(dissenting).
I respectfully dissent because I agree with plaintiffs that the defendant’s retirement policy denies them the equal protection of laws as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, §§ 1 and 6 of the Iowa Constitution.
The two Code sections §§ 97B.45 and 97B.46 are quoted in the majority opinion. The first of these sections grants authority to adopt policies prescribing retirement ages of not less than the designated “normal retirement” age of 65. Section 97B.46 grants authority to allow continued employment on a case by case basis beyond the age thus fixed. Pursuant to § 97B.46, the plaintiffs, when employed by the former Iowa Highway Commission, could apply to have their employment continued after the age of 65. Under the policy challenged that right of application is no longer available. I believe the application rights were not withdrawn on any criteria which has a rational basis.
The relation of regulatory distinctions to the statutes under which they are promulgated was explained in Hein v. Burns, 402 F.Supp. 398 (S.D.Iowa 1975):
“Regulatory distinctions must be based on differences that are reasonably related to the purposes of the Act in which those differences are found. Morey v. Doud (1957), 354 U.S. 457, 465, 77 S.Ct. 1344, 1 L.Ed.2d 1485; Dandridge v. Williams (1970), 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491; Rinaldi v. Yeager (1966), 384 U.S. 305, 309, 86 S.Ct. 1497, 16 L.Ed.2d 577. * * *."
Under this test, the question becomes whether the challenged policy of defendants is related to the purposes of the legis*731lation from which it is derived. We can easily determine the purposes of the legislation. Section 97B.2 explains the purpose of the Iowa public employees retirement system:
“The purpose of this chapter is to promote economy and efficiency in the public service by providing an orderly means whereby employees who become superannuated may, without hardship or prejudice, be replaced by more capable employees, and to that end providing a retirement system which will provide for the payment of annuities to public employees, thereby enabling the employees to care for themselves in retirement, and which by its provisions will improve public employment within the state, reduce excessive personnel turnover and offer suitable attraction to high-grade men and women to enter public service in the state.”
I see nothing in the withdrawal of plaintiff’s right to be considered for employment past 65 which relates in any way to the stated purposes of the act. Defendants argue that agency by agency retirement is necessary because “each agency has different pud individual tastes, personnel needs, and budget limitations that it can better respond to if it is able to establish its own retirement policy.” It is questionable if this amounts to a significant advantage to the agency. If so retirement would certainly be more orderly if the legislature had prescribed retirement at age 65 for all state agencies rather than allowing exceptions for individuals or agencies.
In any event defendant’s argument wholly ignores the needs of the individuals who are retiring, whereas the first stated purpose of the act is that superannuated employees are to be replaced “without hardship or prejudice.” The statute says nothing about the agencies’ budgets, tasks, or "personnel needs. The agency’s challenged approach can only increase the hardship or prejudice to the retiring employees.
I believe the denial of possible exceptions under § 97B.46 has not been shown to be based on differences that are reasonably related to the purposes stated in § 97B.2. See Faruki v. Rogers, 349 F.Supp. 723 (D.D.C.1972) and Bradley v. Vance, 436 F.Supp. 134 (D.D.C.1977). I would reverse.
UHLENHOPP, J., joins in this dissent.