me start perhaps in an unusual fashion to tell the court what we are not arguing in not asking for we are not asking this court to rewrite the statute or to modify a statute we are simply asking this court not to permit the executive branch to do quite frankly what they have done which is to rewrite and engraft terms of palme the statute the statute is they have acquired it for at least the last of his or her it says his term it's his or her term following the seventy fifth birthday there is the position taken by the executive branch and a point is is that i'm quoting from age four of their it says the office expressly permits a sitting judge to finish his term in office the office thus becomes vacant at the expiration of the judge's term pursuance of the plain terms of the job the retirement it i'll bet is not how it's the x says you finish the term there is nothing in the effect that r s sitting judge from seeking and becoming retained prior to the expiration the term the election code defines expiration of the term and it makes reference to statute to talk about retirement so as a term she considered as the first monday in december of the every even numbered year the retirement act does not refer to retention not at all the election code does not differentiate the loss if you will the end of this case which really if you will because in an a guess the decision was simply that someone over age seventy five may run in the general election and by the way the attorney general below i think we've quoted this extensively told  it's the correct way to pronounce it but even though they're just as reiman in delivering the opinion of the court doesn't focus on retention it's a passing comment really quoting from i believe it was representative color during the debates or the discussions as to the present retirement act now the only constitution article same article section article six section twelve says the legislature may not restrict or put terms on retention this statute in the statute is very simple it's both sides of quote it simply says you're retired when your time exp reply when you reach a seventy five your office is vacant you're no longer a judge there's nothing that would prevent any judge citizen or anyone else from running because the constitution says you can set a retirement age for a judge it doesn't say anything about what happens once that individual is no longer a judge there would be nothing to prevent your honor for example if the statute was rewritten and it's not this court again would have to go so you could run the stance that would apply that you have to retire when you're seventy five or old then the stench would have to realize that instead of referring to a judge and they would have to say no individual may run for judicial office after their seventy fifth birthday which is i believe they at the probably would have their is that within prohibit a private individual you'd have to designate someone who is retired as a still as a judge you have to then have the constitution amended to allow definition of an individual is a retired judge as separate from a private citizen and i understand your honor there's a lot of i'm sorry if you're really saying then that they you know we're going back to the point where years and they don't have a right for the answer the question there's nothing in the constitution that uses the word mandatory so we're really rewriting the constitution and you know i've heard the attorney general in many cases and the executive branch saying courts do legislation courts don't change legislation more importantly this court is not going to be asked to rewrite the constitution if the constitution said the legislature may set a mandatory age beyond which no individual may a judge or sit for election because yet becomes the issue that otherwise of an eighty year old individual brilliant lawyer runs for a judge she's told no that's a qualification for office constitution does say that the legislature may not change qualifications for office so now what you're saying is a legislature can ignore the constitution because there is nothing in the illinois constitution that says  quite the opposite it says the legislative branch may not change wallace occasions for office and there is nothing in the only constitution that says anything about a cut off age for running for judicial office well that we're talking about is the constitution saying the legislature may set a retirement age not me and a tory they're really asking you what what they're asking you to do in this case but then when you read it with the language of section twelve and there is a which talked about retention and the inability to take the bar on the legislature setting retention terms a real problem here is the language these two provisions don't measure quite properly so because there is no provision no ma'am the constitution i'm saying that the interpretation that the legislature or the executive wants you to put on it is unconstitutional they're saying that you disregard section twelve just assumed because and judge i could probably i may be able to it's an excellent question this one from the legislature this court gets pilloried from time to time by various pressure groups saying this court is writing legislation this court cannot and should not as  did try to strain in figure out how to make legislation work that frankly is written wrong if they have to if they wanted to do look at the debates the one thing about the end of this case that's worthwhile is there's a discussion  of represented colored views and they decided that well you know the electorate in the general election somehow will know that judge maddox for example is seventy five years old but they will know they are in a retention election with all  respect to represent of color who i went to school with and he's a friend there's no basis for that but the constitution that shows you why the statute is wrong the constitution's clearly says the legislature may constitution this statute or any statute that could be written which would prohibit you from running for office because then the legislature is changing qualifications for judicial office so we're talking about here term the retention election will be completed by november thirtieth you'll be certified actually the election is i believe november second or third i don't recall the date of number seconds my birthday so perhaps that's a better date the certification is complete by november thirtieth now if you look at page if you look at their brief page twenty one of their brief they say the office is