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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. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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