No doubt many voters have already cast their votes in this election, but it is never too late to stop a bad idea that will, in the end, cost taxpayers money.
A proposed constitutional amendment would allow the chief justice of the state Supreme Court to appoint retired judges to serve temporarily in courts no higher than the level they reached prior to their retirement. These temporary hires are not to exceed three months per appointment. Judges, along with elected officials, receive generous retirement benefits based on a multiplier of 3.5 per year. Judges are usually appointed to a 10-year renewable terms. Thus, at minimum, retired state judges receive 35 percent of their highest three earning years. Judges appointed to a second term, retiring after 20 years, receive 70 percent of their highest three earning years.
District Court judges are currently paid approximately $128,000 dollars a year while Circuit Court jurists make about $136,000 a year and Supreme Court justices about $156,000 a year. For a 10-year term, that translates to $45,000 in pension for District Court judges; $47,000 per year for Circuit Court judges; and $54,000 for a Supreme Court justice. Of course, those pensions are exempt from state income taxes.
Retired judges, appointed to serve for three months at a time, would be paid for the hours they put in while collecting their pension income. The chief justice can make the appointments for terms not to exceed three months per appointment. Thus, it is quite possible a retired judge could serve for three months, take a day off and then be appointed to another three-month term.
Something like this already occurs in the general population of public employees where an employee can be hired for 89 days without going through the regular civil service qualification procedures. After 89 days, the employee takes a one-day break before being reappointed to another term. Some of these “89-day wonders” are retirees, but then again, their pensions are substantially less generous than those of judges.
The measure that proposed this amendment was introduced in the 2011 session and went nowhere, but it took on new life during the 2012 legislative session because the Judiciary supported the bill. In presenting testimony on the bill, the Judiciary argued that these retired judges had a great deal of experience and could help mentor inexperienced judges. The problem with mentoring in the legal arena is the issue of judicial independence — a judge is to make a decision on his or her interpretation of the law with respect to the facts presented in the case. Having a retired judge shape a new judge’s interpretation of the law violates this concept of judicial independence. That decision can then be allowed to stand or it can be appealed by the defendant to a higher court. Having fresh new eyes independently look at the law is how the system works. Indeed, it is the role of the Judiciary to act as a check of the other two branches of government. When there is a bad law, it is up to a member of the Judiciary to issue an opinion that tells the Legislature that bad policy was set or tell the administration they did not execute the law as intended.
The amendment before voters to allow temporary appointments of retired judges amounts to nothing more than a way for retired judges to double dip, by collecting both their pensions and a salary. If the argument is that there is a dearth of judges and the case loads are growing, then it is a matter of ensuring that judges are appointed and confirmed on a timely basis.
If the idea is that there aren’t enough experienced judges sitting on the bench, then it is a matter for the Judiciary to use sitting judges with experience to help guide the newer appointees without influencing the decision-making process. The concept of judicial independence is so critical to the Judiciary that it cannot be ignored. And, oh yes, has anyone asked how this amendment comports with the current constitutional provision that mandates the retirement of judges when they reach age 70 or is this just another way to circumvent an existing constitutional provision?
Lowell L. Kalapa is president of the Tax Foundation of Hawaii.