Landers v. Stone

Cite as 2016 Ark. 272

SUPREME COURT OF ARKANSAS
No. CV-16-85
MICHAEL LANDERS, DAVID
Opinion Delivered: June 23, 2016
GUTHRIE, KENNETH JOHNSON,
AND J.W. LOONEY
APPELLANTS APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
V. [60CV-2015-2989]

GAIL H. STONE, EXECUTIVE
DIRECTOR OF THE ARKANSAS
JUDICIAL RETIREMENT SYSTEM; HONORABLE CHRISTOPHER
ROBERT EDWARDS, CHAIRMAN OF CHARLES PIAZZA, JUDGE
THE ARKANSAS JUDICIAL
RETIREMENT SYSTEM, CIRCUIT
JUDGE; GAYLE FORD, CIRCUIT
JUDGE (RETIRED); MARK HEWETT,
CIRCUIT JUDGE (RETIRED);
CHARLES YEARGAN, CIRCUIT
JUDGE; AND MARCIA
HEARNSBERGER, CIRCUIT JUDGE
APPELLEES
AFFIRMED.

COURTNEY HUDSON GOODSON, Associate Justice

The resolution of this appeal, involving a challenge to the constitutionality of this

State’s judicial-retirement statutes, confirms the future identity and character of our

judiciary. By this opinion, we join the unanimous voice of the courts in this country,

including the United States Supreme Court, which hold that judicial-retirement provisions

are constitutional.

Appellants, Judges Michael Landers, David Guthrie, Kenneth Johnson, and J.W.

Looney, appeal the order entered by the Pulaski County Circuit Court granting summary

judgment in favor of appellees Gail Stone, Executive Director of the Arkansas Judicial
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Retirement System; Judge Robert Edwards, its Chairman; and Judges Gayle Ford, Mark

Hewett, Charles Yeargan, and Marcia Hearnsberger, who are members of the system’s board

of trustees. In the order granting summary judgment, the circuit court rejected appellants’

arguments contesting the forfeiture provisions found in Arkansas Code Annotated sections

24-8-215 and 24-8-710 (Repl. 2014) that pertain to the Arkansas Judicial Retirement

System. For reversal, appellants contend that (1) the forfeiture provisions constitute an

additional qualification for holding judicial office in violation of the Arkansas Constitution;

(2) the statutes violate their rights of equal protection under the law; (3) the statutes appear

to provide for an unconstitutional taking without due process of law; and (4) the provisions

operate to constructively discharge judges. We affirm the circuit court’s decision.

I. Factual Background

The General Assembly established the Arkansas Judicial Retirement System sixty-

three years ago with the passage of Act 365 of 1953, which is presently codified at Arkansas

Code Annotated sections 24-8-201 et seq. (Repl. 2014). With its enactment, the General

Assembly declared that “it is the public policy of the state to provide sufficient retirement

and survivors’ benefits” for judges and justices “to attract and retain highly capable members

of the legal profession for service in the state judiciary.” Ark. Code Ann. § 24-8-201.

According to the legislative scheme, participation in the plan is mandatory, and each judge

and justice covered by the plan contributes a percentage of their annual salary into the

retirement system. See Ark. Code Ann. §§ 24-8-207(a), 24-8-209(a) & 24-8-706(a). By

and large, eligibility for the receipt of retirement benefits is based on years of service, which

is set at a minimum of eight years. Ark. Code Ann. § 24-8-215(d). The controversy in this

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case concerns the laws providing that any judge who is vested in the judicial retirement

system forfeits his or her retirement benefits if the judge runs for, is elected to, and serves in

a new term of office after reaching the age of seventy. See Ark. Code Ann. §§ 24-8-215(c)

& 24-8-710(b).

Three of the appellants are current members of the Arkansas judiciary, while one has

retired from the bench. Judge Landers is a circuit judge in the Thirteenth Judicial District,

and he was reelected in 2010 for an additional six-year term that expires at the close of 2016.

Judge Guthrie is currently serving as a circuit judge in the Thirteenth Judicial District, and

he was reelected in 2014 to a six-year term ending in 2020. Similarly, Judge Johnson is a

circuit judge who sits in the Tenth Judicial District and was reelected in 2014 for a six-year

term that will expire in 2020. Judge Looney is retired from his position as a circuit judge

in the Eighteenth Judicial District. Appellants joined in filing a complaint for declaratory

judgment seeking a determination that sections 24-8-215(c) and 24-8-710(b) are

unconstitutional and are otherwise contrary to the law. Appellants alleged that these

provisions violate amendment 80 to the Arkansas Constitution by adding a qualification for

serving as a judge. They also asserted that the statutes deny them equal protection, as well

as due process of law, as a taking without just compensation. Their complaint included the

additional claim that the forfeiture provisions effect a constructive discharge from

employment. In the complaint, appellants Landers, Guthrie, and Johnson alleged that they

wish to seek reelection when their terms expire but that they had reached the age that

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continued service would result in the forfeiture of their retirement benefits.1 Appellant

Looney avowed that he had wanted to run for reelection but that he chose to retire “because

of the chilling effect of the forfeiture statute[s].”2 As relief, appellants sought an injunction

to prohibit the enforcement of the statutes.

Appellees responded to the complaint and subsequently moved for summary

judgment, asserting that there were no material facts in dispute and that the contested issues

involved questions of law. In their motion, they first argued that appellants did not have

standing to mount a challenge to the statutes and that their claims were not ripe for review.

Appellees also contended that they were entitled to judgment as a matter of law. Appellants

also moved for summary judgment. They agreed with appellees that summary disposition

was appropriate because the issues raised in their complaint concern purely matters of law.

However, appellants disagreed with appellees’ assertion that they did not have standing and

that their claims were not ripe for review. After a hearing, the circuit court ruled that

appellants had standing to seek declaratory relief but that their claims were not well taken.

Accordingly, the circuit court granted appellees’ motion for summary judgment. This

appeal followed.

II. Standards of Review

Generally, on appeal from a summary-judgment disposition, the evidence is viewed

in the light most favorable to the party resisting the motion, and any doubts and inferences

1
This spring, and after the complaint was filed, Judge Landers stood unopposed for
reelection and is scheduled to begin a new term on January 1, 2017.
2
Following his retirement, Judge Looney was appointed as a district judge in Polk
County.

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are resolved against the moving party. Ark. State Bd. of Election Comm’rs v. Pulaski Cty.

Election Comm’n, 2014 Ark. 236, 437 S.W.3d 80. However, when the parties agree on the

facts, we simply determine whether the appellee was entitled to judgment as a matter of

law. Waters v. Millsap, 2015 Ark. 272, 465 S.W.3d 851. As to issues of law, our review is

de novo. Washington Cty. v. Bd. of Trustees, 2016 Ark. 34, 480 S.W.3d 173.

III. Standing

In their brief, appellees continue to argue, as they did below, that appellants lack

standing to challenge the statutes. Appellees contend that appellants do not have standing

and that the issues are not ripe for review because the future application of the retirement

provisions are contingent on an eligible circuit judge running for election, winning the

election, and taking the bench for a new term after reaching the age of seventy. In making

this argument, appellees rely on the principle that a declaratory judgment will not be granted

unless the danger or dilemma of the plaintiff is present, not contingent on the happening of

hypothetical future events; the prejudice to his position must be actual and genuine and not

merely possible, speculative, contingent, or remote. See Nelson v. Ark. Rural Med. Practice

Loan & Scholarship Bd., 2011 Ark. 491, 385 S.W.3d 762.

