifies employees in various groups depending upon the nature of their employment, G. L. c. 32, § 3 (2) (g), and establishes a maximum retirement age for each group. G. L. c. 32, § 1. Before 1972, there was no specific statutory provision governing the retirement of court officers. As members of Group 1, they were required to retire at age seventy. However, in 1972, the Legislature amended G. L. c. 221, § 72, to establish sixty-five as the mandatory retirement age for court officers. G. L. c. 221, § 72, as appearing in St. 1972, c. 740, § 10.
Section 90F was added to G. L. c. 32 in 1977, prior to the amendment of G. L. c. 221, § 72, which increased the court officers’ mandatory retirement age to seventy. When § 90F was added to G. L. c. 32, the mandatory retirement age for Group 1 was seventy, but for court officers it was sixty-five. The language of § 90F, as inserted by St. 1977, c. 735, “Any member in service, classified in Group 1, shall continue in service, at his option, notwithstanding the fact that he has attained age seventy” provided that a physician determines he is capable to do so, could not have referred to court officers, who, by virtue of G. L. c. 221, § 72, were no longer in service at seventy years of age. It is clear that the Legislature did not view § 90F as an amendment to G. L. c. 221, § 72. It is equally clear that the 1978 Legislature did not intend to amend G. L. c. 221, § 72, by adding § 90G to G. L. c. 32. In all material respects, the language of G. L. c. 32, § 90G, tracks G. L. c. 32, § 90F.
We reject Chernick’s contention that G. L. c. 32, §§ 90F and 90G, create an exception toG.L. c. 221, § 72. To reach that result, we would have to conclude that the Legislature partially repealed, by implication, the mandatory retirement provision of G. L. c. 221, § 72. “Such repeals have never been favored by our law. Unless the prior statute is so repugnant to and inconsistent with the later enactment that both cannot stand, then the former is not deemed to have been repealed.” North Shore Vocational Regional School Dist.v.
We conclude, therefore, that G. L. c. 221, § 72, establishing a mandatory retirement age for court officers, is an exception to the provisions of G. L. c. 32, §§ 90F and 90G, and that Chemick is not entitled to continue his employment pursuant to those sections. We remand the case to the Superior Court for entry of a final order consistent with this opinion.
So ordered.
General Laws c. 32, § 90G (1984 ed.), provides in part: “Any member in service, classified in Group 1, who is a veteran, shall continue in service, at his option, notwithstanding the fact that he has attained age seventy; provided, however, that he is mentally and physically capable of performing the duties of his office or position. Such member shall annually, at his own expense, be examined by an impartial physician designated by the retirement authority to determine such capability.”
The record does not indicate whether the board granted Chemick permission to continue working pursuant to § 90F or pursuant to § 90G. Both sections appear to apply equally to Chemick, who is a veteran, and he relies on both sections in support of his right to continue working.
In McCarthy v. Sheriff of Suffolk County, 366 Mass. 779 (1975), in sustaining the constitutionality of G. L. c. 221, § 72, we said that “[e]xamination of the various groups established by [G. L. c. 32, § 3 (2) (g)] discloses a legislative intent to provide for earlier retirement of those government officers concerned with the safety of the public.” We recognized that “[c]curt officers, in their attendance on sessions of the court, may be called upon to protect the court and the public,” and that “many court officers are responsible for the custody of prisoners in the criminal sessions.” Id. at 786-787.