BELL, C.J.
Charles G. Bernstein, the appellant, was appointed on October 10, 2006, by Governor Robert L. Ehrlich, as an associate judge of the Circuit Court for Baltimore City. As required by Article IV, § 3 of the Maryland Constitution, Judge Bernstein stood for election and, on November 4, 2008, was elected for a fifteen-year term of office as an elected circuit court judge. Nevertheless, just over a year into his term, on December 29, 2009, the date of his seventieth birthday, Judge Bernstein was required to retire as a result of that same section of the Maryland Constitution.
Prior to his retirement, on November 3, 2009, Judge Bernstein filed a complaint in the United States District Court for the District of Maryland, challenging his mandatory retirement and naming the State of Maryland, Governor Martin O'Malley, and the Maryland General Assembly as defendants. His argument was, and is, that Article IV, § 3 has application only to judges who "attain" the age of seventy while they are in office and, thus, interpreting it as prescribing a mandatory retirement age for all Maryland circuit court judges, as well as for those persons who might aspire to be a circuit court judge, violates the rights he has been guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Noting that there is no Maryland case which provides a "definitive interpretation" of Article IV, § 3, the federal district court certified to this Court the following questions:
At the center of this controversy is Article IV, § 3 of the Maryland Constitution. It provides:
Md. CONST. art. IV, § 3. Judge Bernstein views this provision, particularly the second sentence, which he considers the relevant portion, as being "crystal clear" and dispositive of any question pertaining to the retirement of circuit court judges. Thus, he asserts, the "meaning of the [constitutional] provisions [related to the retirement age for judges] can be gleaned from the text of § 3 alone." Judge Bernstein reads § 3 as clearly and unambiguously requiring retirement only in the case of circuit court judges who "attain" the age of seventy while in office. It follows, therefore, he submits, that a person seventy years of age or older, not currently serving as a circuit court judge, may be appointed to fill a judicial vacancy or, should he or she choose, run for judicial office. Because, he continues, there is no rational basis for the distinction, § 3 fails to comport with the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.
Judge Bernstein maintains that his interpretation of § 3 is confirmed by reference to other provisions of the Maryland Constitution. He directs our attention to Article IV, § 2, for example, which prescribes the qualifications for judicial service. Section 2 enumerates those qualifications, as follows:
Md. CONST. art. IV, § 2. Noting that this provision prescribes a minimum age for judicial service, but not a maximum one, he proffers that formulation as further justification for his interpretation and evidence that the Constitution does not preclude all seventy-plus year olds from seeking judicial office for the first time. He argues, if there were a universally-applicable age limit on judicial service, "one would expect to find it in [Article IV,] § 2, because that section unambiguously lays out the requirements for judicial service."
The State also views Article IV, § 3 as clear and unambiguous; however, its interpretation produces a result diametrically opposite that espoused by the appellant. Unlike Judge Bernstein, it contends that the section not only clearly precludes a judge from continuing in office, but it does not permit anyone from being elected or appointed to judicial office after he or she
The State accuses Judge Bernstein of reading Article IV, § 3 without regard to its context. It also contends that his reading of Article IV, § 3 is the result of a hyper-technical textual analysis that should not be allowed to defeat the obvious intent of the Legislature, which proposed the provision, and the citizens, who adopted it by ratifying the Maryland Constitution. Moreover, the State contends that Judge Bernstein implicitly and improperly inserts into Article IV, § 3, the phrase, "while in office," following the phrase, "shall have attained the age of seventy years." The State believes this point to be of particular significance since, at one time, § 3 did include that phrase. Until 1932, it provided:
Md. CONST. art. IV, § 3 (amended 1932) (emphasis added). The phrase was amended out of the Constitution in 1932. 1931 Laws of Md., ch. 479 (ratified Nov. 8, 1932).
The State argues, in addition, that Article IV, § 3 is part of a constitutional scheme and, thus, must be interpreted in context, as a part of that scheme. So doing, it asserts, supports its interpretation of the section. The State notes, in particular, Article IV, § 5, which provides:
Md. CONST. art. IV, § 5, by its terms, expressly prevents the governor from appointing a person whose seventieth birthday precedes the next judicial election.
