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Vol. 85, No. 2, February 2012
Reestablish Justices’ Mandatory Retirement Date
Joseph Ranney’s article “Choosing Our Judges: Wisconsin’s Longstanding Debate” in the December 2011 issue provided an interesting and informative discussion of merit selection versus election of Wisconsin supreme court justices. But the article failed to mention perhaps the most important event in recent history to influence how this state chooses its high court members.
Prior to 1977, the state constitution contained a provision requiring mandatory retirement of supreme court justices on the July 31 following their 70th birthdays – a restriction that rankled the justices for years. Then, in 1977, they seized the opportunity to eliminate mandatory retirement by inserting a constitutional amendment into the proposed amendments adopting “court reform,” which established the court of appeals.
The ballot provision concerning retirement that was presented to voters was misleadingly phrased to make it appear that a mandatory retirement age for justices was being newly established by the proposed constitutional amendment. The change actually removed the mandatory retirement age from the constitution and gave the legislature the authority to set a retirement age for justices at not less than 70 years. (Wis. Const., art. 7, § 24(2).) Although the current constitutional provision regarding retirement contains the word “shall,” the legislature has never acted to establish a mandatory retirement age for justices.
Prior to 1977, a justice who was required to retire on July 31 after reaching the age of 70 was replaced by gubernatorial appointment rather than election. In fact, during the period in which a constitutional mandatory retirement age was in effect (1955-1977), more justices were initially selected by gubernatorial appointment than by election. Since 1977, justices have usually completed their entire terms and been replaced by elected justices rather than by justices appointed by the governor. This trend will probably continue into the indefinite future.
The legislature could reestablish the pre-1977 balance toward more justices initially appointed by the governor, rather than chosen via election, by statutorily adopting a mandatory retirement date for supreme court justices of July 31 following their 70th birthdays. Something to think about.