When should judges be forced to retire?
by By Dan Heilman dan.heilman@minnlawyer.com
Some feel 70 is too young; others wouldn’t mind getting rid of mandatory retirement.
Legislators aren’t told when to retire. Neither are mayors, county commissioners or any other elected officials in Minnesota. Members of the federal judiciary can serve as long as they want. But state court judges in Minnesota have to retire at age 70, when many are still vibrant and would like to continue to serve on the bench.
As reported in the March 19 edition, there is currently a move on in the Legislature to raise the mandatory retirement age for judges from 70 to 75. This week, Minnesota Lawyer takes a closer look at the ramifications of the proposal, which was introduced last month with joint bills in the House (HF 1647) and Senate (SF 1708).
Rep Steve Simon, D.-St. Louis Park, and Rep. John Berns, R-Wayzata, the co-authors of the House bill, introduced it to spotlight the continuing vitality of older judges, and the need to encourage older attorneys to make the jump to the bench.
Simon said the Minnesota law dictating judicial retirement was put in place in 1973 in response to the refusal of two judges (whom Simon didn’t name) to retire, despite the fact that they were well past the point of effectiveness.
“Someone who was present when that law was made told me that in the back of people’s minds were these two bad apples who needed to be dealt with,” he said. “So the law solved a short-term problem, but created a long-term problem.”
If passed, the legislation would not retroactively reinstate judges younger than 75 who have already been retired. But it would have the most immediate and obvious effect on judges who are nearing 70 and would be forced to reconsider retirement plans.
“I’ve only been a judge for 10 years, and I like the idea of working past 70,” said Ramsey County District Court Judge Michael F. Fetsch, who is 67. “I have plenty of energy and ambition, not to mention experience that would be helpful in running the business of litigation.”
The appeal of a judge having years — sometimes decades — of experience to draw on is a recurring theme among those in favor of the legislation.
“You do have a lot of expertise that’s leaving,” said Hennepin County District Court Judge Harry S. Crump, who, at 69, will retire at the end of this year. “In Hennepin County, a majority of bench is turning over. There’s an advantage to having experienced judges — we don’t have to look up everything. If something comes up unexpectedly, I have 30 years of expertise to draw on.”
More experienced candidates
Another selling point of the bill has to do with the future of Minnesota’s judiciary. Simon said that having such a low mandatory retirement age in place discourages talented older lawyers from pursuing judicial ambitions for fear that they’ll be forced out as soon as they’ve become comfortable on the bench.
“There are many practitioners out there later in life who might consider moving on to the bench,” said Simon. “But they might forgo that opportunity if it’s only going to be for a few years. I imagine that dissuades some.”
Fetsch agreed. “I know a lot of my contemporaries would pursue their [judicial] ambitions if they didn’t think it would be five years and out,” he said.
The American Bar Association, at its recent National Conference of State Trial Judges, unanimously backed similar legislation in New York state. The ABA’s resolution stated, “across the country, many states are forcing their most experienced jurists off the bench because of arbitrary age limits” that are “based on outmoded ideas about aging.”
Policies on forced judicial retirement vary by state. Most states use either 70 or 75 as a benchmark for forcing judges to retire, while others, such as Ohio, ask judges to step down only once their docket is cleared following their 80th birthdays.
The issue occasionally causes controversy: Last year, voters in Hawaii defeated a proposed state constitutional amendment that would have eliminated the retirement age for judges of 70, leaving them free to work as long as they wanted to as long as they were reappointed.
In Minnesota, “retired” judges can still hear cases past the age of 70, but only on a designation basis, and usually without the benefit of staff or chambers.
“They’re like substitute teachers,” said Simon.
The Simon-Berns bill, if passed, would take effect on July 1. But it’s still being heard in the Legislature’s Judiciary Committee, and Simon expressed doubt that it would be passed this session. He said a number of details about the bill still need to be ironed out, most prominently where the money will come from to pay the salaries and pensions of judges who work five additional years.
“The fiscal impact is the only issue that’s led to any opposition to the bill,” said Simon.
But the bill’s proponents hope that the Legislature will heed the mounting evidence showing that Americans are staying active — and vital — later and later in life.
“My mom and dad’s whole lifestyle was different than mine,” said Fetsch. “I was playing hockey until a year ago when I hurt my back, and I still go to the gym four times a week. That just didn’t happen in previous generations — people are doing all kinds of things that they didn’t used to do.”
