Hawaii’s constitution allows for age discrimination against judges, say proponents of a constitutional amendment to raise the mandatory retirement age for judges and justices from 70 to 80. ADVERTISING Hawaii’s constitution allows for age discrimination against judges, say proponents of
Hawaii’s constitution allows for age discrimination against judges, say proponents of a constitutional amendment to raise the mandatory retirement age for judges and justices from 70 to 80.
“One has to wonder why we allow this to happen,” AARP Hawaii State Director Barbara Kim Stanton said. “This is all about fitness to serve, not an arbitrary age.”
If the issue is really about a judge’s ability to continue working on the bench, Kim Stanton said the state should initiate regular evaluations for mental fitness, not just continue to require mandatory retirement. Kim Stanton noted that the Judiciary doesn’t require any other employees to retire at a specific age, nor does the federal government impose that sanction on federal judges and justices.
“It’s important that we get rid of age discrimination in any form in Hawaii,” she said.
State Public Defender Jack Tanaki said he would categorize himself as a supporter of the amendment, with a few caveats.
“This is a very complex issue and it’s a hard one,” Tanaki said. “There are some judges, as they get closer to 70, we would see a diminishing,” both physically, perhaps developing hearing problems, as well as mentally. Judges may become cynical after many years on the bench, or even begin developing dementia.
The latter problem is particularly difficult to handle, Tanaki said, because often people developing dementia don’t see, or won’t acknowledge, those symptoms in themselves.
If the state were to increase the mandatory retirement age to 80, Tanaki said it would be useful to have more frequent mental and physical evaluations of judges and justices, although he acknowledged that some on the bench might find that invasive or intrusive.
There is a benefit to extending the mandatory retirement age, he said. Hawaii’s governors have hesitated to nominate attorneys older than 60 to the highest appellate courts, because those justices wouldn’t be able to serve complete 10-year terms. Tanaki said Hawaii has attorneys who are older than 60 who would make excellent justices because of the years of experience they have accrued.
The City and County of Honolulu Prosecuting Attorney’s Office went on the record earlier this year with their opposition to the amendment.
“While the Department of the Prosecuting Attorney of the City and County of Honolulu supports judges and justices who are knowledgeable of the law and respectful to attorneys, staff, and witnesses pursuant to the Hawaii Revised Code of Judicial Conduct, the department notes that the mandatory retirement of judges and justices who reach the age of 70 provides opportunity for judicial nominees who have a fresh approach in analyzing the laws and a strong commitment to treating all participants in the court in a professional manner,” according to testimony submitted to the state Legislature. “Moreover, the mandatory retirement of age 70 for justices and judges is sometimes our only opportunity for change.”
A measure two years ago would have allowed the Judiciary to appoint judges 70 years or older as per diem judges, filling in for other judges. That measure failed.
Kim Stanton reminded voters that a blank vote on questions of constitutional amendments counts as a no vote.
Email Erin Miller at
emiller@westhawaii
today.com.
