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Mandatory retirement is forcing out Florida judges

By Colleen Jenkins, Times Staff Writer
In print: Monday, September 22, 2008

Circuit Judge J. Rogers Padgett, 70, will retire at the end of the year, after 34 years on the bench. Padgett is being forced to retire because of age limitations for judges in Florida.
	[DANIEL WALLACE | Times]

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TAMPA — When judges in Hillsborough have questions about judging, they are as likely to seek guidance from Circuit Judge J. Rogers Padgett as a law book.

Padgett, the county's longest sitting jurist, has served 34 years on the bench and presided over an estimated 900 jury trials. But come January, courthouses around the area will lose decades' worth of that institutional wisdom when he and other veteran robed colleagues are forced into mandatory retirement.

John McCain can run for president at 72, but judges in Florida have to give up their offices when they hit 70. Jokingly referred to as "constitutional senility," the requirement doesn't always sit well with the nimble-minded elders.

"I'm really not ready to go," said Hillsborough Circuit Judge Frank Gomez, another outgoing judge.

Also departing are Judges Marion Fleming in Pinellas and Wayne Cobb in Pasco, that county's most veteran judge with 31 years on the circuit bench. Florida Supreme Court Justices Harry Anstead and Charles Wells face mandatory retirement next year.

State judges aren't alone. Federal law protects most workers from being ousted due to age, but exceptions are made for airline pilots and people in public safety jobs. Some corporate executives and board members, including those at the St. Petersburg Times, are expected to retire at 65.

Florida adopted its retire-at-70 provision in 1972, when the average life expectancy was 70.8 years. Though people can expect to live for 77.8 years as of 2005, the mandatory retirement age for judges hasn't budged.

Legislators who wanted to get more black and female judges on the bench batted down a recommendation in the mid 1990s to either remove the requirement or raise the age limit, said Dexter Douglass, a Tallahassee lawyer and constitutional expert who served on the task force that reviewed the part of the Constitution that deals with the judiciary.

The idea got tossed around again but never gained traction during the Constitution Revision Commission that Douglass chaired in 1997.

He remains in favor of no mandatory retirement age, preferring instead a system by which the Judicial Qualifications Commission would conduct a review of older judges whose abilities are called into question.

"You've got to find when somebody really flunks out that they don't stick around like they do in the federal court sometime," Douglass said. Federal judges are allowed to serve for life.

Judges may fill in after they retire

Already, there is a process in place for judges who apply to serve in a senior capacity after their retirement. Applicants older than 70 are reviewed annually to determine whether they are still fit to serve.

Judge Chris Altenbernd, who sits on the 2nd District Court of Appeal and oversees the committee that serves Hillsborough, Pinellas and Pasco counties, says the current rule allows good judges to continue serving in a limited capacity and helps avoid the awkward situation of involuntary removal.

"It prevents us from having to deal with people who become senile or have other problems and the great difficulty of having to go up to them and say, 'it's just time to quit,' " he said. "That's a very difficult thing to do."

But allowing judges older than 70 to serve at all undermines the rationale behind the "arbitrary" mandatory retirement age, said Larry Polivka, associate director of the School of Aging Studies at the University of South Florida.

In certain fields, people get better with age, he said. He cites U.S. Supreme Court justices who have had the most productive periods in their careers after 70. One of Polivka's favorite jazz musicians, Hank Jones, is performing at his peak at 90.

"It's an antiquated notion, and it's unfortunate that it's embedded still in a few places," Polivka said. "There's no justification for it."

Judges Gomez and Fleming haven't turned 70 yet. Florida judges can finish a term as long as it is halfway over before they reach 70. But both would have become septuagenarians before the midpoint of their terms, meaning the governor would appoint a replacement.

If they had run for their seats and lost, they would have been ineligible to serve as senior judges, who fill in for sitting judges when they are ill or at conferences. Both opted to call it quits instead.

The retiring judges seem resigned, if not enthused, about their fate. They plan to apply to serve as senior judges, though squeezed budgets have cut back the funding for those positions.

Disinclined to sit at home, Padgett, who enjoys traveling to far-flung places like Malta, Gibraltar and the Panama Canal, is considering going abroad to teach English.

Others take a more critical view of the brain drain.

"It's just a waste of talent," said Brandon attorney Robert Fraser.

Times researcher John Martin contributed to this story. Colleen Jenkins can be reached at cjenkins@sptimes.com or (813) 226-3337.