In December of 1946 the Committee on the Selection of Judges circulated the bar with a postcard ballot, covering mandatory retirement of judges at the age of seventy-five. The ballot resulted as follows:  Total vote cast .......................... 942 In favor ......................................753 Opposed ...................................144 No opinion .................................. 45 The Committee on the Selection of Judges, which circulated that ballot, suggested a proposed constitutional provision carry compulsory retirement into effect in connection with an appropriate retirement plan to be established by the Legislature. That Committee accepted the view previously expressed by the State Judicial Council (to which the subject had earlier been referred for consideration) that the result could not be attained by legislation, but could only be carried into effect by constitutional amendment

Schweppe, Alfred J.

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Washington Law Review Volume 23 Number 4 Annual Meeting 11-1-1948 Report of Committee on the Retirement of Judges Alfred J. Schweppe Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Digital Commons Network Logo  Part of the Judges Commons Recommended Citation Alfred J. Schweppe, State Bar Journal, Report of Committee on the Retirement of Judges, 23 Wash. L. Rev. & St. B.J. 328 (1948). Available at: https://digitalcommons.law.uw.edu/wlr/vol23/iss4/9 This State Bar Journal is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. STATE BAR JOURNALThis matter was presented to the members of this Committee andthe literature forwarded to each. The matter was considered by everymember of the Committee, and each member wrote his own opinion ina letter to the Chairman. The result of this canvass by mail was theunanimous opinion of the members of this Committee that the admis-sion of attorneys to the federal bar should best be left to the discretionof the presiding judges in the respective districts.The result of this action has been previously reported to the Boardof Governors.Your Chairman has discussed with the President of the WashingtonState Bar Association about whether it would be desirable for thisCommittee to initiate any projects or investigations of its own. Mr.Munter felt that the duty of the Committee would be fully performedif we were content to pass only on matters referred.Report of Committee on the Retirement of Judges,by Alfred J SchweppeIn December of 1946 the Committee on the Selection of Judgescirculated the bar with a postcard ballot, covering mandatory retire-ment of judges at the age of seventy-five. The ballot resulted as follows:Total vote cast .......................... 942In fav or ...................................................................... 7 53O pposed .................................................................... 144N o opinion ............................................................... 45The Committee on the Selection of Judges, which circulated thatballot, suggested a proposed constitutional provision carry compulsoryretirement into effect in connection with an appropriate retirement planto be established by the Legislature. That Committee accepted the viewpreviously expressed by the State Judicial Council (to which the sub-ject had earlier been referred for consideration) that the result couldnot be attained by legislation, but could only be carried into effect byconstitutional amendment.Our information is that it was the view of the Judicial Council thatsince Article IV of the state Constitution, relating to the judiciary, setscertain limitations on eligibility to the office of judge of the Supremeor the Superior Court, vzz., that a judge must have been admitted topractice law in the courts of record in this state (Article IV, Section17), that he cannot hold any other office or public employment (ArticleIV, Section 15), and that he shall not practice law in any court (ArticleANNUAL MEETINGIV, Section ig), that other limitations on eligibility, including a lin-tation on account of age limit, were forbidden by necessary implication,and that, therefore, the Legislature would not have power by legislationto fix a compulsory retirement age, although the Legislature could,without doubt, deny pension benefits (judicial pensions being of legis-lative creation) to any judge who did not retire at some age establishedby statute.We are informed that the Judicial Council recognized that the stateLegislature may legislate on any subject not forbidden by the stateConstitution (see State ex rel. Robinson v. Fluent, 130 Wash. Dec.179, State ex rel. Hamblen v. Yelle, 329 Wash. Dec. 64, and see Paineand Port of Seattle, 70 Wash. 294, 301, State ex rel. Pishue v. Olson,173 Wash. 6o, 66, that the constitutional prohibition may be inferentialas well as express), but believed that the expression of certain eligi-bility requirements for the office of judge in the state Constitutionnegatived any others and placed them beyond the power of the Legis-lature; and that to concede such power would authorize the Legislatureto fix any age limits or other additional eligibility requirements.Without accepting as a finality the constitutional views just out-lined, the Committee believes that further study should be made ofwhether or not compulsory retirement, as distinguished from optionalretirement, can be accomplished by legislation, rather than by consti-tutional amendment. Some authorities on this subject are collected in48 C. J. S., page 971. It seems, in any event, clear that if it is intendedto affect the tenure of a judge now in office, it can only be done by con-stitutional amendment, 48 C. J