”The people of Missouri have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform.”
— Justice Sandra Day O’Connor, Gregory v. Ashcraft, 1990
“With age comes experience. No branch of government is more essential in safeguarding our fundamental rights than the judiciary.”
— Theile v. Michigan
Imagine if your boss walked up to you one day and started a conversation by telling you that you were doing a spectacular job. Imagine that he or she then proceeded to tell you that you were knowledgeable, fair, efficient and hard working. In fact, your boss tells you, your years of experience make you the ideal person for your job. Unfortunately, you have one negative quality that cancels all that out, the boss says- you’re too old. It’s not that you’re infirm, or unable to do the job, or even ill in any way. It’s just that the company has a set age at which it will no longer employ people, regardless of their job performance, and you’ve hit that age.
Imagine what your reaction to that would be. Most people would, understandably, be upset. Many would probably consider taking legal action against their employer for age discrimination. And in many job fields, that legal action would have a good chance of succeeding.
That’s exactly what Michael Theile did in Flint, Michigan this summer. But Theile is no ordinary company employee. Theile is a judge on Michigan’s Genesee Circuit Family Court. He filed suit because Michigan, like Ohio, has an age limit for judges. No judge can be elected to a new term after reaching the age of 70. The provision has been part of Michigan law since 1908, and it will prevent Theile from seeking election to another term.
The lawsuit was an uphill climb for Theile from the beginning. That’s because the United States Supreme Court considered almost the exact same issue in 1990 in the case of Gregory v. Ashcraft, and concluded first that it was within the authority of every state to determine how to elect their officials, and second that there was a valid public policy reason to have an age limit for judges. That was a 7-2 decision, and the only Justice still on the bench from that case, Anthony Kennedy, was in the majority.
So it was no great surprise on Monday when the U.S. District Court in Detroit ruled against Theile, citing prior 6th Circuit cases and Gregory v. Ashcraft. Theile says he plans to appeal and wants to get the issue back before the Supreme Court because people are now living longer, healthier lives. In fact, the Illinois Supreme Court struck down their state’s mandatory judicial retirement age in a case in 2009, finding that the language violated the equal protection clause of the U.S. Constitution.
Thirty-three states currently have mandatory judicial retirement ages. Nine of those states have set or raised the age to 75. Vermont’s age is 90. The other states have no limit. Ohio voters considered a proposal in 2011 that would have raised the age from 70 to 76, but soundly defeated it by a margin of 62-38 percent. There have been no efforts to modify the Ohio provision since then.
Theile’s appeal would need to be filed within the next 30 days. The case would then go before the 6th Circuit U.S. Court of Appeals. If the Michigan judge was unsuccessful there, he could then go before the U.S. Supreme Court and ask the court to reconsider its 1990 opinion.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.