Report of the Special Committee on the Mandatory Retirement Age of State Judges - the American Judicature Society Hawai'i Chapter
| Citation | Vol. 18 No. 07 |
| Publication year | 2014 |
April 28, 2014
INTRODUCTION.
On September 7, 2012, the Hawai'i Chapter of the American Judicature Society established a Special Committee on the Mandatory Retirement Age of State Court Judges (the "Committee")1for the purpose of addressing whether the Hawai'i State Constitution should be amended to change the mandatory retirement age of state court justices and judges. Over the last eight years, the Hawai'i State Legislature has considered several proposals to amend Article VI, Section 3 of the Hawai'i State Constitution, which requires state justices and judges to retire upon attaining age 70. The Committee was created in light of renewed public interest in the issue of mandatory retirement when Justice James Duffy retired from the Hawai'i Supreme Court. Consideration of the issue is particularly timely in view of the recent retirement of Justice Simeon R. Acoba and the passage of SB No. 886 during the 2013 legislative session, as a result of which Hawai'i voters will decide this fall whether or not to amend the State Constitution to increase the mandatory retirement age for state justices and judges from 70 to 80 years.
The work of the Committee spanned more than a year, during which time the Committee met several times and Committee members consulted resource people, including personnel of the Hawai'i Supreme Court. Various resource materials were also reviewed.
The focus of the Committee was on two main areas, the first being a review of other states' mandatory retirement age legislation proposing to either raise or abolish the mandatory retirement age, as compared with past and current proposed legislation relating to the issue in Hawai'i. The second focus of discussion was whether the Hawai'i State Constitution should be amended to eliminate the current mandatory retirement age, or if not, whether the retirement age requirement should be amended in another manner (e.g., increase the mandatory retirement age).
MANDATORY RETIREMENT AGE LEGISLATION IN HAWAI'I AND OTHER STATES, AND SELECTED COURT DECISIONS.
States have set mandatory retirement ages for judges based in part on the rationale that states have an interest in "maintaining a judiciary fully capable of performing the demanding tasks of the judicial office"2 and the implicit assumption that judges are no longer "fully capable" upon attaining a particular age. Although many states have laws setting forth mandatory retirement ages for judges, in recent years there has been an influx of state legislation proposing either to extend the mandatory retirement age for judges, or to abolish such requirements entirely. In contrast, federal courts do not impose mandatory retirement ages on their judges, and a number of federal judges continue to work well past age 70.3
National Perspective.
1. Retirement Requirements in Other States:
Currently, 32 states and the District of Columbia have a judicial mandatory retirement age,4 usually established between ages 70 and 75. In 2013, there were 16 states that considered legislation proposing to either raise or abolish the mandatory retirement age.5 As of January 1, 2014, bills in at least 6 states were defeated,6 while bills in at least 5 states were either carried over to the 2014 session or reintroduced, including Hawai'i's proposed constitutional amendments.7 Successful bills included Washington's SB 5046, which passed in both the state senate and the house and was signed into law by the governor in April of 2013,8 and Pennsylvania's HB 79, which passed in the senate in October 2013.9 However, because Pennsylvania HB 79 is a constitutional amendment, it must pass in two sessions, and will be up for vote again in 2015.10
2. Examples of Retirement Legislation Defeated in 2013:
Arkansas: In January of 2013, Senator Bill Sample from Arkansas introduced a bill concerning the mandatory loss of retirement benefits for members of the Arkansas judicial retirement system who seek office after reaching seventy years of age.11 The bill eliminated the use of the terms "under the age of seventy" or any reference to an age limitation for the purpose of receiving retirement benefits. By removing this language, the new proposed bill will allow judges to work past the age of seventy without forfeiting any retirement benefits. Under the current law, a judge may only work until the end of the term during which they reach age 70. "A judge working past age 70 who is eligible to retire will forfeit retirement benefits unless they leave office at the end of the term during which they turn age 70."12The bill died, however, in the state senate on May 17, 2013.13
