HON. BERNSTEIN v. State

BELL, C.J. I. Charles G. Bernstein, the appellant, was appointed on October 10, 2006, by Governor Robert L. Ehrlich, as an associate judge of the Circuit Court for Baltimore City. As required by Article IV, § 3 of the Maryland Constitution, Judge Bernstein stood for election and, on November 4, 2008, was elected for a fifteen-year term of office as an elected circuit court judge. Nevertheless, just over a year into his term, on December 29, 2009, the date of his seventieth birthday, Judge Bernstein was required to retire as a result of that same section of the Maryland Constitution. Prior to his retirement, on November 3, 2009, Judge Bernstein filed a complaint in the United States District Court for the District of Maryland, challenging his mandatory retirement and naming the State of Maryland, Governor Martin O’Malley, and the Maryland General Assembly as defendants.

His argument was, and is, that Article IV, § 3 has application only to judges who “attain” the age of seventy while they are in office and, thus, interpreting it as prescribing a mandatory retirement age for all Maryland circuit court judges, as well as ³⁹ for those persons who might aspire to be a circuit court judge, violates the rights he has been guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Noting that there is no Maryland case which provides a “definitive interpretation” of Article IV, § 3, the federal district court certified to this Court the following questions: “1. Does the Maryland Constitution (i) require a sitting judge to retire upon reaching seventy, (ii) prohibit the Governor from appointing a person seventy or older to the bench, and (iii) prohibit a person seventy or older from running for a judicial office?” “2. Conversely, does the Maryland Constitution permit individuals seventy or older to run for a judicial office and, if elected, to serve out their entire terms?” II.

At the center of this controversy is Article IV, § 3 of the Maryland Constitution. It provides: “Except for the Judges of the District Court, the Judges of the several Courts other than the Court of Appeals or any intermediate courts of appeal shall, subject to the provisions of Section 5 of this Article of the Constitution, be elected in Baltimore City and in each county, by the qualified voters of the city and of each county, respectively, all of the said Judges to be elected at the general election to be held on the Tuesday after the first Monday in November, as now provided for in the Constitution. Each of the said Judges shall hold his office for the term of fifteen years from the time of his election, and until his successor is elected and qualified, or until he shall have attained the age of seventy years, whichever may first happen, and be re-eligible thereto until he shall have attained the age of seventy years, and not after.” Md. Const. art. IV, § 3.

Judge Bernstein views this provision, particularly the second sentence, which he considers the relevant portion, as being “crystal clear” and dispositive of any ⁴⁰ question pertaining to the retirement of circuit court judges. Thus, he asserts, the “meaning of the [constitutional] provisions [related to the retirement age for judges] can be gleaned from the text of § 3 alone.” Judge Bernstein reads § 3 as clearly and unambiguously requiring retirement only in the case of circuit court judges who “attain” the age of seventy while in office. It follows, therefore, he submits, that a person seventy years of age or older, not currently serving as a circuit court judge, may be appointed to fill a judicial vacancy or, should he or she choose, run for judicial office. Because, he continues, there is no rational basis for the distinction, § 3 fails to comport with the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.

Judge Bernstein maintains that his interpretation of § 3 is confirmed by reference to other provisions of the Maryland Constitution. He directs our attention to Article IV, § 2, for example, which prescribes the qualifications for judicial service. Section 2 enumerates those qualifications, as follows: “The Judges of all of the said Courts shall be citizens of the State of Maryland, and qualified voters under this Constitution, and shall have resided therein not less than five years, and not less than six months next preceding their election, or appointment, as the case may be, in the city, county, district, judicial circuit, intermediate appellate judicial circuit or appellate judicial circuit for which they may be, respectively, elected or appointed. They shall be not less than thirty years of age at the time of their election or appointment, and shall be selected from those who have been admitted to practice law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge.” Md. Const. art.

IV, § 2. Noting that this provision prescribes a minimum age for judicial service, but not a maximum one, he proffers that formulation as further justification for his interpretation and evidence that the Constitution does not preclude all seventy-plus year olds from seeking judicial office for the first time. He argues, if there were a universally-applicable age limit on judicial service, “one would expect to find it in ⁴¹ [Article IV,] § 2, because that section unambiguously lays out the requirements for judicial service.” The State also views Article IV, § 3 as clear and unambiguous; however, its interpretation produces a result diametrically opposite that espoused by the appellant. Unlike Judge Bernstein, it contends that the section not only clearly precludes a judge from continuing in office, but it does not permit anyone from being elected or appointed to judicial office after he or she “shall have attained the age of seventy.” This follows, the State submits, since, grammatically, “shall have attained” is phrased in the future perfect tense, ie. the phrase “refer[s] to a past time within a future period,” 1 and, thus, reflects an intent to include all people of, and over, age seventy, not just those who have yet to turn seventy.

