Dec. 17, 2014 – A Wisconsin lawmaker is floating a proposal to impose a mandatory retirement age of 75 on judges, including justices of the Wisconsin Supreme Court.
Dean Knudson (R-Hudson), who was elected to the Assembly in 2011, says a constitutional amendment passed by the voters in 1977 “requires” the legislature to set a mandatory retirement age for state judges, and his proposal merely fulfills that duty.
The constitutional provision at issue, Wis. Const. Art. VII, s. 24(2), states that “no person may serve as a supreme court justice or judge of a court of record beyond the July 31 following the date on which such person attains that age … which the legislature shall prescribe by law.” Under that provision, the age prescribed must be 70 or older.
Knudson says the word “shall” means the legislature “must” set a mandatory retirement age. “I view it as a simple matter of doing what we are required to,” said Rep. Knudson, who reportedly prefers age 75 but may be open to a different number.
“The purpose of the proposal is simple: fulfill our constitutional duty as mandated by the voters in 1977. I don’t view this measure in terms of helping or hurting the judiciary,” Knudson said.
This view poses an interesting question. If the 1977 amendment requires the legislature to impose a mandatory retirement age on judges, why has it not done so in 37 years? Rep. Knudson said he could not speak to why previous legislatures failed to meet what he views as an obligation, but said he raised the issue not long after taking his post in 2011.
Assembly Minority Leader Peter Barca (D-Kenosha) insists that Rep. Knudson’s plan is devised to unseat Supreme Court Chief Justice Shirley Abrahamson, who turned 81 today. A member of the supreme court for 38 years (since 1976) and chief justice for 18, Abrahamson has five years left on her current term, which expires in 2019.
"I will leave it to the legal and constitutional experts to debate the legal merits of this proposal, but this is clearly another attempt to take out the chief justice," Rep. Barca said.
Last year, Republicans passed the first consideration of a constitutional amendment that would allow the sitting justices to elect the chief, currently determined by seniority. A second consideration, followed by a voter referendum, could occur in 2015.
"Republicans are not satisfied when they lose any elections – they also want to interfere with the judicial branch," Barca said. "The voters were fully aware of the chief justice’s age when they elected her and I expect she will fulfill her term as will Justices Crooks and Roggensack."
Whatever the motivation, such a measure would immediately impact at least three justices on the Wisconsin Supreme Court, as well as other judges statewide, unless some sort of “grandfather” clause allowed sitting judges to serve out their terms.
Currently, judges have no age restrictions. Periodic elections are the only barrier to continued service on the bench in Wisconsin. Elections for supreme court justices are held every 10 years. Circuit and appeals court judges face election every six years.
Wisconsin actually had a mandatory retirement age of 70 from 1955 to 1977, a measure passed by voters as a constitutional amendment. Voters eliminated the mandatory retirement age in 1977 but left the authority to impose one with the state legislature.
Age of Wisconsin Circuit Court Judges
Data: State Bar of Wisconsin
Chief Justice Abrahamson would not be the only supreme court justice immediately impacted by a mandatory retirement age of 75. Justice Patrick Crooks is currently 77.
Justice Patience Roggensack, elected just last year to a 10-year term, turns 75 in July. Even if the retirement age limit were set at 80, Roggensack’s term would end three years early. In addition, Justice David Prosser’s 10-year term, which expires in 2021 would be cut short if the mandatory retirement age was set at 75. Prosser is 71.
No appeals court judges would be immediately impacted by a mandatory retirement age of 75, although three judges are between the ages of 68 and 71, including Chief Appeals Court Judge Richard Brown (District II), who is 68 years old.
At the circuit court level, two judges – Michael Wilk of Kenosha County and William Dyke of Iowa County– are age 75 or older. Judge Dyke is 84 years old. Only 13 of the state’s 249 circuit judges are 70 or older, but 40 judges are over the age of 65.
Thus, three supreme court justices and two circuit judges would be forced into retirement if a mandatory retirement age of 75 were imposed next year. The governor would appoint successors, who would face election in the following spring cycle.
View from the Bench
According to former Wisconsin Supreme Court Justice Janine Geske (1993-1998), nothing stops voters from considering age when voting in judicial elections. Thus, she’s not in favor of any legislative mandate to force good judges into early retirement.
“We can see from the U.S. Supreme Court that justices can continue to do their work well even in advanced age,” Geske said. “The experience and wisdom that a judge gains over the years can be incredibly enriching to a collegial court's deliberations.”