S., page 969.To the limited extent that the undersigned Committee has consid-ered the subject matter of its appointment in correspondence or in dis-cussion with other judges and lawyers, it appears that there is a ratherstrong consensus that compulsory retirement is desirable. The opinionvaries, however, somewhat as to the details, about as follows:i. Some favor mandatory retirement on the judge's seventy-fifthbirthday That was the idea submitted a couple of years ago by theCommittee on the Selection of Judges, in the enclosure attached to thisreport.2. Some of the judges seem to favor a provision rendering a personineligible to file and be elected, or to be appointed, after attaining theage of seventy-five. Thus if a Supreme Court judge were elected at theage of seventy-four, he could serve until the age of eighty3. There is a fairly strong consensus among lawyers, to the extentSTATE BAR JOURNALthat they have been interviewed, in favor of a provision rendering per-sons ineligible to file and be elected, or to be appointed, after attainingthe age of seventy In other words, under this view, a judge of theSupreme Court, elected at the age of sixty-seven, would complete histerm, but he would be meligible to run again upon completion of Insterm at the age of seventy-three. Similarly a Superior Court judge,elected at the age of sixty-eight, could not run again after the com-pletion of his four-year term at the age of seventy-two.4. The New York Constitution provides that "no person shall holdthe office of judge or justice of any court or surrogate longer than untiland including the last day of December next after he shall be seventyyears of age." See Johnson v. Flynn, 289, N. Y Supp. 693.It may be stated, parenthetically, that the Federal Judicial Retire-ment Act (see latest form, 28 U S. Code 3371, as amended by the Actof June 25, 1948) is purely optional at the age of seventy and not com-pulsory, since federal judges under the federal Constitution hold theiroffices "during good behavior," and cannot by legislation be made toretire compulsorily Ex parte Bakelite Corporatwn, 279 U S. 438,449, and see In re Opmnwn of the Justices, (Mass.) i79 N. E. 237Your Committee, not having had a meeting on the subject and onlyvery inadequate correspondence, has not formulated any views on thesubject matter of its appointment, and desires this report to be receivedmerely as a progress report.The whole subject deserves a searching exarination, including con-sideration of the closely related problems of adequate judicial retire-ment pay (see Chapter 229, Laws of 1937, as amended by Chapter 19,Laws of 1945), because, without adequate retirement pay, compulsoryretirement may be considered open to question.If and when conclusions have been formed on these matters by thepresent committee, or its successor, it is suggested that it may bedesirable, in view of the importance of the subject, to submit anyaffirmative plan of retirement, or alternative plans of retirement, to ageneral referendum of the bench and bar, before the matter is takenup with the Legislature, either by way of proposing a constitutionalamendment, or by way of ordinary legislation.A. J. O'ConnerL. L. ThompsonA. A. HullAlfred J. Schweppe, ChairmanANNUAL MEETINGDissenting OpinionI do not agree with the above entitled. report, as in my opinionproposed legislation should be prepared and submitted to the nextLegislature rendering any judge who has reached the age of seventyduring his term of office ineligible to re-election. I believe this wouldbe wholly constitutional.Nat U BrownNotes on the American Bar Association Meeting in Seattle,by William J. MaddenThat the American Bar Association meeting in Seattle in Septemberof tins year was an outstanding success is generally agreed. A samplingof the opinion of any of the visitors usually elicited a response indi-cating that those who came from afar were well and favorably im-pressed with the manner in which the arrangements were handled, andwith the hospitality which they encountered. Unlimited credit shouldgo to the General Chairman, to our Executive Secretary, and the hostsof assistants who made the meeting one of which we can be proud.Inasmuch as the events of the bar meeting will be reported fullyin other publications devoted to that function, it is not proposed to setthem forth at length herem. Due, however, to the fact that one of ourpracticing brethren and a former president of our state bar has beenaccorded the high honor of having been asked to lead the AmericanBar Association for the ensuing year, we have requested him to makea few remarks for publication in this issue. He responded with a char-acteristically stimulating discourse on the importance of the bar and itsmembers at this crucial time in our history We further were of theopinion that the issue would be incomplete were it not graced by theaddress of welcome which was given to the meeting by Richard S.Munter, our President.Remarks Accepting the Presidency, by Frank E. HolmanNo one receives and undertakes the Presidency of the AmericanBar Association without sensing the great honor and at the same timethe great opportunity and obligation of that high office. The success ofyour President is largely dependent upon the help and cooperation ofthe whole membership. With this help and cooperation, we shall striveto continue during the coming year to make the organized Bar notonly an active voice, but an active force, for the public good.

Report of Committee on the Retirement of Judges

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Report of Committee on the Retirement of Judges

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