ILNews

IBA: Trial Judges No Longer Required to Retire

Back to TopCommentsE-mailPrintBookmark and Share

 

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).

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  5. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

ADVERTISEMENT