Wisconsin Retirement Age for Judges and Justices, Question 5 (April 1977)

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The Wisconsin Retirement Age for Judges and Justices Amendment, also known as Question 5, was on the April 5, 1977 ballot in Wisconsin as a legislatively-referred constitutional amendment, where it was approved.

This amendment was one of 4 questions on the April 1977 ballot that sought to reform the Wisconsin court system. Question 5 empowered the state legislature to set a retirement age for supreme court justices or court of record judges to any age 70 or above. Additionally, Question 5 eliminated the requirement that a temporary supreme court justice have previously served eight or more years as a supreme court justice. In lieu, the measure mandated that a temporary justice needed only to serve on the supreme court at some point with no specific length of service. The amendment modified Section 24 of Article VII of the Wisconsin Constitution.[1]

Aftermath

As of January 1, 2015, the Wisconsin Legislature has not set a mandatory judicial retirement age for supreme court justices or court of record judges despite voters giving the legislative branch the power to do so via Question 5 in 1977. Republicans in the state legislature are expected to introduce a bill mandating a retirement age of 75 during the 2015 legislative session.[2] Justices who are 75 or older would be forced to resign immediately if the legislature passes the proposed legislation. This action would come nearly 38 years after voters passed Question 5.

The proposed retirement age has stirred controversy, with Chief Justice Shirley Abrahamson, who turned 81 in December 2014, calling for an exemption for judges who were elected to serve full ten-year terms. Justice Ann Walsh Bradley echoed Abrahamson, saying, "The real question is whether the legislative proposals can retroactively nullify the popular vote of the people who elected a chief justice and justices for 10-year terms. To suggest that the Legislature can or should adopt either measure appears to elevate politics over law." Rep. Dean Knudson (R-30) disagreed, contending, "I don't think it's good public policy to write laws for one individual."[2] Besides Chief Justice Abrahamson, Justice N. Patrick Crooks and Justice Patience D. Roggensack would be forced to resign in 2015 if the legislation is approved.[3]

Election results

Wisconsin Question 5 (April 1977)
ResultVotesPercentage
Approveda Yes 506,207 67.46%
No244,17032.54%

Official results via: The Wisconsin Blue Book 1977

Background

Wisconsin had a mandatory judicial retirement of 70 years of age from 1955 to 1978. The retirement age was approved by voters on April 5, 1955, through the approval of Question 2. Over 68 percent of voters approved the amendment. Question 5 of 1977 changed the judicial retirement age from "seventy" to "not less than 70 years, which the legislature shall prescribe by law."

Text of measure

The language appeared on the ballot as:[1]

"Mandatory retirement age. Shall section 24 of article VII of the constitution be amended, to authorize the legislature to set the age not less than 70 at which a justice or judge must retire?"[4]

Ballot summary

As required by Section 10.01 (2) (c) of the Wisconsin Statutes, Attorney General Bronson La Follette (D) office provided the following summary of the effects of Question 5:[5]

Effect of ratification.

If you vote “Yes” on the above-stated question, you will be voting for a provision that no person may serve as a supreme court justice or judge of a court of record beyond the July 31 following the date on which such person attains that age, not less than 70 years, which the legislature shall prescribe by law, unless such person is assigned to serve as a judge on a temporary basis in any court of record except the supreme court.

If you vote “No” on the above-stated question, you will be voting against the above-described provision.

It should be pointed out here that the above-stated question does not so indicate, the proposed amendment of art. VII, sec. 24 agreed by the 1975 and 1977 Legislature eliminates the present requirement of such section that a person must have 8 or more years of service as a supreme court justice or circuit judge in order to serve temporarily as a judge under such section. If amended, such section would permit a person to so serve who has served as a supreme court justice or judge of a court of record, with no time specified as to the length of service as such justice or judge making such person eligible for temporary service as a judge.[4]

Constitutional changes

Article VII

Justices and judges: eligibility for office; retirement. SECTION 24.

No person seventy years of age or over may take
(1) to be eligible for the office as a of supreme court justice or circuit judge. No of any court of record, a person may take or hold such office unless he is must be an attorney licensed to practice law in this state and has have been so licensed for five 5 years immediately prior to his election or appointment. No supreme court justice or circuit judge
(2) Unless assigned temporary service under subsection (3), no person may serve as a supreme court justice or judge of a court of record beyond the July 31 following the date on which he such person attains the age, of seventy not less than 70 years, which the legislature shall prescribe by law.
(3) A person who has served eight or more years as a supreme court justice or circuit judge of a court of record may, as provided by law, serve temporarily, on appointment as a judge of any court of record except the supreme court on a temporary basis if assigned by the chief justice of the supreme court or by any associate justice designated by the supreme court, as a judge of a circuit court, under such general laws as the legislature may enact.[4]


Path to the ballot

See also: Amending the Wisconsin Constitution

A simple majority vote was required in two successive sessions of the Wisconsin Legislature to put the amendment before voters.

  • First legislative approval in 1975: AJR 11 & JR 13
  • Second legislative approval in 1977: SJR 9 & JR 7[6]

See also

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