It is also of significance to the State that its interpretation of Article IV, § 3, which it characterizes as the plain, ordinary and common understanding of the provision, has prevailed since the provision was adopted, no judge over the age of seventy having been appointed, or elected, to judicial office during the period.
"Generally speaking, the same rules that are applicable to the construction of statutory language are employed in interpreting constitutional verbiage." Brown v. Brown, 287 Md. 273, 277, 412 A.2d 396, 398 (1980). See also Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 81 (2004) ("When interpreting constitutional provisions, we generally employ the same rules of construction that are applicable to the construction of statutory language."); Fish Market Nominee Corp. v. G.A.A., Inc., 337 Md. 1, 8, 650 A.2d 705, 708 (1994) ("Generally, we apply the same principles in construing constitutional provisions as we apply in construing statutory provisions."); New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. 537, 557 (1873) ("There can be no good reason suggested why this same general principle [for the construction of statutes], so wise and just, should not also apply as a rule of interpretation of the Constitution.").
"It is a cardinal rule of construction that where the text of a constitutional provision is not ambiguous, the Court, in construing it, is not at liberty to search for its meaning beyond the Constitution itself." Reed v. McKeldin, 207 Md. 553, 560, 115 A.2d 281, 285 (1955). Further, this Court, while conceding that "the Constitution of 1867 does not always possess the consistency that [a textual] argument supposes," Rasin v. Leaverton, 181 Md. 91, 96, 28 A.2d 612, 614 (1942), has recognized that "[t]he Maryland Constitution was carefully written and solemnly adopted by the Constitutional Convention of 1867, and approved by the people of the State," Buchholtz v. Hill, 178 Md. 280, 285-86, 13 A.2d 348, 351 (1940), and, therefore, has admonished that courts should be careful not to depart from the plain language of the instrument. Id. Furthermore, "[o]ne cannot view the Constitution as made up of separate and unrelated parts. The entire Constitution must be regarded as a whole. Each part must be construed, not by itself, but with reference to the whole...." County Comm'rs for Montgomery County v. Supervisors of Elections, 192 Md. 196, 208, 63 A.2d 735, 740 (1949); State v. Jarrett, 17 Md. 309, 328 (1861) ("[i]n construing a Constitution, it must be taken as a whole, and every part of it, as far as possible, interpreted in reference to the general and prevailing principle.").
Both the State and Judge Bernstein contend that the language of Article IV, § 3 is clear and unambiguous; however, they do not agree on what that unambiguous meaning is. The disagreement revolves around what it means to "have attained" the age of seventy; and to whom the provision refers when it states "[e]ach of the said judges." We agree that the text of Article IV, § 3 is unambiguous. Moreover, we conclude that, when read in context and with the other provisions of Article IV, it precludes the retention, appointment or election of a person over the age of seventy as a circuit court judge in Maryland.
Judge Bernstein acknowledges that the plain-meaning approach cannot be used to ascribe an unreasonable and absurd meaning to text, but he contends that this limitation is extremely circumscribed. In oral argument, he conceded that it would be inappropriate to read Article III, § 30 of the Maryland Constitution, which mandates that "[e]very Law shall be ... certified under the Great Seal," to require that a large sea mammal be affixed to a duly made law. Judge Bernstein encourages this Court to compare his construction of Article IV, § 3 to the seal example. He contends that his suggested reading of Article IV, § 3 does not pose the same problem because he presents a plausible constitutional scenario.
