The Daily Judge

Mandatory Retirement of Judges

The late Chief Justice Peter S. Popovich, with whom I was honored to work, was no fan of the law mandating retirement of judges at age 70. According to contemporaneous newspaper accounts (see, e.g., Mpls. Star-Tribune 08/06/1990), shortly before retiring at age 70 he suggested that the justices of the supreme court ought to support legislation to repeal the law and even considered challenging the constitutionality of the law. For the following reasons, I believe that Chief Justice Popovich was right and that it is time to retire the system of mandatory retirement of judges in Minnesota.

a) The Minnesota Constitution does not require the mandatory retirement of judges at a specified age; and, although the Minnesota Supreme Court assumed otherwise in upholding the legislation mandating retirement at age 70, the Constitution did not authorize such legislation.

b) The Minnesota Supreme Court's decision upholding the law, although precedential, was unpersuasive.

c) The experiment with mandatory retirement is a clear example of government discrimination against a grouping of people based on unfounded stereotypes that have been disproven.

d) The policy unwisely requires the retirement of the wisest, most experienced and, in many cases, most productive, most reliable, even healthiest judges.

e) The policy has had negative effects, seemingly unintended and unforeseen, including the exclusion of more experienced lawyers from consideration for appointment by the governor and, correspondingly, an increase in the appointment of relatively inexperienced, younger lawyers, depriving the system of the greater experience and wisdom of older lawyers.

f) Moreover, the system is costlier in economic terms than a nondiscriminatory system.

g) Finally, the policy is antidemocratic, depriving people of their right to elect judges of their choice.

The Minnesota Constitution does not require the mandatory retirement of judges at a specified age; and, although the Minnesota Supreme Court assumed otherwise in upholding the legislation mandating retirement at age 70, the 1956 Amendment to the Constitution, on which the legislature and the court relied, did not authorize such legislation.

The Judiciary Article (VI) of the Minnesota Constitution, as adopted in 1857, did not provide a retirement system or mandate the retirement of a judge at a specified age. The Article provided for the election of judges for specified terms, six years for supreme court justices, and provided further that in the case of a vacancy before the expiration of a term the governor should appoint a lawyer to fill the office until a successor could be elected.

Supporters of mandatory retirement tried on a number of occasions but failed in their efforts to amend Article VI to expressly mandate retirement at a specified age. In 1942 the so-called Loring Commission made a number of recommendations of changes in Article VI, including, among other things, adoption of the so-called Missouri Plan of judicial selection and retention elections. I have not yet been able to obtain a copy of the report but, according to Professor Pirsig, the report "received a cold if not hostile reception, and no action, legislative or otherwise, was taken on it." Pirsig, 40 Minn.L.Rev. 815, 816 (1956).

In 1947 the legislature created a Minnesota Constitutional Commission. The tentative draft of the Report on the revision of Article VI by the Judiciary Committee of the Commission provided in a proposed Section 13, apparently based on the recently-adopted New Jersey Constitution, as follows:

A justice, judge or magistrate shall be retired upon attaining the age of 70 years. When the supreme court certifies to the governor that it appears that any judge is so incapacitated as substantially to prevent him from performing his judicial duties, the governor shall appoint a commission of three persons to inquire into the circumstances; and, on their recommendation, the governor may retire the judge from office. Retirement allowances for a judge or justice retired hereunder who has held judicial office continuously for ten or more years immediately preceding his retirement shall be provided by law.

Preliminary Report, 32 Minn.L.Rev. 458, 467 (1948). The final draft, which apparently eliminated some of the features of the first draft, did not receive legislative approval. Pirsig, 40 Minn.L.Rev. 815, 817 (1956).

In 1952 a Special Committee on Revision of the Constitution began meeting. A subcommittee recommended a revised Article VI containing the following Section 9:

The legislature may provide for voluntary and compulsory retirement of all judges and for extension of the term of judicial office of any incumbent eligible for retirement within three years after the expiration of the term for which he is selected. When the administrative council certifies to the governor that it appears that any judge is so incapacitated as substantially to prevent him from performing his judicial duties, the governor shall appoint a commission of three persons to inquire into the circumstances. On their recommendation the governor may retire such judge from office.