Therefore, because Article IV, § 3 provides for the expiration of a judge’s term at the end of fifteen years or when the judge attains the age of seventy, “whichever may first happen,” the State points out that, read logically, the section would require that the term of a judge appointed or elected after the age of seventy would end before it began. The State concludes that Article IV, section 3 simply does not support the appellant’s construction. The State accuses Judge Bernstein of reading Article IV, § 3 without regard to its context. It also contends that his reading of Article IV, § 3 is the result of a hyper-technical textual analysis that should not be allowed, to defeat the obvious intent of the Legislature, which proposed the provision, and the citizens, who adopted it by ratifying the Maryland Constitution.

Moreover, the State contends that Judge Bernstein implicitly and improperly inserts into Article IV, § 3, the phrase, “while in office,” following the phrase, “shall have attained the age of seventy years.” The State believes this point to be of particular significance since, at one time, § 3 did include that phrase. Until 1932, it provided: ⁴² “Each of the said judges shall hold office for the term of fifteen years from the time of his election, and until his successor is elected and qualified, or until he shall have attained the age of seventy years, whichever may first happen, and be re-eligible thereto until he shall have attained the age of seventy years, and not after; but in the case of any judge who shall attain the age of seventy years whilst in office, such judge may be continued in office by the General Assembly for such further time as they may think fit, not to exceed the term for which he was elected.” Md. Const. art. IV, § 3 (amended 1932) (emphasis added). The phrase was amended out of the Constitution in 1932. 1931 Laws of Md., ch. 479 (ratified Nov. 8, 1932).

The State argues, in addition, that Article IV, § 3 is part of a constitutional scheme and, thus, must be interpreted in context, as a part of that scheme. So doing, it asserts, supports its interpretation of the section. The State notes, in particular, Article TV, § 5, which provides: “Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge of a circuit court, or creation of the office of any such judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the election and qualification of his successor. His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the occurrence of the vacancy in any other way than through expiration of such term.

Except in case of reappointment of a judge upon expiration of his term of fifteen years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected.” ⁴³ Md. Const. art. IV, § 5, by its terms, expressly prevents the governor from appointing a person whose seventieth birthday precedes the next judicial election. It is also of significance to the State that its interpretation of Article IV, § 3, which it characterizes as the plain, ordinary and common understanding of the provision, has prevailed since the provision was adopted, no judge over the age of seventy having been appointed, or elected, to judicial office during the period. “Generally speaking, the same rules that are applicable to the construction of statutory language are employed in interpreting constitutional verbiage.” Brown v. Brown, 287 Md. 273, 277 , 412 A.2d 396, 398 (1980). See also Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78, 81 (2004) (“When interpreting constitutional provisions, we generally employ the same rules of construction that are applicable to the construction of statutory language.”); Fish Market Nominee Corp. v. G.A.A., Inc., 337 Md. 1, 8 , 650 A.2d 705, 708 (1994) (“Generally, we apply the same principles in construing constitutional provisions as we apply in construing statutory provisions.”); New Central Coal Co. v. George’s Creek Coal & Iron Co., 37 Md. 537, 557 (1873) (“There can be no good reason suggested why this same general principle [for the construction of statutes], so wise and just, should not also apply as a rule of interpretation of the Constitution.”). “It is a cardinal rule of construction that where the text of a constitutional provision is not ambiguous, the Court, in construing it, is not at liberty to search for its meaning beyond the Constitution itself.” Reed v. McKeldin, 207 Md. 553, 560 , 115 A.2d 281, 285 (1955).

