Judge-retirement rule weighed

Attorney: Pension forfeit after age 70 subverts constitution

The state law that strips state judges -- including Supreme Court justices -- elected at 70 or older of vested retirement benefits is an "end around" the Arkansas Constitution, according to an attorney for a group of older judges.

Arguing before the Arkansas Supreme Court on behalf of four current and former judges, attorney James Schulze called unconstitutional the state law -- Arkansas Code 24-8-215 -- that voids accrued retirement benefits of older judges. A judge who turns 70 while serving in elected office can finish the term without forfeiting his or her right to retirement benefits.

"Otherwise, judges or justices must retire by their seventieth birthday or lose their retirement benefits," the law states.

Schulze argued that the 50-year-old law breaks with constitutional Amendment 80 -- approved by voters in 2000 -- and amounts to an unfair legislative sanction against those judges who would exercise their constitutional rights to stay on the bench.

Amendment 80 spells out the qualifications for judicial office. By threatening judges with the loss of duly earned retirement benefits, the state law is, in effect, an additional qualification to taking the bench, Schulze said.

"We don't have any other authority about the Legislature penalizing someone for doing something the constitution says you may do, because I couldn't find a case where it happened," Schulze argued.

During Thursday's oral arguments, Assistant Attorney General Colin Jorgensen argued that most states have similar laws that encourage retirement for older judges and that a similar challenge was upheld by the U.S. Supreme Court.

The case heard Thursday was filed by a judge running unopposed for re-election in the 13th Judicial Circuit, Michael Landers, and a pair of judges who want to run for re-election in 2020 without losing their benefits. Another plaintiff, J.W. Looney, is a judge who has already retired because he didn't want to lose his benefits.

They filed suit last summer in Pulaski County Circuit Court and argued that, beyond being unconstitutional, the law prevents accomplished jurists from continuing to hold office.

Last December, Pulaski County Circuit Judge Chris Piazza ruled against the judges, finding that lawmakers aren't breaching their authority by discouraging older judges from service.

Piazza, now 69, himself would lose retirement benefits if he sought another six-year term when his current term ends in 2020.

On Thursday, Jorgensen said that the arguments made by Schulze -- that the law violated the judges' right to equal protection and that it was ageist -- failed because lawmakers have a "rational interest" in making sure the judiciary is made up of judges not at risk of performing poorly because of adverse effects of aging.

The law "protects the integrity of the judiciary," Jorgensen said. "The words [from the U.S. Supreme Court] were that it's an unfortunate fact of life that physical and mental capacity sometimes diminish with age. The people may therefore wish to replace some older judges, and the court found that to be rational."

Jorgensen also cautioned the state Supreme Court from buying into Schulze's logic -- that an "indirect" qualification such as the retirement law is barred because of Amendment 80 -- because judges are required to follow all manner of campaign laws and judicial ethics standards.

Justice Paul Danielson -- who is 70 and decided to retire because he would forfeit his retirement benefits -- pointed out that campaign laws don't single out judges.

Schulze went on to argue that other examples used by Jorgensen don't concern the election of judges and so Jorgensen's "parade of horribles" didn't apply.

"Could [legislators] tell students, 'Well, you're entitled to the lottery [scholarship] but if you register to vote then you waive your eligibility,'" Schulze said. "Clearly that'd be unconstitutional. ... Basically this is what we got here."

State attorneys have argued that the Arkansas Supreme Court should uphold Piazza's ruling not only because of the merits of the constitutionality of the law, but because the judges had no right to be challenging the law.

As a question of "standing," Jorgensen said all four plaintiffs were ineligible to challenge the law because none had been harmed by it.

"What more could Judge Landers do?" asked Justice Courtney Goodson at the hearing. "He's over 70. He's been elected. He's going to take the bench in January."

"It's still speculative and uncertain because he hasn't taken the bench," Jorgensen said.

"He doesn't have to wait to be injured [by the law], does he?" Goodson asked.

"Under ordinary, standing principles he does, because the statute doesn't apply to him yet," Jorgensen said.

Schulze argued that the judges do have standing because, in Landers' case, the loss of retirement benefits is imminent.

He likened the "standing" question to the Arkansas Supreme Court's ruling in Jegley v. Picado, in which gay couples challenged the state's anti-sodomy laws though they had not yet been prosecuted under them. The state Supreme Court struck down the law in 2002.

"The position of the state [in Jegley] was, 'Sure, that statute [is] there, but no one seriously intends to enforce it.' In this case ... [when Landers] takes office after 70, he loses his pension. ... We send him a check with his money back and that's it," Schulze said. "The threat is very real. Under the ripeness rule, it's ripe, because we have a judge that's poised to do exactly what the [law] says will be punished."

Metro on 05/06/2016

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