Sunday, June 9, 2013

Involuntary Un-Servitude

There is a recent move in the State of New York to increase the age limit for judges, to allow them to serve beyond the currently imposed 70 years. New York Times' article states that there are more than 30 states, plus D.C., that have an age limit on jurists. I found the article very interesting: it gives a reader a broad set of facts and, at least to me, feels like an exam set, inviting to "discuss this" and spot possible issues. I came up with these:

1. Liability issue. One of the proposed ways of keeping older judges at work is akin to a solution allowing older people to remain active drivers: to test them for competency after a term of set years. The reason is obvious, if the procedure would allow [somehow] to determine a person incompetent, the entitlement to drive, or to judge, will be revoked. I won't be even speculating on what method can be deployed to find a jurist competent, but I am sure it will be a times more complicated process than that of testing elderly drivers.

There is a similarity: both activities affect public with a possibility to cause serious damage if a power to drive a car or render a judgment is executed by an incompetent person. But there are differences, one being the basic fact that the driver's activity mainly works "forward" in time, and it is easy to tell at the next evaluation, how did the driver do since the last test, while the results of judge's actions may affect the past events and go "backward," and it is not as obvious to determine one particular judge's capacity to issue competent decisions.

If a person is accident-free, everyone is happy, and if that person causes a car accident, at any age, the sufferers will claim a compensation. At least with the driver, if there was no accident, there is no unhappy side to the story. But the judge, aside from granting stipulations, must make someone unpleased with each of their decisions, at least in some degree more than another party or parties. If that judge will be then found incompetent at the next test, the unhappy ones may then be very tempted to revisit the old judgment, passed beyond all deadlines for a conventional appeal.

Parties who lost, or who even hasn't got as much as hoped from the elder judge's decision, can now appeal based on the newly discovered fact of the judge's incompetency, possibly much after the time to appeal has already expired. Who then will be liable for appeal's costs and fees? The other party was not responsible for having this particular judge to preside over the dispute. Will the judge or judge's estate be liable? Or will it be the examining body, who found the same judge competent before? Wouldn't it open a venue for tardy appeals even against the decisions of judges still competent, on the grounds that the examinations failed to spot an incompetency? And if this judge or justice had also some supervisory role, participated in a panel decision, or was a chief presiding judge of the court, yet another level of a discussion opens up: whether this judge owed and breached some duty to his/her fellow members of the bench, and whether his vote or decision was a crucial one in a decisions made together with other judges.

May be a solution will be to notify all parties involved in all decisions made by such a judge, now-determined as incompetent, and provide such parties with an extended right to appeal. It will be a similar process to how consumers receive notices of product recalls or class-actions, based on the roster of who bought the product in question. Such notice itself has to be given only after the judge's time to appeal a finding of incompetency will expire. Still, the question of who will be covering the costs of these appeals will have to be answered, as well as where to draw the line in the amount of the judge's decided cases.

2. An issue of Due Process. The judicial employment is a government job, almost universally not a "short term" engagement, and is created and assigned by the government (this discussion excludes the term judges).  If seen as an entitlement, what kind of Due Process can be afforded to the soon-to-be-terminated candidates, if the only criteria to fire them is their own age? There is a substantive issue with forcing judges to retire only because they reach a certain age, as it looks impermissibly overbroad. There is also a procedural aspect to it: if there is nothing to argue, there is no need for an opportunity to be heard; there is, technically, no even a need for a notice, since each competent person is expected to know his/her own age. And, when and if the rules and the age limit do change, will the previously forcefully retired judges have a claim for their missed employment, will they be able to reclaim their positions back, and, if yes, will they need a new appointment?

3. An issue with picking a certain age. The issue addressed just above is the judge's personal problem. It looks like the judges mentioned in the NYT article are not happy about being pushed out at age 70, but is it justified at any age?  If to consider that we have a deficit in judicial officers (including the State of New York), and that the life expectancy is only growing, a public side of the problem also becomes obvious: the public at large does not benefit by neither forcing out judges at any preset age, nor by spending on rehearing and re-setting the age limit each time the previous number becomes looking too little, too soon. Granted, the State of Vermont has its judges' limit set at age 90, but the US judicial history already has examples of not one, but two 104 y.o. judges: Joseph William Woodrough and Wesley E. Brown. Simple search also reveals plenty of "over 90" attorneys practicing in various states. It looks like practicing law on either side of the bench at age of 90-100 years is already not that unique, besides the ongoing increase in average life's length. Thus setting the limit at any number will still look unreasonable, even more so, if the number will be set too high.

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