On Nov. 7, voters will be asked to decide on a proposed amendment to the Hawai'i Constitution that would eliminate the current mandatory retirement age of 70 for Hawai'i state judges. As an experienced Hawai'i attorney who strongly supports that proposed constitutional amendment, I urge Hawai'i voters to approve it.

The bill placing the proposed amendment on the election ballot (S.B. No. 995) passed its final reading by substantial majorities in both the Senate and the House of Representatives. That bill was introduced by two well-known Hawai'i senators who have significant expertise in judicial matters: Sens. Colleen Hanabusa and Clayton Hee.

In a legislative report, the conference committee members approved passage of the bill with the following observations: "The current mandatory retirement age for judges and justices is counterproductive to judicial efficiency and productivity as it often dispenses with highly experienced jurists capable of discharging their duties well beyond the age of 70. Age alone does not determine a judge's functional ability, and a mandatory retirement age does not consider the value of a judge's accumulated experience on the bench."

The findings of the Legislature contained within S.B. No. 995 are compelling in their logic and common sense: The Legislature finds that in today's society, individuals are living longer, healthier lives, as evidenced by the growing number of older individuals throughout the country as well as the world. The Legislature further finds that a benefit of our aging society is the wisdom, experience and skills that these older individuals possess, which should be both valued and respected, particularly in the workforce.

The Legislature determined that the antiquated notion that all individuals are not mentally or physically fit to be contributing members of the workforce once they reach a certain age must be abolished. This point is particularly striking when examining the age restriction placed upon Hawai'i's justices and judges, who are highly educated individuals who have served as learned members of the bar and now the bench. The wealth of knowledge and experience in interpreting Hawai'i's laws that is retained by these individuals is invaluable to the residents of Hawai'i.

I completely agree with the principles set forth in those legislative reports and findings. Our Hawai'i judges deserve to be considered on their own particular merits as individuals, not subjected to sweeping, across-the-board prejudice merely on the basis of their age.

Categorical discrimination against Hawai'i judges on the basis of age should be as unacceptable as discrimination on the basis of ethnic or racial background, gender or religion.

Significantly, the federal court system (which usually handles complex and challenging cases) has no mandatory retirement age for judges. Four current justices of the U.S. Supreme Court would be arbitrarily disqualified from serving on any Hawai'i state court by a mandatory retirement age of 70. Some of Hawai'i's most respected and influential federal trial court judges have served or are still serving well past the age of 70, such as Martin Pence (now deceased), Samuel P. King and Alan C. Kay.

In the event that a Hawai'i state judge became unable to perform his or her duties because of a permanent mental or physical disability, it is likely that the judge would voluntarily retire. In the rare case where voluntary retirement did not occur on a timely basis, that specific judge could be persuaded to retire by judicial colleagues; or referred to the Hawai'i Commission on Judicial Conduct, which is authorized to investigate allegations of "physical or mental inability to perform judicial duties and functions;" involuntarily retired by the Hawai'i Supreme Court; or not retained by the Hawai'i Judicial Selection Commission if his or her term of office is set to expire. Thus, Hawai'i judges should not be penalized by arbitrary age discrimination, in complete disregard of their individual qualifications to continue serving the community.

Although Mr. Jeffrey Choi's commentary argued in favor of continuing the mandatory retirement age for all Hawai'i state judges, it specifically endorsed mandatory retirement for trial court judges because they "must make many rapid decisions during the course of a trial or hearing with little or no time to ponder." In fact, trial court judges with many years of experience are often the very judges who are most qualified to make those "rapid decisions," because of their maturity, wisdom, well-developed expertise and extensive knowledge of case law, statutory law, the rules of evidence and other court rules. The more experienced a judge becomes, the more likely it becomes that he or she has already handled the same or a similar legal issue in prior cases.

I urge Hawai'i voters to approve the proposed constitutional amendment that will stop age discrimination against Hawai'i judges by eliminating the current mandatory retirement age of 70. Vote "yes" on question No. 3.

Brook Hart is a Hawai'i attorney specializing in criminal defense and constitutional law. He wrote this commentary for The Advertiser.