Bill To Put More Retired Judges On Bench Draws Questions

While this bill drew limited public attention as it made its way through the legislature, it’s drawing attention now. Take a listen from this week’s Executive Council meeting:

“As I understand it would bypass judges being appointed by this council. They would be appointed strictly by the chief justice after they’ve retired.”

That’s district one councilor Ray Burton. Here’s District 4 Councilor Ray Wieczoreck:

“That’s a violation of the constitution.”

Burton: “Yes it is.”

Wieczorek: “Does it mean nothing around here?”

And here’s what the Governor said:

“There are two issues here. Issue one is whether it bypasses the council. The second issue is the Constitution says judges can’t serve beyond 70. This would allow judges to serve, albeit in a part-time position -- that’s the Constitutional issue.”

Wieczorek: “Yeah, once you retire all your authority is gone. It would be like
us sitting down here and saying I used to be a Councilor, I’m going
to sit down here and give you a little input.”

Councilor Wieczorek has a point. But it’s also true that the court, with the complicity of lawmakers, has long tapped retired judges in limited circumstances. Most notably, during the Claremont II lawsuit, when retired Justice William Batchelder was seated due to the recusal of Justice Steven Thayer. Batchelder’s participation was challenged, and the court ruled that temporary service beyond age 70 in some situations -- such as a recusal -- was fine.

“The court found that to be satisfactory but in holding it to be satisfactory there were holding it for a very limited situation.”

That’s Richard Hesse, who taught Constitutional law at Franklin Pierce Law Center.

“As I understand house bill 655, it in fact allows a one year extension to be repeated as often as a chief justice the Supreme Court or any other court chooses to extend it. So you could have a judge sitting until he’s 90.”

To secure what the bill calls “senior active status” judges over 70 would need to have a face to face interview with the top judge of the court on which they’d sit to gauge the retired judge’s physical and mental abilities. The bill stipulates that judges over 70 could only be appointed to “limited temporary assignments” but they would be empowered to render judgments and preside over jury trials. House Judiciary Committee Chairman David Cote, was the proposal’s lead sponsor. He says the goal is to help the court system serve the public, and that lawmakers did debate the proposal’s constitutionality.

“There is a difference between someone who sits as a part time judge who’s retired and someone who hold a commission. And, I mean, this was a request of the Supreme Court.”

But it’s probably worth noting that the judicial branch, which declined to be interviewed for this story, doesn’t always request constitutional bills. In 2007, the Supreme Court sought a bill to allow marital masters to make final recommendations in a case without the review and signature of a judge. In an advisory option, the Supreme Court later said that bill was unconstitutional because marital masters aren’t judicial officers. The court’s opinion ended by saying it would not opine on whether it would be constitutional if parties agreed beforehand that masters could make final recommendations without a judge. Last fall, the court asked for that precise bill. The legislature passed it, but it was vetoed. In his veto message the Governor noted the Constitution requires judges be nominated and appointed by the Governor and Council. The Governor told council on Tuesday that this latest bill from the judiciary will get plenty of attention.

“I haven’t received it yet, but I will be looking at it really, really carefully.”

Once the Governor gets the bill, he’ll have five days to veto it or it becomes law.