After a non-election year trial-run (pun-intended) in 2015, constitutional amendments concerning contested judicial elections, and judicial retirement age are back in 2016. This time, for real. During the 2015 Session, Senate President Thomas V. Mike Miller led the effort to introduce the largest incoming class of new legislators in 20 years to 2 issues that have been resurfacing around the capitol for ages. Because the General Assembly almost never acts upon constitutional amendments in non-election years, the presence of the bills in 2015 was largely an educational exercise.
Contested Judicial Elections
As I have mentioned previously in this column, the MSBA has supported the elimination of contested judicial elections for circuit court judges for over 30 years. Over that time, various forms of legislation to achieve that end have been proposed in the General Assembly, in requisite constitutional amendment form.
In 2016, there are several proposals before the legislature. The MSBA supports one of those bills, opposes another, and supports a third approach, with amendments. With constitutional amendments, the adage be careful what you ask for truly does come into play. If you ask the General Assembly and voters of Maryland to endorse a particular constitutional amendment, and then find that it doesn’t work out the way you thought it would, you may be stuck with it for a generation or longer.
HB 388 – Del. Hill, et al. (MSBA Supports) – would provide for appointment by the Governor, with confirmation by the Senate; appointed judge stands for contested election at the next election; judicial term would be reduced from 15 to 10 years, with retention elections replacing contested elections. (HB 224 is identical, except that it keeps the duration of a judge’s term at 15 years.)
SB 179 / HB 448 – Sen. Kelley et al./ Del. Sydnor et al. – would provide for appointment by the Governor, with confirmation by the Senate; judicial term would be reduced from 15 to 10 years; would provide for reappointment by the Governor at the end of the 10-year term, with reconfirmation by the Senate. (MSBA supports with an amendment to replace reappointment/reconfirmation with retention election at the end of the 10-year term).
HB 223 – Dels. West and Barron – would provide for appointment by the Governor, with confirmation by the Senate; appointed judge stands for contested election at the next election, if, in the Senate confirmation process that candidate receives less than 80% of the Senators voting; judicial term would be reduced from 15 to 10 years, with retention elections replacing contested elections. (MSBA opposed this approach. Despite the fact that we realize the Sponsors were attempting to craft a compromise, the MSBA felt that 1) the bill does not fully eliminate contested judicial elections; and 2) that the bill added an element of instability in the Senate confirmation process.)
Judicial Retirement Age
Approximately 33 states mandate that judges retire by a specific age, generally around the age of 70. However, there has been a growing movement to reexamine the efficacy of that mandate. With the recognition that life expectancy, and productivity in later life are increasing (up to a point) a number have states have considered increasing the mandatory judicial retirement age. However, many of those states, like Maryland, allows for judges to be “recalled” to the bench to handle docket assignments, even after their mandated retirement.
In 2015, Senate President Miller introduced SB 847, which would have increased the mandatory retirement age of judges from 70 to 75 years of age. A Senate Judicial Proceeding Committee amendment reduced the retirement age to 73, and House Judiciary Committee and House floor amendments clarified the prospective application of the bill. SB 847 made it to the House floor, but died in the waning hours of the Session. A similar measure was passed by the General Assembly in 1994, but was rejected at the polls by the voters.
This year, Sen. Miller, and Del. Joseph Vallario have cross-filed a bill (SB 502 / HB 481) to raise the mandatory retirement age to age 73, with prospective application of the Act. The bill’s prospects appear positive, mid-way through the Session. And at this point I have seen little press coverage of the issue, outside of legal publications. (MSBA Supports)