GIVING JUDGES A CHANCE TO DOUBLE DIP

by Lowell L. Kalapa, Tax Foundation of Hawaii

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.

This is what one of the constitutional amendments would do, it would allow the chief justice of the state Supreme Court to appoint retired judges, who retired upon reaching the age of 70, to be emeritus judges and serve as temporary judges in courts no higher than the court level they reached prior to their retirement. These temporary appointments are not to exceed three months per appointment. As background, readers should know that judges, along with elected officials, receive very generous retirement benefits based on a multiplier of 3.5 times the number of years. Judges are usually appointed to a term of ten years and that term can be renewed. Thus, at minimum, retired state judges receive at least 35% of their highest three earning years. If the judge is appointed to a second term of ten years, retiring at the end of that term with 20 years of service as a judge, that judge would be qualified to receive 70% of their highest three earning years.

District Court judges are currently paid approximately $128,000 dollars a year while Circuit Court judges make about $136,000 a year and Supreme Court justices about $156,000 a year. For a ten-year term, that translates into $45,000 in pension income for District Court judges; $47,000 per year for Circuit Court judges; and $54,000 for a Supreme Court justice in pension income per year. Of course, those pensions are totally tax- exempt from state income taxes.

Thus, if that retired judge is appointed as an emeritus judge to serve for three months at a time, not only would they be paid for the hours of work he or she put into their work, but they would also be able to collect their pension income. Note well, that the chief justice can make these appointments for terms not to exceed three months per appointment. Thus, it is quite possible that a retired judge could serve for three months, take a day off and the chief justice could appoint that retired judge 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. That employee then takes a break of one day and can then be reappointed for another 89-day term. Indeed, some of these so-called A89-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 as 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 newer inexperienced judges. The problem with the mentoring in the legal arena is the issue of judicial independence that is 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 the interpretation of the law by a new judge 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 look at the law independent of another judge is how the system works. Indeed, it is the role of the Judiciary to act as a crosscheck 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 that they did not execute the law as intended.

Thus, the constitutional amendment that will be before voters in the voting booth 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 insuring that judges are appointed and confirmed on a timely basis.

Finally, if in fact the idea is that there aren’t enough experienced judges sitting on the bench, then it is a matter for the Judiciary to utilize 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?

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