- Associated Press - Thursday, May 5, 2016

LITTLE ROCK, Ark. (AP) - An attorney for four judges told the Arkansas Supreme Court on Thursday that the Legislature circumvented the state constitution when it passed a law eliminating retirement benefits for judges who are elected at age 70 or older.

The judges, one of whom chose not to run for re-election this year rather than lose his benefits, are challenging the constitutionality of the law passed more than 50 years ago. The court heard oral arguments Thursday in an appeal of a lower court’s December ruling upholding the law as constitutional.

The judges’ attorney, Gerry Schulze, said the law is a penalty that adds an indirect requirement to the qualifications to be a circuit judge.

“This case is about an end run around the Arkansas Constitution,” he told the justices. The question is “whether the Legislature can do something indirectly that it can’t do directly.”

Assistant Attorney General Colin Jorgensen said the law was intended to protect the integrity of the judiciary because a person’s abilities can deteriorate with age. He said the court has never ruled a law that creates an indirect requirement is unconstitutional.

“A judge who chooses to serve (beyond the age of 70) makes a choice. It is not a direct qualification. It does not directly prevent anyone from taking office,” Jorgensen said.

Under the regulations for the judicial retirement system, circuit judges are required to pay between 5 percent and 6 percent of their salary into the system. They are vested after eight years of service and are eligible to receive full benefits up to 80 percent of their salaries at 25 years of service.

Judges who turn 70 while they are in office can finish their terms without losing their benefits. Judges who choose to run for re-election after their 70th birthday are refunded their contribution to the retirement system, but the matching money from the state and any future payments are voided.

The state argued that none of the judges in the lawsuit had lost their benefits, and they did not yet have standing in the case. Schulze said one of the judges, Michael Landers of the 13th Judicial Circuit, is running unopposed for re-election in November and set to take office in January.

He said the court has issued declaratory judgments before a party has suffered a loss because of a law, including in the state’s voter ID case a few years ago. The voters challenging Arkansas’ voter ID law were not required to forfeit their voting rights or be turned away for not having the required ID before they brought their complaint, Schulze said.

Several justices also raised questions about whether retirement would be considered a benefit or a right. Justice Courtney Goodson said the state constitution does not give retirement rights, where it does address the right to vote.

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