We treat the question of standing to sue as a threshold issue. Grand Valley Ridge,

LLC v. Metro. Nat’l Bank, 2012 Ark. 121, 388 S.W.3d 24. However, this court has held

that the issue of standing raised by an appellee is not preserved for appeal in the absence of

a cross-appeal. Gallas v. Alexander, 371 Ark. 106, 263 S.W.3d 494 (2007). Here, appellees

did not file a cross-appeal to contest the circuit court’s adverse ruling on this point.

Consequently, we decline to address this issue.

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IV. Amendment 80

As their primary point on appeal, appellants contend that sections 24-8-215(c) and

24-8-710(b) violate amendment 80 to the Arkansas Constitution. They argue that the

amendment establishes the qualifications for becoming a judge in this state and that the

forfeiture provisions of the statutes add an additional age-based qualification by creating a

de facto prohibition against retaining office past the age of seventy. Their argument is based

on the principle that the General Assembly does not possess the authority to augment the

qualifications contained in the constitution. Appellants assert that, by exacting a penalty on

their constitutional eligibility to serve, the laws indirectly accomplish what the General

Assembly lacks the direct authority to do.

The retirement provisions found in both section 24-8-215(c) and section 24-8-

710(b) generally provide that (1) any judge who turns seventy while on the bench may

complete his or her term of office without forfeiting retirement benefits; (2) any judge who

is not eligible for retirement benefits may continue to serve until the completion of the term

in which he or she receives sufficient time of service to retire without losing benefits; and

(3) any judge forfeits retirement benefits who continues to serve after reaching age seventy

and after the term in which the judge accrues sufficient service time to retire.

Acts of the legislature are presumed constitutional, and the party challenging the

statute has the burden to prove otherwise. McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d

641. If it is possible to construe a statute as constitutional, we must do so. Our Cmty., Our

Dollars v. Bullock, 2014 Ark. 457, 452 S.W.3d 552. An act will be struck down only when

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there is a clear incompatibility between the act and the constitution. Bakalekos v. Furlow,

2011 Ark. 505, 410 S.W.3d 564.

The qualifications for judicial office are found in amendment 80, section 16 of the

constitution. The requirements are relatively simple. Justices of the supreme court and

judges of the court of appeals are required to be licensed attorneys in Arkansas for eight

years immediately preceding the date of taking office, while circuit judges must be licensed

attorneys in this state for six years before assuming the bench. Ark. Const. amend. 80, §

16(A) & (B). This requirement for district judges is set at four years. Id. § 16(C). The

amendment also contains geographic limitations. Id. § 16(D).

It is beyond dispute that the General Assembly does not have the authority to impose

qualifications for judicial office in addition to those set out in the constitution. For instance,

in Daniels v. Dennis, 365 Ark. 338, 229 S.W.3d 880 (2006), this court held that Act 1148 of

2005, which provided that a person appointed as a circuit judge was ineligible to run as a

candidate in the same judicial district to which she was appointed, was unconstitutional

because it added a qualification required of candidates for judicial office. Also, we have held

that a statute prohibiting a judge who had been removed from office from thereafter being

appointed or elected to serve as judge was unconstitutional because the law imposed an

additional qualification. Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360.

We have applied this rule of law in other contexts, as well. In Allred v. McLoud, 343

Ark. 35, 31 S.W.3d 836 (2000), this court held that a local initiative that fixed term limits

for county officials at five two-year terms was unconstitutional because it added a new

qualification for candidacy that was not contained in the Arkansas Constitution. In the case

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of Mississippi County v. Green, 200 Ark. 204, 138 S.W.2d 377 (1940), we noted that article

7, section 29 of the Arkansas Constitution fixed the qualifications for county judge, and we

held unconstitutional a statute requiring a county judge to be “learned in the law,” because

it provided an additional qualification not found in the Arkansas Constitution. This court

recently held that the voter-identification law was unconstitutional on its face because it

imposed a qualification for voting beyond what is recognized by the constitution. Martin v.

Kohls, 2014 Ark. 427, 444 S.W.3d 844.

It is equally understood that the General Assembly cannot accomplish indirectly what

it may not do directly. An example of this rule of law is found in Gravett v. Villines, 314

Ark. 320, 862 S.W.2d 260 (1993). There, this court held that an ordinance passed by a

quorum court removing the operation of a county jail from the office of the sheriff to the

office of the county judge was unconstitutional because, under the circumstances, such a

measure had to be submitted to the voters at an election. As a logical corollary to that

holding, we declared that a related ordinance removing funding from the sheriff’s office to

achieve the operational transfer of the jail was also unconstitutional because the quorum

court as a “legislative body cannot do indirectly that which the constitution prohibits it from

doing directly.” Gravett, 314 Ark. at 327, 862 S.W.2d at 264.

While the principles appellants rely on are indeed firmly established in our

jurisprudence, they have no application here. In Dennis and Proctor, the statutes prohibited

persons who were qualified under the constitution from being elected to, and serving in,

judicial office. Likewise, in Allred, the law barred a constitutionally qualified incumbent

from running for office, and in Green, the statute banned a qualified person from serving as

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a county judge. In Kohls, the statute was deemed unconstitutional because it prevented a

duly registered voter from exercising the right to vote. In each of these situations, the

statutes worked an absolute disqualification not found in the constitution. By contrast here,

the statutes do not suffer from the same infirmity because the laws impose neither a direct

nor an indirect qualification for holding judicial office. The statutes do not prohibit any

judge from holding office past the age of seventy. Judges at that age may freely seek

reelection and may serve in office. If elected past age seventy, no judge is subject to being

ousted from his or her position as a result of the statutes. Instead, the laws pertain only to a

judge’s eligibility to receive retirement benefits, which are, after all, a matter of grace

bestowed by the General Assembly.3 The age-seventy eligibility requirement found in

section 24-8-215(c) first appeared in Act 139 of 1965, and it has been a continuing part of

the retirement system since that time. Therefore, for over fifty years, the General Assembly

has conditioned the eligibility for receiving benefits upon retirement at the age of seventy.

Eligibility for benefits demonstrably is not the equivalent of a qualification for holding

judicial office. Simply stated, the statutes do not constitute an additional qualification in

contravention of the constitution. Accordingly, we affirm the circuit court’s ruling that the

statutes do not violate amendment 80.

3
In Jones v. Cheney, 253 Ark. 926, 489 S.W.2d 785 (1973), this court held that, when
the General Assembly establishes a retirement system to which employees make
contributions, it may not constitutionally impair the rights of those employees with
legislation enacted after their rights become vested. Here, the legislation was in effect
decades before appellants took office, much less before they became vested in the retirement
system. Consequently, the dissenting justices’ preoccupation with the concept of vested
property rights is entirely misplaced. See Robinson v. Taylor, 342 Ark. 459, 29 S.W.3d 691
(2000). We also observe that, when appellants became judges, they were on notice that this
requirement was in place.

