Lawsuit over judicial retirement age presents political angles, too | Arkansas Blog

Tuesday, July 7, 2015

Lawsuit over judicial retirement age presents political angles, too

Posted By on Tue, Jul 7, 2015 at 6:58 AM

click to enlarge JUDGE MIKE LANDERS: Sues over retireement provision for judges.
  • JUDGE MIKE LANDERS: Sues over retireement provision for judges.
A lawsuit first reported by John Lynch in the morning Arkansas Democrat-Gazette challenges the state law that more or less forces judges to retire after the term in which they turn 70. It raises some political questions in the process.

Here's the lawsuit.

It was filed by Circuit Judge MikeLanders of El Dorado. He'll turn 70 next year, when his office is on the ballot. Under current law, if he runs and takes office for another term at age 70, he must forfeit his judicial retirement. It can pay up to 80 percent of pay after 25 years of service. It's a powerful retirement incentive. According to the lawsuit filed for Landers by Gerry Schulze, only one judge has run again under such circumstances.

The age of 70, it's pretty clear, doesn't disqualify all people from the ability to perform intellectual jobs. Emphasis on ALL.

The legislature has resisted changing the law, I think in part to force turnover to create new judgeships, well-paid jobs with good benefits. In the last session, the legislature beat a bill by Rep. Mattthew Shepherd aiming to up the age to 72 to help Landers.

Landers' lawsuit argues that Amendment 80, which reshaped the constitution's judicial article, sets eligibility for judgeships and it doesn't include an age maximum. Thus an earlier statute that sets the effective retirement age adds an unconstitutional requirement to service, the lawsuit argues. It also raises due process and equal protection arguments under the U.S. Constitution.

Suits over similar retirement provisions in other states have had mixed results, but they appear from a quick review to rest more on federal constitutional claims against state laws. Here, the Arkansas Constitution may be central.

Here are some political wrinkles: Current Justice Paul Danielson's term ends next year. He's said he'll retire, though he doesn't want to do so, rather than lose his retirement benefits because he's turned 70  Might he reconsider his retirement in hopes that the Landers lawsuit could be settled in a way favorable to him before he'd take a new term in January 2017? I'll ask. I'd guess it's a longshot. Circuit Judge Shawn Womack, a former Republican senator, has announced for the seat. A challenge to him would be welcome by an incumbent justice with a solid record, particularly given Womack's  record — in favor of criminalizing homosexual acts and preventing gay couples from adopting children. Plus he raised a spurious equal rights claim for a huge pay increase during the independent citizens pay commission review this year.

The 2016 election cycle also was short-circuited thanks to Gov. Asa Hutchinson's desire to move the Republican presidential primary — and all other May elections — into March. That moved up the judicial elections, meaning filing for those offices will occur very soon, in November.

Still more interesting is the matter of Justice Courtney Goodson, expected to run for chief justice in 2018 2016 on current Chief Jim Hannah's expected retirement. He once said he'd like to run again, but was discouraged by the retirement age. He might be further discouraged by the rancor that now splits the court, a division that has seen a quartets justice usurp some of the administrative power that once was viewed as the chief justice's.

After Judge Chris Piazza, who drew the case, the Supreme Court must rule. Even those too young to face any retirement issues soon will have some political interest in the outcome. Justice Jo Hart has a direct interest. She's too old already to run again and keep retirement under current law, should she choose to run. She's a feisty type who hasn't demonstrated an inclination to shuffle off to a retirement recliner.

Given its work on the same-sex marriage case, it's impossible to predict whether the Supreme Court can finish this case by the end of 2016.

CORRECTION: I was confused this morning when I posted this. Jim Hannah, too, is on the ballot in 2016. So he'll be tasked for the time being with ruling on the case about retirement age, depending on when it is completed. Goodson plans to run for that seat in 2016. Sorry about the confusion. Danielson, by the way, declined any comment today because it is a pending case.

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