vacant when the judge reaches the seventy fifth birthday it's not withsta now there's nothing in this statute they're reading language and they're saying the statute says however you may not run for retention even if you have been retained and you've begun a new term of office because it's a new term of office under the code then term does not exist expire intil if it's a six year term or ten year term so the issue before the court today is is the interpretation the legislature has put on that i thought sorry not the legislature the executive branch where you find the language it's not in here and they say well you have to weasel interpretation of the statute requires it otherwise we don't have mandatory retirement well there is a i understand that's where she says they can set a retired yes or and if they just did that your suggestion is that would not you could not be mandatory the constitution doesn't permit provision that the retirement age was seventy five the only effect of that would be to suggest that it let it be a good time to retire well to be blunt yes i'll tell you why you'd have to then read out section twelve and that's really the problem here everybody knew that that term of the constitution is a perfectly fine no unless of section twelve is superfluous the problem this court faces and i'm not trying to make light of it you have two provisions of the constitution this court may not disregard either what the executive branch is ok look at logically the drafters of the constitution really wanted it mandatory retirement didn't use the word if you space suit if you assert as they do and if you agree with them well first of all it again let me be very blunt not that i'm ever shy yeah the statute in front of you is does not require out without consideration to the contrary there are three there is no contrary term in the constitution for mandatory and i apologize if i want to select a broken record here's the other problem of how do you deal with section twelve that says you may not qualify retirement the legislature and our retention the legislature doesn't need to talk about retention in the statute doesn't even mention it doesn't say as i said and of course you may you should review the statute as written you should review the statute as perhaps it should have been written with some reference to retention perhaps right and review the statute as the legislature may later later interpret it or rewrite it in which case we're going the whole concept of gloss because then it's as if this court interprets the statute in a certain way and the legislature doesn't like it it changes the law so what they're really trying to do is get you frankly you would agree the statute doesn't draw any distinction between running in a retention election as opposed to a general election there's no up to now right and so i believe we're going to hear that this court they also argue with the gloss of anak nonstick i pronounce that correctly that they're going to argue that the act is constitutional of this court interpreted to prohibit sitting judges who are seventy five or older firm for running for judge either by way of retention or a general election and which case as i pointed out there then they act then they're attacking the constitutionality of how the statute has been accepted by the legislature for sixteen years in the first time in this court and they're not defending what has been fact if you look at the noise factor that's a very good point because they're going to argue that legislation of legislative acquiescence isn't the end of the ballgame anyway but let's talk about that for a minute that one of the ways the legislature the loss of an exhaust has been accepted by the legislature right you're arguing against that gloss and so are they they're saying this court can extend it you're saying this court should just say that retention is also a lot no i'm saying that run for retention where they had issue wasn't before the appellate court or the trial court there is nothing saying we should by a rule that you can run for retention if you read the decision i read it again last night read it again this morning  set aside the provision that says or the interpretation which they from torpid according to what they told the trial judge that you can run in the general election and it's never been decided or even considered into list court you have no trial court decision  you have no development off it it is attempting the constitutionality of the interpretation for the first time in a up to lee's brief in the crevice case doesn't talk about this as you can support the lower court decision on any basis good morning my name is paul berkley i have a sister attorney general and i represent the defendant the illinois state board of elections we ask the court to affirm the judgment of the trial court just basic plaintiff's complaint which ch constitutionality of the judicial retirement act because the act is a valid exercise of the general assembly's constitutionally delegated authority to compel judges to retire at this prescribe age this case is here at the no are two questions one of time he just described excuse me what age did they prescribe they prescribe the age of seventy five and they permit judges that's not the retirement the retirement age is is the expiration of the term in which the judge may prescribe an age for the retirement of judges it would be a very narrow i think interpretation of that authority to say a judge must resign on his birthday specifically on the seventy fifth birthday and and even that the very first statute that was passed in accordance with this constitutional provision in one nine hundred sixty five said a judge shall retire on the other retirement ages it's not my stature the only one i'm all i'm aware of i can't answer that definitively but the only one i'm aware of his constitutional interpretation is does section fifteen a of the only constitution allow the general assembly to set a mandatory retirement age and this court in kew said khalid construed to be at the time it was section interpreted section fifty eight mean that now in one nine hundred seventy when the new constitution was passed all of the constitutional history and it's been provided in the briefs show that the delegates to the constitutional convention did not and they tended to incorporate that constitutional provision in its entirety into the new constitution and there were no substance to it and they were well aware of this course decision and qusay versus howlett they were aware of the judicial retirement  existed at that