A newly proposed constitutional amendment would eliminate the age ceiling for Michigan judges, a move that would align the state’s judiciary with the federal system.
Currently, the state constitution prohibits anyone from being elected or appointed to a judgeship for a term that begins after they turn 70. Judges elected or appointed before 70 can finish out their terms, potentially staying on the bench until 75.
Federal courts have no mandatory retirement age. Three of the nine U.S. Supreme Court justices are older than 70: Ruth Bader Ginsberg (86), Stephen Breyer (81) and Clarence Thomas (71).
The proposal reflects a 2012 recommendation from the Michigan Judicial Task Force.
“The task force believed, and I agree, that this limitation is arbitrary in nature and serves no legitimate public interest,” said lead sponsor Rep. Tommy Brann, R-Wyoming.
Brann said he’s asked the views of judges who were testifying about other issues before his House Appropriations Subcommittee on the Judiciary.
“While not giving an official position, they have stated that most of the time when a judge reaches the age of 70, they are not ready to retire and are fully capable of continuing with a full court docket,” he said.
The Michigan Judges Association has no official position because of ethics rules on what judges can say about political issues, according to its president-elect, Ottawa County Circuit Judge Jon Van Allsburg.
He said there is “widespread support among my colleagues for increasing or removing the mandatory retirement age for judges.”
“I think 70 is the new 60,” Van Allsburg said. “I have often considered it a great loss for the judiciary and the public when highly experienced and capable judges have been removed from the bench solely because of age.”
The cosponsors of the proposed amendment are GOP Reps. Sue Allor of Wolverine, Joseph Bellino of Monroe, Kathy Crawford of Novi and Hank Vaupel of Fowlerville, plus Democratic Rep. John Cherry of Flint.
Dozens are affected every even-numbered election year, State Court Administrative Office figures show. For example, 24 judges were affected in 2018 and 43 will be in 2020 and 34 in 2022, although some may choose to retire ahead of schedule.
The terms of two members of the Michigan Supreme Court expire at the end of 2020. One of them, Republican-nominated Stephen Markman, is 70 and ineligible to run again under the current age limit.
Among those affected in 2018 were Kent County Circuit Judges Dennis Leiber and Donald Johnston III; Lansing District Judge Frank DeLuca; Grand Traverse County District Judge Thomas Phillips; Ingham County Probate Judge R. George Economy; Delta County Probate Judge Robert Goebel Jr.; Iron County Probate Judge C. Joseph Schwedler; Keweenaw County Probate Judges James Jaaskelainen; Leelanau County Probate Judge Larry Nelson; Missaukee County Probate Judge Charles Parsons; and Newaygo County Probate Judge Graydon Dimkoff.
The soonest a change could take place would be the 2022 elections because constitutional amendments require passage by at least two-thirds of the Senate and House followed by a statewide vote. If voters approve the change, it would take effect 45 days later.
The State Court Administrative Office has no position on the proposed amendment, calling it a policy question for the Legislature and voters.
“There are several considerations that are relevant,” said the office’s communications director, John Nevin. “For example, many judges do have much to offer beyond 70. At the same time, the age limit provides for a more diverse group of people to step up and serve.”
The Michigan chapter of AARP favors eliminating the age limit.
“AARP believes that any age cap is arbitrary. Ability to serve is not affected by age but by health,” said Mark Hornbeck, the organization’s communications director.
Van Allsburg, of the Judges Association, said that whatever the rationale for putting the age limit in the state constitution 56 years ago, “It does appear that conditions have changed since 1963. People live longer and in better health, and retirement ages have increased, as well. We should be encouraging older citizens to continue working.”
“Work is a dignified activity, it’s economically productive and it helps reduce the burden on Social Security and pension systems,” he said.
The proposal is pending in the House Judiciary Committee.