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).