Election 2016 and the Judiciary

William Raftery, Knowledge and Information Services Analyst, National Center for State Courts

In a presidential election year, it is easy to lose sight of down-ballot items that have implications for state courts. This November, states will ask voters to decide initiatives involving judicial discipline and retirement.

Every election year, voters are asked to cast votes for both candidates and, in many states, ballot items. In the last several years, state ballots have included items directly related to state courts, and 2016 is no exception. The trend has been for greater legislative and public involvement in attempts to restructure and change the ways courts operate and function, as borne out by the latest series of efforts set to be voted on this November.

Control of Judicial Qualifications/Disciplinary Commissions

Since the creation of the first such permanent commission in California in 1960, judicial qualifications/disciplinary panels have been deliberately made up mostly or entirely of judges and attorneys chosen by the bar and courts. To the extent the legislature has had a role, it has usually been limited to confirming appointments or naming a few members. The commissions were designed to serve as an alternative to the legislature’s existing powers to impeach and remove judicial officials from office. This balance, however, has been challenged by legislatures recently. In 2016 the Georgia legislature sent to voters a plan to re-create that state’s Judicial Qualifications Commission (JQC) and allow for the legislature to take control. When the Georgia commission was first put into place in the 1970s, its membership was spelled out in the constitution itself: two judges picked by the supreme court, three attorneys picked by the state bar, and two non-attorneys picked by the governor. The amendment up for a vote this fall would eliminate the membership criteria and allow the legislature to set its own. The Georgia legislature has already enacted legislation that would go into effect if the amendment is approved, with legislative leaders picking four out of seven members of the new JQC.

The Georgia effort is the latest in a trend of legislatures moving to assert more control over these commissions, particularly in terms of membership. For example, Tennessee’s old 16-member Court of the Judiciary gave only 2 seats to legislative leaders and 1 to the governor; the other 13 members were chosen by judges or the state bar’s board of governors. In 2012 a new 16-member Board of Judicial Conduct was created, with legislative leaders naming 6 members and the governor 2.

Mandatory Retirement Ages for Judges

One of the rationales for the creation of JQCs was the ability to remove judicial officials who had, as Alexander Hamilton put it in Federalist No. 79, aged into “inability.” Before JQCs, the more common mechanism was the use of mandatory judicial retirement ages, a practice that still exists in 32 states. Voters in Pennsylvania this November will be deciding on whether to raise that state’s mandatory retirement age, while Oregon voters will be deciding whether to eliminate it altogether. 

Mandatory judicial retirement ages date back to the post-Revolutionary period. The assumption was that past a certain age judges would be too old to serve. This was not only just a question of mental competency; judges in this time period often had to “ride circuit” in arduous conditions. If a judge was simply unable to do so, but refused to leave office, the only recourse was impeachment; however, simply being “too old” was not an impeachable offense. The compromise struck was the creation of mandatory retirement ages ranging from 60 to 70. Today, 70 remains the most common mandatory judicial retirement age, although some states set higher ones; Vermont has the highest at 90. As states developed retirement/pension systems, these began to be used to force judges out as well. In some states there is no “mandatory” retirement age; however, judges who remain past a certain date forfeit some or all of their retirement benefits.

The recourse, then, for removing these provisions was either to seek their repeal or challenge them in court. Lawsuits against such statutes and constitutional provisions have failed. In 1992 the U.S. Supreme Court held in Gregory v. Ashcroft that the continued practice in states of imposing such ages did not violate the Age Discrimination in Employment Act; moreover, state and federal courts have found these provisions do not violate either state or federal constitutional provisions. Most recently, the Arkansas Supreme Court had before it a challenge to that state’s law that eliminated retirement benefits for judges who run for reelection after they turn 70. In June 2016 the court upheld the statute—see Landers v. Stone, 2016 Ark. 272 (Ark. 2016).

With lawsuits proving ineffective at challenging these laws, judges have turned toward legislative remedies. Where the provisions are set by statute, legislators have been amenable to repeal or increases, but only to a limited degree. Indiana, for example, eliminated the mandatory retirement age for trial judges but balked at eliminating it for appellate judges. Virginia’s legislature, which not only sets the judicial retirement age but also selects all judges in the state, debated an increase for almost a decade before finally settling on a compromise that would raise the age for appellate judges but require trial judges to be reelected by the legislature itself before receiving the increase.

While legislative successes have been rare, successes at the ballot box have been essentially nonexistent. Since 1995 there have been 11 constitutional amendments sent to voters to increase or eliminate the mandatory retirement ages for judges, with only 4 being approved. Moreover, 3 of these 4 were, in effect, minor changes, allowing judges to serve out the remainder of the year (Pennsylvania 2001) or the remainder of the term in which they reach the retirement age (Louisiana 2003, Texas 2007). Of the other 7 efforts, most have been rejected handily, often with less than a 33 percent yes vote. All that said, it is clear that as life expectancies increase and judges remain active and vital for longer periods of their life, the pressure to repeal or increase these ages will continue.

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.