Ohio needs to revisit its age discrimination law when it comes to judges: Phillip Morris

November 18, 2018

Ohio needs to revisit its age discrimination law when it comes to judges: Phillip Morris

CLEVELAND, Ohio – Where’s the AARP when you need it?

Ohio just elected Mike DeWine as its 70th governor. On Jan. 14, he will take the oath of office and become the most powerful figure in state government. Here’s the rub: DeWine, 71, is young enough to be governor but constitutionally too old to be a village judge concerned with issues like barking dogs.

Fifty years ago, Ohio voters approved the Modern Courts Amendment (MCA). That law forbids judicial candidates from running for state or local judgeships if they turn 70 before they are sworn into office. A popular argument advanced at the time focused on the mental fitness of jurists serving past the age of 70.

A half-century later, we’re living longer but we’re not discriminating less. In 2011, Ohio reaffirmed its taste for judicial age discrimination when voters overwhelmingly rejected a proposed constitutional amendment that would have raised the retirement age for judges to 75.

In less than two months, Cuyahoga County Common Pleas Court will perp-walk four senior judges into the sea of forced retirement. The MCA, or Get the Geezers Off the Bench Act, will dispatch four of the most experienced and respected judges into the next phase of their lives.

The terms of Judges Janet R. Burnside, Carolyn B. Friedland, Stuart A. Friedman and Michael E. Jackson expire in January. Each of the jurists is over the age of 70, which means it’s pasture time.

But what do Ohioans really gain by using the state’s constitution to place age limits on judicial robes? Is the local bench advanced by closing the book on nearly a century of stellar public service in one fell swoop?

Judge Jackson is the only one of the retiring judges I know. I’m an admirer of the Veterans Treatment Court, which he conceptualized and has presided over since its commencement in 2015. I asked him his thoughts on leaving the bench in six weeks. Jackson, a decorated Vietnam War veteran, surprised me not only with his graciousness but his realistic view on why Ohio voters may think it wise to winnow out senior jurists.

“When I ran for office, I knew I could only serve one term. It’s the law. I’m now 74. I’m not upset about leaving. The Veterans Treatment Court has been established and is on firm ground. Besides, I can continue to find other ways to serve as a visiting judge,” said Jackson.

Jackson, who worked as a Cuyahoga County prosecutor before winning a seat on the bench, said he understands the challenge voters often face when selecting judges. Judges run every six years, and most deliberately cultivate low profiles. Voters don’t really know them that well. Incompetent judges can blend in expertly with high-performing judges and voters often aren’t the wiser. Name recognition and candidate ethnicity also often play a role in judicial election. Jackson said all of these factors may lead voters to an intuitive feeling that throwing senior jurists out with the bathwater is one way to periodically inject new blood into the system.

But there has to be a better way than blatant age discrimination.

Lee Fisher, dean of the of the Cleveland-Marshall College of Law, which serves as the primary feeder system for the local bench, has given some thought to the age limit placed on jurists. Here’s what he had say:

“With life expectancies and health and vitality increasing, these age requirements are arbitrary and outdated.

“It is important to have diversity in our judiciary in all respects, including age diversity,” he added. “I would rather have an 80-year-old outstanding judge than a 35-year-old poor judge!”

U.S. Supreme Court Justice Ruth Bader Ginsburg fell and cracked three ribs earlier this month. She returned to work five days later. She’s an 85-year-old cancer survivor. She’s brilliant and tough. She makes our soon-to-be-retired Cuyahoga County judges look like relative youngsters. She continues to work because she excels at what she does and the highest court in the land has no age limit on its jurists.

Why must Ohio continue to age discriminate against its judges?

Come on, AARP! Where are you? Ohio voters need an education in geezer discrimination law.

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