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V. Equal Protection

Appellants’ second argument on appeal is that the forfeiture provisions of the statutes

offend the equal protection clauses of the United States and Arkansas Constitutions. Their

contention is that, if the goal of the legislation is to prevent older persons from serving as

judges, the means chosen by the General Assembly do not accomplish that end because the

system allows someone who is first elected as a judge after the age of seventy to serve until

eligibility for retirement is achieved. Ark. Code Ann. §§ 24-8-215(c)(2)(A) & 24-8-

710(b)(2)(A). They assert that the statutory scheme prevents only experienced older persons

from serving as judges.

Appellants correctly concede that the statutes need only pass a rational-basis test to

withstand scrutiny under the equal-protection clauses. When considering an equal-

protection challenge to a state legislative classification scheme that does not involve either a

“suspect” classification or a “fundamental” right, the proper test is whether the classification

bears some rational relationship to a permissible state objective. In re Estate of Epperson, 284

Ark. 35, 38, 679 S.W.2d 792, 793–94 (1984) (citing Dandridge v. Williams, 397 U.S. 471

(1970)). Age is not a suspect classification under the Equal Protection Clause. Gregory v.

Ashcroft, 501 U.S. 452 (1991); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976).

Neither the right of governmental employment nor the right to run for elective office is a

fundamental right. Trafelet v. Thompson, 594 F.2d 623 (7th Cir. 1979) (citing Murgia, supra,

and Bullock v. Carter, 405 U.S. 134 (1972)); see also Allen v. State, 327 Ark. 350, 939 S.W.2d

270 (1997) (observing that holding public office is a political privilege and not a civil right).

Judicial office is no exception. Id. Accordingly, the applicable standard is whether the

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classification is rationally related to a legitimate legislative purpose. Gregory, supra; Murgia,

supra.

Equal protection does not require that persons be dealt with identically; it requires

only that classification rest on real and not feigned differences, that the distinctions have

some relevance to the purpose for which the classification is made, and that their treatment

be not so disparate as to be arbitrary. McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641.

When reviewing an equal-protection challenge, it is not this court’s role to discover the

actual basis for the legislation. Graves v. Greene Cty., 2013 Ark. 493, 430 S.W.3d 722.

Rather, we consider whether there is any rational basis that demonstrates the possibility of

a deliberate nexus with state objectives so that legislation is not the product of arbitrary and

capricious government purposes. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., 2012 Ark.

157, 400 S.W.3d 701. If we determine that any rational basis exists, the statute will withstand

constitutional challenge. McLane S., Inc. v. Davis, 366 Ark. 164, 223 S.W.3d 674 (2006).

Under the rational-basis test, legislation is presumed constitutional and rationally related to

achieving any legitimate governmental objective under any reasonably conceivable fact

situation. Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002). This presumption places the

burden on the party challenging the legislation to prove its unconstitutionality. Whorton v.

Dixon, 363 Ark. 330, 214 S.W.3d 225 (2005).

On several occasions, the United States Supreme Court has taken the opportunity to

address equal-protection claims in the context of retirement provisions. In Murgia, supra, at

issue was a Massachusetts statute that mandated the retirement of uniformed state police

officers at age fifty. Applying the rational-basis test and recognizing that physical ability

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generally declines with age, the Court concluded that the state had a legitimate interest in

seeking to protect the public by assuring the physical preparedness of its uniformed police

officers. Because the statute furthered that legitimate goal, the Court ruled that there was

no denial of equal protection. In its decision, the Court observed that the means chosen to

achieve a legitimate goal need not be flawless:

That the State chooses not to determine fitness more precisely through
individualized testing after age fifty is not to say that the objective of assuring
physical fitness is not rationally furthered by a maximum-age limitation. It is
only to say that with regard to the interest of all concerned, the State perhaps
has not chosen the best means to accomplish this purpose. But where
rationality is the test, a State “does not violate the Equal Protection Clause
merely because the classifications made by its laws are imperfect.” Dandridge
v. Williams, 397 U.S., at 485, 90 S. Ct., at 1161.

Murgia, 427 U.S. at 316.

In Vance v. Bradley, 440 U.S. 93 (1979), the Court considered whether Congress had

violated the Equal Protection Clause by requiring retirement at age sixty of federal

employees covered by the Foreign Service retirement system but not those employees

covered by the Civil Service retirement system. A stated purpose for mandating compulsory

retirement for persons in the Foreign Service at that age was to remove older persons that

may be less dependable than younger persons in facing the rigors of overseas duty. In

concluding that the statutory scheme did not violate the Equal Protection Clause, the Court

reasoned that the mandatory retirement age of sixty attempts to “stimulate the highest

performance in the ranks of the Foreign Service” and found that the mandatory provision

was not invalid because it was rationally related to the goal of superior performance. Vance,

440 U.S. at 101. In so holding, the Court also recognized that “it was quite rational to

avoid the risks connected with having older employees in the Foreign Service” and

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“[w]hether or not individual judges may agree with this assessment, it is not for the courts

to reject it.” Id. at 106.

Finally, in Gregory, supra, the Supreme Court upheld against an equal-protection

challenge a Missouri constitutional provision requiring judges to retire at age seventy.

There, the Court emphasized that a state’s citizens “have a legitimate, indeed compelling,

interest in maintaining a judiciary fully capable of performing the demanding tasks that

judges must perform,” observing that voluntary retirement, impeachment procedures, and

the election process may not be sufficient to ensure this objective. Gregory, 501 U.S. at 472.

Significantly, the Court recognized that

[t]he Missouri mandatory retirement provision, like all legal classifications, is
founded on a generalization. It is far from true that all judges suffer significant
deterioration in performance at age 70. It is probably not true that most do.
It may not be true at all. But a State “does not violate the Equal Protection
Clause merely because the classifications made by its laws are imperfect.”

Gregory, 501 U.S. at 473 (quoting Murgia, 427 U.S. at 316).

Even before the decision in Gregory, courts across the country had upheld mandatory

retirement provisions for state judges. Those decisions include Hatten v. Rains, 854 F.2d

687 (5th Cir. 1988); Malmed v. Thornburgh, 621 F.2d 565 (3d Cir. 1980); Trafelet, supra;

Rubino v. Ghezzi, 512 F.2d 431 (2d Cir. 1975); Lerner v. Corbett, 972 F. Supp. 2d 676 (M.D.

Penn. 2013); Zielasko v. Ohio, 696 F. Supp. 577 (N.D. Ohio 1988); Saetre v. State, 398

N.W.2d 538 (Minn. 1986); O’Neil v. Baine, 568 S.W.2d 761 (Mo. 1978); Maresca v. Cuomo,

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483 N.Y.S.2d 690 (N.Y. App. Div. 1984); State v. Eyrich, 389 N.E.2d 259 (Ohio 1986);

Aronstam v. Cashman, 325 A.2d 361 (Vt. 1974).4

It is against this backdrop in the law that appellants assert the narrow argument that

the statutes deny equal protection because the laws permit a person after the age of seventy

to serve as a judge until eligibility for retirement benefits is achieved. However, the

underinclusiveness of a particular provision, or its failure to fully remedy a certain problem,

does not make the provisions unconstitutional. The Supreme Court has been clear on this

point. “Even if the classification involved here is to some extent both underinclusive and

overinclusive, and hence the line drawn by Congress imperfect, it is nevertheless the rule

that in a case like this ‘perfection is by no means required.’” Vance, 440 U.S. at 108 (quoting

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 51 (1973)). See also Murgia, 427 U.S.

at 316 (stating that, where rationality is the test, a State “does not violate the Equal

Protection Clause merely because the classifications made by its law are imperfect”);

Dandridge, 397 U.S. at 485 (observing that a law does not offend the Constitution simply

because the classification is not made with “mathematical nicety”).

