Laws force aging judges to bow out

OLYMPIA – Chief Justice Gerry Alexander has written more than 330 opinions over the nearly 15 years he has served on Washington state’s highest court, and the state’s longest-serving chief justice doesn’t expect to slow down in his final two years on the bench.

“As I sit here looking out through these eyes, I feel the same as I did when I became a judge. I think I have my wits about me,” he said, laughing, “but maybe you should ask somebody else.”

Alexander is set to retire at the end of 2011, the year in which he will reach the mandatory retirement age of 75 for judges in Washington. Alexander announced last month that he will step down next year from his post as chief justice and serve out the remainder of his term as an associate justice in order to ease the transition to his retirement.

Washington state is among the majority of states that require state judges to step down once they reach a certain age, varying between 70 and 75, depending on the state. Vermont has the highest age limit, at 90. Washington state’s age limit was enacted in 1952, after voters overwhelmingly approved a constitutional amendment referred to them by the Legislature.

Alexander said that while he feels he could do the job for another decade, being forced to step down “doesn’t bother me too much.”

“I think 75 is reasonable,” he said, though he did say he wished he could finish his term. Alexander will have to retire after completing five years of his six-year term.

Howard Eglit, a law professor at Chicago-Kent College of Law, said the age limit laws were enacted in many states “based in good measure on the assumption that increasing age carries with it declining intellectual ability.”

“It’s an inflexible rule which is harsh in one respect because it weeds out both the competent and the incompetent, but on the other hand is merciful, because it doesn’t require people to be told ‘you just are not competent anymore to do the job,’ ” said Eglit, who has written extensively about age discrimination in the workplace, including within the legal system.

The federal Age Discrimination in Employment Act, which bans mandatory retirement in all but a few circumstances, has been interpreted by the U.S. Supreme Court as not extending protection to older judges.

Alexander said that after retirement, he very well may end up back where he first put on a judge’s robe at age 37 – at the superior court level. After retirement, judges in Washington state can be pro tem judges, filling in as a substitute judge at any court level from the local level to the Supreme Court.

“It would be kind of exciting for me to go back and preside over a jury trial,” he said.