A Cross-Section of Trends in Judicial Retirement

March 27, 2013

A special report by: the State Court Staff

Pick up any newspaper regularly and you are likely to see commentary on the state of the judiciary. Some feel that the judiciary is above reproach, their decisions the epitome of wisdom and knowledge. Others feel that the judiciary has overstepped the boundaries laid out for it by both the Constitution and Congress. There is an occasional argument that older judges should be forced to retire before their decision-making capacity is compromised.

It is this second group, however, which has perhaps been the most vocal in the last decade. Across the country, states are making changes to the way judicial retirements are handled, including forced retirement at certain ages and changes to pensions.

Below is a short sampling of three states, each providing a flavor of some of the current trends in judicial retirement.

New York

New York, like many other states, currently places the retirement age for state judges at 70. That age would be raised to 80 by a proposed amendment to the state constitution, which was approved by the New York State Assembly on February 28, 2013. The approval by the State Assembly was just the first step, as the proposed amendment must now be approved by the Senate and then passed by popular vote in a referendum. While the amendment's approval by the Senate is not guaranteed, the passing of the measure June 2012 by a 61-1 margin seems to make approval by the Senate likely.

Currently, state Supreme Court Justices must retire at 70, or be certified every two years until age 76. Court of Appeals judges, however, may not be certified beyond the mandatory retirement age of 70. The proposed amendment would raise the retirement age to 80 for all state judges and would mean that Court of Appeals judges would not have to be certified. Supreme Court justices would still be required to be certified when they reach age 74, until mandatory retirement. The proposed amendment would not allow an appointment to the Court of Appeals of anyone older than 70.

While both Assembly Speaker Sheldon Silver and Assembly Judiciary Committee Chair Helene Weinstein view the current law as outdated, Queens Democrat Tony Avella voted against the measure last year because he feels that greater turnover will lead to fresher thinking in the courts.

Pennsylvania

For Pennsylvania judge Leonard Zito, next year's job prospects are up in the air.

Zito, 69, along with seven other Pennsylvania judges, are suing in federal court to protest a 43-year-old state constitutional amendment mandating the retirement of judges 70 and older. Citing "societal and demographic changes" that make for longer lives and healthier aging, the judges' complaint seeks to supersede previous rulings such as the U.S. Supreme Court's Gregory v. Ashcroft (1990), in which a similar requirement was sustained in Missouri, and the Third Circuit's Malmed v. Thornburgh (1980).

The case, which is set to appear before the U.S. District Court for the Western District of Pennsylvania, is not the only of its kind across the nation—legislators in 14 states have proposed bills this year that either eliminate or extend the mandatory retirement age for judges.

Though acknowledging that the risk of mental deterioration escalates with age, the plaintiffs in Pennsylvania insist that by upholding this provision the courts are rejecting some of their most competent public servants.

They write,

“

To be a good judge requires good judgment, and judgment is a function of, inter alia, age and experience, which is tied inextricably to age. Indeed, judicial performance typically peaks late in life."

”

On March 4, defendant and Pennsylvania Governor Tom Corbett put forth an 18-page brief in defense of the retirement provision, asking the federal courts to dismiss the case. He reiterated the reasons the provision still stands:

“

First, increasing judicial manpower by bringing in younger judges … Second, eliminating the unpleasantness of removing senile judges on an individual basis. Third, preventing harm to the litigants and the entire judicial system caused by a few senile judges. And fourth, the provision corresponds with mandatory retirement in other private and public employment.

”

Robert C. Heim, one of the attorneys representing the judges, commented two days later that such a brief to be expected and “we will be replying in due course.”

Rhode Island

Although Rhode Island has no mandatory retirement age for its judges, the state has made big changes to its pension system.

Judicial Retirement Pensions

In November 2011, Rhode Island legislators enacted the Rhode Island Retirement Security Act of 2011 (RIRSA) aimed at sweeping pension reforms to its Employees’ Retirement System of Rhode Island (ERSRI), the state's largest public employee pension system. RIRSA took effect in July of 2012, and largely addressed the rise of pension costs as applied to current, future, and presently retired judges, teachers, public safety personnel and states employees. It also addressed a number of liabilities that have affected its pension systems such as cost of living adjustments, contributions of employees and employers, retirement ages, and plans for future benefits.

Judges of the Supreme, Superior, District Courts, Workers' Compensation Court, and Traffic Tribunal who were engaged after December 31, 1989 are required to become members of ERSRI. ERSRI administers and invests assets for the Judicial Retirement Benefits Trust (JRBT) which funds the pension benefits for state judges. The JRBT currently provides for 65 members total (53 active members and 12 retirees and beneficiaries). Under RIRSA, all judges must now contribute 12 percent of their income to their defined contribution plans. As such, judges are eligible to retire at age 65 with 20 years of contributing service or at the age of 70 with 15 years of contributing service. Judges hired after July 1, 2009 will be eligible for benefits calculated on the average of the highest five consecutive years of salary and will also be able to earn up to 80 percent of their final average compensation. Cost of Living Adjustments (COLAs) are currently suspended for judges until funding levels under RIRSA for all groups exceed 80%.

Legal Challenges

See also: Wikipension: Rhode Island

The Rhode Island Supreme Court resolved the most recent challenge to ERSRI when it held that a public official was owed the reimbursement of his retirement contributions even though he had been convicted of eight felony counts for unethical behavior. The court stated that since the government had only sought forfeiture of all ill-begotten funds and not restitution for his crimes, the retirement contributions should be reimbursed.

See also

For more information about judicial retirements, check out Judgepedia's Retired Judges Report. Starting April 1, 2013, this monthly report will cover state-level judicial retirements across the nation.

External links

• Judicial Retirement Data by State