In Brief: The Columbus Bar Blawg

Tomorrow, Ohio’s ballot board is expected to consider and certify the ballot language for potentially three statewide issues appearing on the November ballot. One of those ballot issues involves House Joint Resolution 1 – Judicial Age Limit Increase Constitutional Amendment proposed by the General Assembly. 

Cleveland’s Plain Dealer ran a story today about the Ohio’s constitutional age limit for judges — currently, age 70, which could change if Issue 1 (due to be certified and placed on the ballot tomorrow by the ballot board) passes in this fall’s general election. The proposed Ohio constitutional amendment would raise the age limit for retirement to 76.

At this time, Ohio’s Constitution provides that judges cannot be 70 or older on the date that their term begins.  (Ohio Constitution, § 4.06(C) (“(C) No person shall be elected or appointed to any judicial office if on or before the day when he shall assume the office and enter upon the discharge of its duties he shall have attained the age of seventy years.”) That provision of the Ohio Constitution has been effective since November 1973 — nearly 38 years. The proposed amendment would allow candidates to run for judge so long as they are less than 76 years old on the date their term would begin. In practice, as the PD article notes, ”a judge could serve to the age of 82.”

If the amendment fails, within the next 6 years, more than 10% of judges statewide would be forced into retirement — including judges in Franklin County.  “Statewide, 72 of Ohio’s 718 judges would be prevented from running for new terms, according to statistics provided by the Ohio Supreme Court.”  The Dispatch points out that “Of the 721 judges statewide, 37 percent are age 60 or older, according to the Ohio Supreme Court. The average age is 57.”[*]

At the same time, “retired” or “visiting” judges older than 70 can sit by assignment made by Chief Justice Maureen O’Connor. Traditionally, those ”retired” judges had to be under 80. Recently, however, the Chief announced “that she would no longer follow the informal limit of age 80 when making visiting judge appointments.”

The PD story notes that the membership of the Ohio Prosecuting Attorneys Association oppose the amendment. The PD quotes the executive director of the association:

“We are very concerned about getting elderly folks on the bench,” said John Murphy, executive director of the prosecutors’ association. “If this passes, we’re looking at 80-year-olds and up sitting on the bench. The higher you go, the greater the chance of getting incapable people with whom mental acuity is an issue.”

Having clerked for a nonagenarian (federal) judge with life-tenure, I appreciate the issues raised by the prosecutors. From personal experience, however, I believe that older judges can offer tremendous wisdom and experience when handling their job.  Further, having chosen to allow voters in Ohio to elect judges, I’m not opposed to raising the age limit for judges. After all, I would expect that if the judge is in his/her mid-70s, opponents may use the judge’s age as a campaign issue and voters may cool to a judge perceived as “too old” to effectively judge.

Still, how old is too old for a judge to be on the bench? We’ll see what Ohio’s voters think in the fall. How do you feel about the issue?

[*]Interesting that the Dispatch and PD have different numbers for the number of judges in Ohio. I’m assuming it is a timing issue — i.e., there were 3 more judical vacancies when the PD got its numbers than when the Dispatch did back in April.