Following the adoption of the Connecticut Constitution in 1818, judges age seventy and older had been barred from holding judicial office. From 1818 until 1965, pursuant to that prohibition, judges who had reached the age of seventy years were not permitted to exercise any judicial powers, but, beginning in 1889, were allowed to act in a limited capacity as state referees, consistent with that limitation, to find facts and recommend rulings to the trial court. Then, in 1965, the constitution was amended to permit judges who were not "eligible to hold [their] office" upon reaching the age of seventy years but had chosen to serve as state referees to exercise limited judicial power, including the powers of the Superior Court. With the adoption of that amendment, the Constitution now provides in relevant part: "No judge shall be eligible to hold his office after he shall arrive at the age of seventy years, except that a chief justice or judge of the supreme court ... [or] a judge of the superior court ... who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court ... on matters referred to him as a state referee." That amendment, however, failed to permit such referees to exercise the powers of the Supreme Court in any capacity. Then, in 2000, to circumvent that prohibition, the legislature enacted General Statutes § 51-198 (c), which provides in relevant part: "A judge of the Supreme Court who has attained the age of seventy years may continue to deliberate and participate in all matters concerning the disposition of any case which the judge heard prior to attaining said age, until such time as the decision in any such case is officially released...."

The constitutionality of this act was questioned from its inception in light of the distinction between the powers exercised by a justice of the Supreme Court and the limited powers that may be exercised by a state referee. Then, in Honulick v. Town of Greenwich, decided in 2009, a majority of the Supreme Court determined that General Statutes § 51-198 (c), authorizing justices of the Supreme Court to continue to deliberate on and participate in cases after their seventieth birthdays as long as those cases had been heard prior to their seventieth birthdays, was constitutional. Although I dissented in Honulick, joined by Justice Zarella, and would have determined that the constitution did not permit a justice over the age of seventy to engage in the acts authorized by the statute; I was clearly in the minority. The majority opinion, authored by then Chief Justice Rogers, concluded that General Statutes § 51-198 (c) was constitutional, and that based largely on economic and sociological considerations and public policy concerns, "the desirability of permitting retired justices to complete work commenced preretirement preserves both the integrity and efficiency of the Court."

I understood that the issue was personal for some of my colleagues and hoped that my dissent was not viewed as a reflection of their capabilities. The issue was simply a matter of constitutional interpretation. Furthermore, not that this was a guiding principal, but I never saw the need for the statute. For years, the Supreme Court was able to avoid the constitutional crisis. I served under Chief Justice Peters, when we heard between 180-200 cases in any given year and all opinions were approved by the "drop dead" date of July 31 so that the Court could recess in August. (I readily admit that back then I used to have the classic nightmare of all neurotic students-there are several variations-like the day of the exam and you can't find the room, or you thought you had dropped the class only to realize you had not sent in the drop form. For me, that dream was Chief Justice Peters coming down to hall in June asking for the opinion she had assigned to me in February. It was only a dream, but the perspiration it caused was real.) In recognition of the Constitutional limitation, the long established practice of the Court had been to have justices refrain from hearing cases several months prior to their seventieth birthdays so that their role in any pending cases would be completed before they were no longer constitutionally authorized to act in that judicial capacity. As Justice Berdon noted in Doyle v. Metropolitan, "In order to accomplish that result, the uniform practice has been not to assign justices approaching that age to cases argued less than three or four months before the justice's approaching seventieth birthday, and for the other members of the court to strive to issue the decision before that date. This practice is not ... merely based on 'logistical pressures'.... It is based, instead on article fifth, § 6, of the constitution of Connecticut...."

So now, here I am just months from my seventieth birthday, when, were I still sitting as a justice, I would be constitutionally senile. And while I still think my dissent in Honulick was correct, I wonder whether article fifth, § 6, of the Constitution of Connecticut should be revisited. Does it make sense to have an arbitrary time by which judges can only serve in limited capacity? After they turn seventy, many Supreme Court Justices (as well as Appellate Court judges over seventy) sit on the Appellate Court and serve with distinction.

Many Article III Judges sitting on federal district and circuit courts often continue to serve well beyond their seventieth birthdays. Because there is no mandatory retirement age for Article III judges, there is no requirement that they take senior status. Consequently, over the years, there have been many Circuit Courts Judges and Supreme Court Justices serving well into their seventies. To insulate the federal judiciary from political influence, the Constitution specifies that Supreme Court Justices "shall hold their Offices during good Behaviour." Although "good Behaviour" is not defined in the Constitution, the prevailing interpretation is that Congress cannot remove Supreme Court Justices from office except by impeachment. Thus, under existing law and longstanding historical practice, Supreme Court Justices generally enjoy life tenure.

Some maintain that life tenure for Supreme Court Justices promotes important values, including judicial independence and expertise, while others support age or term limits for Supreme Court Justices to regularize judicial appointments and reduce the risk that failing health will negatively affect a Justice's work.

Other states handle this issue differently. Most use elections as some part of their selection process. According to the Brennan Institute, 38 states use elections to select judges to the high court; in some states, judges are appointed to the high court for life; some states use a hybrid method; and a few are sui generis. So again, I ask the question: should the constitution be revisited on this issue? Should we continue to embrace constitutional senility or should we assume that a justice is no less capable to sit the day after her seventieth birthday than she was the day before it? Should we presume fitness unless there is evidence to the contrary?

I understand that there is not likely to be a groundswell of support for a constitutional amendment on the topic and that there currently are far more pressing matters deserving of attention. But as my seventieth birthday approaches on the horizon, and the sword of Damocles will once again likely loom large in the not too distant future for some members of the Connecticut Supreme Court, the topic has crossed on my mind, and now something that was once largely academic is now very personal.

Originally published by Connecticut Law Tribune.

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