By Jim Ash
Some Florida Supreme Court justices refer to it as, “constitutional senility.”
Florida’s legal blueprint forces Supreme Court justices and judges to retire at 70, although some can hang around until 73 if they’re more than halfway through an unexpired term.
But that restriction adopted in 1956 would change under proposals being considered by the 37-member Constitution Revision Commission. The prestigious panel meets every 20 years and has the power to put measures directly on the ballot.
At a meeting in Tallahassee on October 3, the CRC’s Judicial Committee listened to a detailed presentation on mandatory retirement for judges and Proposal 1, which would bump the age to 75 — meaning some jurists could technically serve until 78.
The committee took no action and Chair Bill Schifino said he’s still considering the issue and wants to confer with fellow commissioners. But the former Florida Bar president sees merit in the concept.
“The commissioners have gotten lots of calls from around the state, so there’s certainly a lot of interest,” Schifino said. “Listen, what I can tell you is, look, there’s no restriction on the age of a governor, or the president of the United States. I happen to know many, many, many very well qualified jurists that are 69, 70, 71, many in my own town, that I’m sadly disappointed left the bench.”
Deputy State Courts Administrator Blan Teagle told the panel that eliminating or raising the retirement age is not a new idea.
The 1995 Article V Task Force recommended increasing it to 72 and repealing the exception for completing unexpired terms. The last Constitution Revision Commission looked at repealing mandatory retirement all together. Both failed to make it to the ballot.
As recently as 2013, Florida lawmakers considered raising the retirement age to 75. The motive is understandable, Teagle said, considering that U.S. Supreme Court justices and federal judges don’t face an arbitrary deadline for hanging up their spurs. According to Teagle’s research, 31 other states and the District of Columbia have some form of mandatory retirement, with most using 70.
Vermont sets the most liberal limit at 90, Teagle said, and Arkansas takes a unique approach.
“Although Arkansas, in its constitution, does not establish a per-se mandatory retirement age, its law does incentivize retirement by saying that . . . you don’t have to retire at 70, but if you chose not to retire, you simply forfeit all of your retirement benefits.”
In the last five years, voters in six states rejected amendments that would have repealed or raised the retirement age, Teagle said. During that same time, the Virginia Legislature bumped the age from 70 to 73, and Pennsylvania voters agreed to increase the retirement age from 70 to 75.
A look at the 438 judges who retired in Florida between January 2007 and last month shows that 147 chose to step down at 64 or younger. Seventy-three held on past their 70th birthdays.
Proponents say demographic trends support longer tenure. Between 1950 and 2015, overall life expectancy in the United States jumped from 68.2 years to 78.8 years. They also argue, Teagle said, that unlike most professionals, judges become more proficient as the years pass.
Commissioner Hank Coxe, also a former Florida Bar President, wanted to know why the legislative proposals to raise the retirement age for judges failed. Commissioner Tom Lee, who is also a Republican state senator from Brandon, said he could only guess.
“I think the general answer is that the Legislature’s relationship with the courts generally ebbs and flows.”