Years ago when I was a young man the people of the Commonwealth got fed up with having judges who were very old deciding cases. At one time in Massachusetts a judge could sit in judgment of people even if the judge could no longer make a decision for himself or herself. Like we have today in the federal court, there was no age limit on a judges sitting on the bench. An appointment for life meant that. Once the judge fit on the robes the people were stuck with him or her forever and ever and ever.
You understand that to get a Constitutional Amendment passed in the state it takes quite a bit of work. That is especially so when it involves something most people seem to have little concern over which is the ability of a person in the robes to make proper decisions. The Legislature in Massachusetts has shown its concern over and over again by passing laws that dictate a person convicted of certain crimes must do a mandatory sentence. Those laws exist because the Legislature determined that some judges no matter their age were just unable to appreciate the gravity of these crimes and were not sufficiently punishing people.
These minimum mandatory laws could have been used wisely and judiciously. They should have been bulleted to specific people so the judges who were notorious for poor judgment when it came to punishing bad criminals could have been circumvented. Alas, the district attorneys could not figure out how to do that so a good Legislative idea went astray.
As I said, when the people noticed there was something wrong and were moved to worry about ancient judges deciding modern problems they banded together to do something about it. You have to assume that the need for a change was highly compelling especially since most judge work out of the public light. To lessen the horror of life-time judicial appointments, the people worked to enact a Constitutional Amendment terminating a judge’s ability to sit when age 70 is reached.
Here is the Amendment the people put in as part of our Constitution under Article XCVIII.
Article I. “ . . . All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior . . . ; and provided further, that upon attaining seventy years of age said judges shall be retired. Such retirement shall be subject to any provisions made by law as to pensions or allowances payable to such officers upon their voluntary retirement.|
I suggest it seem rather straight forward. Do you see any ambiguity in it?
What then do you make of a statement like this: “After reaching the mandatory retirement age in 2003, Justice Brown continued to serve as a recall justice until 2015.” Justice Brown served as a judge for twelve years longer than his mandatory retirement age. In Massachusetts that is not uncommon.
The judges decided that the people wanted them to retire at age 70 which they did. But since the people did not say anything about judges not being recalled, then it was all right for them to retire and then come back to work the next day. We now have judges in their 90s sitting on cases. Along with the Legislature, the judges made mockery of the people’s vote.
The law is so clear that anyone aggrieved by having some old judge sit on his case should have a right to complain. The problem is the complaint is made to the judges who are benefiting from the law. It is hardly likely they will rule the recall unconstitutional. Even before the people voted the judges and legislature had schemed to go around the law.
The Legislature had before it a provision that would have allowed for recall. It decided not to make that part of the law. You would think that would foreclose any discussion of the matter. Not in Massachusetts.
The Supreme Court Judges wrote: “First, it is ultimately the voters who will determine the fate of the amendment; and since the question of recall of retired judges has not been and will not be presented to them, we are unable to discern their intent on this matter. Second, if the Legislature passes the recall bill before the November election, and the proposed amendment is adopted, it might reasonably be argued that the Legislature and the voters regard the bill and the amendment as complementary, or at least not inconsistent.”
The fact is the legislature turned down the recall and the voters voted to retire judges at 70. If they wanted a recall provision they would not have so voted. The judges say wait a minute, they never said anything about the recall so perhaps they would have said it was all right so we’ll decide that for them. And, by the way, we hope you don’t notice that what we did is to turn the decision of the voters on its head and make the Constitutional Amendment a nullity.
As I’ve said the law is what the judges say it is even when as here when it is in direct opposite to the language written down.