Report, Bench and Bar, vol. 10, #6, p.88 (1953). The Minnesota Bar Association approved a draft at its convention, and the legislature voted to submit a proposed amendment to the voters in the general election in 1956. Pirsig, 40 Minn.L.Rev. 815, 817 (1956). However, the proposed amendment, which was approved by the voters, did not contain the draft language expressly authorizing the legislature to provide for compulsory retirement. Rather, the amendment provided:

"The legislature may provide by law for retirement of all judges and for the extension of the term of any judge who becomes eligible for retirement within three years after expiration of the term for which he is selected. The legislature may also provide for the retirement, removal or other discipline of any judge who is disabled, incompetent or guilty of conduct prejudicial to the administration of justice."

In 1973 the legislature enacted a law mandating the retirement of judges at age 70. 1973 Minn. Laws ch. 744, codified at Minn. Stat. Secs. 490.121 to 490.133. The validity of this law was challenged on a number of grounds in Saetre v. State, 398 N.W.2d 538 (Minn. 1986). The supreme court, in an opinion by Chief Justice Amdahl, concluded, inter alia, that the "clear intention" of the 1956 amendment was:

...to empower the legislature to develop a comprehensive plan for the retirement of judges, not strictly limited to a provision of benefits, but also to include a method and procedures designed to facilitate the orderly retirement of those individuals who have so ably served the state. A mandatory retirement provision is an appropriate component of this comprehensive plan.

398 N.W.2d at 541. The court further concluded that the legislature's selection of age 70 as the age for mandatory retirement was "reasonable" and noted that it found "instructive" that courts in other states had upheld their own mandatory retirement laws. Id.

I submit, respectfully, that the court's decision upholding the law, although precedential, is unpersuasive. Instead of even reaching the issue of the reasonableness of the legislature's policy decision, the court should have simply held that the 1956 amendment did not authorize the legislature to adopt any mandatory or compulsory retirement law. The test for the court in interpreting the 1956 amendment should have been whether ordinary intelligent voters would have realized that the language in question authorized the legislature to mandate the retirement of judges at a specified age, thereby removing from the voters the right to choose judges no matter their age. A court solicitous of the rights of the electorate to choose judges should have required an unambiguous expression in the amendment that the legislature was being authorized to "mandate" retirement of judges as opposed to simply being authorized to "provide for" retirement of judges. (If a parent "provides for" his children's college education, he does not "mandate" their college education.) Since the amendment didn't clearly, as the court said, or even impliedly take away voters' rights to choose judges no matter their age, the court should have ruled that the legislature acted without authority.

Moreover, the drafting history that I have referred to above doesn't support Professor Pirsig's contemporaneous opinion, expressed in a law review article (40 Minn.L.Rev. at 840), that the amendment, if approved, would authorize the legislature to mandate retirement. Indeed, the history suggests that by dropping the express language from the proposed amendment, the drafters abandoned any attempt to get voters to authorize the legislature to mandate retirement. Moreover, the history shows that the drafters were aware of the language used in other states' constitutions to mandate retirement or authorize mandating of retirement at a specified age. See, merely as examples of the kind of language used by other states, Va. Const. Art.VI, Sec.10: "The General Assembly may enact such laws as it deems necessary for the retirement of justices and judges, with such conditions, compensation, and duties as it may prescribe. The General Assembly may also provide for the mandatory retirement of justices and judges after they reach a prescribed age, beyond which they shall not serve, regardless of the term to which elected or appointed"; Ill..Const. ArtVI, Sec15(a): "The General Assembly may provide by law for the retirement of Judges and Associate Judges at a prescribed age."

I also disagree with the court's conclusion that the legislative mandate of retirement at age 70 is reasonable. In my opinion, government-mandated retirement of judges on the basis of age constitutes a form of government discrimination, masquerading as progressive government policy, against a grouping of people based on insulting age stereotypes that are not only unproven but that have been disproven.

Stereotypical thinking attributes one or more characteristics, often negative, to a particular agglomeration or grouping of people and assumes that all members of the agglomeration share that characteristic. A task force dealing with mandatory retirement in another state has declared, "A fundamental tenet of our society and constitutional system of government is that each person should be treated as a unique and valuable individual rather than a statistic or stereotypical member of a given group. Mandatory retirement treats all judges who reach the age 70...as if they were unfit."

Most, perhaps all, of the arguments that were advanced in defense of mandatory retirement of judges were based on stereotypes. Here are some of those stereotype-based arguments: "No one is more tenacious in his belief in his own competence than an aging judge" (40 Minn.L.Rev. at 840); "Unless some provision is made for [mandatory] retirement [of all judges at a certain age] the administration of justice in too many instances will suffer at the hands of a judge of declining ability" (Id.); "[Despite good pension plans,] judges continue on beyond the age of retirement, even though in many instances it would be to their advantage and that of the court if they would give up the reins to younger men" (Id.); mandatory retirement laws are needed to avoid hurting the feelings of the occasional individual older judge who no longer is capable of meeting his or her duties and yet doesn't want to retire (advanced by defenders of the mandatory retirement statute).

