S7755-2011 Actions

• Jun 18, 2012: REFERRED TO RULES

S7755-2011 Memo

BILL NUMBER:S7755

TITLE OF BILL:
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing amendments to sections 2 and 25 of article 6 and adding
section 36-d to such article of the constitution, in relation to
retirement of judges and justices

This measure is being introduced at the request of the Chief Judge of
the State and the Chief Administrative Judge.

This measure would amend sections 2(e) and 25(b) of Article VI of the
State Constitution to increase the mandatory retirement age for
Judges of the Court of Appeals, permit retired Justices of the
Supreme Court to continue in judicial service for two-year periods as
certificated Justices until age 80 and authorize certification of
retired judges of the other major trial courts to continue in
judicial service for two-year periods until they reach age 76. No
change is proposed in the current constitutional mandate that judges
of most courts must retire at age 70.(1)

Each year, the court system loses many competent judges who are
required to leave the bench for no other reason than the fact that
they have attained age 70. This has been the constitutional mandatory
retirement age for over 150 years,(2) and it has long since ceased to
bear any meaningful relationship to an individual's ability to
discharge the
duties of a judge effectively and productively. While age 70 as a
retirement age might have made sense in the mid-19th century, when
the average life expectancy was in the 40's, it makes little sense
today when the average 65-year old can be expected to live into his
or her 80's.

More than merely affecting the lives of individual judges, our
arbitrary and obsolete mandatory retirement age operates to
shortchange the larger community by depriving it of the value of a
judge's accumulated wisdom and experience on the bench.
In the eyes of many, judging is a "late peak" occupation in that
judicial performance tends to improve with age, and is likely to best
be discharged later in life.(3) Medical research supports this view and
refutes the constitutional presumption that the kind of disabilities
that would interfere with a judge's effective discharge of his or
her duties begin appearing at age 70. Indeed, studies have shown that
there is no decline in average intelligence until age 80, and that
healthy older adults actually perform better than younger people in
select areas such as knowledge about their profession and life.(4)
Given the volume and complexity of so much of the litigation that
comes before New York's courts each year, the State can ill afford
annually to send some of its most experienced judges packing for no
other reason than that they have reached an age that was arbitrarily
chosen in the mid 19th century and that many no longer regard as old
or the occasion for infirmity.

On this view, it seems obvious that the State should act to eliminate
or, at least, push back the age of mandatory judicial retirement. We
recognize, however, that the issue is not so simple. In addition to


an interest in retaining experienced jurists, the State also has a
compelling interest in ensuring a continuing influx of new blood into
the Judiciary - an interest that some believe will be jeopardized
should the present mandatory retirement age be relaxed.

Years ago, this State recognized that one way to balance the competing
interests here would be to permit certain judges, following their
retirement at age 70, to remain in
service upon demonstration that they were physically and mentally
capable of performing the duties of judicial office and that their
continuing services were needed by the courts.
And, so, in 1962, the Constitution was amended to authorize the
current certification process for Justices of the Supreme Court who
reach the mandatory retirement age.
Under this process, such a Justice vacates his or her office at the
end of the year in which he or she reaches age 70 (leaving it free to
be filled by a successor), and then applies for certification by the
Administrative Board of the Courts for a two-year term of continuing
service on Supreme Court as a retired Justice. As the Constitution
now provides, such a retired Justice is eligible to serve up to three
such two-year terms (retiring for good after the end of the year in
which he or she reaches age 76).

This certification program has proven very successful, helping the
State to retain some of its most experienced jurists to supplement
judicial resources available to the courts, all the while permitting
the State regularly to infuse the Judiciary with new judges who bring
fresh outlooks, backgrounds and jurisprudential perspectives to
service to the community.

We believe the time has come to expand the certification program so
that it includes judges of courts other than Supreme Court. Many
judges serve long and distinguished careers on the bench without ever
reaching Supreme Court. Their service in the lower courts is no less
valuable to the community than it would be on Supreme Court and the
public can no more afford to lose their experience due to an
arbitrary age rule than it can to lose the experience of Justices of
the Supreme Court who likewise are subject to that rule.

