The state law that requires judges seeking a new term once they hit the age of 70 to forfeit their retirement benefits is not discriminatory or unconstitutional, according to the state's highest court.
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On Thursday, the Arkansas Supreme Court affirmed a lower court ruling that upheld a decades-old law that strips judges of their vested retirement benefits if they elect to serve another term at age 70 or older.
In a 5-2 ruling, Justice Courtney Goodson wrote for the majority that Thursday's decision is consistent with rulings in other states as well as by the U.S. Supreme Court that rejected challenges to various retirement laws and caps.
"[State attorneys] assert, and we agree, that the laws advance the State's interest in protecting and maintaining the integrity of the judiciary," Goodson wrote. "As stated by the [U.S.] Supreme Court, 'it is an unfortunate fact of life that physical and mental capacity sometimes diminish with age.' ... Thus, it is not irrational for the State to promote retirement at an advanced age in order to attain the highest possible standards for the judiciary."
But in his dissent, Justice Paul Danielson wrote that to view the law as an "encouragement" rather than as punitive, is to "indulge in complete and total fiction."
"What [forfeiture provisions] actually convey is: leave or we'll steal your wallet," Danielson wrote.
Danielson is set to retire next January. He said he wanted to run for another term but that now, at 71, he would lose the retirement benefits he'd accrued in his years as a state judge.
Judges can continue to serve on the bench if elected to a new term at or above the age 0f 70, but they forfeit any vested retirement benefits. The money they paid into the system is returned to them.
The law was first challenged in Pulaski County Circuit Court last summer by three current judges and a judge who retired because he would forfeit retirement benefits if he had served another term.
They argued that the law, which was enacted in 1953, is in violation of Amendment 80 of the Arkansas Constitution. The amendment, which voters passed in 2000, sets the qualifications for serving as a judge.
The attorney for the judges, James Schulze, argued that the 1953 law amounted to an additional requirement and was thus unconstitutional.
Schulze also argued that the law violates judges' rights to equal protection and unfairly creates a disadvantage to judges who take office later in their careers.
Goodson and the majority of the justices disagreed, finding that eligibility benefits are not the "equivalent" of a constitutional qualification for holding judicial office.
"The statutes do not prohibit any judge from holding office past the age of seventy," Goodson wrote. "Judges at that age may freely seek reelection and may serve in office. ... Instead, the laws pertain only to a judge's eligibility to receive retirement benefits, which are, after all, a matter of grace bestowed by the General Assembly."
Danielson disagreed, arguing the law was a "repugnant" indirect qualification and thus ran afoul of the state constitution.
"It is settled Arkansas law that a retirement allowance financed over a period of years by the joint contributions of the employer and the employee represents compensation rather than a mere gratuity," Danielson wrote. "As such, it is a vested right not subject to impairment. To forfeit that right is not free."
In a concurring opinion, Justice Karen Baker wrote that 33 states have mandatory judicial retirement ages and suggested that the justices' own situations or "personal opinions" "cannot be substituted for the law."
"Clearly, Justice Danielson feels aggrieved by the statute we are tasked with ruling on in this case, which may explain the tone of his dissenting opinion," Baker wrote.
In his dissent, Chief Justice Howard Brill described the reality faced by older judges wishing to continue their service as being confronted with a Hobson's choice, which is the choice between accepting something or nothing at all.
"Never has a judge elected to forfeit the pension and continue on the bench. Instead, some have retired; some have gone back into the practice of law," Brill wrote. "The reality of the judicial-retirement system reveals the flawed nature of the false choice. The result is confiscatory. It harshly penalizes those judges who wish to exercise their right to run for office gain and to continue to serve."
Brill, a former professor, topped his dissent with the first stanza of poet William Butler Yeats' poem When You are Old:
"When you are old and gray and full of sleep,
And nodding by the fire, take down this book,
And slowly read, and dream of the soft look
Your eyes had once, and of their shadows deep"
Schulze said it was unlikely he'd petition the court for a rehearing on the matter and said he wasn't sure what course of action three of his clients would take going forward.
One judge, Michael Landers of El Dorado, won re-election earlier this year, but if he takes office for the six-year term in January, he would forfeit his retirement benefits.
"He may have a hard choice to make," Schulze said.
Landers did not return a call for comment Thursday.
Metro on 06/24/2016