Judge fights to stay on the bench

Charles Bernstein is challenging a state law that says he must retire at age 70

December 29, 2009|By Tricia Bishop | tricia.bishop@baltsun.com

Charles Bernstein turns 70 today, a milestone that marks a new decade of life and, according to the Maryland Attorney General's Office, the end of his brief career as a Baltimore City Circuit Court judge: That's the mandatory retirement age for state judges.

But Bernstein, a longtime civil servant, is not going without a fight.

He filed a federal lawsuit last month calling the condition unconstitutional and asking for an emergency injunction so he could keep his post beyond his birthday. The request was denied, which means he will have to at least temporarily step down, but the suit was allowed to continue - for now.

U.S. District Judge Benson E. Legg declined to rule on a motion to dismiss the case, instead punting the issue to Maryland's Court of Appeals for input first. He asked the court to clarify four provisions within the state's constitution by answering two certified questions about Bernstein's claims. "The correct interpretation of these provisions is central to this case," Legg wrote in a memorandum opinion signed Dec. 15.

"We're in a holding pattern," said Michael Shatzow, one of three lawyers representing Bernstein, who declined to be interviewed.

As of Monday, the appeals court hadn't yet received the official federal order, and clerk Bessie Decker said it might not schedule the case until the September term, anyway, unless it's expedited.

Bernstein has a long history of Maryland service. He was born in Baltimore in 1939 and graduated from Western Maryland College in 1966. He taught in the city's public school system for four years and earned his law degree from the University of Maryland School of Law in 1968. He's been an assistant state's attorney and an assistant U.S. attorney, becoming Maryland's first federal public defender in 1974. Since 1980, he had been in private practice until his appointment to the Baltimore City Circuit Court bench in October 2006.

He was elected to the post two years later, and still has 14 years left to his term.

"He very much enjoys serving as a judge, he's very good at it, he's very productive and he'd like to keep doing it," Shatzow said. "Public service is important to him."

Bernstein's complaint, simplified, takes issue with a provision in the Maryland Constitution that says state judges hold office for 15-year terms "or until he shall have attained the age of seventy years." He reads that to mean sitting judges who turn 70 are automatically retired, but judges who are appointed after age 70 - thereby never "attaining" the age in office - are free to serve. If true, that would violate the Equal Protection Clause of the federal Constitution by irrationally distinguishing between two classes.

He also says a separate provision violates that clause by allowing certain judges over 70 to be recalled to duty, saying that not only splits judges into classes, but makes his point that age alone is not a measure of competence.

But the state's attorney general's office says that argument is a misreading of the state's constitution.

"It's a flawed ... theory," said William F. Brockman, deputy solicitor general within the civil litigation division. "We're confident that we can successfully defend the challenge in both courts."

In his memorandum, Legg suggested that the state was right and Bernstein is "unlikely to succeed on the merits" of his case. Legg also noted that no harm will be done if he does win, because even after retiring, he could be "reinstated with full back pay and benefits."

But that's little consolation for Bernstein, whose lawyers plan to urge expediency to the Court of Appeals of Maryland.

"It is our view that his leaving the bench constitutes a violation of the constitution," Shatzow said. "We'd like him to be in a position where he's deprived of his constitutional rights for as short a time as possible."

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