Further, when we examine the justifications offered by appellees for encouraging

retirement at age seventy, we can only conclude that the statutes bear a rational relationship

to legitimate legislative purposes. Appellees assert, and we agree, that the laws advance the

State’s interest in protecting and maintaining the integrity of the judiciary. As stated by the

4
In dissent, Justice Danielson appears to maintain that some of these decisions are
inapposite because the retirement provisions were set forth in a constitution rather than by
legislative enactment. However, for purposes of equal protection, the analysis is the same
whether the challenged law is a constitutional provision or a statute.

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Supreme Court, “[i]t is an unfortunate fact of life that physical and mental capacity

sometimes diminish with age.” Gregory, 501 U.S. at 472. Thus, it is not irrational for the

State to promote retirement at an advanced age in order to attain the highest possible

standards for the judiciary. In the same vein, we also accept that encouraging voluntary

retirement “eliminates the unpleasantness of selectively removing aged and disabled judges”

through formal disciplinary proceedings. Malmed, 621 F.2d at 572; see also Trafelet, 594 F.2d

at 628 (recognizing that the cumbersome process of individualized removal is unlikely to be

used “except in the most extreme cases”); Zielasko, 693 F. Supp. at 586 (accepting as

reasonable the justification that “mandatory retirement eliminates the unpleasant task of

removing aged” and senile judges).

In addition, promoting voluntary retirement advances the State’s legitimate interest

in maintaining high performance for the judiciary by providing greater opportunities for

younger attorneys to take the bench. Relatedly, retired judges are allowed to return to

service as appointed judges without forfeiting retirement benefits. See Ark. Code Ann. §§

16-10-902 & -903 (Repl. 2010).5 Therefore, the retirement system also “substantially

increases judicial manpower by bringing in younger judges while retaining the part-time

services of willing and able retired judges.” Malmed, 621 F.2d at 572; see also Rubino, 512

F.2d at 433 (recognizing the reasonableness of a mandatory age limitation at age seventy by

encouraging younger attorneys with judicial aspirations).

5
Section 4 of amendment 80 provides that the supreme court has the authority to
temporarily assign judges.

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In sum, we hold that the statutes are rationally related to the achievement of

legitimate state objectives. This is the lowest form of constitutional scrutiny, and the

statutory scheme in question easily passes the test. That the laws are underinclusive, by

allowing a select few to briefly evade their strictures, provides no reason at all to hold that

the statutes are unconstitutional. The General Assembly could well conclude, without being

arbitrary, that allowing some to serve a short time to achieve eligibility for retirement

benefits is but to place repose and confidence in the voters to not elect as a first-time judge

one who is past the prime of his or her abilities. With that said, it is worth repeating the

Court’s admonition that “[w]hether or not individual judges may agree with this assessment,

it is not for the courts to reject it.” Vance, 440 U.S. at 106. The lines drawn by the General

Assembly may not be flawless, but for purposes of equal protection, perfection is simply not

required.

Under this point on appeal, appellants also assert that the statutory scheme lacks a

rational basis because it limits judges who are elected later in life from obtaining full

retirement benefits. Essentially, appellants complain that judges who serve longer terms in

office receive greater benefits than those who serve less time on the bench. The entirety of

the argument that appellants present on this point is confined to the statement that “[t]his

discrimination is unrelated to any legitimate state interest.” However, this, too, is a policy

decision that was made by the General Assembly. In our view, it is far from irrational to

base retirement benefits on length of judicial service. Appellants have failed in their burden

of demonstrating that the laws lack a rational basis. We sustain the circuit court’s decision

that the statutes do not deny equal protection.

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VI. Due Process

In this argument on appeal, appellants contend that the forfeiture provisions appear

to constitute an unconstitutional taking without due process because the forfeiture statutes

can be read to provide that a judge would forfeit not only the payment of monthly

retirement benefits, but also a judge’s personal contributions paid into the system that were

deducted from his or her salary. In response, appellees assert that no taking will occur in

reliance on the affidavit of the executive director that appellees presented in support of their

motion for summary judgment. In her affidavit, the executive director averred that, if a

judge elects to remain in office past age seventy and suffers the forfeiture of monthly

retirement benefits, the judge’s personal contributions will be refunded to the judge, just as

a judge’s personal contributions are refunded if a judge never attains retirement eligibility in

the first instance under Arkansas Code Annotated section 24-8-209(b).

It is the appellant’s burden to demonstrate the existence of reversible error. Burdine

v. Ark. Dep’t of Fin. & Admin., 2010 Ark. 455, 379 S.W.3d 476. In this case, appellants

have failed in that burden because they have provided no argument showing that the circuit

court erred in denying their due-process claim by relying on the executive director’s

assurance that contributions will be refunded if a judge remains in office past age seventy.

We summarily affirm on this point.

VI. Constructive Discharge

In this last issue, appellants cite Sterling Drug v. Oxford, 294 Ark. 239, 743 S.W.2d

380 (1988), for the proposition that a constructive discharge occurs when an employer

intentionally renders an employee’s working conditions intolerable and thus forces the

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employee to leave the employment. Appellants assert that the arbitrary and capricious

withdrawal of a judge’s retirement benefits is an intentional act that effectively renders a

judge’s working conditions so intolerable that a judge is forced to surrender his or her

occupation.

Appellants’ attempt to create an analogy between statutes that encourage retirement

and an intolerable work-place environment fails. The two are not comparable, as providing

an incentive to retire at an advanced age is not the equivalent of a hostile work environment.

Moreover, this court has steadfastly refused to consider an issue that is not supported by

convincing argument or citation to authority. Rose v. Ark. State Plant Bd., 363 Ark. 281,

213 S.W.3d 607 (2005). There is no merit to this argument.

Affirmed.

BAKER and HART, JJ., concur.

BRILL, C.J., and DANIELSON, J., dissent.

KAREN R. BAKER, Justice, concurring. I agree with the majority’s opinion and

analysis regarding Circuit Judge Michael Lander’s petition for declaratory judgment and I

join it.1 I write separately to address issues raised in the dissenting opinions.

While I appreciate that everyone has different experiences that, at least to some

extent,

1
I would affirm the circuit court’s decision as to the remaining appellants on the
alternative basis that, because the court reached the right result as to the remaining
appellants, with the exception of Judge Landers, the appellants clearly lacked standing to
bring this
action.

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may color the lens through which we see any given situation, our personal opinions and

beliefs cannot be substituted for the law. In announcing his retirement from the bench,

Justice Danielson, in a public statement, said that if not for the statute at issue in this case

“prohibiting [him] from seeking re-election without forfeiting [his] retirement benefits, [he]

would continue to seek re-election as long as the good people of this State would have

[him].” Clearly, Justice Danielson feels aggrieved by the statute we are tasked with ruling

on in this case, which may explain the tone of his dissenting opinion.

