On the ballot this election wasn’t just who will be the next president or governor; Granite Staters voted on whether state judges should be allowed to serve until they’re 75 years old.
Currently, judges are required to retire at age 70, according to a limit set by the state constitution in 1792. If a judge retires before age 70, they can serve as senior active judges, which means a judge can serve on the court they retired from but they can’t fully engage in law practice. After age 70, they can also serve as referees, working on cases in a facilitating manner, in the court they retired from.
Across the country, age limits for judges vary widely, according to Bloomberg. Seventeen states have no limit. In Arkansas and North Dakota, serving past a certain age can cost a judge their retirement benefits. Eighteen states have a mandatory limit of age 70, and eight states set their age limits to 75. Vermont is a bit of an outlier, with an age limit of 90.
Supporters of the proposed amendment in New Hampshire say the increase in age could allow judges that want to serve continue to hold their positions. Critics counter that it could also keep judges who may not be fit to serve, or those whose ideologies are out of step with modern public opinion, on the court longer.
Two-thirds of voters would need to vote yes on the constitutional amendment in order for it to take effect. When voters receive their ballots, the question about the constitutional amendment also includes language about a retirement age of 70 for sheriffs — but the amendment will have no impact on that, since the retirement age is already 70 years old for that position.
If the measure does pass, it could further solidify Gov. Chris Sununu’s influence on the state’s courts before he wraps up his term in office. Nearly three quarters of the justices currently serving in New Hampshire’s courts have been appointed since Sununu became governor in 2017, including four out of five on the state supreme court.
Many of Sununu’s appointees are on track to serve until at least 2040, even without the change in retirement age. If the retirement age is extended to 75, five circuit court judges could theoretically serve until 2060.
What do retired justices think?
The age limit proposal was co-authored by Rep. Bob Lynn, a retired chief justice of the New Hampshire Supreme Court who now represents Windham at the State House. The Legislature, unlike the courts, does not set a mandatory retirement date.
Lynn, a Republican, said he thinks the current age limit is too young. He said life expectancy was much lower when that cutoff was established, in 1792, and is an antiquated cutoff.
“As a result of that,” Lynn said, “we’ve lost talent of a number of really very, very good judges, very qualified judges who would have stayed beyond age 70 if they were able to.” Lynn said a couple of judges come to mind that should have been able to serve a little longer on court, including his former colleague on the New Hampshire Supreme Court, Carol Ann Conboy.
“She was my epitome of a wonderful judge,” Lynn said. “She was smart and hard working and incredibly fair minded and empathetic.”
Lynn said they had plenty of “vigorous disagreements,” but he was sorry to see her leave the bench.
“To see her have to retire when she didn’t want to – I think that was a real, a real tragedy for the citizens of the state,” Lynn said.
Conboy, meanwhile, said she always joked with her colleagues that they’d have to pry her fingers off the door to get her to retire. Now 77 years old, she lives at an independent continuing care community in Manchester. She started her term on the state’s highest court at age 62 and said she would have liked to serve at least a few more years on the bench, ideally retiring around age 73.
“It was very sad to me to pack up my books and my office furniture and say, ‘You’re done. You’re just, you can’t do it anymore,’” she recalled. “I wasn’t fired for incompetence. I was fired because the calendar turned to a certain day and that was the end. It was extremely disconcerting.”
Conboy said she would have been open to a competency test, as a way to ease public concern over judges’ capabilities.
But she also suggested there are other factors, beyond age, that could influence a judge’s capacity to serve. Judges might face marital and familial problems that divide their attention, she said, and that might require them to take a break until things are resolved.
“Let’s say a judge is going through a very traumatic personal experience, a spouse dies or a child is in a terrible accident that may require that that judge take some time to deal with it, just as we would hope that people in other walks of life would be given an opportunity to deal with it,” Conboy said.
Judges also face mental and physical health concerns, she said; some of those could impact their performance in the court, while others are more easily managed.
Conboy said ensuring judges remain connected to their communities, to technology and to social advances is an important factor for justices. She gave the example of how cellphones have introduced new ways of thinking around crimes committed not just in physical spaces, but also digital.
For her part, Conboy said by the time she reached the New Hampshire Supreme Court, she had accumulated a lifetime of experience, not just in the legal field: working in the U.S. Air Force, as a high school teacher, working with the state to address drug and alcohol issues, as well as 13 years as a practicing lawyer and 17 years as a trial judge.
“I handled murder cases all the way down to arguments over where garbage cans were going to be put in a common driveway,” Conboy said. “Those kinds of experiences actually expanded my understanding of the problems of all strata of society – from sophisticated business decisions or problems to very mundane things such as arguments with town officials as to whether you can build a screen porch on your house.”
Some say term limits, evaluations could help
Some others in New Hampshire’s legal field said the constitutional question brings up other questions about how well our justice system is functioning.
Buzz Sherr, a seasoned New Hampshire defense attorney who teaches at the Franklin Pierce School of Law, said the question of age isn’t quite the problem — he can think of some judges who he was sorry to see retire, and others he was glad to see leave the bench.
At age 72 himself, Scherr said he’s found himself paying more attention in general to how people talk about older adults, for good and for bad. He’s allowed to work until he’s 80 as a professor and plans to slowly phase out his work over time. He is also running for a seat at the State House this fall, as a Democrat.
Judges, Scherr said, are in public-facing positions, so it makes sense that people would be interested in whether they are fit to serve.
A better system, in his view, would be to hold evaluations of judges and their work after age 70, but that would be a tall order. A review on a case by case basis of who is fit to serve would take a lot of time, resources and consideration to execute, Scherr said, so a blanket age limit is more practical.
“I think we over rely in society on people who are advanced age and too often credit them for being wise just because they’re older, old, rather than credit them because they are wise,” Scherr said. “I think it’s easier to have an artificial limit when you’re worried about people who are not as wise or capable as they used to be as they age.”
Edward Gordon, a former New Hampshire circuit court judge and former state lawmaker, also questioned if age is the appropriate measure on whether a judge should serve. Gordon retired before he reached the age of 70 and worked in senior judge status until he reached the age limit. He said that he loved his job.
“I sat primarily in Franklin, and I enjoy the community as a circuit court judge,” Gordon said. “You’re close to the community and you set standards for the community.”
Gordon said he knows of other circuit court judges that retired before they reached their 70th birthdays, so he said the increase in age might not propose immediate changes for Granite Staters, at least not in the circuit court.
There are things judges consider when serving and plan on stepping off the bench, Gordon said, like whether they can retire with benefits, which depends on both their age and how long they’ve served.
While Gordon thinks age is less of a concern, he is a believer in term limits.
“The question is, is there some advantage of having turnover as opposed to keeping judges or politicians in place for long periods of time?” Gordon proposed. “It’s good to have new blood at times. I think those are issues I think that I would raise when it comes to the issue of whether we should extend the age.”
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