time and that had set a mandatory retirement age and the judges had retired for pursuant to that provision and they incorporated in its entirety into the new constitution that the word automatically was taken out of the constitutional provision in the one nine hundred sixty four version of the constitutional provision that said the legislature mate prescribe an age at which judges show automatically retire but that was taken out in by the committee on drafting and style and this court is held in a number of different cases that what the committee drafting and style they don't make substantive changes with where you look for the substance of the constitutional provision you look to the delegates in the committees the subsidy style and drafting is just automatically in there so the so the constitution i think the first question does the constitution allow a mandatory retirement age it does it does provide for that and it's this court's case law and the constitutional history of the provision that provide the support for that finding now any mandatory retirement age is going to impact retention there's there's simply no way around it if if if the legislature can compel judges to retire pursuant to their constitutional authority they they must it's inherent in that authority that they can prevent a judge from running for retention to the office and so the idea that the provisions for attention in twelve d per se inviolable is just not the case and and point there's always that that can't be that they're exhaustive unless there's a constitutional provision allowing the general assembly to alter them and of course there is one here and and by exercising it they necessarily must al retention regimen now there are two interpretations of the statute two plausible interpretations of how the general assembly implemented their constitutional authority and their bowl for that alley the first interpretation is a judge can't run for retention but a judge a sitting judge could run it in open election for an open judicial seat even though they had reached seventy five while in their term this interpretation is not contrary to the certainly the common usage of the word retirement people retire and come out of retirement frequently they retire from being a police officer and they become a security guard they retire from being a judge and they become an arbitra retire from from being a basketball player and they become a basketball player retirement has never been considered or generally it's common usage to be considered a permanent disqualification from war so it certainly consistent with the with the word retirement that it would allow another avenue for judges to continue to serve and it's consistent with the way the constitution concedes of retirement because the kind section fifteen a which allows a legislator to prescribe an age if we decide for the first your retirement age seventy but certainly pursuant to the constitutional provision fifteen a the legislature can pass to pass a statute that compels judges to retire or to prescribe days if the court were to find that this this statute for some reason  doesn't do that although it's pretty concise on its face a judge shall be automatically retired on the expiration of his term in which he turns seventy five that i think they could probably follow whatever clues were provided in your opinion and  movie to it moving moving to it is within the meeting within the meeting of the constitution in the sense that what the judge has done is essentially started over to become a judge in the first instance one has to be appointed and then when a contested election it's retiring and then starting over as a new judge seeking an open office  resolves issues like that is it would have to have a live controversy would have to have a judge who seeks to run an open election and have an object there who who opposes it who says this judge can't run of the soap an election and then it would resolve it and it's never it's never been faced constitutional void it it would say look if this interpretation that allows a judge to run in an open seat and succeed himself without any break in service that doesn't seem to lead to be a plausible reading of the statute well then to avoid that constitutional problem it would say well the statute that the courts say well the statute says a judge shelby automatically retired upon the expiration of his term in which he turned seventy five it doesn't say anything about election versus retention the play reading of that would would then have to be that the judge can't run in either or you're saying if they happen to find him or there may not even be the need for a new provision provision that would be interpreted as automatic everything in its power read the statute to preserve its constitutionality and adopt a plausible reading of the statute that is constitutional and since this statute does not on its face distinguish between election and retention then the plausible reading of the statute if necessary to preserve its constitutionality is that a judge can't run in either election of a judge is permanently disqualified from serving as a judge upon reaching the age of seventy five now that would say upon the expiration of his term in which he reaches the age of seventy five now that would be perfectly consistent with the authority that's granted in section fifty day of the constitution now i'm and mr burke to interpret it that way is a permanent disqualification from any judicial service that would conflict with the second section fifteen and he wouldn't the one that proved that allows the supreme court to well the second sentence i think i think it just does not conflict in the sense that the second sentence seems to suggest that i'm sorry i do agree with you that the second sentence seems to indicate that retirement for purposes of the constitution is not permanent disqualification that a judge can continue to serve as a judge if appointed by the supreme court to do so the statute then i'm sorry i mean specifically he retired and he retired judge yes so so it does not contemplate that retirement is permanent disqualification and i think that's thank insist that with this this first interpretation of the statute the one that says look upon reaching seventy five at the expiration of that term you have to start over you can be appointed by the supreme court to be a judge or you can run in a contest election to be a judge like any other candidate but you're retired from your judicial office as a as of that expiration of the term and  believe and that's constitutional as