Currently, thirty-three states have a mandatory judicial-retirement age, Arkansas is

not among those states.2 Campaigns have been mounted in recent years, in many of those

thirty- three states, attempting to lift or raise the mandatory age through referendum or

legislation, but almost all have failed. Over the last ten years, in Arizona, Hawaii, Louisiana,

New York, and Ohio, attempts to lift or repeal mandatory retirement age for judges were

unsuccessful. For the most part, where such efforts have succeeded it has been not to increase

or repeal the mandatory retirement ages, but instead to let judges who have reached the

mandatory retirement age serve out their existing terms. This was the case in Louisiana in

2003 and Texas in 2007. In Pennsylvania in 2001, a measure passed to allow judges to serve

until the end of the year in which they turned seventy. However, in April of this year,

voters in Pennsylvania rejected a constitutional amendment that would have raised that

2
Judicial retirement in Arkansas is not mandatory, there is no age limit on service as
a judge. States with no maximum age include: Arkansas, California, Delaware, Georgia,
Idaho, Indiana, Kentucky, Maine, Mississippi, Montana, Nebraska, Nevada, New Mexico,
North Dakota, Oklahoma, Rhode Island, Tennessee, West Virginia, and Wisconsin.

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state’s mandatory judicial-retirement age from seventy to seventy-five.3 In most states, a

judge must retire from the bench immediately upon attaining the mandatory retirement age.

In the 2015 legislative session in Arkansas, an attempt to raise the age at which a judge could

run to take office without the loss of retirement benefits from the current age seventy to

age seventy-two was rejected by the legislature. Previous attempts to raise or remove the

age at which Arkansas judges must retire or lose their judicial-retirement benefits have

likewise failed.

Legal challenges to mandatory judicial-retirement ages have also been mounted in

many states alleging age discrimination, equal-protection violations, and due-process

violations that mirror the arguments made for reversal in this case. These challenges have

universally failed.4 The United States Supreme Court addressed the issue twenty-five years

ago in Gregory v. Ashcroft, 501 U.S. 452 (1991), holding that mandatory judicial retirement

does not violate the Equal Protection Clause and is constitutional.

Chief Justice Brill’s dissenting opinion states:

The reality of the judicial-retirement system reveals the flawed nature of the false
choice. The result is confiscatory. It harshly penalizes those judges who wish to
exercise their right to run for office again and to continue to serve.
3
This vote did not count and the issue will be on the ballot once again this
November.
4
See Lerner v. Corbett, 972 F. Supp. 2d 676 (M.D. Pa. 2013); Zielasko v. Ohio, 693 F.
Supp. 577 (N.D. Ohio 1988) (upholding state constitutional provision precluding election
or appointment of any judge beyond the age of 70); State ex rel. Keefe v. Eyrich, 489 N.E.2d
259 (Ohio 1986) (constitutional provision that persons 70 years of age or older could not
be elected to judicial office did not violate seventy-year-old candidate’s equal-protection
rights); Maresca v. Cuomo, 105 A.D.2d 193 (N.Y. 1984) (upholding state constitutional
provision requiring mandatory retirement of judges in the year they reach age 70; provision
was supported by a rational basis and offended neither due process nor equal protection);
O’Neil v. Baine, 568 S.W.2d 761 (Mo. 1978) (upholding mandatory retirement of state
magistrate and probate judges at age 70).

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....

As for Judge Landers, when he is old and gray and full of sleep, and nodding by the
fire, he can take down the decision of this court, and slowly read how he was forced
to leave the bench and how the wishes of the citizens of six Arkansas counties were
ignored.

First, I must disagree with Chief Justice Brill’s contention that this statute “harshly

penalizes” judges, and note that every sitting judge in Arkansas should have been aware of

this law when they made the decision to seek judicial office. A judge’s property interest in

his or her retirement is limited by the condition that he or she be retired upon completion

of the term in which he or she reaches age 70, precluding any claim that the statutory

provision is confiscatory or that it violates procedural due process. See Lerner, 972 F. Supp.

676 (upholding state constitutional provision requiring judges to retire at age 70 as rationally

related to ensuring a well-functioning state judiciary).

Second, Judge Landers is not being forced to leave the bench. Instead, Judge Landers

has a choice to make. He can assume the office in 2017 and continue to serve for six years

at his current salary of $160,000 at the end of which he can, if he chooses, run for judicial

office again; or, he can retire at the end of December 2016 and draw the judicial-retirement

benefit he has accrued during twelve years as a circuit court judge–approximately $61,440

annually for life. This is not a “Hobson’s choice.”5

Despite the tone of the dissenting opinions, the issue presented in this case is clear.

At issue is what the people of Arkansas through their elected representatives have

5
A “Hobson’s choice” is defined as an apparent freedom to take or reject something
offered when in actual fact no such freedom exists. Webster’s Third New International
Dictionary 1076 (1993).

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determined is the correct public policy for this state, and whether the circuit court erred in

finding that the policy, embodied in Arkansas Code Annotated sections 24-8-215(c) and

24-8-710(b) (Repl. 2014), does not violate our state constitution.

The circuit court did not err.

JOSEPHINE LINKER HART, Justice, concurring. I would hold that none of the

appellants have standing in this case. The majority correctly notes that standing is a threshold

issue. Grand Valley Ridge, LLC v. Metro. Nat’l Bank, 2012 Ark. 121, 388 S.W.3d 24. The

question of standing is a matter of law for this court to decide, and our review is de novo.

Bibbs v. Cmty. Bank of Benton, 375 Ark. 150, 289 S.W.3d 393 (2008). Standing is an issue

that can be raised on appeal, even if it is not the basis for the circuit court’s ruling and no

cross-appeal has been filed. See Arnold v. State, 2011 Ark. 395, 384 S.W.3d 488. It is

appropriate to do so in this case.

Appellees raised standing in the circuit court and again raise it on appeal. I agree

with how the majority characterizes the appellees’ argument, and I find that the authority

that the majority relies on, Nelson v. Ark. Rural Med. Practice Loan & Scholarship Bd., 2011

Ark. 491, 385 S.W.3d 762, stands for the proposition that “a declaratory judgment will not

be granted unless the danger or dilemma of the plaintiff is present, not contingent on the

happening of hypothetical future events; the prejudice to his position must be actual and

genuine and not merely possible, speculative, contingent, or remote.” However, I cannot

accept the majority’s conclusion that we are barred from considering standing without a

cross-appeal.

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The majority’s reasoning does not comport with our long-established practice of

affirming the circuit court if it is correct for any reason—Arnold v. State, supra, is just such a

case. See also Shelter Mut. Ins. Co. v. Goodner, 2015 Ark. 460, 477 S.W.3d 512; Hurt-Hoover

Invs., LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696.

Further, the majority’s reliance on Gallus v. Alexander, 371 Ark. 106, 263 S.W.3d

494 (2007), for the proposition that the issue of standing raised by an appellee is not

preserved for appeal in the absence of a cross-appeal is clearly misplaced. In the first place,

Arnold v. State, supra, a 2011 case, effectively overruled Gallus, a 2007 case, albeit sub

silencio. Likewise, the previously mentioned right-for-any-reason cases show that this

court’s practice of affirming the circuit court on an alternative basis is still valid. Finally,

Gallus’s legal underpinning does not support the proposition that the majority cites it for.

