By the authority vested in me, pursuant to part II, article 44 of the New Hampshire Constitution, on July 31, 2009, I vetoed House Bill 655, an act extending senior active status to judges over 70 years of age.

Part II, Article 78 of the Constitution of New Hampshire states that “[n]o person shall hold the office of judge of any court, or judge of probate, or sheriff of any county, after he has attained the age of seventy years.” The supreme court has ruled that this constitutional provision does not prohibit a retired judge over the age of 70 from exercising power as a judicial officer on a temporary basis. The supreme court has reasoned that the general court holds the constitutional authority to authorize limited temporary assignment of retired justices over the age of 70 to ensure the adequate and orderly administration of justice.

In adherence to this constitutional provision, the general court has granted very limited authority for retired supreme court or superior court justices over the age of 70 to sit on specific appellate cases at the supreme court, only when an active supreme court justice is disqualified or unable to sit in any cause or matter pending before the court. In addition, retired judges under the age of 70 presently may elect to be designated on senior active status within their respective courts. Retired judges over the age of 70 may not be designated to serve on senior active status.

This bill would allow retired justices of the supreme, superior, district or probate court who are over the age of 70 to elect senior active status and assume all of the powers of a justice in regular active service, including the power to render judgments and preside over jury trials. The retired justices over age 70 would be appointed to “limited temporary assignments.” The permissible scope and duration of “limited temporary assignments” is not defined or addressed in the proposed legislation.

Our Constitution clearly states that no person shall hold the office of judge of any court after the age of 70. The supreme court has held that the temporary assignment of retired judges is permissible. This bill would substantially expand the circumstances and potential timeframes during which judges over the age of 70 could serve on the bench. The Constitution of New Hampshire sets forth an appointment process for new judicial officers through nomination by the governor and confirmation by the executive council. This bill grants the chief justice and administrative justices with discretion to appoint or reappoint some judges over age 70 on senior active status based on an annual assessment. The appointment process for new judicial officers as set forth in our Constitution weighs against the adoption of a significantly expanded senior active status for judges over age 70.

Any further expansion of the role of judicial officers over the age of 70 should be drawn in a very narrow way, or addressed through an amendment to our Constitution.