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Judge contests age limit

ANNAPOLIS — An attorney for a circuit court judge forced into retirement at age 70 by the state constitution told a skeptical Maryland high court on Tuesday that mandatory retirement applies only to sitting judges.

Attorneys older than 70 who have never been judges may seek gubernatorial appointment or popular election to the circuit court under the state constitution, Cyril V. Smith told the Court of Appeals in pressing the case of Charles G. Bernstein, a septuagenarian who wants to return to the Baltimore City Circuit Court bench.

But Deputy Solicitor General William F. Brockman countered that the Maryland constitution clearly states that no one over age 70 may be an active circuit court judge and makes no exceptions for such elections or appointments.

The constitutional dispute came to the high court in the form of certified questions from U.S. District Judge Benson E. Legg in Baltimore, who is considering whether the mandatory retirement of sitting jurists violates the Equal Protection Clause of the federal Constitution.

Bernstein filed the federal case two months before he turned 70 on Dec. 29, arguing the state constitution does not treat judges equally because it compels sitting judges to retire but permits appointment or election to the circuit court after age 70.

Legg rejected Bernstein’s request for an injunction that would keep him on the bench until the litigation is resolved.

In trying to resolve the federal issue, Legg asked the Court of Appeals if Bernstein’s view of the state constitution is correct or if, as Brockman of the Maryland attorney general’s office argued, the mandatory retirement age of 70 applies to all who seek to remain or become judges.

An equal protection issue would arise only if the Court of Appeals decides that the state constitution distinguishes between sitting and would-be judges, as Smith, of Zuckerman Spaeder LLP in Baltimore, argued. In that case, Legg would have to decide if the distinction violates the federal constitution’s guarantee of equal treatment under the law.

During the Court of Appeals arguments, which Bernstein attended, several judges seemed poised to spare Legg that decision as they appeared to agree with Brockman’s absolutist argument.

Judge Sally D. Adkins, for example, said the judiciary has long presumed that judges must step down upon reaching age 70, and attorneys who have reached 70 must abandon hope of ever becoming a Maryland judge.

The Judiciary’s longstanding view of 70 as an absolute age limit on active service should be given deference “particularly when we are interpreting it, in a sense, to our detriment” as active judges, Adkins said.

Judge Joseph F. Murphy Jr. noted that Maryland voters in 1994 rejected a proposed constitutional amendment to raise the mandatory retirement age to 75. At no point during the debate on the proposal did the issue of an exception for appointments or elections arise, Murphy said.

“I think it was pretty well understood” that age 70 was a bar to remaining as judge or being appointed or elected to the post, Murphy said.

But Smith responded that such a broad interpretation of the retirement age for sitting circuit court judges is “a mistaken assumption.”

The Maryland constitutional provision at issue, found at Article IV, Section 3, states that each circuit court judge “shall hold his office” for 15 years after election or until age 70, whichever happens first, Smith said. Thus, the provision applies only to currently serving judges, as they are the only ones holding office, he added.

“You cannot retire from office unless you are in office,” Smith said. “This language means what it says.”

Murphy, noting that all Maryland judges must retire at age 70, asked Smith if a lawyer could be appointed to the Court of Appeals after reaching age 70.

Smith responded that such an appointment cannot be made. However, he explained that the constitutional provision dealing with Court of Appeals age limits is different from the one at issue in this case, which applies specifically to circuit court judges.

“You’re telling us we’re history at 70,” Murphy said. “We’re constitutionally senile at 70.”

Smith implored the court to interpret the state constitution’s age limit without any preconceived notion that it applies equally to current and would-be judges.

But Brockman countered that the Maryland Constitution essentially states that being under age 70 — like being a Maryland lawyer and at least 30 years old — is a qualification for being an active judge.

Brockman pretended to question a person over age 70 who has just been appointed or elected to a Maryland circuit court:

“Your honor, when does your term end?” Brockman asked, then answered the question himself: “The term ended before it even began.”

Bernstein, now an attorney with the Law Offices of Peter G. Angelos in Baltimore, left the courthouse without commenting on the arguments.

The high court did not indicate when it will decide the case, Bernstein v. Maryland, Misc. No. 1, September Term 2010.