Further, this Court, while conceding that “the Constitution of 1867 does not always possess the consistency that [a textual] argument supposes,” Rasin v. Leaverton, 181 Md. 91, 96 , 28 A.2d 612, 614 (1942), has recognized that “[t]he Maryland Constitution was carefully written and solemnly adopted by the Constitutional Convention of 1867, and approved by the people of the State,” Buchholtz v. Hill, 178 Md. 280, 285-86 , 13 A.2d 348 , 351 ⁴⁴ (1940), and, therefore, has admonished that courts should be careful not to depart from the plain language of the instrument. Id. Furthermore, “[o]ne cannot view the Constitution as made up of separate and unrelated parts. The entire Constitution must be regarded as a whole.

Each part must be construed, not by itself, but with reference to the whole.... ” County Comm’rs for Montgomery County v. Supervisors of Elections, 192 Md. 196, 208 , 63 A.2d 735, 740 (1949); State v. Jarrett, 17 Md. 309, 328 (1861) (“[i]n construing a Constitution, it must be taken as a whole, and every part of it, as far as possible, interpreted in reference to the general and prevailing principle.”). Text Both the State and Judge Bernstein contend that the language of Article IV, § 3 is clear and unambiguous; however, they do not agree on what that unambiguous meaning is. The disagreement revolves around what it means to “have attained” the age of seventy; and to whom the provision refers when it states “[e]ach of the said judges.” We agree that the text of Article IV, § 3 is unambiguous. Moreover, we conclude that, when read in context and with the other provisions of Article IV, it precludes the retention, appointment or election of a person over the age of seventy as a circuit court judge in Maryland.

Judge Bernstein asserts that the language, “[e]ach of the said judges shall hold his office ... until he shall have attained the age of seventy years,” in Article IV, § 3 of the Maryland Constitution, is a restriction solely on those circuit court judges reaching the age of seventy while simultaneously holding their judicial office. He argues that, commonly and long held understandings about Article IV, § 3 aside, the plain meaning of the phrase “[e]ach of the said Judges” refers only to presently serving circuit court judges. He bases that argument on the placement of that phrase in § 3 and on his interpretation of the phrase, “shall have attained the age of seventy years,” which he asserts refers to a particular age at a singular point in time. Once having “attained” that age, he ⁴⁵ submits, from that point forward a person cannot continually “have attained” that age.

This interpretation, while creative, is incorrect. Judge Bernstein acknowledges that the plain-meaning approach cannot be used to ascribe an unreasonable and absurd meaning to text, but he contends that this limitation is extremely circumscribed. In oral argument, he conceded that it would be inappropriate to read Article III, § 30 of the Maryland Constitution, which mandates that “[e]very Law shall be ... certified under the Great Seal,” to require that a large sea mammal be affixed to a duly made law. Judge Bernstein encourages this Court to compare his construction of Article IV, § 3 to the seal example.

He contends that his suggested reading of Article IV, § 3 does not pose the same problem because he presents a plausible constitutional scenario. Although, Judge Bernstein’s reading of Article IV, § 3 certainly does not rise to the level of absurdity that the seal example does, his logic, when applied to closer cases, can reasonably be questioned. Among the qualifications found in Article IV, § 2, tor example, is the requirement that judicial candidates “be selected from those who have been admitted to practice law in this State.” Applying Judge Bernstein’s approach and logic, a technically plausible, yet legally incorrect, plain-language reading of the section could be that judicial candidates need not currently be admitted to the Maryland Bar. Although this clause is commonly read to require that certain judicial offices be filled by current members of the Maryland Bar, 2 its text, as a matter of language completely ⁴⁶ removed from context, can be construed to permit disbarred lawyers, who “have been admitted to practice law in Maryland.” Reading Article IV, § 2, which does not employ homonyms to alter the meaning of the text, to permit disbarred judicial candidates to apply and contest for such positions is not altogether implausible: it may be supposed, although not the most logical or conceivable scenario, that the Legislature and the people could have been concerned only that a judge have some legal experience, not that he or she be admitted to the Maryland Bar at the moment of his or her appointment or election.

Such a construction, while possible if viewed in isolation, defies common sense when viewed in context and in light of the constitutional scheme. As this Court has stated, “results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning.” State v. Fabritz, 276 Md. 416, 422 , 348 A.2d 275, 279 (1975). “[AJdherence to the meaning of words does not require or permit isolation of words from their context since the meaning of the plainest words in a statute may be controlled by the context____” Comptroller of Treasury v. Mandel, Lee, Goldstein, Burch Re-Election Committee, 280 Md. 575, 579 , 374 A.2d 1130, 1132 (1977) (internal quotations omitted). Therefore, “[i]n construing statutes, results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning.” Id., 280 Md. at 579-580 , 374 A.2d at 1132 ; see also, Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 513 , 525 A.2d 628, 632 (1987). ⁴⁷ Article I, section 1, clause 1 of the United States Constitution presents a similar challenge to Judge Bernstein’s analysis. It provides, in relevant part: “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” U.S. Const. art.

