I’ve examined the dozens of bills introduced in the last several years to increase or eliminate mandatory judicial retirement ages. Hawaii itself tried, and failed, to increase the age in 2006. Now the state is considering a constitutional method that would maintain the retirement age but allow for the use of such retired judges via a new judicial position: emeritus judge.
Under SB 650 of 2012, on the November ballot as Amendment 3, the state’s chief justice would be permitted to recall into service judged forced into retirement due to the age limit for three month periods. The “emeritus judges” would be available for service as temporary judges in courts no higher than the court level they reached prior to retirement, thus a former Supreme Court judge could sit in the lowest trial court (District) but not vice versa. A provision in the original text of SB 650, one that would have also allowed for the retired judges to serve as “judicial mentors”, but this provision was amended out over concerns that the mentor would do more than just advise new(er) judges on court operations and procedures and instead influence judicial decisions.
What makes Hawaii’s provision potentially unique is the provision allowing judges over the mandatory retirement age to come back and serve as judges. While most states have some sort of statute or court-rule allowing retired judges below the mandatory retirement age to come back into judicial service, they are contingent on the judge remaining below that threshold, or serving in some non-judicial role (such as a special master, hearing officer, etc.)