Although, Judge Bernstein's reading of Article IV, § 3 certainly does not rise to the level of absurdity that the seal example does, his logic, when applied to closer cases, can reasonably be questioned. Among the qualifications found in Article IV, § 2, for example, is the requirement that judicial candidates "be selected from those who have been admitted to practice law in this State." Applying Judge Bernstein's approach and logic, a technically plausible, yet legally incorrect, plain-language reading of the section could be that judicial candidates need not currently be admitted to the Maryland Bar. Although this clause is commonly read to require that certain judicial offices be filled by current members of the Maryland Bar,
Reading Article IV, § 2, which does not employ homonyms to alter the meaning of the text, to permit disbarred judicial candidates to apply and contest for such positions is not altogether implausible: it may be supposed, although not the most logical or conceivable scenario, that the Legislature and the people could have been concerned only that a judge have some legal experience, not that he or she be admitted to the Maryland Bar at the
Article I, section 1, clause 1 of the United States Constitution presents a similar challenge to Judge Bernstein's analysis. It provides, in relevant part:
U.S. CONST. art. I, § 1, cl. 1 (emphasis added). Employing an analysis akin to that which Judge Bernstein uses in interpreting Article IV, § 3, it could be argued, and as plausibly, that the plain language of the clause does not require that a sitting member of the U.S. House of Representatives currently be either a citizen of the United States or an inhabitant of the state that he or she represents. Furthermore, following Judge Bernstein's argument that it is irrelevant that a judge over the age of seventy has not been appointed or elected in Maryland since the adoption of the 1851 Constitution, we should ignore a two-century practice of only electing United States citizens to the U.S. House of Representatives when determining the meaning of this clause.
These are but two examples that demonstrate the dangers and absurdity of interpreting text in a complete vacuum.
Judge Bernstein wants this Court to interpret Article IV, § 3 as prescribing only a retirement age for every sitting circuit court judge. This is not the case. The phrase, "[e]ach of the said judges", in § 3, does not refer to specific persons who are judges, but rather, viewing this phrase in context, references an entire category of judges, meaning all those who are, or who will seek to become members of this category. This is clear when reviewing the prior language in the section. The "said judges" are, as stated in the first sentence of § 3, all judges "[e]xcept for Judges of the District Court, the Judges of the several Courts other than the Court of Appeals or any intermediate courts of appeal." In excluding to whom the section was to be applied, the framers set out what categories of judges were not to be affected, and there is no reason to believe that they deviated from this path, within the same section, when prohibiting service after the age of seventy. Therefore, the prohibition on judicial service after the age of seventy cannot be exclusively a retirement
Against the notion of a maximum age, Judge Bernstein argues that "[p]articularly relevant is the fact that [Article IV,] § 2 imposes a mandatory minimum age, but no maximum age limitation." He contends that if the framers intended to set a maximum age limit for the entire category of judges, it would have been set forth in § 2, where other eligibility requirements are found. Judge Bernstein cites, however, no support for this contention. This is so, because there is no obligation that all required qualifications for active service as a judge be located within the same section of the Constitution.
Judge Bernstein finds support for his position in a recent Illinois case, Maddux v. Blagojevich, 233 Ill.2d 508, 331 Ill.Dec. 749, 911 N.E.2d 979, 989 (2009), in which a divided Illinois Supreme Court held 705 ILCS 55/1 (West 2006), the State's Compulsory Retirement of Judges Act, (hereinafter, "Retirement Act" or "Act"), to be unconstitutional. The Retirement Act, as relevant here, provided,
Id. This provision earlier had been construed by an intermediate appellate court "as not barring a `person over the age of 75[,] and otherwise qualified to serve as a judge from running in a judicial election,'" Maddux, 331 Ill.Dec. 749, 911 N.E.2d at 984 (quoting Anagnost v. Layhe, 230 Ill.App.3d 540, 172 Ill.Dec. 46, 595 N.E.2d 109, 111 (1992)), although he or she could not seek retention, as would have been possible had he or she been under 75 years of age. Anagnost, 172 Ill.Dec. 46, 595 N.E.2d at 111. In arriving at this construction, the court was influenced by the following: section 11 of the Judicial Article of the Illinois Constitution prescribes the eligibility criteria for a judge, none of which is age based,
Id., 331 Ill.Dec. 749, 911 N.E.2d at 988.
Having overruled Anagnost and determined that the Retirement Act "compels mandatory retirement for all judges at the expiration of the term in which they attain the age of 75," id., thereby giving effect to Act's plain language, the court considered whether that result raised other constitutional problems. Id. It held that it did, that the Act "creates an irrational classification that could not, in terms of equal protection, withstand scrutiny under our constitution." Id., 331 Ill.Dec. 749, 911 N.E.2d at 990. It explained:
Id., 331 Ill.Dec. 749, 911 N.E.2d at 989. The court concluded:
Id.