Stereotype-based thinking is wrong because it unfairly treats all members of a group as having the same feature that some or even most members of a group are thought to have. In any event, although the stereotypes supporting the arguments advanced by the defenders wouldn't support the discriminatory mandatory retirement rule for judges even if they were founded on fact, they turn out to be unfounded.

Indeed, it turns out that mandatory retirement is forcing the retirement of the wisest, most experienced and, in many cases, most productive, most reliable, even healthiest judges. As Judge Posner has pointed out, judging, unlike many fields of endeavor, is a "late-peak sustained activity." That is, judges, unlike people in many areas of work, tend to reach their performance peak relatively late in life and "judicial creativity or achievement continues to a later age than is the case [even] in most academic fields...." Speaking of federal judges, who are not required to retire at age 70, Judge Posner states: "The remarkable thing...is not that they hang on to their jobs to such advanced ages but that they perform them creditably, and indeed sometimes with great distinction, at advanced ages." Posner's own study demonstrates that while there is, on a statistical basis, an age-related decline in judging, it may not set in until an unusually advanced age. As an example, Posner cites Learned Hand, who took senior status at age 79 but continued judging with distinction on a reduced caseload basis. Indeed, Posner states that Hand's most productive period in his entire 38-year career came during the five-year period before he took senior status, between ages 73 and 78. As Posner points out, Hand wrote his famous "Hand formula," which is "a landmark in the economic analysis of law," in his middle seventies, and "Holmes's most eloquent opinion, his dissent in the Abrams free-speech case, was written in his late seventies."

There are many reasons why judging is a "late-peak sustained activity." Summarizing empirical evidence of the non-somatic changes associated with aging, Posner says that "the balance between memory and imagination, or between experience and analysis, or between retrospect and prospect, between thinking back and thinking forward, as sources of knowledge...shifts with age in favor of the former term in each pair." But "[t]he shift is neutral in the sense that whether it enhances or reduces performance depends on the character of the activity in which the individual is engaged." The shift rather obviously is a shift toward traits associated with "wisdom":

The wisdom of the judge includes such attributes as the capacity to understand from within the plans and projects of other people, the capacity to project in the imagination the probable consequences of alternative approaches and outcomes, habituation to the practices and folkways of the legal profession, deliberative ability, the capacity to avoid becoming emotionally involved with the issues or the litigants, thereby losing perspective, and the ability to put aside one's own personal or career interests in the outcome of the case.

In short, Posner summarizes, "a mature professional judgment is central to the concept of a wise judge, and the intellectual and dispositional qualities that go to create such a judgment plainly improve with age up to a point and then plateau" until the point when retirement is necessary, something that varies widely from individual to individual.

This is not to say that we want all of our judges to be "old." A diversity of ages even in a primary-school classroom, as in the old one-room rural schools in which my mother taught, has benefits. See. Lillian G. Katz, The Benefits of Mixed-Age Grouping, which says, "The intention of mixed-age grouping in early childhood settings is to increase the heterogeneity of the group so as to capitalize on the differences in the experience, knowledge, and abilities of the children." One of the reasons for trial by juries of 12 people is just that, "to capitalize on the differences in the experience, knowledge, and abilities" of the jurors; that is, we believe the truth is more likely to emerge when 12 people of different backgrounds and experiences reason and decide together. The same is true of multi-member appellate courts and of judges in general.

The "wrong" is in reflexively choosing one of two opposing equally-compelling interests or truths or forces -- for example, young over old, or old over young. I dealt with this precise issue as follows in my essay entitled, "The Voices of a Judge -- The Judicial Opinions of Chief Justice Peter S. Popovich of the Minnesota Supreme Court," The Judicial Career of Peter S. Popovich (MN. Justices Series No. 10, 1998):

Those who think simplistically and without proper regard for the intended role of the judiciary in our system of government think that being a judge is just a matter of voting for or against a particular issue, as if the judge were a kind of legislator who listens, then votes. Robert Frost, who was a renowned college teacher as well as poet, used to tell his students that thinking is more than simply voting or taking sides on an issue. Deciding appeals in the great common law tradition requires more.

