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IBA: Trial Judges No Longer Required to Retire

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oakes-tim-mug Oakes

By The Hon. Timothy W. Oakes,Marion County Superior Court - Civil Division

I had this dream for retirement when I got elected judge: I would work until I was 68, near when I would be forced to retire by mandatory retirement (assuming the voters thought I was still doing a good job through each of my re-elections), fade off the scene to my boat on Lake Cumberland, maybe work in the winter part time as an usher or scorekeeper for the Pacers or Colts, read U.S. history books, see a musical or play every once in awhile, and generally ignore any pleas for money from my then-adult kids. My wife didn’t much like the idea (evidently the idea of living in Kentucky for any amount of time was abhorrent to her). I feigned suprise by her disapproval. I had no idea, though, that she was such good friends with another friend of mine, State Senator Jim Buck.

Senator Buck introduced Senate Bill 463 this past legislative session with little attention, much less fanfare. SB 463 essentially eliminated mandatory retirement ages for trial court judges in Indiana, easily passing the Senate 43-7 and the Indiana House 79-16. Governor Daniels signed it as part of a larger bill on unrelated issues. The only group on record as supporting the bill was the AARP, and no groups opposed it.

Currently, the Indiana State Constitution mandates that Indiana Court of Appeals and Supreme Court judges retire at the age of 75. Circuit Court judges have no requirement for retiring. Previously, different counties had different provisions regarding the mandatory retirement of their Superior Court judges, but most mandated that a Superior Court judge retire by 75 with many further requiring that a judge could not be 70 on the first day of their elected term in office. Senate Bill 463 eliminates those mandatory retirement ages now for trial court judges.

Senator Buck was quoted as saying, “[a]llowing judges to serve past 70 preserves institutional knowledge.” All I thought was that it would give my much younger wife an excuse to keep me working well past my stated goal—but I digress. After decades, if not a century, of mandatory retirement ages for judges in Indiana, why change now? Most other states also require mandatory retirement ages, although at least nine other states are considering eliminating or increasing their mandatory ages. Federal judges have no such mandatory retirement ages, but they do have senior status and retirement with full pay. One of the purposes of the federal statute is to induce federal judges to retire voluntarily.

Beginning with the Age Discrimination in Employment Act (ADEA) of 1967, our country has trended away from mandatory retirement ages in most sectors of employment. “90 is the new 70” and increased health and longevity enable people to work longer. Indeed, mandatory retirement ages have been eliminated almost entirely in the private sector. Arguments in favor of eliminating mandatory retirement for judges include the following:

People are living longer.

Mandatory retirement is unfair, discriminatory, and counterproductive.

Mandatory retirement is undemocratic by not allowing the public to elect judges.

Diversity of ages is important to the basic concept of fairness.

Experience on the bench is an advantage.

Interestingly, some sectors where mandatory retirement ages have been allowed are for executives or other employees in high, policy-making positions, and for firefighters and law enforcement officers. In 1991, the U.S. Supreme Court ruled state trial court judges were not covered by ADEA and that the mandatory retirement provision does not violate equal protection.

As a civics lesson, there are other distinguishable characteristics of a trial judge versus a legislator or executive branch public official who face no mandatory retirement ages. Trial judges stand alone, for the most part, in their decision-making. State legislators employ a host of staff, rely on the legislative services agency team of excellent lawyers, have their own caucus lawyers, and require at least a majority of their other 149 informed members to make a decision. Further, legislators are never required to pass anything other than an annual budget.

Executive branch officials have staff, their own team of lawyers, the Attorney General’s team of lawyers, department heads, departmental lawyers, and generally no shortage of advisors in reaching their decisions. Again, rarely are they required to act, and their tenure is often term-limited. Mandatory retirement ages for legislators and executive branch officials would seem to make little sense as any risk of diminished capacity is more than offset by other decision-makers in the process of their daily roles.

Trial court judges in Indiana, on the other hand, make their daily decisions mostly alone. Few, if any, employ full time law clerks. Judgments are required to be made daily and generally within thirty days of a request. Constitutional rights, individual liberties, and property often hang in the balance when those decisions are issued. Incumbent trial court judges also typically face little to no opposition to re-election. Thus, some would argue removing mandatory retirement ages for trial court judges effectively allows for “judges for life.” Is that reason enough to maintain mandatory retirement ages for trial court judges? I leave that question to others, but I believe it is safe to say that the face of the Indiana judiciary will change over the course of the next few decades as a result of SB 463..

My guess is that our trial court judiciary will age a bit over that time (there are federal trial court judges near or over 100). If judges stay longer, that also saves the state a small amount of money due to decreased payouts to pensions. It might also encourage veteran lawyers in their 60s and 70s, perhaps beyond their maximum earning capacity in a firm, to run for a judicial office who were unable financially to take the bench in their late 50s and 60s because their income was at its peak.

Another potential result of the legislation could be fewer prosecutors running for judge. In many counties, one natural path to the judiciary is via the prosecutor’s office. Yet, one genesis for this article was a news clip from Ohio wherein the Ohio Prosecuting Attorneys Association was opposing legislation raising the mandatory retirement ages for judges in Ohio because of that very fact—the mandatory retirement age forced turnover in the judiciary which created openings for prosecutors. With fewer openings, fewer prosecutors will be elected, and as noted above, perhaps there is more competition between experienced lawyers wishing to top off their career in the judiciary.

Other unforeseen repercussions could result from this legislation. Will the Indiana Judges Association begin an “It’s Time” Committee—members charged with examining and then perhaps suggesting to a fellow judge that his work product suggests that his time has come to retire before the Judicial Qualifications Committee intercedes? Based on federal legislative history, will there be proposed legislation in 20-40 years suggesting raising the pension package for judges as an incentive for them to leave? Will campaigns and voter patterns reflect a change in opinion toward judges after 70 or 80—producing unceremonious and perhaps ugly endings to some storied legal careers? Will Senator Buck now introduce legislation for a Constitutional amendment to eliminate mandatory retirement ages for appellate and Indiana Supreme Court judges, a much more rational proposal given those judges each have a plethora of law clerks and the benefit of peer review for their opinions?

Regardless, I still am hopeful that I am fortunate enough to retire when I am 68. But, thanks to my friend Senator Buck, I now have to come up with another reason for my wife other than “I am required.” Then again, maybe I’ll serve until I am 98.•

(Alexandra Tropea, 3L at IU Maurer School of Law at Bloomington and Joseph Hallahan, 2L at Washington University School of Law – St. Louis, summer law clerks for Judge Oakes, contributed to this article and research).

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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