Wednesday, March 19, 2014

Are retirement ages for Minnesota Supreme Court justices constitutional?

I recently attended a fundraising party at a downtown Minneapolis law firm. As you probably know fundraisers are sort of like rent parties in college. The host provides some alcohol and snacks and the guests provide some cash for the person or organization seeking the funds. In college one would then try to drink enough alcohol to make attending the rent party a good investment of scarce funds. That sort of behavior is frowned on at fundraisers held at law firms.  So that is one difference between a rent party and a fundraiser.

Another difference is that rent parties do not involve discussions about constitutional law. Maybe that is because rent parties are not very high-minded. Maybe it is because discussions about constitutional law are boring. The data is inconclusive.

Anyway, at the fundraiser yesterday, a couple of very smart people were discussing whether having a mandatory retirement age for the justices on the Minnesota Supreme Court was constitutional. There is a Minnesota statute that requires all judges in Minnesota to retire when they reach the age of 70. Minnesota's coolest justice, Alan Page, will turn 70 in August, 2015, and I believe this impending retirement is what sparked the conversation.

The discussion went something like this, Minnesota's Supreme Court is created by the Minnesota Constitution and is a co-equal branch of Minnesota's state government. The Minnesota Constitution does not set a retirement age for Minnesota Supreme Court justices so it is not constitutional for the Minnesota Legislature and Governor to do so by enacting (and signing) a statute. Essentially it is a comparison (or maybe an analogy. Definitely not a metaphor, I am sure of that much) with the United States Constitution which gives Federal judges with lifetime tenure.

Article III Section 1 of the United States Constitution provides:
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
The "during good Behaviour" language means that there isn't a mandatory retirement age for Federal judges.

While Mr. Torvik and I took a class called "Constitutional Law" in law school, I am pretty sure the class stuck to the United States Constitution and never discussed-and possibly never mentioned- Minnesota's Constitution.  As a result of this inexplicable educational failing, I did not know what the Minnesota Constitution says, if any thing, about judicial retirements. So I looked it up.

Unlike the United States Constitution which gets to the judiciary in Article III, the Minnesota Constitution does not discuss the judiciary until Article VI. Section 1 of Article VI vests the judicial power "in a supreme court, a court of appeals, if established by the legislature, a district court and such other courts, judicial officers and commissioners with jurisdiction inferior to the district court as the legislature may establish." Section 2 says that the Minnesota Supreme Court will consist of "one chief judge and not less than six nor more than eight associate judges as the legislature may establish."  Note that the Minnesota Constitution calls the members of the Supreme Court "judges." I wonder why we switched to call them justices. Maybe judge is not a fancy enough title. But I digress. 

Sections 3 and 4 discuss the creation and boundaries of district courts.  Section 5 uses some of the same language as the federal Constitution when it discusses how the compensation of judges "shall not be diminished during their term."  

But what did the drafters of the Minnesota Constitution envision as a judge's term? Section 7 of Article VI says that the term of office of all judges "shall be six years and until their successors are qualified." Nothing about a mandatory retirement age there. Maybe this argument that retirement ages are unconstitutional has some legs. Section 8 deals with how the Governor can appoint judges to any vacant judgeship until a successor is elected. Still so far so good.

Uh-oh. Section 9 is entitled "Retirement, removal and discipline." That title does not sound helpful to the unconstitutionality argument. The section goes on to say,
The legislature may provide by law for retirement of all judges and for the extension of the term of any judge who becomes eligible for retirement within three years after expiration of the term for which he is selected. The legislature may also provide for the retirement, removal or other discipline of any judge who is disabled, incompetent or guilty of conduct prejudicial to the administration of justice.
What does it mean to "provide for the retirement of all judges"? Does it mean that the legislature can set up a retirement fund for judges? Or does it mean that the legislature can mandate when judges retire? My copy of Roget's Thesaurus gives the synonyms of provide as "furnish, supply, equip, stock (giving, store); prepare, arrange, ready (preparation); produce, turn out, yield (production); condition, postulate, stipulate (condition). The definition of provide provided (see what I did there?) by Merriam-Webster includes "to make (something) available" and "to give something wanted or needed." However, the last definition says "to say that something will or should happen: to make it certain or possible that something will happen or be done."   

What do you think Mr. Torvik? Is the Minnesota Constitution directing the Minnesota Legislature to supply retirement funds or to say how all judges in Minnesota should be made to retire? If the former, is the Minnesota Constitution then implying that Minnesota Judges have to retire at an age set by the Minnesota Legislature? Also should we consult a definition of provide from 1851 rather than from the 21st Century? Finally, assuming that Justice Page is the coolest justice (and he certainly is), does Minnesota have a second coolest justice? If so, who?

1 comment:

  1. I wrote a long response to this that got eaten up by the Internet, which actually frustrating me enough that I stopped coming to the blog for a while.

    Anyhow, this was a fine post, my friend.


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