The Gallus court purports to rely on Lawson v. City of Mammoth Spring, 287 Ark. 12, 696

S.W.2d 712 (1985), for the proposition that a cross-appeal was required before this court

can consider an appellee’s argument concerning standing. The Lawson court made no such

holding. It merely recited that the City of Mammoth Spring had filed a cross-appeal, which

it rejected; it never stated that filing a cross-appeal was mandatory.

Standing is determined from the pleadings. See Reynolds v. Guardianship of Sears, 327

Ark. 770, 940 S.W.2d 483 (1997). Here, the first amended complaint recited only that

Judges Landers, Guthrie, and Johnson were of the age that would be affected by Arkansas

Code Annotated sections 24-8-215(c) and 24-8-710(b), and they and would “like” to seek

reelection. It further noted that Judge Looney “would have liked to seek reelection but

chose not to do so.”

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At the hearing on the appellants’ petition, no evidence was taken. I am mindful that,

in arguing the case, appellants’ counsel did mention that Judge Landers

has filed for reelection, he is unopposed, so if somebody votes for the unopposed
slate of candidates, he wins, he’s in. And he would take office, I guess, a new term
in January of 2017. So, I mean certainly I think he has standing.

He did not move to amend the pleadings or ask the trial court to take judicial notice of the

fact that Judge Landers was eligible to take office if he chose to forfeit his retirement benefits.

However, even assuming that he had, whether Judge Landers chooses to accept another

term over his retirement benefits is still “merely possible, speculative, contingent, or remote”

which cannot provide the necessary factual predicate for the grant of a declaratory judgment.

See Nelson v. Ark. Rural Med. Practice Loan & Scholarship Bd., supra.

I would dismiss this case because the litigants lacked standing.

HOWARD W. BRILL, Chief Justice, dissenting.

When you are old and gray and full of sleep,
And nodding by the fire, take down this book,
And slowly read, and dream of the soft look,
Your eyes had once, and of their shadows deep . . .

William Butler Yeats, “When You Are Old,” lines 1–4.

I write a separate dissent to express other reasons why Arkansas Code Annotated

section 24-8-710 (Repl. 2014) is invalid. Quoting from Duncan v. Malcomb, 234 Ark. 146,

148, 351 S.W.2d 419, 420 (1961), this court stated, “Of course, it is elementary that equity

abhors forfeitures.” This well-established maxim, although first developed in the area of

creditors and mortgages, more broadly expresses fundamental principles of fairness that are

applicable in the instant case.

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Judge Landers graduated from law school and was admitted to the practice of law in

1971. He was elected as a circuit judge for the Thirteenth Circuit in 2004 and assumed the

bench in January 2005. He was reelected to the bench in 2010. In March 2016, the voters

of Calhoun, Cleveland, Columbia, Dallas, Ouachita, and Union Counties elected Judge

Landers to another six-year term as circuit judge. The Arkansas Judicial Retirement System

and its board of trustees state that Judge Landers has on January 2, 2017 a simple choice:

assume the bench and forfeit his pension or leave the bench and keep his full pension.

However, such an option is not a simple choice; it is a false choice. It is the classic Hobson’s

choice. In other words, it is not a real choice.

The statute mandating the forfeiture of judicial-retirement benefits, found at

Arkansas Code Annotated section 24-8-710, provides as follows:

(a) Any member who has a minimum of twenty (20) years of actual
service may retire regardless of age, and any judge or justice who has served
at least eight (8) years shall be eligible for benefits upon reaching age sixty-
five (65).

(b)(1) Any judge or justice who becomes seventy (70) years of age
during a term of office to which he or she has been elected may complete the
term without forfeiting his or her rights to retirement benefits under this
section.

(2)(A) Any judge or justice who is not eligible to retire at age seventy
(70) may continue to serve as judge or justice until the completion of the term
of office in which he or she has sufficient service to retire without losing his
or her retirement benefits.

(B) The judge or justice shall lose all retirement benefits if he or she
serves beyond the end of the term needed to get sufficient service to retire.

(3)(A) Otherwise, judges or justices must retire by their seventieth
birthday or lose their retirement benefits.

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(B) However, any active judge or justice who was serving prior to July
1, 1965, may continue to serve until any age and upon retirement shall be
eligible to receive retirement benefits.

Under this judicial-retirement statute, Judge Landers’s pension vested when he

turned sixty-five years of age. That pension was based on his mandatory contributions and

additional contributions from the state’s fiscal resources. If he had retired or left the bench,

he would have received the pension that he had earned.

In this case, the record indicates that never has a judge elected to forfeit the pension

and continue on the bench. Instead, some have retired; some have gone back into the

practice of law; some have become district judges. The reality of the judicial-retirement

system reveals the flawed nature of the false choice. The result is confiscatory. It harshly

penalizes those judges who wish to exercise their right to run for office again and to continue

to serve.

The majority suggests several reasons that the legislature might have considered in

adopting this retirement penalty. It suggests that the legislature might have intended to open

judicial positions to younger lawyers. However, the legislature did not set a general age limit

of sixty or sixty-five or seventy or seventy-five to serve. The majority suggests that the

legislature might have intended to keep “senile” judges, those over seventy, off the bench.

But the legislature did not adopt a competency test. Finally, the majority suggests that the

legislature might be troubled by the continued physical ability of judges to serve. But the

legislature did not adopt a physical test, similar to those for firefighters, police officers, and

military personnel.

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Most significantly, methods are in place to deal with judges who are mentally or

physically unable to carry on their duties. In 1988, the people adopted Amendment 66,

which created the independent Judicial Discipline and Disability Commission. The

Commission may investigate whether a judge has a mental or physical disability that prevents

the proper performance of judicial duties. Under the Constitution and the implementing

statutes, Arkansas Code Annotated 16-10-401 to -411 (Repl. 2010), the Commission may

recommend to this court that a judge “be retired.” In addition, with the goal of assisting

lawyers and judges at an earlier stage, in 2000 the Arkansas Supreme Court created the

Arkansas Lawyer Assistance Program (ALAP), now known as Judges and Lawyer Assistance

Program (JLAP). See In Re: Establishment of the Arkansas Lawyer Assistance Program, 343 Ark.

App’x 780 (2000). (per curiam). With assured confidentiality, it provides immediate and

continuing help to judges who suffer from physical or mental disabilities that result from

disease, age, or other factors that impair their ability to serve.

In reality, these statutory provisions serve to punish judges who wish to continue on

the bench. Thus, for the foregoing reasons, I would hold that Arkansas Code Annotated

section 24-8-710 is an impermissible forfeiture and a unconstitutional requirement for

judges. I would urge the legislature to find a more appropriate way, within the constitutional

guidelines, to assure a judiciary with the requisite qualifications.

As for Judge Landers, when he is old and gray and full of sleep, and nodding by the

fire, he can take down the decision of this court, and slowly read how he was forced to

leave the bench and how the wishes of the citizens of six Arkansas counties were ignored.

DANIELSON, J., joins.

