GateHouse: Judges challenge mandatory retirement

Matthew T. Mangino
GateHouse News Service
March 22, 2013

How old is too old to be a judge? Thirty-three states have mandatory retirement for judges according to the National Center for State Courts. The age is generally between 70 and 75.

For nearly 20 years state legislatures across the country have tried to increase or abolish mandatory retirement for judges, with mixed results. Since 1990, at least 11 states have tinkered with mandatory judicial retirement. In fact, the Virginia legislature has tried unsuccessfully for seven consecutive years to increase the mandatory retirement age for judges.

Federal judges have no age restrictions. According to an investigation by ProPublica, as of January 2011, 12 percent of federal judges were over age 80 — that is about 150 judges — and 11 judges were over the age of 90.

Some federal judges have raised concerns and one has taken action. Judge Frank Easterbrook, the chief judge of the Seventh Circuit Court of Appeals, arranged for two colleagues to see neurologists and has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia, reported ProPublica.

There appears to be ample research to support concern. According to one study, by age 70 most people are cognitively impaired and half of all 85-years-olds have dementia. The cognitive functions most affected by age are attention, memory, language processing and decision-making — fundamental skills in any courtroom.

There is no arguing that some older people outperform some younger people. Just as some juveniles cognitively and emotionally outperform adults. Yet, there is no hew and cry to lower the drinking age or voting age. In fact, the science of brain development has been successfully used to eliminate the death penalty and life in prison, in some circumstances, for juveniles.

In most states, judges campaigned for office knowing their terms were limited by mandatory retirement. Now judges want to change the rules. This is reminiscent of congressmen who ran for office in 1994 under the Contract with America. They pledged to self-impose term limits and then decided to run for re-election in contravention of those pledges. Most won re-election.

Pennsylvania judges are so sure that the state’s mandatory retirement age is discriminatory they’re suing in state and federal court. The judges allege that the mandatory retirement age amounts to age discrimination and violates the equal protection clause under the 14th Amendment of the U.S. Constitution.

There is a lot on the line for Pennsylvania trial judges and appellate judges — four of the seven state Supreme Court justices will reach 70 in the next five years.

 In New York the state constitution must be amended to increase the retirement age for judges. In 2011, the legislature approved an increase to the mandatory retirement age for appellate judges from age 70 to 80 and to allow trial judges to be certified for two-year periods between ages 70 and 80. The bill must be passed again this year and then placed on the ballot in 2014 to amend the constitution.

Some suggest the system is flawed. Most states support the continued work of judges after their mandatory retirement. According to the Wall Street Journal, retired judges are often allowed to return to the bench on senior status after being forced into retirement. "It doesn't make any sense," said 72-year-old Michigan Circuit Judge Peter Maceroni, who is being forced to retire at the end of the year. "I don't have a health issue, I'm in relatively good shape, and I want to keep working."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.