Judge sues over mandatory retirement age

Calls law 'contrary and repugnant' to Constitution

By Mike Mosedale
The Daily Record Newswire

MINNEAPOLIS, MN - Clay County District Court Judge Galen J. Vaa may have a solution to the so-called silver tsunami which has brought a wave of retirements to Minnesota's judiciary: dump the mandatory retirement age for judges.

And Vaa contends that should happen not just as a matter of good public policy but also as a matter of law.

In a 38-page suit filed in the 7th Judicial District on July 15, Vaa contends that a 1956 amendment to the Minnesota Constitution which has been interpreted as authorizing the Legislature to establish a compulsory retirement age, in fact, does nothing of the sort.

And even if it did, Vaa argues, the Minnesota law mandating judicial retirement at age 70 should be rendered null and void "for being contrary to and repugnant to" other provisions of the Constitution, specifically those that address equal protection (Article 1, Section 2), the elective franchise (Article VII, Section 6), and the six-year terms for elected judges (Article VI, Section 7).

Vaa, who was first appointed to the bench in 1999 by Gov. Jesse Ventura and subsequently elected to three six-year terms, did not respond to a message seeking comment.

Goodhue County District Court Judge Kevin Mark, the president of the Minnesota District Judges Association, said he wasn't surprised by the lawsuit. For several years, according to Mark, Vaa has been pushing the MDJA to lobby the Legislature to repeal the mandatory retirement age.

After the MDJA members overwhelmingly voted down a Vaa-backed resolution last year, Mark said, Vaa informed his fellow judges about his intentions.

"Galen made it clear to me and others that he wasn't bitter. He just kind of shrugged and said 'I'm probably going to bring a lawsuit questioning the constitutionality of the mandatory retirement age,'" Mark said.

While judges are divided on the issue of mandatory retirement, Mark said the opposition among MDJA members was propelled largely by the fear that a lobbying push at the Capitol could open up a Pandora's box of unintended consequences.

"I think there is a concern that if we go to the Legislature and demand a change to the retirement age, that could bring about more efforts to politicize judicial elections, which is a road we don't want to go down," Mark said.

In his lawsuit, Vaa, who is 68, says that he's never been the subject of a disciplinary proceeding in his 16-plus year tenure on the bench nor during his quarter century he practiced law in courts in Minnesota, North Dakota and South Dakota.

The lawsuit seeks a declaration of constitutional rights, a declaratory judgment and an injunction. The named defendants are Gov. Mark Dayton and Dave Bergstrom, the executive director of the Minnesota State Retirement System.

Despite the passage of the 1956 constitutional amendment, the Legislature waited until 1973 to establish an age-based compulsory retirement law via the Uniform Retirement and Survivors' Annuities for Judges.

Vaa argues that lawmakers overreached in their interpretation of the 1956 amendment, which states that "the legislature may provide by law for retirement of all judges."

"As used in Article VI, Section 9, the word 'retirement' carries with it the implication of recognition for honorable service to the State of Minnesota, and not the implication of enforced resignation from office," Vaa writes.

Vaa further argues that the state has '"no compelling public interest in subjecting the Plaintiff and other members of the state judiciary who are similarly situated to the above enumerated disparate and discriminatory treatment under the law."

Vaa isn't the first Minnesota judge to grumble when confronting the mandatory retirement age.

In 1986, the Minnesota Supreme Court rejected a similar constitutional challenge from another judge out of Clay County, the late Gaylord Saetre.

In a unanimous decision, the Saetre court pointed to a raft of opinions from other jurisdictions addressing the constitutionality of mandatory retirement ages. While not controlling, the court said it was "instructive" that none of those challenges found a constitutional violation.

"We hold that the legislative selection of the age of 70 as the optimal time for an individual's retirement constitutes a reasonable exercise of its authority and appears to most readily promote the state's interests in the provision of benefits in exchange for a date certain for relinquishment of benefits," then Chief Justice Douglas Amdahl wrote.

Asked about Vaa's lawsuit, retired Minnesota Supreme Court Justice Paul Anderson said he has not reviewed the complaint and couldn't comment on the legal merits.

As a public policy matter, Anderson said he thinks there are good reasons to make judges to give up the gavel.

Such as?

"I know some good judges in other states who have stayed on until they were into their 90s and have done a really good job," Anderson answered. "But if you take a scale, and you put on that scale those judges who can serve well after the age 70 and you put on that scale those who should leave before the age of 70, it's heavier on the side of those who should leave. It's just good to get new blood in the system."

But Anderson also said he gets why Vaa and many other judges may be hesitant to accept that argument.

"Being a judge is a good job," he said. "The job isn't easy but it has a very high satisfaction quotient. You feel you're really making a contribution. So you can understand why someone would want to keep doing that."

Anderson said he knows of at least two Minnesota judges, including former Chief Justice Peter Popovich, who considered suing over the compulsory retirement age but bailed after reviewing the relevant case law.

Across the country, the states differ widely when it comes to mandatory retirement for judges. Seventeen states have no such provision. Twenty states set the age at 70.

Until 2009, the state of Illinois made judges retire at the age of 75 but, after a Cook County judge sued, the Illinois Supreme Court struck down the law.

Published: Mon, Jul 25, 2016