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The Honolulu Advertiser
Posted on: Wednesday, October 25, 2006

VOLCANIC ASH
Retirement age amendment a political ploy

By David Shapiro

Voters should be wary of claims that age discrimination is the issue with constitutional amendment 3 on the general election ballot, which would end mandatory retirement at 70 for state judges.

This is more about a political power play by Democratic legislators and senior members of the Judiciary to prevent Republican Gov. Linda Lingle from appointing top judges if she's re-elected to a second term.

And lawmakers were in such a rush to achieve their political goals that they failed to give adequate consideration to the measure's impact on judicial vitality and accountability when they passed it over the objections of Lingle, Attorney General Mark Bennett and the state Judicial Selection Commission.

The Hawai'i State Bar Association, former Gov. Ben Cayetano and prosecutors from all four counties have since voiced opposition.

The Hawai'i Constitution is the enduring foundation of our state government, and it's never a good idea to amend it for short-term partisan politics. Nor should it be amended in the selfish interests of a handful of people in this case, eight current judges who would face mandatory retirement before their terms are up.

Opponents are concerned that the change would clog the Judiciary and lock out new blood and fresh ideas.

They also worry that dropping the retirement age could give judges virtual lifetime appointments with no opportunity for voters or elected representatives to periodically evaluate their suitability to continue on the bench.

We'd join Rhode Island as the only state with no check on judicial tenure by means of mandatory retirement, election of judges or periodic review and reappointment by the governor and Legislature.

But the biggest issue is the political motivation that caused judicial retirement to suddenly become a priority only after Hawai'i voters elected their first Republican governor in 40 years.

Lingle charges that the primary intent of the constitutional amendment is to keep key Democratic judicial appointees in place until after she leaves office, in the hope that a Democrat will be elected to succeed her and be able to name their replacements.

The stakes are high; among those facing retirement if the amendment fails are Chief Justice Ronald Moon of the Hawai'i Supreme Court, who would have to retire in 2010, and Chief Judge James Burns of the Intermediate Court of Appeals, who turns 70 next April.

The governor who appoints their replacements would shape Hawai'i's Judiciary for a generation.

Lingle and the Judicial Selection Commission gave lawmakers an out, if age discrimination was really their concern, by suggesting they apply the new retirement policy only to future judges and not make it retroactive to current jurists, thus removing the political taint.

But politics was the point, and legislators refused to make the change.

The current retirement age in the Constitution was intended to assure periodic turnover in the courts, and let's face it, we're due for a change.

Ronald Moon has had a 13-year run as chief justice 17 years by time he'd hit mandatory retirement and the court's performance has not been particularly distinguished under his guidance.

He led the Supreme Court neck-deep into the Kamehameha Schools/Bishop Estate scandal that stained the credibility of the Judiciary and ended with the five Bishop Estate trustees hand-picked by the justices being removed for malfeasance.

The Moon court has been marked by lengthy delays in issuing decisions and bickering among justices, hardly a record that warrants the extraordinary step of amending the Constitution to prolong his tenure.

Ending mandatory retirement for judges might be worthy of consideration in the future, but only after lawmakers rid the proposition of politics and give more careful thought to the impact on judicial accountability.

David Shapiro, a veteran Hawai'i journalist, can be reached by e-mail at dave@volcanicash.net. Read his daily blog at blogs.honoluluadvertiser.com.