Wisconsin becomes third state to consider tinkering with mandatory judicial retirement age to push judges off appellate courts

In the process of examining the issue changes to mandatory judicial retirement ages, I’ve noted that in many cases these are enshrined in state constitutions, making them effectively impossible to increase as voters have rejected such efforts. Now, however, there is a new pattern emerging to impose new, or decrease existing, retirement ages to remove currently serving appellate justices and judges, most recently in Wisconsin.

The first recent effort was in Kansas in May 2013. Members of the Kansas legislature, angry at the Kansas Supreme Court’s decisions proposed reducing the mandatory retirement age by statute from 75 (or more specifically the end of the term in which they hit 75) to the day that the appellate judge turned 65. I discussed that effort, formally introduced as HB 2415 in this post here.

The second effort was in Oklahoma in January 2014. While the state’s constitution allowed the legislature to set whatever age it wished for mandatory judicial retirement, the legislature never had. However members of the Oklahoma Senate, angry at the Oklahoma Supreme Court’s decisions striking down several laws proposed instituting for the first time such a retirement age. The bill (SB 1897) would have had the effect of removing almost all of the judges from the state’s Supreme Court and its other top court the Court of Criminal Appeals as discussed here. A similar bench-clearing bill (HB 3378) was introduced in the House. SB 1897 was approved by the Senate Pensions Committee but died before coming to a floor vote.

The third effort, alluded to just this week, is in Wisconsin. Like Oklahoma, the state’s constitution doesn’t specify a mandatory retirement age but leaves it to the legislature to decide (so long as it is not below age 70). A member of the Wisconsin legislature has begun circulating a draft bill to impose a mandatory retirement age on judges of 75 or 80. The purported target of the bill is 80 year-old Chief Justice Shirley Abrahamson. The Chief Justice is already the indirect target of another bill, proposed and passed last session, that could end her chief justiceship. The state’s constitution provides the longest serving justice is automatically chief justice, in this case Abrahamson. However, a constitutional amendment passed in 2014 and up for re-passage in the 2015/2016 session would allow the court’s members to pick the chief justice.

Some additional background.

Looking just at appellate judges 33 states have a mandatory judicial retirement age for appellate judges. Of these, 18 states have age specified in the state’s constitution: Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, and Wyoming.

The remaining states implicitly or explicitly grant the legislature some room for activity in this area.

  • Use of retirement systems/pensions to force out of office: Several states such as Arkansas, Kansas, South Carolina, and South Dakota have no specific constitutional provision for the mandatory retirement of the state’s judges. Instead, there are statutes that specify if a judge does NOT retire at a particular age they forfeit some/all/most of their retirement and pension. This system was relatively common in the early 1900s; California had a similar system of diminishing judicial benefits to entice retirement that was upheld as constitutional (Rittenband v. Cory, 159 Cal. App. 3d 410) but later abandoned (AB 1297 of 1991).
  • Explicit but limited delegation to the legislature: A few states grant the legislature a “range” within which to work. Oregon’s constitution sets the age at 75 but allows the legislature to lower it but never beyond age 70. Vermont’s constitution lets its legislature pick any age from 75 to 90 or if the legislature opted not to pick an age, 75 (the legislature set it at 90). The state of Washington’s constitution sets the mandatory retirement age at 75 but then lets the legislature lower it 70. Wisconsin allows the legislature to set any age for mandatory retirement that is above 70. So far, they have declined to do so.
  • Explicit unlimited delegation to the legislature: The legislatures of Illinois (Art. 6, Sec. 15), Indiana (Art. VII, Sec. 11), Iowa (Art. V, Sec. 18), Minnesota (Art. 6, Sec. 9), North Carolina (Art. IV, Sec. 6), Oklahoma (Art. VII, Sec. 11), and Utah (Art. VIII, Sec. 15), have effectively unfettered discretion to set a mandatory judicial retirement age as they see fit, however there are constitutional limits. The Illinois Supreme Court struck down its mandatory retirement statute on equal protection grounds – the way the law was drafted judges who hit the age of 75 were “automatically” retired, but a 75 year old who never served in judicial office could run for a judgeship and win (Maddux v. Blagojevich, 233 Ill. 2d 508 (2009)).