Accordingly, this measure calls for creation of a certification
process for judges of the other major trial courts pursuant to which
they, too, like their colleagues on Supreme Court, may continue in
judicial service beyond the mandatory retirement age.(5) The measure
also includes two other provisions: i.e., authorization for Judges of
the Court of Appeals to serve out terms begun before reaching age 70
(but not beyond age 80), and permission for certificated Supreme
Court Justices to serve until age 80 (instead of the present limit of
age 76). These last two elements of the measure already have been
given first passage by the Legislature (during its 2011 session, see
Senate 5827), and we include them here because we believe that it
makes the most sense to combine all measures.
affecting age of judicial retirement and use of superannuated judges
into one proposal so that they may be considered together by the
voters.

LEGISLATIVE HISTORY:
None. New proposal.


FOOTNOTES:

(1) This mandate applies to judges and justices of all courts of the
Unified Court System except City, Town and Village Courts.

(2) Age 70 was imposed as the retirement age via amendment to the
Constitution's judiciary article in 1869. Prior to that time, judges
were subject to mandatory retirement at age 60.

(3) See Richard A. Posner, Aging and Old Age, University of Chicago
Press, at 180-181 (1995).

(4) See Staudinger, Cornelius & Baltes, The Aging of Intelligence:
Potential and Limits, 503 The Annals 43, 45 (1989). Despite
age-related declines in learning ability and memory performance,
healthy older adults demonstrate superior performance in selected
domains such as knowledge of their profession and life matters, and
in pragmatic aspects of intellectual functioning such as creativity
and wisdom ("wisdom" defined as the advanced cognitive development
and mastery over one's emotions that comes with age, experience,
introspection, reflection, intuition and empathy; and "creativity" as
the ability to apply unique, feasible solutions to new situations).

(5) This measure also would subject Judges of City Courts outside New
York City to mandatory constitutional retirement at age 70. At
present, these Judges are subject to mandatory retirement at that age
but only by virtue of a statutory provision. See Judiciary Law �23.
There is no reason to exclude City Court Judges from their other
judicial colleagues for purposes affixing a constitutional retirement
age. All of these judges have been subject to the same retirement age
since long before the adoption of the present Judiciary Article in
the State's Constitution, in 1962.

S7755-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         7755
 I N  SENATE
 June 18, 2012
 
 Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin
 istration) -- read twice and ordered printed, and when printed  to  be
 committed to the Committee on Rules
 CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
 proposing  amendments  to  sections  2  and  25  of article 6 and adding
 section 36-d to such article  of  the  constitution,  in  relation  to
 retirement of judges and justices
 

Section  1.  RESOLVED  (if the Assembly concur), That subdivision e of
 section 2 of article 6  of  the  constitution  be  amended  to  read  as
 follows:

 e.  The  governor  shall  appoint,  with the advice and consent of the
 senate, from among those recommended by the judicial nominating  commis
 sion,  a person to fill the office of chief judge or associate judge, as
 the case may be, whenever a vacancy occurs  in  the  court  of  appeals;
 provided,  however, that no person may be appointed a judge of the court
 of appeals unless such person is a resident of the state [and], has been
 admitted to the practice of law in this state for at least ten years AND
 WHO HAS NOT REACHED THE LAST DAY OF DECEMBER IN THE YEAR IN WHICH HE  OR
 SHE  REACHES  THE  AGE  OF SEVENTY.   The governor shall transmit to the
 senate the written report  of  the  commission  on  judicial  nomination
 relating to the nominee.
 

S 2.  RESOLVED (if the Assembly concur), That subdivision b of section
 25 of article 6 of the constitution be amended to read as follows:

 b.  1.  Each  [judge  of the court of appeals,] justice of the supreme
 court, judge of the court of claims, judge of the county court, judge of
 the surrogate's court, judge of the family court, judge of a  court  for
 the  city  of  New  York established pursuant to section fifteen of this
 article [and], judge of the district court AND JUDGE  OF  A  CITY  COURT
 OUTSIDE THE CITY OF NEW YORK shall retire on the last day of December in
 the  year  in  which he or she reaches the age of seventy. EACH JUDGE OF
 THE COURT OF APPEALS SHALL RETIRE ON THE LAST DAY  OF  DECEMBER  IN  THE
 YEAR IN WHICH HE OR SHE REACHES THE AGE OF EIGHTY.
 2.  Each  [such] former [judge of the court of appeals and] justice of
 the supreme court may thereafter perform the duties of a justice of  the
 supreme court, with power to hear and determine actions and proceedings,
 provided,  however, that it shall be certificated in the manner provided
 by law that the services of such [judge or]  justice  are  necessary  to
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD89164-01-2
 