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PAUL E. DANIELSON, Justice, dissenting. The General Assembly has declared

that it is the public policy of this state to provide retirement benefits to its judges in order

to “attract and retain highly capable members of the legal profession for service in the state

judiciary.” Ark. Code Ann. § 24-8-201 (Repl. 2014). The forfeiture provisions at issue in

this case—Arkansas Code Annotated sections 24-8-215(c) and 24-8-710(b) (Repl. 2014)—

achieve the exact opposite result. For all practical purposes, they guarantee the departure

of the most experienced and seasoned members of the Arkansas judiciary—including, of

course, the esteemed circuit judges who are the appellants in this case, three of whom were

recently reelected by the voters in their districts and now face essentially forced retirement

because the General Assembly believes it knows better than the voters. The forfeiture

provisions accomplish this goal in a way that offends the Arkansas Constitution and the

principle of equal protection. Accordingly, I dissent.

First, the majority correctly notes that, where the constitution itself prescribes in

detail the qualifications for office, the General Assembly may not add to or diminish them.

See, e.g., Mississippi Cty. v. Green, 200 Ark. 204, 138 S.W.2d 377 (1940). Regulation on

the subject inserted into the constitution operates as an implied restriction on the power of

the legislature to impose additional qualifications. See id. Stated simply, “[w]here specific

qualifications for office are listed in both the Arkansas Constitution and a statute, the

constitution controls and voids the statute.” Daniels v. Dennis, 365 Ark. 338, 340, 229

S.W.3d 880, 882 (2006). The majority likewise acknowledges that the General Assembly

cannot do indirectly what the constitution prohibits it from doing directly. See, e.g., Gravett

v. Villines, 314 Ark. 320, 862 S.W.2d 260 (1993); Cragar v. Thompson, 212 Ark. 178, 205

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S.W.2d 180 (1947). However, the majority fails to apply this principle and erroneously

concludes, without any real analysis, that the forfeiture provisions do not impose an indirect

qualification for holding judicial office. I cannot agree.

The maxim that the legislature cannot accomplish indirectly what it cannot

accomplish directly is more than a mere saying. This firmly established principle operates

as a restraint on the authority of the legislature, which, there can be no doubt, is a creature

of the constitution, owes its existence to the constitution, and derives its powers from the

constitution. See Rison v. Farr, 24 Ark. 161 (1865). In Rison, this court considered the

constitutionality of a legislative enactment that required a voter to take an oath that, among

other things, “he has not voluntarily borne arms against the United States or this state, nor

aided, directly or indirectly, the so-called confederate authorities since the 18th day of April,

1864.” Id. at 170. The court determined that this portion of the act was “repugnant to,

and in open conflict with the constitution, and in every point of view [was] an entrenchment

upon the rights secured by the fundamental law of this state, and [was] therefore absolutely

null and void.” Id. at 176. This was because the Arkansas Constitution fixed the

qualifications for voters, “and these qualifications cannot be added to by legislative

enactment.” Id. at 170. Importantly, this court made clear that an indirect addition of a

qualification is just as repugnant to the constitution as a direct one:

[A]lthough this part of the law is professedly enacted, “To provide the manner
of holding elections,” it is, in effect, nothing but a prohibition upon the right
to vote as secured by the constitution; and is of the same import as an
affirmative provision that no person who has voluntarily borne arms against
the United States, or this state, or aided the so-called confederate authorities,
since the 18th day of April, 1864, shall be allowed to vote at any election in
the state of Arkansas. And to admit that the legislature may do this, would be
to declare that part of the constitution which defines the qualifications of a

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voter, absolutely nugatory, and would turn section 2 of article IV, of our
constitution into the merest nonsense. And clearly, if the legislature cannot, by
direct legislation, prohibit those who possess the constitutional qualification to vote, from
exercising the elective franchise, that end cannot be accomplished by indirect legislation.
The legislature cannot, under color of regulating the manner of holding
elections, which to some extent that body has a right to do, impose such
restrictions as will have the effect to take away the right to vote as secured by
the constitution.

Id. at 172 (emphasis added).

Similarly, if the legislature cannot, by direct legislation, prohibit those who possess

the constitutional qualifications to hold judicial office from doing so, that end cannot be

accomplished by indirect legislation. The legislature cannot, under color of regulating

judicial-retirement benefits, which to some extent that body has a right to do, impose such

restrictions as will have the effect of denying eligibility for office. Rison is controlling, and

this court is not free to ignore a legislative overreach simply because the majority likes the

result. The forfeiture provisions are repugnant to the constitution because they indirectly

add a qualification for holding judicial office not found in amendment 80, section 16.

Moreover, the majority is incorrect in stating that a judge may “freely” seek

reelection and serve in office despite the application of the forfeiture provisions. The

majority is likewise wrong in suggesting that retirement benefits are entirely a matter of

grace bestowed by the General Assembly. It is settled Arkansas law that a retirement

allowance financed over a period of years by the joint contributions of the employer and

the employee represents compensation rather than a mere gratuity. See, e.g., Jones v. Cheney,

253 Ark. 926, 489 S.W.2d 785 (1973) (citing Daggett v. St. Francis Levee Dist., 226 Ark. 545,

291 S.W.2d 254 (1956)). As such, it is a vested right not subject to impairment. See id. To

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forfeit that right is not free.1 Furthermore, the proposition that the forfeiture provisions

merely govern eligibility for retirement benefits misses the point entirely; when a judge is

vested in the retirement system, his or her eligibility for retirement benefits has already been

established, not to mention his or her eligibility to hold judicial office.

Second, as the majority acknowledges, equal protection requires “that classification

rest on real and not feigned differences, that the distinctions have some relevance to the

purpose for which the classification is made, and that their treatment be not so disparate as

to be arbitrary.” Rose v. Ark. State Plant Bd., 363 Ark. 281, 293, 213 S.W.3d 607, 617

(2005). The forfeiture provisions simply do not pass this test. They do not prevent older

people in general from serving as judges; rather, they prevent older people with experience as

judges from continuing to serve as judges.

This is so because a person can run for and be elected as a judge for the first time

after attaining the age of seventy. Pursuant to sections 24-8-215(d) and 24-8-710(a), a judge

is not eligible for retirement benefits until he or she accumulates eight years of actual service.

Further, under sections 24-8-215(c)(2)(A) and 24-8-710(b)(2)(A), a judge who is not

eligible to retire at age seventy may continue to serve, without forfeiting retirement benefits,

until the completion of the term of office in which he or she has sufficient service to retire.

Consequently, a supreme court justice or court of appeals judge who takes office for the

first time at seventy years of age or even older is entitled to serve a full eight-year term

1
The majority seems to suggest that, because the appellants were aware of the
forfeiture provisions when they were elected, they are now estopped from challenging their
constitutionality. There is no support in the law for this notion.

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before being required to retire or forfeit benefits. A circuit judge elected at that age is

entitled to serve two full six-year terms—a total of twelve years—before being required to

retire or forfeit benefits. Alternatively, a person may serve one six-year term as a circuit

judge and one eight-year term as a supreme court justice or court of appeals judge—a total

of fourteen years—before being required to retire or forfeit benefits. Again, there is no age

limit on taking the bench as a first-time judge.