Judge Bernstein contends that the language construed by the Illinois court is similar to that contained in Article IV, § 3 of the Maryland Constitution, and that, much like Illinois's Retirement Act, Article IV, § 3 has been misinterpreted.
While, in this case, the issue is one of constitutional interpretation, to determine what eligibility criteria a person aspiring to be a circuit court judge must meet,
Id., 331 Ill.Dec. 749, 911 N.E.2d 979 at 991
The construction of a constitutional provision is approached, as we have pointed out, supra, much like that of a statute. See Brown v. Brown, 287 Md. at 277, 412 A.2d at 398. "When the statute to be interpreted is part of a statutory scheme, it must be interpreted in that context." Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 302, 783 A.2d 667, 671 (2001); accord GEICO v. Ins. Comm'r, 332 Md. 124, 131-32, 630 A.2d 713, 717-18 (1993). Statutes on the same subject are "read together and harmonized to the extent possible, reading them so as to avoid rendering either of them, or any portion, meaningless, surplusage, superfluous or nugatory." Fitzpatrick, 366 Md. at 303, 783 A.2d at 670 (quoting GEICO, 332 Md. at 132, 630 A.2d at 717).
Reading Article IV, § 3 in the context of other related provisions in the Maryland Constitution provides further evidence that the section prohibits all persons over the age of seventy from holding judicial office. Article IV, § 3 must be read in context with Article IV, § 5. Judge Bernstein does not so interpret Article IV, § 3. His argument largely disregards § 5, primarily resting on the assumption that judicial qualifications are solely found in Article IV, § 2. The language of Article IV, § 5, however, proves that to be an inaccurate conclusion.
Article IV, § 5, which addresses the appointment of circuit court judges, after establishing that only "duly qualified" persons may be appointed by the governor, provides, in part, that "no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected." (emphasis added). It is implicit in the language that one can be "disqualified by reason of age", that the age of a candidate seeking appointment is, in fact, a qualification for the office. Judge Bernstein concedes that this is true, but states that age is only a qualification for candidates, whom the governor appoints, who are between the ages of sixty-eight and seventy. His argument does not square with an in-context reading of the provisions.
Section 5, by reference, prescribes that those who are not of a certain age are not qualified, see § 2 (stating "[Judges] shall be not less than thirty years of age at the time of their election or appointment,") and precludes the governor from appointing persons above a certain age, see § 3. To be sure, the section does not specify what the age of disqualification is. To determine what that specific age is, § 5
By reading § 3 in context with § 5, it is obvious that the maximum age in § 3 cannot apply solely to sitting judges, for to do so would render § 5 meaningless. As we have previously stated, § 5 places a prohibition on the governor, prohibiting the governor from appointing a candidate "who will become disqualified by reason of age" prior to the "first biennial general election." An exception to this restriction is provided when reappointing sitting judges. That exception, if read in conjunction with Judge Bernstein's interpretation of Article IV, § 3, excludes the appointment of those between the ages of sixty-eight and seventy and no one else;
There is no sensible explanation for why the Legislature and the people of Maryland would exclude everyone between the ages of sixty-eight and seventy from being appointed to the bench, yet, allow non-former judges to serve once they are older than seventy. Accepting Judge Bernstein's construction would create an equal protection problem for Article IV, § 5. The distinction between former judges and those without prior judicial experience could presumably be sustained as an admittedly blunt state instrument for bringing new perspectives to the bench. See, e.g., Third Rep. of the Comm. on the Judiciary Dept. 46 (August 20, 1966) in [1966-67] CONST. Convention Comm'n Reports & Drafts Minutes: Judiciary (1967) (hereinafter, "1966 Convention Judiciary Report") (arguing judicial retirement was meant to ensure the availability of judicial offices for young aspiring judges). There is no analogous interest to explain why a person without judicial experience could not be appointed to the bench between the ages of sixty-eight and seventy under Article IV, § 5, (providing, in part, that "no person shall be appointed who will become disqualified by reason of age") (emphasis added), but, under Judge Bernstein's construction,
To forward his federal claim that Maryland's mandatory retirement provision is irrational, Judge Bernstein invites us to engage in a plain meaning construction that renders multiple parts of Maryland's constitutional structure for appointing and removing judges nonsensical. We decline this invitation. "So it has been said that a constitution is to be interpreted by the spirit which vivifies, and not b[y] the letter which killeth." Benson v. State, 389 Md. 615, 632, 887 A.2d 525, 535 (2005) (quoting Buchholtz, 178 Md. at 286, 13 A.2d at 351).
