Two of New Hampshire’s Supreme Court judges have reluctantly announced their retirements since summer 2017 in advance of reaching the state’s mandatory judicial retirement age of 70.
This August, a third judge, Chief Justice Robert Lynn, will step down from the court and leave a judicial career that spans nearly three decades.
The significant turnover in New Hampshire’s highest court has both recently retired and former justices pushing for continued conversations in the community and ultimately the State House about a possible amendment to the Constitution that would give judges a few more years on the bench. While lawmakers considered such a proposal during the 2018 legislative session, the bill died in the Senate and has been tabled ever since.
“There is no question that I would have remained on the court. There was really no reason for me to retire,” said Carol Ann Conboy, who served on the Supreme Court for eight years until her retirement in July 2017.
“The nature of the work is such that you want to be in good health but we’re not lifting sacks of potatoes. We are relying on a lifetime of education and developed skills and legal analysis,” Conboy continued. “If you are somewhat older when you are confirmed, time is limited and the court ultimately loses a lot of experience and talented people simply because of an age limit.”
New Hampshire’s mandatory judicial retirement age is not unique. Judges in more than 30 states are forced to step down at a certain age – usually between 70 and 75. But as the average life expectancy increases and modern medicine allows people to remain active and work longer, more and more states are revisiting their mandatory retirement age caps.
For more than 200 years, New Hampshire judges have been mandated to retire at age 70. The age requirement was enacted in 1792 when the average life expectancy was about 35. Given that reality, the cap at age 70 was really intended as a lifetime appointment, legal experts said.
“It’s been 200 years and a lot has changed,” said Chuck Douglas, who in 1977 became one of the youngest Supreme Court justices, serving until 1985. “Seventy seems as if we said 90 today. We have people who could easily at age 75 still be doing the job.”
Republican Sen. Sharon Carson, as chair of the Senate Judiciary Committee, sponsored a bill in 2018 that opened the door to a constitutional amendment to extend the mandatory retirement age from 70 to 75. While the bill garnered broad support at a committee hearing, it never made it to the House after it was tabled along party lines with 13 of 14 Republican senators – all but Carson – voting to suspend consideration of the proposal. Democrats were in support of the measure moving forward.
A constitutional amendment ultimately requires supermajority support in both the New Hampshire House and Senate and a two-thirds vote at the polls.
Retired Chief Justice Linda S. Dalianis and soon-to-be-retired Chief Justice Lynn were not available for interviews last week but have said publicly that they believe extending the age limit to 75 is a good idea.
Dalianis – who was the first female appointed to the court and the first female to lead the court – broke news of her retirement in late 2017 at a Bar Association dinner program at which she received the coveted Lifetime Achievement Award.
“This is a bittersweet time for me,” Dalianis told her colleagues. “If the New Hampshire Constitution did not force me to leave, I probably would not … I do not look forward to leaving the judicial branch behind.”
Both in New Hampshire and nationally, conversations about increasing the mandatory judicial retirement age have included concerns about mental fitness and longevity. But raising the age cap would still allow for judges to step down sooner depending on their unique situation.
“We put a lot of energy and resources into vetting potential judges,” Conboy said. “A lot of people say, ‘What about Alzheimer’s?’ My view is that colleagues of the judge would recognize that and take appropriate action. That said, most people who do this important work recognize when they physically and intellectually can’t do the job anymore.”
Retired Chief Justice John Broderick, who was confirmed to the court in 1995, said he believes New Hampshire should take a serious look at the mandatory judicial retirement age but noted he does not support a lifetime tenure, which is allowed by the U.S. Supreme Court.
“I don’t think people should be serving on the bench forever. Whether 70 is the age or not, I’m not certain,” he said. “I do think there comes a time when turnover is valuable.”
Conboy and Douglas agreed with Broderick that doing away with an age cap is likely not the right answer for New Hampshire.
“I think it would be helpful for the people of the state to do it incrementally,” Conboy said. “Our citizens would be more comfortable with that.”
As Lynn prepares to retire in just a few weeks, his replacement remains unknown. Gov. Chris Sununu had nominated Attorney General Gordon MacDonald to the position of chief justice but his nomination was rejected by the Executive Council in a controversial 3-2 vote along party lines Wednesday. Sununu announced after the vote that he was pausing all judicial nominations “for the time being.”
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