well that's within the authority the fifteen a grant it didn't have to go i don't think fifteen a should be should be read as a as a very as this very narrow circumscribed you could only pass a statute that meets you know the magic words i mean it says the legislature shall pursue i've read the statute a couple of times but it provides a lot of mandatory retirement and so you know in this case for example legislature said look for judicial efficiency let's let them finish out their terms to two to honor the will of the electorate that elected them let's allow them to finish out their terms let's not impose a hard birthday deadline for people to retire and that seems to be a reasonable approach that's encompassed within the constitutional authority of fifteen and that would equally it would be a reasonable approach for that for the legislature to say we want to exercise our authority under fifteen a day to prevent judges from running for retention but we will allow them all the same rights as any other citizen to run in an open election for for the for judicial office so under that interpretation it's equally constitutional to get if there's a problem with that interpretation there's a there's an equally plausible one that preserves the statute as it is and says you can't run in a contest election either interestingly in this case the court really does not need to choose because the plaintiff in this case does not want to run in a contested election so the question is it isn't isn't squarely presented that the court can presume we assume for purposes of argument that the statute allows a judge to run in a contest election and uphold the statute on those gro so it would be mid term in a lot of cases where where judges were compelled to retire and numerous judges did retire under that statute it was amended in one nine hundred eighty two and one thousand nine hundred eight that the age was extended to seventy five the provision allowing the finishing of a term was was added so there have been some minor you know movement around the around the edges of the statute but substantively it's the same as it was passed in sixty five as existed at the time of the constitutional convention and was contemplated by the file by the by constitution interestingly i think tellingly the the plaintiffs really in their briefs don't really make an argument against the second interpretation of the statute that the statute applies to both i'm sorry they do make an argument but it's not an argument based on the language of the statute or the history of the statute or the context of the statute the structure of the stay it's not a statutory argument it's an argument based entirely on the notion that this court is compelled to adopt the former interpretation statute the statute that prevents retention but allows election and they relied on i suppose that agency practice and statements of the attorney general and suppose a legislative acquiescence but they never really address why can't as a matter of the noble  ones regarding agency practice and eighty statements are both factually wrong they're simply factually wrong and they're legally irrelevant they're factually wrong because there is no agency practice that they pointed to that requires judges to do anything other than not write well and even there's no agency practice there either i mean it's just simply no easy place and they cited there's no documents that they say there's no cases that they cited where the agency has implemented a particular interpretation of the statute they just don't exist and as to the attorney general's statute which in at least arguably permits a judge to run in a contested election and the supreme court is not compelled to adopt the an agnostic's or patient statute because the supreme court's not bound by the appellate court and i don't think anything the and generally with legislative acquiescence i mean it's a presumption that the legislature knows of in a rony its interpretation of its statute but generally it applies when the legislature is revising the statute anyway is amending the statute anyway but doesn't change  former previous judicial interpretation and in this case you don't have that and you don't have any practical impact of an admission of any cases citing it it would really strain to presume that the legislature was going to go out and proactively a problem that didn't exist by changing the interpretation of the statute and furthermore on the question legislative acquiescence it's not it's not clear to him agnes held that a sitting judge could run in a contest election and the legislature certainly can't be bound by dicta so there's really nothing that would indicate the legislature intended to that specific meaning to the statute based on on the principle of acquiescence so this court does face and that question is as a matter to kno interpretation of the statute there's nothing said by the attorney general done by the agency presumed by the legislature that happens this court's discretion in interpreting the statute and i do interpretation is valid in constitutional and so what they meant was seventy five retention in a life and design but that's not my argument because i'm not asking this court that's not your argument but i think since his well actually his argument is a little different and his argument should be carefully consider because we now concession that there is no mandatory retirement we told this court was there is nothing that would prohibit a judge from running in a general election please review t that's what he said he said well i have to concede that if somebody had a j d wants to run in the used to be a judge they just started over i could finally get my ninety three year old retired judge father out of what's left of my hair and out of my office all told to go running here and trust me i would i will pay his expenses of his election so will my brother just to get him out of the office but the point is he just conceded well if you can run after age seventy five and i don't think there is a making now is and i think he did concede you can run in the general election and he correctly says well just judge mannix initial thought was why should i go through the expense of a general election when the purpose of retention election is to assist the voters not dealing with partisan issues more importantly we're forgetting one very salient point in order for this court to accept their interpretation of saying yes good bars retention or even yes you can run in the general election you would then be violating the constitutional provision