By Diane Rey
For Maryland Reporter
Saying “73 is the new 50,” Del. Jon Cardin is pushing a bill to bump up the mandatory retirement age for judges in Maryland from 70 to 73.
If passed, HB182 would require a constitutional amendment and have to be approved by voters in the 2020 general election.
A judge and two attorneys spoke in favor of the bill at a House of Delegates’ Judiciary Committee hearing last week. But another attorney raised concerns that judges over age 70 might have reduced mental acuity and would prevent younger, more diverse candidates from joining the bench.
This proposal has gained traction in the past, passing the Senate in 2016 with the backing of Senate President Mike Miller but failing to clear the House of Delegates. Last year, a similar bill almost was enacted, but failed to get a final House vote in the closing days of the session.
Cardin, D-Baltimore County, cited the need to retain talent on the bench for bringing the bill back. “We have a tremendous amount of institutional knowledge and expertise in judges and should want to keep that,” he said.
He also noted that the move would save the state money by not having to pay pensions and the salaries of new judges to replace the older ones.
Age limit set in 1851
Judge C. Carey Deeley Jr., appointed to the Circuit Court of Baltimore County by Gov. Larry Hogan in 2016, is 67 and will have to retire in three years under current law, although retired judges can be brought back to hear cases on a contractual basis.
After serving for 40 years as a trial lawyer, he came to judgeship late in life and isn’t ready to leave.
“This is a bill that would enable people my age who have lived a full lawyer’s life that I have lived to serve a little longer,” he said.
Ronald Jarashow, a former Circuit Court judge in Anne Arundel County, represented the Maryland Association for Justice in supporting the bill. The mission of the MAJ is “improving the civil justice system through legislative advocacy and the professional development of attorneys who represent the injured,” according to their website.
Jarashow, who turns 70 this year, said capping the age for judges at 70 goes back to 1851. “It’s well overdue to change that age limit,” he said.
Increasing the retirement age to 73 enables the courts to take advantage of the broad legal experience judges have amassed, he said. He noted that when judges are recalled after retirement, they don’t have the benefit of a support staff like a full-time judge. “You’re handicapped in handling the cases that are before you.”
Baltimore attorney James MacAlister agreed that older judges have the benefit of experience and likened what happens in the courtroom to a sports game.
“Why are we taking the varsity off the field when they turn 70? It makes absolutely no sense,” he said.
Opportunities for younger, more diverse judges
Retired Annapolis attorney Daniel Clements, however, argued that it does make sense. One reason he retired at age 67, he said, was because “your mental acuity at 67 and 70 is not what it was at 50.”
He argued that predominantly older white judges leaving the bench makes more room for diversity, opening up slots for more women and people of color, something members of the Judiciary Committee raised as an important consideration in questions.
Governors in recent years have added more diversity to the bench, speakers said. The Court of Appeals, for example, the highest court in Maryland, currently has three female judges and three male judges, and half are African-American. Judge Sally Adkins retired in October leaving a vacancy on the seven-member court.
“We need fresh minds. We need young people,” Clements said. “We need people who come in with a new idea and a new concept, who come in with new energy, who haven’t been sitting there for 16 years hearing drunk driving cases and gotten stale and stopped looking at the law in a way that’s needed.”
He added that older judges can be out of touch with juries and younger defendants.
If the bill passes, current judges who are in office when the constitutional amendment is adopted and reach age 70 before the completion of their term may petition the governor for an extension to serve until term completion or age 73, whichever comes first. Currently, judges who want to serve after age 70 have to petition the Court of Appeals for an appointment.
Clements said that the governor’s involvement creates political pressure that could affect a judge’s decision making.
“Is the governor going to be happy with me and allow me to stay if I rule this way? That’s just human nature. That is the largest failing of this,” said Clements.