Age of Wisconsin Appeals Court Judges
Data: State Bar of Wisconsin
Federal judges, including justices of the U.S. Supreme Court, are appointed and have no mandatory retirement age. Four justices – Antonin Scalia (78), Anthony Kennedy (78), Ruth Bader Ginsburg (81), and Stephen Breyer (76) – are over the age of 75.
Brian MacKenzie, president of the American Judges Association (AJA), says the AJA disfavors mandatory retirement ages as arbitrary and based on outmoded ideas about aging, since individuals now live longer and healthier lives than previous decades (note: the current average life expectancy is 78; it was 68 in 1955; 50 in 1910).
“The position of the AJA is that an arbitrary age limit makes no sense,” said MacKenzie, a judge in Michigan, which has a mandatory retirement age of 70. MacKenzie reiterates that in election states like Wisconsin, voters can decide if a judge should age out.
MacKenzie also noted that judges are subject to states’ ethical rules. In Wisconsin, for instance, the Wisconsin Judicial Commission can remove judges who fail to perform official duties or have a disability that “substantially impairs his or her judicial performance and that is likely to be of a permanent or continuing nature.”
“One might agree that removing judges for cause makes a little more sense than removing them because they’ve reached a certain age,” Judge MacKenzie noted.
Milwaukee Circuit Court Judge Mary Kuhnmuench, president of the Wisconsin Trial Judges Association, says that group will await an actual bill before taking any position. But in general, she says mandatory retirement ages are built on a false premise.
“Competence is not a function of age. It’s the result of lifelong learning and diligence and openness to changing technology,” Judge Kuhnmuench said. “The aging process is very different for every human being and it’s impacted by many different factors.”
“Being an elder statesman or stateswoman used to be a term of endearment and not an indictment of our capabilities or our competencies,” she said.
If the goal is to determine the point at which Wisconsin judges lose their edge, any legislation for a mandatory retirement age will miss the mark, Judge Kuhnmuench says.
“My overall reaction to it is that Wisconsin has a long and proud tradition of electing its judges and justices. We have left the decision on when it’s time for a judge to leave the bench in the hands of the public where it belongs, be that at 38 or 88,” she said.
What About the 16-Year Term Proposal?
A mandatory retirement age could potentially impact another proposal, backed by the State Bar of Wisconsin, which would limit supreme court justices to one, 16-year term.
The proposal, which would require a constitutional amendment, is designed to eliminate the need for sitting justices to engage in campaigns for reelection.
If that proposal passed, a mandatory retirement age of 75 would require individuals to run by the age of 59 in order to sit for a full, 16-year term. But attorney John Orton, chair of the steering committee that is pushing the State Bar proposal, notes that the average term for a supreme court justice is 13 years, and many justices serve less than that.
“A mandatory retirement age does not address the problem which the State Bar’s proposal is designed to address,” Orton said.
“We believe that requiring sitting justices to run for re-election, at any age, distracts justices from the job of making decisions based solely on the facts and the law, and injects money, politics, and other ills into the important business of our supreme court. Hence, the proposal for a mandatory retirement age does not affect the State Bar’s proposal to elect justices to a single 16-year term.”
What About Other States?
According to Bill Raftery at the National Center for State Courts, 33 states have a mandatory retirement age for appellate judges, many in the range of 70 to 75. Vermont has the highest mandatory retirement age – judges there must retire by age 90.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Some states, including South Dakota and South Carolina, provide that a judge who does not retire by a certain age may forfeit certain retirement or pension benefits.
Other states won’t let individuals become elected or appointed after a certain age, but justices who hit the magic number during their term are allowed to serve out the term.
In a recent blog post, Raftery said Wisconsin is the third state legislature to tinker with mandatory retirement ages in recent years. A pending Oklahoma proposal would require a judge to retire when the sum of their age and years of service equals 80.
Under this so-called “bench-clearing bill,” Raftery says the measure would force almost all members of the Oklahoma Supreme Court into retirement, reflecting the Oklahoma Senate’s animosity toward the court for striking down several laws. Last year in Kansas, legislators attempted but failed to reduce the mandatory retirement age from 75 to 65.
Rep. Knudson notes that other states have tried to increase the mandatory retirement age, but those efforts failed, evidence that people support mandatory retirement ages.
He said Louisiana voters defeated a referendum to remove a mandatory retirement age and attempts to raise the retirement age from 70 to 80 failed in New York and Hawaii.
While judges may be subject to mandatory retirement ages, no corresponding provision or law applies to executive and legislative branch members, at least not in Wisconsin.