One of the things required is the recognition that life isn't always a simple matter of choosing good over bad, that there are complexities, gray areas, conflicts of good versus good. "Anybody can decide a question if only a single principle is in controversy" (Frankfurter), but the world of truth is contradictory. "Mad contradictions flavor all our dishes" (Emerson). For every truth, there is a counter-truth: individual rights and majority rule; freedom and order; fifty states and one indivisible nation; religion and secularism; change and stability; privacy and knowledge; new truths and old ones; discretion and rule; mercy and justice; and so on.

If "the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function" (F. Scott Fitzgerald), then one of the tests of a first-rate appellate judge, when these "great antinomies...present themselves like gladiators for our favors," is the ability to "discover the precise issue in controversy, the precise consequences of one decision or another, and the possibility of an accommodation by deflating the isms and narrowing the schisms" (Paul Freund).

Robert Frost said, "Life sways perilously at the confluence of opposing forces" such as Justice and Mercy or Change and Stability. One might also say that life is even more perilous if one is interested only in Change or Youth, on the one hand, or Stability or Age, on the other. As in the case of any antinomy, it is when the two opposing concepts are in tension with each other that creative thinking and acting occur.

Thus, a court system that tends to be too fluid and devoid of stabilizing forces is as bad as a court system that is calcified and only about stability. One need not speculate why the legislature enacted the mandatory retirement law or why the supreme court upheld the law. The direct consequence, however, is not a matter of speculation: judges who are at the peak of their powers, and Chief Justice Popovich is but one of many examples, have been forced to retire "before their time." While in each case the law mandatorily presumes retirement is necessary, in many cases "the market" doesn't agree -- thus, for example, we have observed case after case of retiring 69- or 70-year-old chief justices finding presumably lucrative extended employment with private law firms, law firms that presumably are not in the business of charitably hiring lawyers who are no longer competent.

Immediately and directly affected by the court's decision upholding the mandatory retirement law were, to cite but two linked examples, a) Peter S. Popovich, who wanted to continue serving as chief justice after turning 70, and b) the voters who might have liked to see him continue in office. But the judicial system itself was and is an indirect and very real victim. The policy's negative effects include the exclusion of older, more experienced lawyers from equal consideration for appointment by the governor and, correspondingly, an increasingly relatively inexperienced, younger judiciary, depriving the system of the greater experience and wisdom of older lawyers.

The magazine of the Hennepin County Bar Association recently carried an interview with a former court of appeals judge who was appointed to the court in 1988 at age 37, 12 years out of law school, and who recently moved to private practice at a large law firm after 12 years as a judge. Asked if there "might be a little bit of a trend starting, with judges leaving the bench to go back into another job, as opposed to judges continuing to serve until retirement," she replied by saying that "[h]istorically, judges were appointed in their 60's" and that she thought the "trend," if there was a trend, of judges leaving the court to return to private practice "might be more a reflection of judges being appointed earlier in their professional careers."

Whereas it used to be common for a governor to appoint lawyers in their fifties or sixties to the bench, the age-discrimination-based mandatory retirement policy has changed all that. As an example of the current state of affairs, the last version I've seen of the "board-approved" Judicial Evaluation Committee Guidelines for Judicial Selection of the Chicago Bar Association lists age of the candidate as a valid factor. The Guidelines cite in support of this a policy statement of the ABA Committee on the Federal Judiciary that a candidate who is 60 years old or over should not receive an initial appointment to the federal bench unless the candidate evaluators place the candidate in one of the two higher of the three categories in which qualified candidates were then being placed, something not required of younger candidates.

Even more disturbing, it is increasingly becoming the norm for the executive in making judicial appointments to appoint, say, a 40-year-old in the expectation that the appointee likely will be on the court for many years before retiring, thereby extending the executive's influence over the judiciary long after the executive has left office. Indeed, and I intend no partisan point or negative inference as to particular appointees in saying this, the youth of the appointees was an "obvious" factor in the appointment strategies of the predecessor to our current governor. As stated in Mary Lahr Schier (ed.), Take Your Victories As They Come -- The Carlson Years in Minnesota Politics (1999):

Age was an obvious factor in [the governor's] appointment strategy. As former Chief Justice Keith noted, "Four of the six [Supreme Court appointees] are extremely young and could be there close to 20 years, which will have an enormous impact on the future of the development of the law in Minnesota."

A strong believer in the idea that each generation has its time on the stage, [the governor] wanted to turn the courts over to another generation.

"I think age is terribly important," [the governor] said. "You want people who know how to relate. A person of my generation ought not to kid himself that he understands today's 22-year-old. I don't. I don't understand the young people with tattoos. I don't understand teenagers with earrings. You need somebody who's younger and more relevant to that age group. Kathy Blatz is only in her 40s. She's much more connected to it than I am."

