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The Honolulu Advertiser
Posted on: Sunday, September 17, 2006

Vote to maintain judges' age limit

By Jeffrey Choi

The Hawai'i Constitution now requires that judges retire at age 70. This election year, voters will be asked to amend the state constitution to eliminate age limits.

So far, this issue has received very little attention from the media, and the public is largely unaware that they will be asked to decide on the matter. And most people will probably enter the voting booth having given little — if any — thought to this issue.

Casual consideration of the proposal would probably lead most people to agree that there should not be an age limit. After all, U.S. Supreme Court justices can serve as long as they want. If the proposed amendment to our state constitution were limited to erasing the limit only for appellate judges, then the idea might not be so bad.

I do not agree with eliminating the present requirement even for appellate judges, but I recognize that it is an issue about which reasonable men could differ. Unfortunately, the proposed amendment to our state constitution does not restrict the change to the appellate court justices.

I am a retired District Court judge who, during almost 30 years of private practice, appeared before many judges on three different islands. I find few, if any, reasonable arguments in favor of doing away with the age requirement when it comes to trial court judges— and the negative impact of the change could affect thousands.

The general public may not realize that the skills required of judges at the trial level are fundamentally different from those required of appellate judges. Decisions at the appellate level are made by a slow and deliberate process with the aid of law clerks, much discussion and extensive written briefs submitted by both sides. Years pass before appellate decisions are rendered.

Trial judges, on the other hand, must make many rapid decisions during the course of a trial or hearing with little or no time to ponder. Trial judges must quickly bring many factors to bear in order to make these many rulings and decisions on the spot. Among them are memory of testimony and evidence, previous rulings in this and similar cases, the statutes, complicated rules of evidence, fairness and public policy.

We all know of elderly friends and relatives who are competent and intelligent well past 70. We also all know that many of those competent elders have slowed down and have weaker memories and slower thought processes. In other words, they can still capably handle appellate judging but should not be asked to handle the fast, stressful demands of trial court proceedings. Just because you can coach well does not mean that you can play well.

The sheer volume of work indicates the type of quick thinking that is required.

The 2005 annual report of the state Judiciary says that the total caseload for the Big Island's last fiscal year was more than 160,000 cases of various types. There are three full-time District Court judges on this island. On a typical Monday morning, the District Court calendar will have about 400 traffic and criminal cases involving 175 defendants, and 75 civil cases that have to be disposed of in one morning. Although many can be disposed of summarily, rapid decision making still is required.

There are those who say that the judicial review process can remove any judge who is no longer up to the task. Maybe eventually the judge will be removed, but it is a certainty that the removal process, if it is called into action, will not move quickly enough. Perhaps if elderly people went from being completely capable to completely incapable overnight there would not be a problem.

However, the normal aging pattern is one in which the individual slowly declines. Between the time judges should have left and the time they are eased or forced out, thousands of District Court cases or hundreds of Circuit Court cases have been disposed of with less than full judicial competence. It is also an unfortunate fact that attorneys, who would be expected to be the ones to ask that a declining judge be removed, have historically been reluctant to do so until the situation is extreme.

Right or wrong, many — if not most — attorneys believe that if they speak against a judge, the information will somehow leak and they will suffer retribution. Complaints, therefore, are generally slow in coming and would probably not be made until long after many citizens have come before the court and been bitterly disappointed.

There are very logical and practical reasons why virtually every state has a mandatory retirement age for judges. The purpose, after all, is to give the public the highest quality of justice that society can devise.

I sympathize with those justices and judges who want to continue working past 70. Many could do so very competently, but eventually we will get an incompetent judge who will do enormous damage to the public. I strongly urge Hawai'i voters to retain the present retirement age limits for Hawai'i's judges.