I, § 1, cl. 1 (emphasis added). Employing an analysis akin to that which Judge Bernstein uses in interpreting Article IV, § 3, it could be argued, and as plausibly, that the plain language of the clause does not require that a sitting member of the U.S. House of Representatives currently be either a citizen of the United States or an inhabitant of the state that he or she represents. Furthermore, following Judge Bernstein’s argument that it is irrelevant that a judge over the age of seventy has not been appointed or elected in Maryland since the adoption of the 1851 Constitution, we should ignore a two-century practice of only electing United States citizens to the U.S. House of Representatives when determining the meaning of this clause. These are but two examples that demonstrate the dangers and absurdity of interpreting text in a complete vacuum.

Judge Bernstein wants this Court to interpret Article IV, § 3 as prescribing only a retirement age for every sitting circuit court judge. This is not the case. The phrase, “[e]ach of the said judges”, in § 3, does not refer to specific persons who are judges, but rather, viewing this phrase in context, references an entire category of judges, meaning all those who are, or who will seek to become members of this category. This is clear when reviewing the prior language in the section.

The “said judges” are, as stated in the first sentence of § 3, all judges “[ejxcept for Judges of the District Court, the Judges of the several Courts other than the Court of Appeals or any intermediate courts of appeal.” In excluding to whom the section was to be applied, the framers set out what categories of judges were not to be affected, and there is no reason to ⁴⁸ believe that they deviated from this path, within the same section, when prohibiting service after the age of seventy. Therefore, the prohibition on judicial service after the age of seventy cannot be exclusively a retirement age, because the section does not apply solely to judges already invested. The provision prescribes a maximum age requirement on the entire category of circuit court judges, which is determinative of an individual’s eligibility to serve. Against the notion of a maximum age, Judge Bernstein argues that “[particularly relevant is the fact that [Article IV,] § 2 imposes a mandatory minimum age, but no maximum age limitation.” He contends that if the framers intended to set a maximum age limit for the entire category of judges, it would have been set forth in § 2, where other eligibility requirements are found.

Judge Bernstein cites, however, no support for this contention. This is so, because there is no obligation that all required qualifications for active service as a judge be located within the same section of the Constitution. Judge Bernstein finds support for his position in a recent Illinois case, Maddux v. Blagojevich, 233 Ill.2d 508 , 331 Ill. Dec. 749 , 911 N.E.2d 979, 989 (2009), in which a divided Illinois Supreme Court held 705 ILCS 55/1 (West 2006), the State’s Compulsory Retirement of Judges Act, (hereinafter, “Retirement Act” or “Act”), to be unconstitutional.

The Retirement Act, as relevant here, provided, “[a] judge is automatically retired at the expiration of the term in which the judge attains the age of 75. Such judge shall conclude all matters pending before him unless the Supreme Court makes other provisions for the disposition of such matters. This Section shall apply to all Supreme Court, appellate, circuit and associate judges.” Id. This provision earlier had been construed by an intermediate appellate court “as not barring a ‘person over the age of 75[,] and otherwise qualified to serve as a judge from running in a judicial election,’ ” Maddux, 331 Ill.Dec. 749 , 911 N.E.2d at 984 (quoting Anagnost v. Layhe, 230 Ill.App.3d 540 , 172 ⁴⁹ Ill.Dec. 46, 595 N.E.2d 109, 111 (1992)), although he or she could not seek retention, as would have been possible had he or she been under 75 years of age.

