Raising retirement age for judges not easy call

After the change was rejected in 2006 and again in 2012, Hawaii voters are again being asked to decide if state judges older than 70 can continue to serve.

"If this amendment passes, judges may remain on the state court bench until 80 years of age," explains Democratic state Sen. Laura Thielen, who says she is voting no on the proposed amendment.

"I’m a workaholic, and I come from a family of workaholics. So I support people working as long as they like, and I plan on working a long time myself," Thielen, 53, says in her blog.

That contradiction shows the difficulty in picking an arbitrary age for retirement for government service.

The state has no problem telling governors and mayors they can serve only two consecutive terms, and there are limits on County Council service.

Legislators, however, serve at the pleasure of the voters.

The question for many, Thielen included, is not that 70-year-old judges are too slow to keep up; the issue is one of opportunity.

Saying that "talent should rise to the top" Thielen fears that "Hawaii has a history of a limited number of people making most of the important public policy decisions in our state by virtue of being in the limited number of high-level public jobs in our state."

That is also the reason given by Keith Kaneshiro, Honolulu prosecutor, who testified against the amendment when it was considered by the Senate Judiciary committee last year.

"Mandatory retirement of judges and justices at the age of 70 provides the best opportunity for — and in fact encourages — aspiring and/or sitting judges and justices to move up through the ranks of our judicial system," Kaneshiro said.

The issue of churning the Hawaii talent pool to provide fresh breaks for Hawaii’s lawyers would seem to have some other aspects at work.

Another way to get more jobs for lawyers would be to just limit judges to one 10-year term.

All Hawaii judges have to retire at 70, but if you just made the vacancies at the top, you would keep the flow moving. District and Circuit Court judges could be using their senior citizen pass to catch the bus from Arcadia to the courthouse, and as long as there was room at the top, there would be new spots open.

John Tonaki, state public defender, said in testimony that "a bench dominated by septuagenarians and octogenarians would not give the public confidence in the judicial system."

Also by capping judicial careers at 70, the state will favor civil servants who are already in the retirement system because public workers need 21 years to reach the maximum retirement pay.

"If you leave it at 70, you are telling most lawyers over 60 not to apply (Jim Duffy was an exception) and discouraging most lawyers over 50 from applying. You also are prohibiting retired judges over 70 from serving as per diem judges," notes James Burns, the former chief judge of the Intermediate Court of Appeals, who was forced to retire in 2007.

At the time, Burns said he would have stayed on the job if the state Constitution permitted it.

A word of caution when you vote: If you leave a constitutional amendment question blank, it counts as a "no" vote — and for amendments to pass, they need a majority of "yes" votes, not just more "yes" than "no" votes.

Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at rborreca@staradvertiser.com.