Even if the text of the Article IV, § 3, considered in the context of the constitutional scheme established by Article IV, were ambiguous, Judge Bernstein's construction of the section conflicts with the clearly expressed intent of its framers. It is well settled that, with regard to an ambiguous constitutional provision, determining its purpose, as reflected in the expression of intent of the framers, Cohen v. Governor of Maryland, 255 Md. 5, 16, 255 A.2d 320, 325 ("The intention [of a constitutional provision] is primarily discovered by considering the words used by the draftsmen"), is critical, see Johns Hopkins Univ. v. Williams, 199 Md. 382, 386-87, 86 A.2d 892, 894-95 (1952), indeed, the first task to be undertaken. Id. at 387, 86 A.2d at 894-95. In Williams, we stated the rule to be:
Id. at 386-87, 82 A.2d at 894 (quoting Norris v. Mayor and City Council of Baltimore, 172 Md. 667, 675, 676, 192 A. 531, 535 (1937)); see, e.g., Brown, 287 Md. at 278, 412 A.2d at 399 (when attempting to discern the intention of the Legislature in proposing a particular constitutional provision, "it is permissible to inquire into the prior state of the law, the previous and contemporary history of the people, the circumstances attending the adoption of the organic law, as well as broad considerations of expediency."); Luppino v. Gray, 336 Md. 194, 204 n. 8, 647 A.2d 429, 434 n. 8 (1994) ("One of the sources to which the court may look to discern the framers' purpose in enacting the [constitutional] provision is the proceedings of the constitutional convention"), citing Reed, 207 Md. at 561, 115 A.2d at 285; McMullen v. Shepherd, 133 Md. 157, 160, 104 A. 424, 425 (1918) ("In construing the Constitution we are to consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it, and one of the useful and most helpful sources is the debates of the Convention"). "Thus, we construe the Constitution's provisions to accomplish in our modern society the purposes for which they were adopted by the drafters," Benson, 389 Md. at 633, 887 A.2d at 535, and so that they "will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee." Williams, 199 Md. at 386, 86 A.2d at 894.
Accordingly, we turn to the history of Article IV, § 3 "to determine the scope
As this Court noted in Norris, uncovering the "mischief" that the drafters were seeking to address is an ideal means of determining their intent. 172 Md. at 675, 676, 192 A. at 535. The State judicial department was considered and reviewed at Constitutional Conventions three times in less than two decades in the middle of the nineteenth century before the ratification of Maryland's current Constitution. The debates involving the Judiciary at these Conventions focused primarily upon the relative merits of judicial appointment and life tenure.
The specific language, "a judge ... shall hold his office ... until he shall have attained the age of seventy years ... and be re-eligible thereto until he shall have attained the age of seventy years and not after" first appeared in the Maryland Constitution of 1851. Md. CONST. of 1851 art. IV, § 4. At that time, the provision applied only to judges sitting on the Court of Appeals. Section 4, in its entirety, provided:
Md. CONST. of 1851 art. IV, § 4. There was no maximum age for circuit court judges. See § 8, which provided:
Md. CONST. of 1851 art. IV, § 4.
The provisions pertaining to Maryland's Judiciary were the culmination of decades of attempted reform, which had been thwarted primarily by fears over a potential reapportionment of the state government that could threaten the interests of Maryland's politically powerful slaveholders. Dan Friedman, The Maryland State Constitution: A Reference Guide 5 (2006).
The 1851 Constitutional Convention primarily focused on three aspects of the judiciary that would remain constant areas of debate in Maryland's subsequent constitutional history: judicial selection; judicial tenure; and the number of judges, circuit
Among the abuses noted by Delegate Bowie were the use of judicial office for patronage, and the appointment to "the bench [of] old and infirm men, not fit, either mentally or physically, to perform the duties which the Constitution or the public exigencies require of them." Id. Although delegates did not expressly discuss the judicial maximum age restriction in the 1851 Debates, the age limitation was applied to the judges of the Court of Appeals, who had to make the arduous trip to Annapolis each year. This provides some evidence that the restriction was meant to address the selection of "old and infirm men" to the bench.