Clearly, the forfeiture provisions result in disparate treatment between those who are

elected at a relatively early age and those who are elected later in life. I recognize that

“perfection is by no means required” on rational-basis review. Vance v. Bradley, 440 U.S.

93, 108 (1979) (quoting Phillips Chem. Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 385

(1960)). However, the forfeiture provisions are not merely underinclusive or

mathematically imprecise. The distinction between those elected earlier in life and those

elected later in life has no relevance to the purpose for which the classification was made,

and the treatment of those two groups is so disparate as to be arbitrary. See Rose, 363 Ark.

281, 213 S.W.3d 607. The law allows an eighty year old to take the bench for the first time

and, in certain circumstances, to serve until he or she is ninety-four years old. The fact that

the law also insists that our most experienced judges retire at age seventy demonstrates an

obvious equal-protection problem.2

2
Further evidence of the arbitrariness of the forfeiture provisions is that they do not
apply to district judges. See 2007 Ark. Acts 177 (abolishing Arkansas District Judge
Retirement System and transferring its powers, duties, and plan liabilities to Arkansas Public
Employees’ Retirement System). This distinction between district judges and all other
judges likewise has no relevance to the purpose for which the classification was made.

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In addition, I must point out a glaring inconsistency in the majority opinion. On

the one hand, it asserts that the forfeiture provisions do not impose an additional

qualification for holding judicial office because they do not impose a mandatory retirement

age; instead, they only encourage retirement by regulating eligibility for retirement benefits.3

On the other hand, in its analysis of the equal-protection issue, the majority cites several

cases addressing the constitutionality of provisions imposing a mandatory retirement age.

See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (constitutional provision requiring judicial

retirement at age seventy); Vance, 440 U.S. 93 (legislation mandating retirement of

participants in the Foreign Service retirement system at age sixty); Massachusetts Bd. of Ret.

v. Murgia, 427 U.S. 307 (1976) (statute requiring retirement of uniformed police officers at

age fifty). The majority’s attempt to take two opposing positions in the same opinion

highlights the flaws in its reasoning. The majority cannot have it both ways. If the forfeiture

provisions impose a mandatory retirement age, they violate amendment 80 by adding a

qualification for holding judicial office. If they do not impose a mandatory retirement age,

but merely condition eligibility for benefits on retirement by age seventy, they violate equal

protection by resulting in disparate treatment.

In this same vein, the majority is simply wrong in its misleading implication that

other courts have unanimously upheld judicial-retirement provisions like those at issue here.

First, I can find no other case addressing a forfeiture provision promoting judicial retirement

3
The legislature apparently believes that the forfeiture provisions do more than just
encourage retirement: Arkansas Code Annotated section 24-8-224(a) explicitly
characterizes the forfeiture provisions as imposing a “mandatory retirement age.”

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at a certain age; it appears that Arkansas stands alone in conditioning eligibility for judicial-

retirement benefits on retirement by a certain age. Second, the vast majority of the cases

relied on by the majority, and by Justice Baker in her concurrence, involved constitutional

provisions imposing a mandatory retirement age. See Gregory, 501 U.S. 452 (addressing Art.

V, § 26 of the Missouri Constitution); Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988)

(addressing Art. V, § 1-a of the Texas Constitution); Malmed v. Thornburgh, 621 F.2d 565

(3d Cir. 1980) (addressing Art. V, § 16(b) of the Pennsylvania Constitution); Rubino v.

Ghezzi, 512 F.2d 431 (2d Cir. 1975) (addressing Art. VI, § 25 of the New York State

Constitution); Lerner v. Corbett, 972 F. Supp. 2d 676 (M.D. Penn. 2013) (addressing Art. V,

§ 16(b) of the Pennsylvania Constitution); Zielasko v. Ohio, 693 F. Supp. 577 (N.D. Ohio

1988) (addressing Art. IV, § 6(C) of the Ohio Constitution); State v. Eyrich, 489 N.E.2d 259

(Ohio 1986) (addressing Art. IV, § 6(C) of the Ohio Constitution); Maresca v. Cuomo, 483

N.Y.S. 2d 690 (N.Y. App. Div. 1984) (addressing Art. VI, § 25(b) of the New York State

Constitution); Aronstam v. Cashman, 325 A.2d 361 (Vt. 1974) (addressing Ch. II, § 28c of

the Vermont Constitution). By contrast, the forfeiture provisions at issue in this case are

acts of the legislature, and they actually conflict with our constitution, as previously explained

in this opinion.

The forfeiture provisions are unconstitutional. They conflict with amendment 80

by imposing an additional qualification for holding judicial office, and they suffer the added

infirmity of violating equal protection. Together, these provisions constitute one of the

most blatantly arbitrary, discriminatory, and punitive laws that I have ever seen. It is worth

noting that the forfeiture provisions do not apply to members of the legislative or executive

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branches or to other public officials; they apply only to certain judges. I do not profess to

know what happens to a society that runs off its best and brightest public servants, but it

cannot be good, and it certainly is not rational.

To accept the argument that the forfeiture provisions merely encourage retirement at

age seventy—or that they do anything short of requiring the retirement of the most

experienced members of our judiciary—is to indulge a complete and total fiction.

Encouragement is not an accurate descriptor of what the forfeiture provisions accomplish.

What they actually convey is: leave or we’ll steal your wallet. The assertion that the

forfeiture provisions do not impose a qualification for office because they only govern

eligibility for retirement benefits is a similar pretense. The fact of the matter is that the

judges who are the appellants in this case are eligible for retirement, and this law makes

them ineligible for doing something that everyone agrees they have an absolute

constitutional right to do. Retirement benefits are not a “matter of grace”; once they are

earned and vested, they represent compensation rather than a mere gratuity. See Jones, 253

Ark. 926, 489 S.W.2d 785. Therefore, the legislature is wrong in its apparent belief that

whatever it giveth, it can taketh away. Maybe it is because I am seventy years old myself,

but I think that the act of grace here is the long tenure of public service that these judges

have given the State of Arkansas, and to them I say thank you.

In my opinion, the majority’s analysis sets a dangerous precedent that will lead to

unintended consequences. Namely, the legislature could impose any number of

requirements for holding judicial office under the guise of regulating judicial-retirement

benefits. It could go so far as to condition eligibility for judicial-retirement benefits on

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 Cite as 2016 Ark. 272

having relevant preelection experience—for instance, by requiring twenty years’ experience

as a practicing lawyer and ten jury trials under one’s belt. This would quite obviously

constitute an additional qualification, but it would nonetheless pass constitutional muster

pursuant to this court’s decision today. Going forward, the majority’s ill-advised acceptance

of the pretenses upon which the forfeiture provisions rest gives the legislature free rein to

do indirectly what it cannot do directly. Today it is forced judicial retirement at age seventy,

but I can think of a host of other ways in which the analysis will be used to force a class of

people to do or not do something that they have every right to do.

The General Assembly may consider me aged and possibly even senile, but I can still

spot a constitutional violation when I see one.

BRILL, C.J., joins in this dissent.

Baker, Schulze & Murphy, by: J.G. “Gerry” Schulze, for appellants.
Leslie Rutledge, Att’y Gen., by: Colin R. Jorgensen, Ass’t Att’y Gen., for appellee.

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