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Attorney targets mandatory retirement with lawsuit, write-in campaign

Agnes Petersen seeks judgeship despite law setting retirement age of 75


by: MARK MILLER - Agnes Petersen, who has practiced law in St. Helens since 1960, is running for the third position on the Columbia County Circuit Court as a write-in candidate. Petersen filed to appear on the May 20 ballot, but was rejected because she is older than 75. The Oregon Constitution requires judges to retire at the age of 75, and the state contends that allowing older candidates to run for judge would create an 'illogical, wasteful situation' because they are ineligible to serve.Longtime St. Helens-based attorney Agnes Petersen was disqualified from appearing on the May 20 ballot as a candidate for the Columbia County Circuit Court, and state officials say she is ineligible to serve.

But Petersen is running for judge anyway.

Petersen was disallowed from the ballot, after she filed for the seat on the bench currently occupied by Judge Jenefer Stenzel Grant, because she is older than 75 — the mandatory retirement age for judges in Oregon — according to a March 7 letter from the Oregon Secretary of State’s Office informing her of the decision.

But in a state lawsuit, Petersen is arguing that the provision in the Oregon Constitution that requires judges to step down after turning 75 cannot be used to keep her name off the ballot.

“I’m not a sitting judge,” Petersen said Friday, April 4. “That doesn’t apply to me.”

And while her argument may seem to rest on technicalities — Petersen also noted that Section 1a of Article VII of the Oregon Constitution appears to require that a judge step down only at the end of the year he turns 75, and it also uses the masculine pronoun “he” for said judge — Petersen’s larger argument is against the idea of having a mandatory retirement age at all.

“The broader perspective is mandatory retirement of judges is an anachronism of the legal profession,” said Petersen. “This is, I think, an unconstitutional provision ... and it should have been stricken a long time ago.”

Write-in candidacy faces hurdles

Petersen is running a write-in campaign for Grant’s seat, in the third position on the three-judge Columbia County Circuit Court.

Asked why voters should write in her name — she is using the rhyming slogan “Agi P. for Position 3” to promote her candidacy — Petersen answered, “They should write my name in because I think it’s an important age issue.”

She added that she would bring “hard work” and “history, knowledge, ability and understanding” to the bench if elected.

But a spokesman for the Secretary of State's Office indicated Petersen would not be allowed to take office as judge if her long-shot bid for the bench succeeds.

Tony Green told the Spotlight a write-in candidate for judge over the mandatory retirement age of 75 years old cannot legally take office.

“If the write-in candidate received a majority of votes, the Elections Division would investigate the candidate’s qualifications before sending the write-in candidate a form accepting the position,” Green wrote in an email Wednesday. “If the Elections Division determines that the candidate is not qualified, we would not send an acceptance form. Instead, we would send them a letter stating that they do not qualify for the office under the Oregon Constitution.”

Green added, “If a person over the age of 75 is elected judge, then under the Oregon Constitution that person would have to immediately retire.”

Petersen said she “can’t say” what legal recourse she would have if she is barred from office.

“If I win this write-in campaign, my intention is to go on the bench,” Petersen said. “And if I don’t go on the bench, it will be an opportunity lost for the state of Oregon to straighten this out.”

Judge rules

Petersen’s writ seeking to have Secretary of State Kate Brown place her on the May ballot — and alleging age and gender discrimination in her exclusion from the ballot — was dismissed by Judge Edward Jones, who sits on the Multnomah County Circuit Court, on March 25. Jones decided in favor of the state, which objected to the writ on the grounds that Brown’s office simply applied Oregon law in rejecting Petersen’s candidacy.

The objection filed by Oregon Attorney General Ellen Rosenblum argued that “were a person over 75 to be elected as a judge, that person would have to promptly retire.” The secretary of state’s rule barring people over the age of 75 from running for judge “avoids this illogical, wasteful situation,” it added.

Petersen was unwilling to comment on her next steps, but when asked Friday, April 4, whether she will appeal Jones’ decision, she said, “Stay tuned.”

Mandatory retirement for judges is on the books in most states, and challenges to its legality have met with mixed results.

In 2009, the Illinois Supreme Court struck down a provision in Illinois state law requiring judges to retire after turning 75. However, in that case, the mandatory retirement age was not written into the state constitution.

The United States Supreme Court has no mandatory retirement age. Petersen noted that the oldest member of that court, 81-year-old Justice Ruth Bader Ginsburg, is “very competent, very capable and over 75.”

Judge Grant, whom Petersen is running to replace, had no comment on Oregon’s mandatory retirement provision when asked Tuesday other than to say, “We have the laws that we have, and if they get changed, they get changed.”

Grant praised Petersen as “a pioneering female attorney back [in 1960], for which I think all of us women lawyers should be grateful.”

But Grant said voters should retain her as judge.

“I’ve been doing a good job for almost seven years,” said Grant, who described herself as “a good problem-solver” and listener who is “very involved with our community.”