Delegates to the 1864 Convention were more explicit in making this connection, directly linking the language that appears in Article IV, § 3 of the current Constitution to the need for a hard age limit for judicial service. For example, arguing in opposition to an amendment limiting the age of judges, Delegate John Thomas stated: "I do not consider that a man in growing old loses his mind, and becomes incapable of being a good judge." See Debates of the Constitutional Convention of the State of Maryland 1526 (1864) (hereinafter "1864 Debates"). Although Delegate Thomas opposed the amendment as being unnecessary given the practice of periodic elections, his comment suggests that mental competence was an animating concern for age limits in the 1864 Convention.
Delegate Ezekiel Chambers' responded to Delegate Thomas' comments. His comments demonstrated that opponents of judicial elections also acknowledged concerns about declining judicial competence with advanced age in conjunction with the lengthy tenure for judges. 1864 Debates at 1526-27. Although Delegate Chambers, like Delegate Thomas, did not perceive advanced age to be a hindrance upon a judge's ability to perform his functions, he acknowledged that other delegates were opposed to judges serving beyond the age of sixty. See id. Delegate William Bond directly linked the language of Article IV, § 3 to judicial competence in the 1864 Debates when he explained his hesitancy to support an amendment limiting a judge's age to sixty-five, because he believed that men retain their mental and physical ability to seventy years of age perhaps as perfectly as to any other age. Id. Whether in opposition to, or in support of, age limits, the delegates at the 1864 Convention, like those at the 1851 Convention, viewed the seventy-year age limit as a means of ensuring judicial competence.
At all three Conventions, delegates debated the relative merits of an elected judiciary and lengthy tenure. Throughout these debates, the language of Article IV, § 3 was discussed as a means of keeping the bench free of judges rendered incompetent by advanced age. At no point in any of the three Constitutional Conventions was the language of Article IV, § 3 discussed in the context of ensuring judicial turnover for the sake of harnessing fresh judicial talent or for any purpose other than ensuring that the bench was not populated by people over a certain age. When employing the language found in Article IV, § 3, the intent of the framers of the 1851, 1864, and 1867 Constitutions was to prevent the active service of persons over the age of seventy.
Judge Bernstein is correct when he asserts that the lack of a practice is not dispositive of a constitutional issue. Nevertheless, continuing the assumption, arguendo, that Article IV, § 3 is ambiguous, it should be remembered that this Court "has . . . held that a contemporaneous construction placed upon a particular provision of the Maryland Constitution by the legislature, acquiesced in and acted upon without ever having been questioned, followed continuously and uniformly from a very early period, furnishes a strong presumption that the intention is rightly interpreted."
There is no denying that Maryland has a longstanding practice of not permitting judges to remain regular members of the bench after attaining the age of seventy. For better or worse, Maryland has maintained a policy of retiring judges at the age of seventy. That there is such a policy, and the strength of that policy, was demonstrated in the last decade of the 20th century. An amendment to raise the maximum age for all categories of judges from age seventy to age seventy-five, supported by Chief Judge Robert C. Murphy, former chief judge of this Court, and Chief Judge Robert F. Sweeney, former chief judge of the District Court, was proposed in the Legislature in 1994. See "Delegates Vote to Increase Age for Judges' Retirement to 75," The Daily Record, Mar. 10, 1994 at 1. The amendment called for an increase in the maximum age of active service for "all circuit court, District Court, and appellate court judges in the State," H.B. 1151, Bill Analysis by Senate Judicial Proceedings Committee, and mandated that a majority of judges on the Court of Appeals certify annually that each judge over the age of seventy be "physically, mentally, and temperamentally qualified to continue to perform the duties of office." 1994 Laws of Maryland, Ch. 104 § 1. (rejected Nov. 8, 1994). A judge so certified was to be "eligible for reappointment or reelection for an additional term as provided in sections 3, 18B,
The Maryland practice and policy of retiring judges, all judges, at age seventy, has been premised on the perception that it has been a constitutionally mandated aspect of the Maryland judiciary since 1851, albeit then only for judges of the Court of Appeals, and, since 1867, for circuit court judges. The only major change to the relevant portion of Article IV, § 3 was a constitutional amendment, ratified in 1932, that removed an exception to the seventy years of age requirement, thus precluding the Legislature from continuing judges in office after they attained age seventy. 1931 Laws of Md., ch. 479 (ratified Nov. 8, 1932). As the State notes in its brief, the last judge to be retained in office following his seventieth birthday retired in 1934.
