New York Proposal 6: Prior efforts to increase mandatory judicial retirement ages have had mixed success at the ballot box

New York voters will head to the polls in November to decide the fate of Proposal 6, marking the ninth time in the last two decades the question of judicial retirement has been on the ballot. Of the nine, voters have only approved four; three minor increases and a plan to let the legislature pick the retirement age.

Successes

Louisiana Measure 15 (2003): 8 years after voters rejected an increase in the mandatory judicial retirement age (see below) the Louisiana legislature tried again, this time with a different approach. The constitution had required a judge retire on his or her seventieth birthday. Measure 15 allowed for the judge to serve out the remainder of the term in which they hit 70. That amendment was approved by voters 53-47%.

Pennsylvania Amendment 2 (2001): Pennsylvania’s constitution had previously required, much like Louisiana’s, a judge to retire on their seventieth birthday. Amendment 1 allowed the judge to serve until the end of the calendar year in which they attain the age of 70 years. It was approved with 67.5% of the votes in the affirmative.

Texas Proposition 14 (2007): Like Louisiana and Pennsylvania, Texas had a retire-on-your-birthday requirement for judges reaching the mandatory retirement age, in the case of Texas 75. Proposition 14 allows judges to serve out the remainder of their term provided they served at least 4 years out of their 6 year term. Thus a judge who hit 75 the first year in office must retire on his or her birthday, a judge who hit 75 in the fifth year could finish out the term. The proposal was approved 75-25%.

Vermont Retirement Age for Judges Amendment (2002): Unlike other amendments which set particular times for mandatory retirement, the 2002 Vermont proposal simply allowed the General Assembly leeway. The constitution retained the mandatory retirement age it had had since at least 1974: end of the calendar year in which judge reaches 70. The 2002 Amendment added language to allow the General Assembly to set a new age between “the end of the calendar year in which [judges] attain seventy years of age or at the end of the term of election during which they attain ninety years of age.” The proposal passed 64-36%. The legislature then set the mandatory retirement age as the end of the calendar year the judge turns 90.

Failures

Arizona Proposition 115 (2012): This proposal was effectively three constitutional amendments in one. The first increased the mandatory retirement age for judges from 70 to 75. The second increased to 8 years the term of office for Supreme, Court of Appeals, and Superior Court judges. The third altered numerous provisions related to the state’s merit selection system. The proposal was ultimately rejected by voters 27-73%

Hawaii Amendment 3 (2006): In 2005, Hawaii was faced with a Republican Governor with the power to appoint judges in the state (something which had not happened since 1962), a very Democratic legislature, and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a standalone constitutional amendment eliminating the retirement age outright. Numerous political leaders, including the Democratic Attorney General came out against it as overtly political and it was defeated with a 58% No vote.

Hawaii Amendment 2 (2012): Rather than increase, or eliminate, the mandatory retirement age for judges, Hawaii’s legislature in 2012 sought a middle ground with Amendment 2. This constitutional amendment would have kept the retirement age at 70, but allowed the state’s chief justice to effectively recertify and call back into service retired judges for 3 month increments. Amendment 2 failed, but not as in 2006 due to no votes. Under Hawaiian law, a constitutional amendment must receive a majority of votes of all those who cast ballots at the election. The final result: only 49.6% in favor, 39.9% opposed, with 10.4% not voting.

Louisiana Amendment 4 (1995): This was an effort to increase the state’s mandatory judicial retirement age from 70 to 75. Among the 14 items on the 1995 ballot, it was one of only two that lost. The loss can at least in part be attributed to bad timing; the same 1995 ballot included as Amendment 2 term limits for the legislature. Amendment 2 passed overwhelmingly 75%-25%, making the “mere” 38%-62% drubbing Amendment 4 took somewhat remarkable.

Ohio Issue 1 (2011): Ohio’s Issue 1 had eerie similarities to Louisiana’s Amendment 4 of 1995. In both cases the attempt was to increase the mandatory retirement age from 70 to 75. In both cases, the amendments were put into what was probably the worst possible ballot for the issue in a decade. The 2011 elections in Ohio saw vocal opposition to the other items on the ballot. Issue 2 was an effort to limit collective bargaining rights for public employees. Issue 3 purported to exempt Ohio residence from any national health care mandates. The state Democratic Party came out with its “No-No-No” position: no on all measures. Meanwhile the Ohio Republican party had no apparent position on Measure 1, while backing Yes votes on Issues 2 and 3. Issue 1 lost 38-62% (for my review of the vote tallies at the time, click here).

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