Kentucky

As most of you know, I have raised concerns over the Senior Status Judges Program due to "sunset" at the end of this year.   Concerns raised over costs, needs, and controls.  So far, the discussion has been on the rush to retirement by experienced judges, the attraction of the increased retirement benefits, and lack of objective standards in the program (from acceptance, evaluation, quaifications, etc).

Well, Mr. Cetrulo, former AOC Director, has posted the following piece on the Courier Journal's editorial pages which lays out the issue in a fair and objective manner regarding the havoc caused by the changes in the judicial retirement system some years back and the changes now favoring younger judges over older judges entering the system, the need for experienced judges in their 50's plus (and not the 20's and 30's), etc.

It's a good read, and follows the Courier Journal editorial two days ago.  Again, the program has good ideals and goals, but needs to be studied due to the unintended consequences of its current iteration.  See, also "The Arrangement ".

Senior judges: taking another look

By Don Cetrulo
Special to The Courier-Journal

Today's debate over the merits of the Senior Judge Program should be settled by policymakers' deciding the following question: Does the program contribute to the quality of the judiciary?

          

It's nice to have new courthouses, new technology and new programs like family court. But what matters most are the capabilities of the man or woman on that bench. If the judge gets it wrong, it doesn't matter how serene the setting. Most judicial decisions are made by a single person. One person's call profoundly affects the lives of the litigants, and frequently extends to the community at large. So, all of us have a stake in a high-quality judiciary.

          

In my own experience, people become judges for their own reasons, most of which have nothing to do with money. Younger lawyers entering the judiciary as district judges in their late 20s or early 30s, like all of us at that age, are not much concerned about the retirement plan. But for lawyers 25 years their senior, it can be a big factor.
             
We have had many distinguished jurists who started as district judges and who have made fine circuit and appellate judges. In fact, two of the most distinguished served at every level of the judiciary, including the Kentucky Supreme Court. But we do not want a system that closes the door on a judicial career for those who do not choose it young in life.

So what can policymakers do in the context of a retirement system to improve the quality of a judiciary? Attract and keep good judges. The judicial retirement plan, including the senior judge plan as it is presently constituted, doesn't do the job.

It is not that the plan is too generous, or not generous enough, but that the incentives are all wrong. It's not that we don't know better. We had an excellent system up until 1980. That is when things started to go wrong. Without getting into the gritty details, guaranteed to make the readers' eyes glaze over, the old system provided a retirement after 20 years of service equal to 100 percent of the recent average pay of a judge. But, and this is the important "but," the normal retirement age was 65. If a judge chose to retire any earlier than that, his retirement was to be reduced by 7 percent for each year.

The plan did two things: attract good lawyers in midlife to the judiciary and keep them on the bench until age 65. A person coming to the bench at age 45 got the same retirement as a judge who came at age 35. Today, disregarding for a moment the senior plan, judicial retirement accrues at a little more than half the old rate -- fine for the younger judges, bad for judges coming to the bench in mid-career.

On top of that, the new plan allows unreduced pension benefits to be paid after 27 years of service, regardless of age. That's a little less than 75 percent of pay after 27 years. So the plan has shifted to benefit a younger than desirable demographic. Judges should be coming to the bench in their 50s, not leaving it, but the retirement plan encourages the opposite.

         

Judges will be at their best in their 50s and at least early 60s, and the retirement system should be geared accordingly. This is a critical point. There are aspects to judging that are inherently functions of maturity. Young judges may be smart and hard-working, but wisdom takes some time.

In this respect, the Senior Judges Program has delivered benefits. It does three good things: It restores the old accrual rate, thereby attracting lawyers in mid-career. It creates a pool of judges to fill in where needed. And it encourages half-time service after retirement. The latter is an especially good thing. I have known judges who retired at age 65 whose half-time service thereafter would have been invaluable.

But the program has done one not so good thing. It did not rectify the skewed demographic and instead created an even greater incentive to retire early. This deficiency has been aggravated by the "use it or lose it" aspect of the present law that tells judges that if they don't take senior status before January 2009, they will lose the opportunity.

As part of the proposal to extend the life of the program, a reasonable minimum age/service requirement has been proposed by the Administrative Office of the Courts for judges who become eligible after January 2009. Hence, the revised program is an improvement over both the present Senior Judges Program and the Judicial Retirement Plan as it existed just prior to the program's initial adoption. But even with these modifications, the program has not been not universally embraced.

Perhaps both sides in the senior judge debate could agree that we were much better off with the old, pre-1980 system that was geared to the ideal demographic. If the Senior Judges Program cannot be renewed, why not let judges who are willing switch back to the old plan? For them, restore the higher accrual rate, require them to serve to age 65 for an unreduced benefit, and then enhance the old system by providing new incentives for part-time service thereafter.

Someone will surely ask: Isn't this way more than we do for state employees and teachers? The answer is not so much. It does favor those entering the system in mid-career, but otherwise, because of the 7 percent per year early-retirement penalty, a judge with even 30 years on the bench who retires at age 60 would receive 65 percent of pay. That's almost identical to KERS, as things stand now.

The judiciary would be better off with things as they were, and so would we.

Don Cetrulo was director of Kentucky's Administrative Office of the Courts from 1981 until 1995.