New York: New York's Proposition 6 would change the mandatory retirement age from 70 to (effectively) 80 for the Court of Appeals and allow judges of the New York Supreme Court to be recertified every two years from ages 70 to 80, making the 80-year-old retirement the second highest in the U.S.14 Essentially, while the judges would "retire" at 70, they would still be eligible to serve if recertified. SB 886 proposed an amendment to section 25(b) of Article VI of the New York State Constitution. However, voters defeated the bill on November 6, 2013. The proposition was opposed by 61 percent of the voters, while 39 percent were in favor.15
3. Examples of Retirement Legislation that Passed in 2013:
Pennsylvania: Under the Pennsylvania Constitution, Art. 5, § 16, justices and judges were required to retire at age 70. In 2013, several Pennsylvania judges filed suits challenging the mandatory retirement age, claiming their rights had been violated.16The 2013 legislature saw several bills pending, including HB 7917 and SB 36818, which proposed to increase the retirement age to 75, and SB 85, which proposed to abolish entirely the mandatory retirement age.19 In July, HB 79 passed in the state house, and in October, it passed in the senate.20However, since it is a constitutional amendment, it must pass in two sessions, and will be up for vote again in 2015.21
Washington: SB 5046, which the governor signed on April 22, 2013, extends district judges' retirement age to the end of the term in which the judge turns 75.22
4. Proposed Legislation in 2014:
Louisiana: Representative Mickey Firth of Louisiana introduced House Bill number 19 during the 2003 regular session. The resolution would allow judges attaining 70 years of age to complete their terms of office, amending Article V, Section 23(b) of the Louisiana Constitution. The bill passed, became Act No. 1296, and was approved on October 4, 2003, taking effect on January 1, 2004. Now, judges in Louisiana who attain the age of 70 while serving a term of office are allowed to complete the remaining term of office.23In 2013, Eric LaFleur sponsored a Senate Bill 5, which would effectively remove the mandatory retirement age. Although the bill failed to get the required 2/3-majority vote in the house, it was re-filed in January of 2014 as SB 11.24
Massachusetts: In April 2013, the Committee on the Judiciary recommended that HB 68 not pass, and the bill was placed on file.25 A joint session was held in October 2013, and recessed to March 2014.26 HB 68 would amend the Massachusetts state constitution to increase the mandatory retirement age from 70 to 76.27
Virginia: Although initially approved by the Senate in early 2013, SB 740 and SB 762 were defeated in the house later that year.28 In 2014, the issue of a judicial mandatory retirement age will again be addressed via HB 279.29"However, this increase will not go into effect 'unless and until the Judicial Performance Evaluation Program is funded and implemented under the provisions of § 17.1-00 of the Code of Virginia.' "30
Washington: In addition to the earlier successful passage of SB 5046, which extended a district judge's retirement age to the end of the term in which the judge turns 75,31 a second Washington bill, HB 1255, passed in the House in March 2013, was sent to the House Rules Committee for a third reading, then reintroduced and retained in May. In January 2014, this bill was again reintroduced and referred to the judiciary.32 HB 1255 is a companion bill to SB 5046.33
Mandatory Retirement Age Legislation in Hawai'i.
1. Origin of the mandatory retirement age in Hawai'i:
The 1950 Hawai'i Constitutional Convention.
2. Current Law:
Article VI, Section III of the Hawai'i State Constitution states: "Justices and judges shall be retired upon attaining the age of seventy years."34
3. Previous Proposals to Amend the Mandatory Retirement Age Requirement:
In 2006, SB 995, which proposed a constitutional amendment to eliminate the mandatory retirement age for justices and judges, was passed by the Hawai'i State Legislature.35 However, the proposed amendment was voted down in the November 2006 elections. The vote was YES: 121,418 (34.8%); NO: 201,476 (57.8%); Blank Votes: 25,329 (7.3%).
In the 2008 legislative session, HB 2344 was introduced, proposing to increase the mandatory retirement age from 70 to 72. In addition, SB 3202 was introduced, proposing to increase the retirement age from 70 to 80 for judges who were appointed after November 4, 2008. Both bills failed to pass the Hawai'i Legislature, however.36
During the 2011 legislative session, SB 650 was introduced, proposing a constitutional amendment that would authorize the Chief Justice of the Hawai'i Supreme Court to appoint "emeritus judges" who would otherwise have retired due to the age restriction, as per diem judges or judicial mentors for a limited period of time.37 Ultimately, the proposed constitutional amendment was defeated in the 2012 elections, although the vote was close: 49.6% voted "yes"; 39.9% voted "no"; and 10.4% did not vote.38 Under the Hawai'i Constitution, in order for an amendment to be adopted at a general election, it must be approved "by a majority of all the votes tallied upon the...
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