Illinois Supreme Court throws out judicial age limits

The Illinois Supreme Court struck down the Compulsory Retirement of Judges Act this past Thursday in Maddux v. Blagojevich.

Cook County Law Division Presiding Judge William D. Maddux filed suit attacking the law in 2007; I wrote about the suit when it was filed.

Judge Maddux will turn 75 before December 6, 2010, when his current term expires. According to the Compulsory Retirement of Judges Act, Maddux would have been "automatically retired," unable to seek retention. Under Anagnost v. Layhe, 230 Ill.App.3d 540, 595 N.E.2d 109 (1st Dist. 1992), Maddux would have been able to attempt to retain his office only if he filed for the primary -- and took his chances against all comers. (In an amended complaint, Judge Maddux indicated a willingness to seek retention, if the Act were invalidated, but said he would not seek to keep his office in a contested primary.)

The Supreme Court acknowledged that, under Article VI, section 15a of the Illinois Constitution, "The General Assembly may provide by law for the retirement of Judges and Associate Judges at a prescribed age." The court found, however, that the Compulsory Retirement of Judges Act was, "in effect, nothing but an anti-retention provision. A judge disqualified by age from running for retention, yet able to hold a judicial seat, even the one he was retired from, via an open election is, in no sense of the word, 'retired.' As such, the Act, so construed [in Anagnost], fails to fulfill the constitutional mandate of compulsory retirement." (Slip op. at p. 8.)

After overruling Anagnost, the majority opinion explained why the Compulsory Retirement of Judges Act was unconstitutional (slip op. at 14):

There is no rational basis upon which the legislature can prevent 75-year-old or older former judges from running in an election, but not citizens 75 years old or older who were never judges when the disqualifying characteristic is age. If the legitimate state interest is to insure a “vigorous judiciary,” the classification we describe above cannot be deemed rationally related to that purpose. We stress again that if age defines ability (and both the constitutional and legislative history indicate that it was believed that it does), either all those 75 years of age or older are unfit or they are not. No presumption of constitutionality could save legislation like this that so blatantly violates equal protection.

The Supreme Court's majority opinion was authored by Justice Charles Freeman, himself 75 and, because of this opinion, now eligible to seek retention in 2010, should he so choose. Abdon M. Pallasch, writing in Friday's Chicago Sun-Times, quotes William Schroeder, a law professor at Southern Illinois University, as saying that Freeman's participation in the case, "has the appearance of impropriety. It diminishes the reputation of the judiciary and calls into question the integrity of the procedures. It brings the administration of justice into disrepute and causes the citizens to question the integrity of the process."

But DePaul University Law Professor Jeffrey Shaman was not as critical. According to Pallasch's article, Shaman said, "It might have been the better part of discretion if Judge Freeman had not written the decision in the case, but, even so, I don't think this is a situation where he had to disqualify himself from hearing the case." Pallasch also reports that Supreme Court spokesman Joe Tybor said, "I really think it's presumptuous to say it would 'benefit' Freeman."

Quoting from the Sun-Times article:

Freeman's accountant told him [Tybor] that with his pension, he would make more money if he retires. Maddux's attorney David Novoselsky said that was true for all the older judges who save taxpayers money by staying on the bench instead of leaving and drawing their generous pensions.

"It's really the voters in Illinois who benefit," Tybor said.