Anagnost, 172 Ill.Dec. 46 , 595 N.E.2d at 111 . In arriving at this construction, the court was influenced by the following: section 11 of the Judicial Article of the Illinois Constitution prescribes the eligibility criteria for a judge, none of which is age based, 3 Maddux, 331 Ill.Dec. 749 , 911 N.E.2d at 989 ; “the long line of authority which prevents the legislature from adding to the qualifications for judicial office, as specified in section 11 of the judicial article,” id., 331 Ill.Dec. 749 , 911 N.E.2d at 983 -84 (citing Anagnost, 172 Ill.Dec. 46 , 595 N.E.2d at 110 ); section 15(a) of the Judicial Article which expressly authorizes the Legislature to prescribe a mandatory retirement age for judges, 4 id., 331 Ill.Dec. 749 , 911 N.E.2d at 984 ; the Legislature’s enactment of the Retirement Act using language that “leaves little room for an interpretation that it is applicable to any one other than sitting judges,” Anagnost, 172 Ill.Dec. 46 , 595 N.E.2d at 111 , and its determination that there is a difference between an adversarial election and a retention election. Maddux, 331 Ill.Dec. 749 , 911 N.E.2d at 998 . The Illinois Supreme Court rejected the Anagnost construction of the Retirement Act and, accordingly, overruled that decision.

Id., 331 Ill.Dec. 749 , 911 N.E.2d at 988 . Pointing out that the language of the Retirement Act purported “to retire all judges” and “that providing for the mandatory retirement of judges was the only thing that the General Assembly may do under section 15(a),” id., 331 Ill.Dec. 749 , 911 N.E.2d at 985 , the court held: “The Anagnost interpretation is not supported by the plain language of the Act and, more problematically, does not ⁵⁰ achieve the constitutional mandate of compulsory judicial retirement contemplated by section 15(a).” Id., 331 Ill.Dec. 749 , 911 N.E.2d at 988 . Having overruled Anagnost and determined that the Retirement Act “compels mandatory retirement for all judges at the expiration of the term in which they attain the age of 75,” id., thereby giving effect to Act’s plain language, the court considered whether that result raised other constitutional problems. Id.

It held that it did, that the Act “creates an irrational classification that could not, in terms of equal protection, withstand scrutiny under our constitution.” Id., 331 Ill.Dec. 749 , 911 N.E.2d at 990 . It explained: “[Ejection 11 of the judicial article establishes only three criteria for eligibility to be a judge. These do not include either a minimum or maximum age. As a result, all citizens who meet these criteria are eligible to be a candidate for judicial office.

The Act would preclude a class of people, former judges who become 75 within their term, from running for vacant judicial seats in open elections. This causes constitutional concerns because other citizens, not in that class, can run in open elections for judicial office.” Id., 331 Ill.Dec. 749 , 911 N.E.2d at 989 . The court concluded: “There is no rational basis upon which the legislature can prevent 75-year-old or older former judges from running in an election, but not citizens 75 years old or older who were never judges when the disqualifying characteristic is age. If the legitimate state interest is to insure a vigorous judiciary, the classification we describe above cannot be deemed rationally related to that purpose.

We stress again that if age defines ability (and both the constitutional and legislative history indicate that it was believed that it does), either all those 75 years of age or older are unfit or they are not. No presumption of constitutionality could save legislation like this that so blatantly violates equal protection.” Id. Judge Bernstein contends that the language construed by the Illinois court is similar to that contained in Article TV, § 3 ⁵¹ of the Maryland Constitution, and that, much like Illinois’s Retirement Act, Article IV, § 3 has been misinterpreted. 5 To be sure, the result reached by the Maddux court is consistent with the position that the appellant is urging in this case. That and the fact that both this case and Maddux involved the construction of certain relevant provisions, constitutional ones here and, in Illinois, a statute authorized by constitutional provision, are the only similarities between Maddux and the case sub judice.

Moreover, their authority and focus being diametrically different, the Illinois statute is in no way analogous to the Maryland Constitution and they certainly are not the same. ⁵² While, in this case, the issue is one of constitutional interpretation, to determine what eligibility criteria a person aspiring to be a circuit court judge must meet, 6 what was interpreted in Maddux was a statute, which, although enacted pursuant to constitutional authorization, addressed, not the eligibility criteria for becoming a judge, an issue dealt with in the constitution, but rather, a discrete and narrow issue, the retirement age for judges. In Maddux , the issue was not who could become a judge, a question answered by a constitutional provision, but, rather, it was whether, and if so, at what age, must a person who has met those prescribed eligibility criteria and become a judge retire. The resolution of that issue turned on the construction of the constitutionally authorized statute. This was made clear by the Supreme Court of Illinois, as we have seen.

