Ohio voters to decide issue of judges’ age

Retirement at 75, not 70, on Nov. 8 ballot

7/17/2011

Judge Peter Handwork.

The BLADE
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COLUMBUS -- Lucas County Common Pleas Judge Frederick McDonald and appellate Judge Peter Handwork together have more than half a century of judicial experience, but the Ohio Constitution says their time on the bench must end when their current terms expire.

Two justices on the Ohio Supreme Court -- Judith Lanzinger of Toledo and Paul Pfeifer of Bucyrus -- cannot run again.

With Ohioans living longer productive lives, voters will be asked this fall whether it's time to change a 38-year-old provision of the state Constitution that prohibits a judge from taking office after reaching the age of 70.

The question proposes a new age limit of 75.

"Certainly, people are capable of being effective judges after 70," said Judge McDonald, who will turn 70 in 2013. He emphasized that he's made no decision about running again when his term expires in 2014, should the ballot issue pass.

"My perspective is that, maybe when the law was written, 70 was a reasonable time," he said. "But now, with an aging population and medical advances, a lot of people are being effective after 70. Visiting judges are still able to judge."

Judge McDonald can complete his current term but can't run again.

"Why should there be [a mandatory retirement] age at all?" he asked. "It should be like the federal courts. Leave it up to the individual judge or voters. I know judges who retire in their 50s or 60s. Some are still going strong in their 70s. Seventy is kind of arbitrary. Seventy-five is kind of arbitrary."

Looking ahead

Sixth District Court of Appeals Judge Peter Handwork, who will turn 70 in December, said he would run again in 2012 if voters allowed him to do so.

"The fact that this is being examined by the legislature and has now made it to the ballot is an indication that many people think this is necessary," he said. "I have no reason to disagree. People are living longer, are more active, and staying interested in things. You shouldn't say that just because someone reaches a particular age that they're no longer qualified."

But he also knows that means prosecutors and other lawyers who have been waiting in the wings for older judges to step aside so that they can get their turns at the bench may have to wait longer.

"They'll get their opportunity," he said. "By the way, they could run against me."

Judge Handwork has not had an election opponent since he first ran for the appellate court in 1982.

Judges are the only elected officials in Ohio who face age limits. Federal judges have no such limits.

According to the state Supreme Court, the average age of Ohio's 717 sitting judges, from the high court bench to municipal courts, is 56. There are 275 who are 60 or older, and, of them, 22 are over 70 and cannot seek re-election.

A voice of dissent

The Ohio Prosecuting Attorneys Association has been a rare voice of dissent on the issue.

"We're a little concerned about elderly judges on the bench," spokesman John Murphy said. "Current law could permit a judge to serve up to age 75 or so. The current limit has worked well."

Depending on how close he or she is to the age of 70 when elected, a sitting judge could serve as late as age 75 under current constitutional language before being required to leave the bench.

Under the proposed language, that day of reckoning could be delayed as late as age 80.

The Supreme Court has routinely assigned visiting judges to courts on a temporary basis after age has forced them from the bench.

The prosecutors association doesn't buy the argument that there are effective systems in place to remove judges who may have stayed too long beyond their prime.

"People are reluctant to raise this issue with judges," Mr. Murphy said. "The people who are most likely to know are the lawyers who are practicing in that courtroom, and they're extremely reluctant to raise the issue."

The proposed constitutional amendment, which lawmakers recently voted to put on the Nov. 8 ballot, is not likely to get the same kind of attention that two other potential voter-initiated ballot questions may get. Petitions have been filed to ask voters to sit in judgment of a new state law restricting public employees' collective bargaining power as well as a proposed constitutional amendment rejecting mandatory coverage requirements under the federal health-care law.

Value of experience

Even so, Rep. Matt Huffman (R., Lima), who sponsored the judicial retirement age resolution, said now is the time to have this conversation.

"In the actual course of things, people practice law a long period of time as a prosecutor or privately," he said. "Maybe in their mid-50s, they run for judge. With the set age limit, they might serve one or two terms. There's a learning curve to being a good judge, even if you've been a lawyer for 25 years. Is the public losing a value in the judiciary by forcing people to retire?"

The issue was brought to lawmakers several years ago by Ohio Supreme Court Chief Justice Thomas Moyer along with several other proposed judicial reforms that haven't had forward momentum.

The question will reach the ballot a year and a half after the chief justice's death at the age of 70.

The Ohio State Bar Association supports the amendment.

Ohio is one of 32 states that place an age limit on judges. It's one of 20 that place that limit at 70. If voters agree to raise it to 75, it will be in a club of eight states that includes neighboring Michigan and Indiana.

Justice Lanzinger was elected to her second six-year term last year. She will turn 70 before her term expires in 2016. So will fellow Justice Pfeifer.

Justice Lanzinger said she hasn't decided whether she would seek a third term if voters gave her the opportunity.

"I think it's a good discussion to have," she said. "It certainly allows people to think about who they want to have judging these important cases. The question of age is an important consideration, which naturally varies from person to person. … I think it's human nature to want all opportunities open when you make important decisions in your life."

'A difficult issue'

Rep. Dennis Murray (D., Sandusky), a lawyer, opposed the resolution in the House, where it passed 70-26.

"I have been in front of too many judges over the years who needed to step down before they did," he said. "At the trial-court level, judges, especially in smaller counties, don't have peers. They don't have someone who'll say, 'It's time to hang up your spurs.' At the appellate level, it's a different issue. They interact with their peers, get feedback."

"I abhor age discrimination, but that isn't what this is," he added. "When you put someone into a six-year term in relative isolation in terms of equals or peers, you're asking for trouble."

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.