The practice with respect to new judges being elected or appointed is even more robust. Since the adoption of the language in Article IV, § 3, no judge in the
The initial policy arguments for Article IV, § 3 may not be as persuasive today as they were in 1851, 1864 and 1867. As noted above, much of the debate about mandating that judges retire at the age of seventy concentrated upon the effects of individual aging. There was a concern among many of the delegates that the likelihood of physical or mental illness was too substantial and a healthy, active judiciary too important to permit the selection of judges over the age of seventy. Times change. Life expectancy has increased dramatically since the 1867 Convention, and the ease of moving from one locale in the state to another has improved even more over this period. Remarking upon what he perceived to be an antiquated policy, one critic of the decision, made at the 1966 Maryland Constitutional Convention, to retain the seventy age limit, labeled it "constitutionally imposed senility." 1966 Convention Judiciary Report at 46.
For its part, the Judiciary Committee of the 1966 Convention argued that the age limit ensured timely adoption of modernization in judicial administration, in trial techniques, or in the evolution of the law itself because it required older sitting judges to step aside for younger men. Id. Although the 1966 Convention resulted in a Constitution that was rejected, it too provides some evidence of the continuity in the perceived policy goal of Article IV, § 3, a Maryland judiciary whose active judges are all under the age of seventy.
The text of Article IV, § 3 is unambiguous, and interpreting it in conjunction with the text and overall structure of related constitutional provisions confirms the State's interpretation of the section. The intent of the provision's framers, found in the debate records of the 1851, 1864 and 1867 Constitutional Conventions, is consistent with the State's interpretation of the section. Furthermore, longstanding practice and policy rationales all confirm the State's reading of Article IV, § 3. Under Maryland's Constitution, no one, no matter his or her prior judicial history or lack thereof, can be an active member of the Maryland Judiciary once he or she has attained the age of seventy.
In response to the questions certified to this Court, we advise: (1) The Maryland Constitution (i) requires a sitting judge to retire upon reaching age seventy, (ii) prohibits the Governor from appointing a person seventy years of age, or older, to the bench, and (iii) prohibits a person seventy years of age, or older, from running for a judicial office and (2) Conversely, the Maryland Constitution does not permit a person seventy years of age, or older, to run for a judicial office and, if elected, to serve out the entire term.
CERTIFIED QUESTIONS ANSWERED AS ABOVE SET FORTH. COSTS TO BE PAID ONE-HALF BY THE APPELLANT AND ONE-HALF BY THE APPELLEES.
The analysis used by the Illinois Court of Appeals in Anagnost, drawing a distinction between judges who would seek retention and those who would pursue the contested election route, is reminiscent of, although not identical to, Judge Bernstein's analysis in this case. Unfortunately for Judge Bernstein, that analysis was rejected by Maddux, which noted, as we have seen, that the Act applied to all judges, whether seeking retention or engaged in an adversarial election. Maddux v. Blagojevich, 233 Ill.2d 508, 331 Ill.Dec. 749, 911 N.E.2d 979, 983 (2009). That analysis, in any event, is not persuasive. As the dissent in Anagnost pointed out, whether there is a difference between contested elections and retention elections, a holding that a judge who has reached retirement age, nevertheless, may run in a contested election, as opposed to a retention one, is non-sensical, an absurd result. Anagnost, 172 Ill.Dec. 46, 595 N.E.2d at 112 (Jiganti, J., dissenting).
Maddux, 331 Ill.Dec. 749, 911 N.E.2d at 990.