Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

I’ve mentioned in the past the sheer volume of bills, particularly in the last 3 years, to increase or eliminate the mandatory retirement age for judges. So far while there has been a great deal of activity no state has been able to get an increase or elimination either onto the governor’s desk or before the voters.

Hawaii in particular looks to be the most likely to get an increase or elimination, but it not at all clear how the state legislature will fare and how the voters will react. Hawaii has a particular history with the subject of mandatory judicial retirement, one that does not suggest adoption is certain.

2005-2006 session: Eliminate it

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise it

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Increase it and/or work around it

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Increase it and/or work around it (again)

Despite the loss in 2012, the legislature appears inclined to try and repropose the judge emeritus concept again to voters. HB 275 and SB 346 effectively cut and paste the language that was on the November 2012 ballot. The difference here would be that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

SB 650 of 2012: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

HB 275 of 2013 (as approved by House): The chief justice may appoint judges and justices who have retired as emeritus judges, permitting the appointed judges and justices to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per appointment.

SB 346 of 2013: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

 HB 275 as amended was approved unanimously by the full House February 28.

HB 792, SB 886 and SB 1022 all increase the mandatory judicial retirement age from 70 to 80. Of the three, it is SB 886 which has had the greatest success; it was approved unanimously by the Senate February 15 and unanimously by the House Judiciary Committee March 7. The next hurdle is the House Finance Committee. Despite the swift passage so far, it could be delayed up to a year and carried over until the 2014 session (as occurred with SB 650, mentioned above).

The latest status report on the bills in Hawaii and the other 16 states considering the issue this session are below the fold.

State Number Description Last Action
Arkansas SB 201 Repeals automatic loss of retirement benefits for judges who seek office after reaching 70 years of age. (Although technically the state has no mandatory retirement age, this provision effectively forces judges to retire). In Joint Committee on Public Retirement & Social Security Programs.
Florida HJR 747 (Constitutional Amendment) Increases mandatory judicial retirement age from 70 to 75, but only for judges elected or appointed after January 1, 2014. In House Judiciary Committee.
Florida SJR 570 (Constitutional Amendment) Increases mandatory judicial retirement age from 70 to 75, but only for judges elected or appointed after January 1, 2014. In Senate Judiciary Committee.
Hawaii HB 792 (Constitutional Amendment) Increases mandatory judicial retirement age from 70 to 80. In House Judiciary Committee.
Hawaii SB 886 (Constitutional Amendment) Increases the mandatory retirement age for justices and judges from 70 to 80 years of age. Approved by House Judiciary Committee 3/7/13.
Hawaii SB 1022 (Constitutional Amendment) Increases mandatory judicial retirement age from 70 to 80. In Senate Judiciary Committee.
Indiana SB 124 Removes a provision that requires justices of the supreme court and judges of the court of appeals to retire at 75 years of age. Approved by full Senate 2/12/13.
Louisiana SB 5 (Constitutional Amendment) Eliminates mandatory judicial retirement age. In Senate Judiciary A Committee.
Massachusetts HB 68 (Constitutional Amendment) Increases mandatory retirement age from 70 to 76. In Joint Committee on the Judiciary.
Michigan SJR 5 (Constitutional Amendment) Removes prohibition on judges being elected or appointed after the age of 70. Approved by Senate Judiciary Committee 1/31/13.
New Hampshire HB 281 Permits retired judges over the age of 70 to serve the courts under certain circumstances. Rejected by full House 2/6/13
New Jersey ACR 23 (Constitutional Amendment) Increases mandatory retirement age for judges and justices from 70 to 75. In Assembly Judiciary Committee.
New York SB 886 (Constitutional Amendment) Authorizes retired supreme court justices (in New York, the court of general jurisdiction is the supreme court) to serve as justice of supreme court until age 80. Provides that judges of the court of appeals need not retire until the end of the year in which they turn 80. Prohibits the appointment of any person over age 70 to the court of appeals. (NOTE: Second stage approval. First approval took place in 2011/2012 legislative session). In Senate Judiciary Committee.
North Carolina HB 12 Increases mandatory retirement age from 72 to 75. In House Judiciary A Committee.
Pennsylvania HB 79 (Constitutional Amendment) Increases mandatory retirement age for judges from 70 to 75. In House Judiciary Committee.
Pennsylvania SB 85 (Constitutional Amendment) Abolishes mandatory judicial retirement age. In Senate Judiciary Committee.
Pennsylvania SB 368 (Constitutional Amendment) Increases mandatory judicial retirement age from 70 to 75. In Senate Judiciary Committee.
South Carolina SB 71 Removing age limit above which a judge cannot join the judicial retirement system. Removes requirement that members of judicial retirement system retire by end of calendar year they turn 72. Removes mandatory retirement age for magistrates. In Senate Finance Committee.
Virginia SB 740 Increases mandatory judicial retirement age from 70 to 73. Killed by House Courts of Justice, Civil Subcommittee 2/11/13.
Virginia SB 762 Increases mandatory judicial retirement age from 70 to 73. Incorporated into SB 740.
Washington HB 1266 Extends mandatory retirement age for district court judges only from end of year judge turns 75 to end of term of office judge turns 75. Approved by full House 3/4/13.
Washington SB 5046 Extends mandatory retirement age for district court judges only from end of year judge turns 75 to end of term of office judge turns 75. Approved by full Senate 1/30/13.
Wyoming HB 167 Increases mandatory retirement for supreme court and district court judges from 70 to 75. Imposes mandatory retirement age for circuit judges as 75. Approved by House Judiciary Committee 1/21/13. Approved by full House 1/24/13. Died when legislature adjourned 2/28/13.
Wyoming HJR 1 (Constitutional Amendment) Eliminates mandatory retirement for judges (currently at 70). Approved by House Judiciary Committee 1/15/13. Approved by full House 1/17/13. Died when legislature adjourned 2/28/13.