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Monday, July 18, 2011

Courts - "Ohio voters to decide issue of judges’ age"

By Indiana statute, appellate court judges must retire at age 75. Until this year's legislative session, many trial court judges in Indiana had to be less than 70 at the time they took office. See this long and informative ILB entry from Feb. 9, 2011 for details.

As noted in this April 29, 2011 entry, the law has now been changed and there is now no mandatory retirement age for Indiana Circuit and Superior Court judges.

Re Ohio, this April 13, 2011 story from the Columbus Dispatch reported that the Ohio General Assembly was considering a constitutional amendment that "would allow judges to run for election through age 75, up from the current limit of 70." It would apply to all Ohio judges, both trial and appellate. From the story:

The Ohio Prosecuting Attorneys Association is opposed to increasing the age limit, arguing it has improved judicial quality in Ohio. Executive Director John Murphy said just because life expectancy has increased, that does not mean the mental acuity of a 75-year-old person has improved.
Today Jim Provance, the Toledo Blade Columbus bureau chief, has this long story, headed "Ohio voters to decide issue of judges’ age: Retirement at 75, not 70, on Nov. 8 ballot." There is a lot that is interesting in the story. Some quotes:
With Ohioans living longer productive lives, voters will be asked this fall whether it's time to change a 38-year-old provision of the state Constitution that prohibits a judge from taking office after reaching the age of 70.

The question proposes a new age limit of 75.

"Certainly, people are capable of being effective judges after 70," said Judge McDonald, who will turn 70 in 2013. He emphasized that he's made no decision about running again when his term expires in 2014, should the ballot issue pass.

"My perspective is that, maybe when the law was written, 70 was a reasonable time," he said. "But now, with an aging population and medical advances, a lot of people are being effective after 70. Visiting judges are still able to judge."

Judge McDonald can complete his current term but can't run again.

"Why should there be [a mandatory retirement] age at all?" he asked. "It should be like the federal courts. Leave it up to the individual judge or voters. I know judges who retire in their 50s or 60s. Some are still going strong in their 70s. Seventy is kind of arbitrary. Seventy-five is kind of arbitrary."

Sixth District Court of Appeals Judge Peter Handwork, who will turn 70 in December, said he would run again in 2012 if voters allowed him to do so.

"The fact that this is being examined by the legislature and has now made it to the ballot is an indication that many people think this is necessary," he said. "I have no reason to disagree. People are living longer, are more active, and staying interested in things. You shouldn't say that just because someone reaches a particular age that they're no longer qualified."

But he also knows that means prosecutors and other lawyers who have been waiting in the wings for older judges to step aside so that they can get their turns at the bench may have to wait longer.

"They'll get their opportunity," he said. "By the way, they could run against me."

Judge Handwork has not had an election opponent since he first ran for the appellate court in 1982.

Judges are the only elected officials in Ohio who face age limits. Federal judges have no such limits. [ILB: Federal judges, of course, are appointed, not elected - see this entry.]

According to the state Supreme Court, the average age of Ohio's 717 sitting judges, from the high court bench to municipal courts, is 56. There are 275 who are 60 or older, and, of them, 22 are over 70 and cannot seek re-election.

A voice of dissent

The Ohio Prosecuting Attorneys Association has been a rare voice of dissent on the issue.

"We're a little concerned about elderly judges on the bench," spokesman John Murphy said. "Current law could permit a judge to serve up to age 75 or so. The current limit has worked well."

Depending on how close he or she is to the age of 70 when elected, a sitting judge could serve as late as age 75 under current constitutional language before being required to leave the bench.

Under the proposed language, that day of reckoning could be delayed as late as age 80.

The Supreme Court has routinely assigned visiting judges to courts on a temporary basis after age has forced them from the bench.

The prosecutors association doesn't buy the argument that there are effective systems in place to remove judges who may have stayed too long beyond their prime.

"People are reluctant to raise this issue with judges," Mr. Murphy said. "The people who are most likely to know are the lawyers who are practicing in that courtroom, and they're extremely reluctant to raise the issue."

Posted by Marcia Oddi on July 18, 2011 09:24 AM
Posted to Courts in general | Indiana Courts