which says that then changes the term of office qualifications nothing in the constitution has an age requirement for term o office for running for office it very clearly bars the legislature which this court pointed out and mom and i want to get back to the focus of there was a complaint filed in the circuit court of cook county to challenge the constitution of the act as it as it pertains to that you are right but you lose because to preserve it we say that the provision means that you can't run for retention nor election at seventy five i would respectfully say no and here's why there is nothing in the existing the act nor it's their interpretation what's going on here is they now want to change term of qualifications for office the cot the judicial act and we point it out which is why all we're talking about here now as much as retention they want to broaden the legislature under the constitution may not change the qualifications for judicial office one of which would be age there now we asked you not simply to rewrite the statute but to or she is retired judge where is the act in anything in fifteen days it's not but yet under the article section for sex article six very clearly says and does this court on numerous occasions legislature can i change qualifications for judicial office term of judicial office with their saying is when you get seventy five your term is over they actually write against the constitution their interpretation is one hundred percent against now you say to you you should interpret this or the legislature can now say you can't run in a general election then violates the judicial article because in the legislature is changing qualifications for office well ok a judge is automatically retired at the expiration of the term in which the judge attained the age of seventy the way that has been applied is that it's seventy five you can't run for retention but you can run for election yes or you bring  you challenge the constitutionality of that and i'm going to i'm going to keep asking this though i get some type of answer you challenge the constitutionality of that and he says that this court can rule he said well that's a reasonable interpretation because retirement could mean in retirement not to retire you know there's a reasonable interpretation there but if you determine if we determine that that is not a reasonable interpretation rather than declare the at act constitutional you you say what that act means that a judge is automatically retired at the end at the expiration of the term in which the judge retains the seventy five and that means period no retention no election to another off the court this is the supreme court of i've been funny i've been here since seventy three are going cases this is the supreme court this court can say or to clear whatever this is you are the supreme or professor of the law if you did that you would have to rewrite the constitution because you were then permitting not simply retirement but under the guise of this you know everybody is jumping around saying we have to walk the legislature to have mandatory retirement yet the constitution doesn't say that but more importantly the constitution says the legislature may not alter the qualifications or the right to run for and off of your judicial office you were then in graphene on the word retirement which is a bare word mandatory except mandatory retirement does it conflicts with what consul concedes right now anyone can run b c we talk about a silly interpretation judge mannix can't run at age seventy six a brand new lawyer you can get your license at age seventy six if you meet the minimum required thing that's eight years or ten years you can run at age one hundred and be elected because you're not a former judge that's plain silly but more importantly it violates the constitution which one out of its way to say the legislature may not change not just qualifications for office but term of office the there's nothing saying he has to or she has to let me choose not to and they're retired if they choose not to run for retention their term is up and they're off the bench you know just to be blunt this court doesn't have to clean up sloppy draftee by the legislature nor if the constitution is subject to various interpretations this court should not strain to set aside not one but two provisions of the constitution so the legislature can throw judges off the bench and here's a hint i just said council in response to my questions or earlier in your initial argument that you weren't challenging the constitutionality of the stance you a much man challenging the executive should declare but there is nothing in this ect that bars a sitting judge from sitting for retention and being retained prior to the expiration of the term and under the election code that will you the term is over the first monday in december of the even numbered year in this case this election be twenty ten there is nothing in this statute in the court to look at it that even refers to retention the legislature or the executive branch is asking you to read read into this ditch or angry ask the punnet the following you may not run for retention and the provisions of section twelve saying that we cannot restrict retention which is core point out knocking has no application here because we are restricting retention on the face of the statute and i think justice thomas is correct too they don't talk about have the provisions of the act this says the legislature may not change or restrict term of office or qualification for office what we're really dealing with here is the executive branch is interpretation not the him against interpretation they've they fastened on it to do this they're saying all we have in this statute is an entirely retention statute how does that mesh with wealth we won't tell you because you must strain they are the ones asking you to interpret this statute biograph in language into it then get around the problem with twelve because everything is ignoring twelve the defendants brief pretends twelve doesn't exist they get around the provision saying the legislature can't change term of office well they are they can't get a qualification for office they're really asking to change three times the retention provision saying you can't restrict the tension in  we change the retirement age there's a lot of stuff he'd get it into this statute that simply doesn't exist i think the court for its attention i thank you for giving me a little dish will time i would urge the court to do is we ask in our brief permit judges to seven four one s