By Marianna Brown Bettman
In the upcoming November election, most of the spotlight has been on two very controversial statewide ballot issues. State issue 2 is a referendum to overturn S.B. 5, the new collective bargaining law that greatly restricts the rights of public employees. State Issue 3 is a constitutional amendment aimed at allowing Ohioans to opt out of the federal health care reform mandate that everyone must buy health insurance.
Less in the spotlight is State Issue 1 — a constitutional amendment to raise the retirement age for Ohio’s state judges. Constitutional amendments can get on the ballot a number of ways, one of which is with the approval of 60 percent of both houses of the state legislature. That is how State Issue 1 got on the ballot.
The actual wording of the proposed amendment is “to increase the maximum age for assuming elected or appointed judicial office from seventy to seventy-five.” But the popular understanding of State Issue 1 is that it will raise the retirement age for judges from 70 to 76. And that is entirely misleading, because 70 is not the mandatory retirement age now, and 76 is not going to become the new mandatory retirement age either. If the amendment passes, judges will definitely be allowed to serve to an older age. But when a judge must retire depends strictly on his or her birth date and the date of his or her election or re-election.
We elect all of our judges in Ohio for six-year terms. Under Section 6 Article IV of the Ohio Constitution, which went into effect in 1973, a person cannot assume judicial office after reaching age 70. That doesn’t mean all judges now must retire at age 70. Right now, if a judge is 69 when he or she has to run for re-election and still 69 when the judge’s term begins, the judge can now stay on the bench until age 75. My late husband Gilbert Bettman, who was a judge in Hamilton County for over thirty years, fell into that category. At the time of his last judicial election he was 69, and he was still 69 when his term began. So he got to stay on the bench until he was 75.
The late Chief Justice Thomas Moyer was in the opposite category. Had he lived, he could not have served another term on the Ohio Supreme Court because he was already 70 at the time he had to run for re-election. There are some options in between, to be sure. If you are, say, 67, and it is time for you to run again, you can, but under the current system that would be your last term. You would retire at the end of that term at age 73.
The proposed new amendment would allow a person to run for judicial office up to age 76. So, if the new amendment passes, a judge could seek election or re-election at age 75, and if successful, could stay in office until age 81. The same rules will apply if a lawyer is appointed to fill a judicial vacancy. The question is, is that too old?
I’m conflicted about this amendment. There are many outstanding judges over 70 and over 75. Undeniably, we are living longer and living better (and hey — I’m getting closer to 70 myself!) But for every John Paul Stevens or Oliver Wendell Holmes (of course they were federal judges, who are appointed for life, so they really never have to retire) there are also those who have stayed too long, whose skills are declining. Unusual is the man or woman who admits this honestly to him or herself. We may well need to keep the current provision to lessen the likelihood of judges serving too long. Or a different option might be some other kind of impartial internal control, where a judge who is no longer up to the task could be counseled by his or her peers about stepping down. And of course, the voters can always turn someone no longer up to the task out of office.
If there is need for reform I don’t think it is with age limits. I think judicial terms should be longer — all in Ohio are six years. And I think we should re-think the idea of electing judges. Before he died, Chief Justice Moyer was trying — and not for the first time – to spearhead a drive for a constitutional amendment to have appellate judges and Supreme Court justices appointed, and then run for retention in a special retention election. That conversation should continue, as should the idea of one single ten or fifteen year term. In the meantime, I think it will be interesting to see how voters feel about State Issue 1.
Marianna Bettman is a professor at the University of Cincinnati College of Law.