It is easy to forget that Justice Holmes, whom many believe is the greatest judge in Anglo-American history, was 60 -- i.e., "over the hill" by today's appointment standards -- when President Theodore Roosevelt appointed him to the United States Supreme Court. As Posner says, "Holmes performed with great distinction for almost 30 years, though he faded some toward the end." When "his time" came, as any biography of Holmes will tell you, all it took was a word from Chief Justice Hughes, and with grace and dignity Holmes submitted his resignation. Some of Holmes' greatest opinions would never have been written if there had been a mandatory retirement law in effect that applied to federal judges and if the President had believed that it was "terribly important" to appoint younger lawyers as judges.

Not only does mandatory retirement increase the likelihood that more and more of our judges will be relatively young and short on experience, but it results in a system that arguably is costlier in economic terms than a nondiscriminatory system. When a judge retires at 70, because required to do so, the judge rightly begins to draw on his or her pension even if the judge returns to private practice and earns a second income. Not only does "the state," through the pension plan, have to pay a large pension to that mandatorily-retired-but-able judge, but it has to pay a full salary to the new judge who replaces the retired judge. And, more importantly, the state loses the accumulated wisdom and services of that judge and gets in exchange, more often than not these days, a very young judge who, as a cynic like Wilde might say, is more than happy to provide the state with the full benefits of his or her inexperience.

There are thus many reasons why mandatory retirement is not sound policy for the management of our court system. But beyond all that, mandatory retirement is antidemocratic, depriving people of their right to elect judges of their choice. And this gets us back to the topic of judicial elections, which I have discussed elsewhere. Do we -- should we? -- trust the voters? Perhaps the question should be "Do the voters -- should they -- trust us?" I believe that there should be mutual trust -- they should trust us and we should trust them to do the right thing. The people, after all, have a pretty good record when given real choices. It was the people, after all, who elected some of our finer judges, among them, Luther Youngdahl (who later became Governor and then was appointed a federal district judge by a President who belonged to a different political party), C. Donald Peterson (who was a mentor of mine), and Alan Page.

Peter Popovich's time as Chief Justice was cut short because of a well-intentioned but discriminatory law that unfairly treats all judges who reach age 70 as incompetent even if many, possibly most, of them are at the height of their powers. I was privileged to work with him at the supreme court; I may be wrong but I believe my opponent was equally privileged to work with him at the court of appeals as an intern when she was contemporaneously in law school and the legislature. I later felt honored when, after he left the court, he personally asked me to write "the essay" for the book that was being edited about his judicial career. I make no claim that he would approve of my candidacy if he were alive. That would be presumptuous. More than likely, he would be supporting the election of my opponent, since traditionally retired judges have supported sitting judges facing a challenger in an election. That doesn't matter to me. Two big ideas of Chief Justice Popovich were that "Justice delayed is justice denied" and that mandatory retirement is wrong. I agree with him on both counts. I respectfully believe that the court wrongly decided the Saetre case involving the mandatory retirement law. The law that the court upheld has had the effect of encouraging, to the detriment of our judicial system, the appointment of very young and relatively inexperienced lawyers as judges. It is a law that has significant economic costs that outweigh any benefits. And it is a law that has deprived the voters of the right to elect judges of their choice regardless of age.

None of this, of course, is intended as a criticism of either the legislature for enacting the law or the court for upholding it. While I disagree with the court's decision, I think the court "called it as it saw it." Unfortunately, there seems to be a "law of unintended consequences" at work in so much that is well-motivated or well-intended in life.

The great philosopher and psychologist, William James, often commented on this, remarking at one point, "For what a contradictory array of opinions have objective evidence and absolute certitude been claimed!" William James, The Will to Believe and Other Essays in Popular Philosophy 16 (Dover ed. 1956). The legislature obviously felt it had the authority to act as it did, and the court presumably was satisfied its decision upholding the law was right. While I don't doubt that I will be alone on this, at least for now, I nonetheless submit that the court was wrong in upholding the law, that Chief Justice Popovich was right in his publicly-expressed opinion that it should be repealed, and that those who advocate a representative, independent, experienced and diverse judiciary should consider supporting the retirement of the system of mandatory retirement of judges in Minnesota.

Copyright (c) 2000 by Burton Randall Hanson - Prepared & published by candidate on his own behalf and at his own expense. Candidate may be reached by e-mail at BRH@CampaignWebSiteURL or by mail at address listed on Secretary of State's website.