Article VI, Section VI of the New Jersey Constitution provides that judges of the Supreme Court and of the Superior Court shall ” … be retired upon attaining the age of 70 years. … ” We are not experts on the subject of gerontology, but we believe that respectable evidence exists to suggest that for many people, age 70 is not what it once was. We note with interest Justice Brennan’s observation in 1979 that “ During the fight that produced our new judicial system in 1947, I favored the provision for mandatory retirement at age 70. I confess that at 73 I have reservations.” William J. Brennan Jr., “Introduction: Chief Justice Hughes and Justice Mountain,” 10 Seton Hall L. Rev. xii (1979).
Frequently, judges retire not because of physical or intellectual infirmity but because of the aforementioned constitutional obligation. Some of these persons resume careers in the private practice of law. Others are invited to return as “recall judges,” albeit they are no longer eligible for membership in the judicial pension plan. Many are in the prime of their careers, and thus the toll on the judicial system is apparent.
The Administrative Office of the Courts advises that, with respect to trial court judges, 21 states have no age maximum. Another 21 states (including New Jersey) have age 70 as the maximum. Three states utilize age 72 for that purpose, and five, age 75 (we note that the information does not reference appellate judges).
Our sense of the situation is that reasonable minds differ markedly on the issue whether age 70 continues to be an appropriate age for mandatory retirement. Some suggest that if the age were extended, opportunities for judicial appointment of younger persons would be diminished. We have also heard the concern that an extension of the retirement age would increase the chances of judges continuing to serve who, by objective standards, had reached the point where, physically and/or mentally, they could no longer fully perform their judicial functions.
We think this matter is worthy of consideration, although we are not prepared at this time to endorse any particular modification of the status quo. In the federal system, life tenure results with appointment confirmation, except that magistrate judges may continue to serve and be reappointed after age 70, upon a majority vote of the active district judges of the court, such vote being taken when the judge reaches age 70 and upon each anniversary thereafter. For all other federal judges, when the combination of their ages and years of service equals 80, they are allowed to go on “senior status.” We understand that senior status does not involve the diminution of compensation. However, the judge’s caseload can be reduced or adjusted at his/her request or upon the exercise of discretion by the chief judge or judicial council. Such might be an attractive modification of our state judicial system. We invite discussion of what we regard as a significant matter.
Fun, Games and Violence
Trespass Quare Clausum Fregit: The defendant with force and arms, broke and entered the close.
This old common law writ had it right, even in circumstances the common law never imagined. There is a physical boundary line in spectator sports between the fans and the players, a line not to be crossed. Yet in recent years our favorite games have become more and more violent (probably originating with hockey, as in the old joke, “I went to a fight and a hockey game broke out”). The fans, sometimes spurred on by alcohol and perhaps inspired by reality television, have taken to being a part of the action. They show their displeasure by throwing objects onto the floor of the arena or even at the players themselves. The players for their part, despite some of them terming themselves “professionals,” have sought to vindicate their honor against those demonstrations of disrespect by bounding into the stands to counterattack their tormentors.
Recently, we were assaulted by the spectacle of a horrendous breaking of the close by both object-throwing fans and counterattacking NBA basketball players in a televised game between the Detroit Pistons and the Indiana Pacers basketball teams. It was indeed frightening to watch these oversized athletes plowing through a sea of spectators (innocent and guilty alike) to reach their antagonists. It was not a game anymore and it certainly was not fun.
As is often the case, there is sufficient blame to go around for this violence. There will be significant fines and suspensions for the players, and, hopefully, appropriate criminal prosecutions for the criminal acts on all sides. As for the question of prevention, while we cannot (unfortunately) outlaw reality television, as a first step serious consideration should be given to outlawing the sale of alcoholic beverages inside the arenas at sports events. Those so inclined should have to deal with that elsewhere.
