LITTLE ROCK — The Arkansas Judicial Council plans to ask state lawmakers in the 2013 session to repeal a state law that prods judges to retire at age 70, the council’s president said Tuesday.
“Voters can decide whether we are too old or not,” said Judicial Council President Vann Smith, who is a Pulaski County circuit judge.
The council includes circuit judges, appeals court judges, Supreme Court justices, retired judges and justices, and the director of the Administrative Office of the Courts.
Under Arkansas Code Annotated 28-8-215, judges and justices who do not retire by age 70 lose their retirement benefits. However, a judge or justice who turns 70 during a term of office to which he has been elected may complete the term without forfeiting his rights to his retirement benefits.
Thirty-two of the nation’s 50 states have some form of mandatory retirement age for state judges and the most prevalent mandatory retirement age is 70, although there is no mandatory retirement age for federal judges, actuary Jody Carreiro told the Legislature’s Joint Committee on Public Retirement and Social Security Programs.
Among Arkansas’ six neighboring states, Oklahoma, Mississippi and Tennessee apparently don’t have mandatory retirement ages for state judges, while Louisiana, Missouri and Texas do have such ages, he said.
Carreiro, whose firm Osborn, Carreiro & Associates works for the committee, said they tried to do some general cost estimates for removing the mandatory retirement age of 70 for judges in Arkansas but cannot calculate an actual cost savings until there is a proposal drafted.
“If people stay longer, they evidently accrue more benefits, so it sounds like it costs more. But you are paying that [additional] benefit for a shorter period of time,” he said.
If the mandatory retirement age of 70 was repealed and the average retirement age increased by one year, the accrued liabilities of working members for the Arkansas Judicial Retirement System would decrease and the system would save money, Carreiro said.
He said the Judicial Council also would have to be consulted on how repealing the law would affect judges’ career decisions.
“We have lots of judges that are close to age 70. Does that mean a lot of them are thinking about continuing on or just part of them? The key thing is to assume how many additional people would stay longer,” he said.
The judicial retirement system’s investments were valued at $169.9 million on June 30 and its unfunded liabilities totaled $27.5 million, according to a system report provided to the committee. Unfunded liabilities are the amount by which a retirement system’s liabilities exceed an actuarial value of its assets.
The state paid $4.6 million into the system last fiscal year, while employees contributed $879,762 and court fees provided $814,933, according to a system report.
The judicial retirement system includes 140 working members with an average annual salary of $137,155, an average age of 58.5 years and an average of 15.8 years of service, according to system actuary Gabriel, Roeder, Smith & Co. of Southfield, Mich.
The system also includes 123 retired members with average annual retirement benefits of $75,896, Gabriel reported.
Sen. Johnny Key, R-Mountain Home, asked Carreiro if he knew why the Legislature had passed the mandatory retirement policy in the first place.
Carreiro replied, “It goes back so far that it is kind of hard to have any reliable knowledge as to where that came from.”
Key said, “So we don’t know if the General Assembly at the time had a policy issue or if they were just mad at somebody or what.”
Carreiro said “it was probably not [done] completely in a vacuum” because so many states have instituted a mandatory retirement age for judges and many have that age at 70.
“I don’t think it was done just for a person that someone was wanting to get off the bench,” he said.
State Sen. Jimmy Jeffress, D-Crossett, said he also wondered “if there was not some problem having to do with mental capacity being diminished after a certain length of time,” because so many states have a mandatory retirement age for judges.
“We all know if we think back to our college days we can probably remember professors we had that probably should have retired before they did,” he said.
Circuit Judge David Guthrie of El Dorado has said he asked the Judicial Council to consider seeking a change in state law to do away with the age limitation on judges. He’s said that the age limit was imposed under Act 139 of 1965 and “the 70 of that day is not same as the 70 of today.”
After the meeting, Key said he wants to know the rationale behind the mandatory retirement age before deciding whether to repeal it.
State Sen. Michael Lamoureux, R-Russeillville, who is the incoming Senate president pro tempore, said he doesn’t believe such legislation has a chance of being passed by the Legislature.
“There is a lot of tension right now between the court and the Legislature,” he said.
In particular, Lamoureux, a lawyer, noted lawmakers’ criticism of the state Supreme Court last week on whether the court has legal authority to create positions and set compensation levels for the employees hired to fill them — both jobs normally done by the Legislature.
Chief Justice Jim Hannah stressed that a 40-year-old court opinion set the precedent for the court’s ability to use license fees paid by attorneys to create some positions to help regulate the practice of law in Arkansas.
State auditors questioned whether the Supreme Court has the power to unilaterally create positions and set salaries for the positions. It would take a lawsuit to challenge the court on the issue, state auditors said — a lawsuit that likely would end up before the court itself.
Earlier this year, lawmakers said they were surprised to learn about a little-known retirement system for more than a dozen employees of the court.
It’s called the Bar of Arkansas Employees Pension Plan and is financed through license fees paid by attorneys.
Front Section, Pages 1 on 11/28/2012