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February 15, 2012
Are judges too young to retire at 70?

By Jan Pudlow
Senior Editor

Is 70 the new 60?

That’s debatable. But there was unanimous agreement on the Senate Judiciary Committee that age 70 is too young to knock judges off the bench for “constitutional senility.”

On January 19, Sen. David Simmons, R-Altamonte Springs, presented Senate Joint Resolution 408 that proposes an amendment to the Florida Constitution to increase the mandatory retirement age of judges and justices from 70 to 75.

“This limitation of 70 years old for judges and justices is truly anachronistic. It is a thing of the past,” said Simmons, an attorney who noted there is no such age limit for serving in the Legislature.

(The Florida Bar is on record in support of increasing the mandatory retirement age for justices and judges from 70 years to 75 years of age.)

Simmons allowed that maybe the judicial retirement provision made sense when it was added to the Florida Constitution in 1972, with the rationale it was easier to have a mandatory retirement age for judges than it is to remove truly senile judges.

But it doesn’t make sense anymore, Simmons said, when the current average life expectancy in the United States is 81.73 for females and 75.8 for males.

“The simple fact is that a limitation of 70 years on judges and justices is truly a discrimination against people who are quite capable — not only quite capable, but abundantly capable — for providing significant amounts of value to the justice system, the legislative system, and any other system in which they seek to participate. And it is wrong for us to be limiting them,” Simmons said.

“I questioned whether we should use another number besides 75. I ultimately decided, based upon what many of the other states have moved to, to go to 75. But certainly this is a change whose time has come.”

Simmons flung out mandatory retirement ages for other states: Colorado, 72; District of Columbia, 74; Illinois, 75; Indiana, 75; Iowa, 72; Kansas, 75; Oregon, 75; Texas, 74; Utah, 75; Washington state, 75; and Vermont allows judges to serve until the ripe old age of 90.

As proof that older minds can still operate well, Simmons pointed to the ages of U.S. Supreme Court justices — John Paul Stevens was 90 when he retired in June 2010; and now Antonin Scalia is 75; Anthony Kennedy is 75; Stephen Breyer is 73; and Ruth Bader Ginsberg is 78.

Only one person spoke against the idea of raising the mandatory retirement age, Brian Pitts, of Justice 2 Jesus.

“Appellate and trial judges, a lot of them begin to get tired, especially when new laws are made. Not necessarily burnt out, but it does occur, relying on law clerks, staff attorneys. I’ve seen it in action. They just can’t take it,” Pitts testified.

“Judges . . . have to be off the chain! You have to be ready for anything that comes off the docket!

“You get a certain age here, and I’ve seen too many judges, they just can’t do it.”

Sixty-eight-year-old Sen. Arthenia Joyner, D-Tampa, bounced back with sarcasm: “So I’m not off the chain? I can’t go with the flow and adjust to whatever comes before me as a judge? But you’re entitled to your opinion, Mr. Pitts.”

Sen. Oscar Braynon, D-Miami Gardens, who turned 35 on February 1, said: “As the, by definition, youngest member of the Senate, I support this bill from my off-the-chain colleagues.”

The measure also cleared the Criminal and Civil Justice Appropriations Subcommittee on January 31.

But in response to questions, Simmons promised he would amend the bill to make it prospective only.

Then Subcommittee Chair Sen. Mike Fasano, R-New Port Richey, and Sen. John Thrasher, R-Jacksonville, said they preferred that the amendment apply only to future judges and justices.

“I will make that commitment that I will make that amendment,” Simmons said, when the bill goes to the Budget Committee, its next scheduled stop.

“That is good public policy. I don’t want it to get bogged down on the issue of extending the term of any particular judge or justice,” Simmons said.

He added that would have the effect of increasing the impact of Gov. Rick Scott’s judicial appointments, because any done after the amendment is approved by voters — if it receives 60 percent of the vote — would potentially have longer careers on the bench than current judges.

A similar measure, HJR 345, has been introduced in the House but has not be heard in any committees.

[Revised: 12-07-2016]