See id., 331 Ill.Dec. 749 , 911 N.E.2d at 985 . That point was reiterated when the court rejected the State’s argument that section 15, addressing the retirement age of judges, be read together with sections 11, the eligibility requirements, and 12, pertaining to elections and retention of judges, as “an implicit grant of authority to the legislature to create additional eligibility factors pertaining to age for judges.” Id., 331 Ill.Dec. 749 , 911 N.E.2d at 990 . Responding to that argument, the court explained: “To interpret the constitution in the manner suggested by the Attorney General is especially problematic because, as we have stated, the constitution acts as a limitation on the General Assembly’s authority. In section 15(a), the drafters gave the legislature the discretion to enact judicial retire ⁵³ ment legislation.

Section 11 acts as a limitation on the General Assembly to add to the eligibility of citizens to run for judicial office. We cannot, merely because of section 15(a), read into section 11 an additional eligibility criterion that would impair the rights of people who have never been judges to run for judicial office. In other words, section 15(a), which allows only for the General Assembly to exercise discretion over judicial retirement, cannot be considered a grant of authority to the legislature over matters other than judicial retirement. The constitution acknowledges that the General Assembly may provide for the retirement of judges, which it sought to do under the Act.” Id., 331 Ill.Dec. 749 , 911 N.E.2d 979 at 991 Structure The construction of a constitutional provision is approached, as we have pointed out, supra, much like that of a statute.

See Brown v. Brown, 287 Md. at 277 , 412 A.2d at 398 . ‘When the statute to be interpreted is part of a statutory scheme, it must be interpreted in that context.” Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 302 , 783 A.2d 667, 671 (2001); accord GEICO v. Ins. Comm’r, 332 Md. 124, 131-32 , 630 A.2d 713, 717-18 (1993). Statutes on the same subject are “read together and harmonized to the extent possible, reading them so as to avoid rendering either of them, or any portion, meaningless, surplusage, superfluous or nugatory.” Fitzpatrick, 366 Md. at 303 , 783 A.2d at 670 (quoting GEICO, 332 Md. at 132 , 630 A.2d at 717 ). Reading Article IV, § 3 in the context of other related provisions in the Maryland Constitution provides further evidence that the section prohibits all persons over the age of seventy from holding judicial office.

Article IV, § 3 must be read in context with Article IV, § 5. Judge Bernstein does not so interpret Article IV, § 3. His argument largely disregards § 5, primarily resting on the assumption that judicial qualifications are solely found in Article IV, § 2. The language of Article IV, § 5, however, proves that to be an inaccurate conclusion. ⁵⁴ Article IV, § 5, which addresses the appointment of circuit court judges, after establishing that only “duly qualified” persons may be appointed by the governor, provides, in part, that “no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected.” (emphasis added).

It is implicit in the language that one can be “disqualified by reason of age”, that the age of a candidate seeking appointment is, in fact, a qualification for the office. Judge Bernstein concedes that this is true, but states that age is only a qualification for candidates, whom the governor appoints, who are between the ages of sixty-eight and seventy. His argument does not square with an in-context reading of the provisions. Section 5, by reference, prescribes that those who are not of a certain age are not qualified, see § 2 (stating “[Judges] shall be not less than thirty years of age at the time of their election or appointment,”) and precludes the governor from appointing persons above a certain age, see § 3.

To be sure, the section does not specify what the age of disqualification is. To determine what that specific age is, § 5 refers back to Article IV, § 3. This interdependence of § 3, which pertains to the election of circuit court judges, and § 5 of the Article, which pertains to the appointment of those judges, is clear evidence that the age restriction of seventy is an age qualification or eligibility requirement that must be met by all sitting and potential judges. By reading § 3 in context with § .5, it is obvious that the maximum age in § 3 cannot apply solely to sitting judges, for to do so would render § 5 meaningless.

As we have previously stated, § 5 places a prohibition on the governor, prohibiting the governor from appointing a candidate “who will become disqualified by reason of age” prior to the “first biennial general election.” An exception to this restriction is provided when reappointing sitting judges. That exception, if read in conjunction with Judge Bernstein’s interpretation of Article IV, § 3, excludes the appointment of those between the ages ⁵⁵ of sixty-eight and seventy and no one else; 7 it would render Article IV, § 5 a needless and nonsensical prohibition against the Governor appointing a judge who will become too young to serve. This is exactly what this court cannot do, however. The Maryland Constitution cannot be read in a manner “that is illogical or incompatible