Judges Challenge States’ Retirement Laws

Judge Anthony Nugent Jr., who is 70, doesn’t think Missouri’s mandatory retirement law is constitutional.

Besides, he is just not ready to step down.

“Who wants to retire? I don’t,” the state Court of Appeals judge said recently. “I love the job. I’ve never done anything I’ve enjoyed more my whole life.”

Nugent and Ellis Gregory Jr., 63, an associate circuit judge in St. Louis County, are challenging the retirement age for judges.

Their case has gone all the way to the U.S. Supreme Court, where it is being watched by judges in 35 other states that have similar laws.

“I’m really pulling for them,” said William White, 76, a Chicago appellate judge whose own case is before the Illinois Supreme Court. “I think any mandatory retirement age is unfair. Judges ought to be individually evaluated.”

Mandatory retirement laws have been challenged by judges around the country, but conflicting rulings have left the issue unresolved.

In arguments before the U.S. Supreme Court in April, lawyers for the Missouri judges urged the justices to resolve the conflicting rulings.

Gregory and Nugent say Missouri’s constitutional provision that judges must retire at age 70 violates the federal Age Discrimination in Employment Act of 1967.

They also say it violates the equal-protection clause of the Constitution, because the state does not force retirement on others doing physically undemanding jobs.

The U.S. 8th Circuit Court of Appeals in St. Louis ruled last year that Missouri’s judges, as appointees on the policy-making level, were exempt from the bias law.

The federal appeals court also found Missouri’s mandatory retirement age to be constitutional, as a rational way to maintain a vigorous and healthy judiciary that is open to younger people.

On paper, it is a technical, legal question that encompasses several issues, including whether the federal government can tell the states how to run their court systems.

In real life the question strikes an emotional nerve, especially with people facing forced retirement.

“An employer--whether it’s a private company or a state government--should not be able to pick some arbitrary age and say you cannot do the job any longer,” said Cathy Ventrell-Monsees of the American Assn. of Retired Persons.

And some judges who want to retire still don’t like the idea of mandatory retirement.

“My own position is, I’m going to retire when I want to,” said Whitney Sullivan, a judge in Custer County, Colo., who plans to retire at age 70 even though Colorado doesn’t require it until age 72. “I just don’t want to have somebody tell me when to retire. I imagine most judges feel that way.”

A Vermont Supreme Court justice successfully challenged that state’s 70-year age limit. The U.S. 2nd Circuit Court of Appeals ruled in favor of Louis Peck, 71, who has since retired voluntarily.

Peck said he suddenly found himself a champion of older people everywhere when he decided to challenge Vermont’s law.

“I was all prepared to retire, but I must admit once I got into it, I got caught up in it,” Peck said from his home in Montpelier, Vt. “I got letters from all over the country from retired people, urging me on.

Opponents say mandatory retirement robs states and their residents of experienced judges who have a lifetime’s worth of experience and wisdom on which to base decisions.

“There is no question in my mind we have lost . . . judges from this court and other courts who were very, very able jurists, brilliant people doing fine work, keeping up with their case loads, who were physically alert and mentally at their prime,” Nugent said.

Proponents argue that whether a state mandates a judicial retirement age is the state’s business, not the federal government’s.

Mike Boicourt, chief counsel of litigation for Missouri Atty. Gen. William Webster, said mandatory retirement helped to offset lengthy judicial terms (six and 12 years) and helped to open the judiciary to younger and minority candidates.

“There are very many judges who are excellent judges beyond the age of 70, but (this) assures that there is a natural attrition at some point in time,” Boicourt said.

He added: “My personal experience has been that most of them are certainly ready to leave the bench at 70, and a lot of them leave the bench early, either for more money or because they’re tired.”

That may be so, but judges such as Nugent, Peck and White say a judge should be individually evaluated. In Missouri, the Commission on Retirement, Removal and Discipline of Judges was set up in 1972 to investigate requests and suggestions for the retirement of judges because of disability and complaints about misconduct.

“I may be senile as a matter of fact, but I see no reason that I should be as a matter of law,” Peck said. “I don’t see why you should put new people on just to get rid of other people, unless they can’t perform.”