Mandatory judicial retirement? Judiciary taking closer look at age, cognitive issues

For many judges, retirement is just a transition to something new.

That could mean being an advocate, of counsel for a firm or even being a senior judge.

In Indiana, the only courts with a mandatory age for judicial retirement are the Court of Appeals of Indiana and the Indiana Supreme Court. Judges on those courts are required to retire at 75, and if they choose to, they can become senior judges.

According to Court of Appeals Chief Judge Robert Altice, the mandatory age re-quirement prevents potentially awkward conversations if a judge doesn’t realize they may be struggling cognitively.

“Some people just want to work their whole lives, and there’s nothing wrong with that, but it’s clear that we lose some cognitive ability the older we get,” he said.

Government-wide questions

The idea of age-out requirements has become a bigger topic of discussion recently across all levels of government, with U.S. Sens. Mitch McConnell, 81, and Dianne Feinstein, 90, experiencing health issues in public. Also, the ages of the current leading candidates for president — Joe Biden, 80, and Donald Trump, 77 — have become a flashpoint ahead of the 2024 election.

On the judicial side, U.S. Federal Court of Appeals Judge Pauline Newman, 96, the oldest active judge in the federal court system, has recently come under scrutiny.

Newman’s colleagues have pressed for her to undergo a mental fitness exam. But according to The Washington Post, Newman is suing her colleagues under the Judicial Conduct and Disability Act of 1980.

A three-judge investigative panel has asked the court to dismiss Newman’s lawsuit, claiming the federal judiciary polices itself. The panel alleges Newman is physically and mentally unfit to continue serving on the bench and is investigating her for misconduct after she refused to submit to medical examinations performed by the committee’s choice of medical professionals.

Back in the state courts, while there isn’t a mandatory retirement age for trial judges, there was until 2011.

That year, in a bill authored by Sen. Jim Buck, R-Kokomo, lawmakers eliminated mandatory retirement ages for trial judges.

Then in 2013, Buck attempted to eliminate the age requirement for the appellate courts, but that would have required changing the state’s constitution.

While Altice said he doesn’t promote a mandatory retirement age for trial judges, he did say if those judges start experiencing cognitive issues, retirement may be a good idea.

Currently, the average age of trial judges in the state is about 55, according to an Indiana Lawyer analysis.

“You’re talking about very serious issues,” the chief judge said. “You want to make sure you have somebody that’s on top of their game, when they’re deciding these cases.”

Altice added that, at 75, many judges may still be very sharp while others may not. There needs to be consistency, he said.

On the bench

The Court of Appeals has welcomed three new judges in the past year: Judges Peter Foley in October 2022, Dana Kenworthy in January and Paul Felix in July. And it will welcome another next year when Judge Patricia Riley reaches the mandatory retirement age, according to Altice.

Indiana University Robert H. McKinney School of Law professor Joel Schumm said it’s surprising to him that there isn’t a mandatory retirement age for trial judges while there is for the appellate courts. That’s because, on the appellate level, there is a panel of judges and law clerks who consult on decisions, but at the trial level, judges rule alone.

But for the system to change, Schumm said something would have to happen to motivate the Legislature.

“Usually it’s something that doesn’t go well, because there’s usually some sort of problem that gets attention and legislators want to respond to that. And so there was a concern about someone needing to retire because there’s a mandatory retirement age who wanted to continue to serve and that’s why the age was lifted,” Schumm said of the 2011 legislation.

Schumm said he would be surprised if there were a proposal to create a mandatory retirement age for Indiana’s trial judges.

“I think some people say it’s a good thing that after 20 or 30 years or something that there’s opportunities for other people to get judgeships, so that’s one thing that mandatory retirement age accomplishes, as well as that there’s going to be new blood fresh perspectives come into the court,” he said.

Marion Superior Judge Timothy Oakes wrote an article shortly after the mandatory retirement age for trial judges was lifted, noting that no groups opposed the legislation, but there also wasn’t a natural group to do so.

Oakes opined that one group that could have been against the bill would have been prosecutors, could have fewer opportunities to rise to the bench if sitting judges didn’t retire.

While Oakes said he doesn’t have strong feelings on the issue one way or the other, he probably would have voted against the measure if he had been a lawmaker.

“I think whether you have an age limit or not, you will always find examples, both ways,” he told Indiana Lawyer.

Now, if there is an incident or a concern regarding a judge’s cognitive ability, colleagues could contact the Indiana Judge and Lawyers Assistance Program, Oakes said.

Also, he noted that the judge could also the state’s Judicial Qualifications Commission if they aren’t able to do their job in a satisfactory manner.

“Obviously the more formal it gets, the more serious and the more unfortunate it is,” he said.

Oakes added that such situations could happen at any age given that people age differently.

For example, he said, someone could have a stroke well before age 75.

“We’re all people that have health issues at different times,” he said•