       S. 7755                             2
 expedite  the  business  of the court and that he or she is mentally and
 physically able and competent to perform the full duties of such office.
 Any such certification shall be valid for a term of two years and may be
 extended  as  provided  by  law  for  additional  terms  of two years. A
 [retired judge or] justice shall serve no longer than until the last day
 of December in the year in which he or she reaches the age of  [seventy-
 six]  EIGHTY.  A retired judge or justice shall be subject to assignment
 by the appellate division of the supreme court of the  judicial  depart
 ment  of his or her residence.  Any retired justice of the supreme court
 who had been designated to and served as  a  justice  of  any  appellate
 division  immediately  preceding  his or her reaching the age of seventy
 shall be eligible for designation by the  governor  as  a  temporary  or
 additional justice of the appellate division. A retired judge or justice
 shall not be counted in determining the number of justices in a judicial
 district for purposes of subdivision d of section six of this article.
 3.  EACH  FORMER  JUDGE  OF  THE  COURT OF CLAIMS, JUDGE OF THE COUNTY
 COURT, JUDGE OF THE SURROGATE'S COURT, JUDGE OF THE FAMILY COURT,  JUDGE
 OF  A  COURT  FOR  THE  CITY OF NEW YORK ESTABLISHED PURSUANT TO SECTION
 FIFTEEN OF THIS ARTICLE, JUDGE OF THE DISTRICT COURT AND JUDGE OF A CITY
 COURT OUTSIDE THE CITY OF NEW YORK MAY THEREAFTER PERFORM THE DUTIES  OF
 A  JUDGE  OF  THE  COURT  FROM  WHICH  SUCH JUDGE RETIRED, INCLUDING THE
 PERFORMANCE OF ANY TEMPORARY ASSIGNMENT AUTHORIZED FOR A JUDGE  OF  SUCH
 COURT  BY  THE  PROVISIONS  OF  SECTION TWENTY-SIX OF THIS ARTICLE, WITH
 POWER TO HEAR AND DETERMINE ACTIONS; PROVIDED, HOWEVER, THAT IT SHALL BE
 CERTIFICATED IN THE MANNER PROVIDED BY LAW THAT  THE  SERVICES  OF  SUCH
 JUDGE ARE NECESSARY TO EXPEDITE THE OPERATION OF THE COURT FROM WHICH HE
 OR  SHE  RETIRED  AND THAT HE OR SHE IS MENTALLY AND PHYSICALLY ABLE AND
 COMPETENT TO PERFORM THE FULL DUTIES OF SUCH OFFICE.  ANY  SUCH  CERTIF
 ICATION  SHALL  BE  VALID FOR A TERM OF TWO YEARS AND MAY BE EXTENDED AS
 PROVIDED BY LAW FOR ADDITIONAL TERMS OF TWO YEARS. A JUDGE  SHALL  SERVE
 NO LONGER THAN UNTIL THE LAST DAY OF DECEMBER IN THE YEAR IN WHICH HE OR
 SHE  REACHES  THE AGE OF SEVENTY-SIX. A RETIRED JUDGE CERTIFICATED UNDER
 THIS PARAGRAPH SHALL  BE  SUBJECT  TO  ASSIGNMENT,  INCLUDING  TEMPORARY
 ASSIGNMENT  PURSUANT  TO SECTION TWENTY-SIX OF THIS ARTICLE, IN THE SAME
 MANNER AS A JUDGE OF THE COURT FROM WHICH SUCH JUDGE RETIRED. A  RETIRED
 JUDGE  SHALL  NOT BE COUNTED IN DETERMINING THE NUMBER OF JUDGES AUTHOR
 IZED BY LAW.
 

S 3. RESOLVED (if the Assembly concur), That article 6 of the  consti
 tution be amended by adding a new section 36-d to read as follows:

 

S 36-D. THE AMENDMENTS TO SUBDIVISION E OF SECTION TWO AND SUBDIVISION
 B  OF  SECTION  TWENTY-FIVE OF ARTICLE SIX OF THE CONSTITUTION, AS FIRST
 PROPOSED BY A CONCURRENT RESOLUTION PASSED BY  THE  LEGISLATURE  IN  THE
 YEAR  TWO THOUSAND TWELVE, ENTITLED "CONCURRENT RESOLUTION OF THE SENATE
 AND ASSEMBLY PROPOSING AMENDMENTS TO SECTIONS 2 AND 25 OF ARTICLE  6  OF
 THE  CONSTITUTION,  IN  RELATION TO RETIREMENT OF JUDGES" SHALL BECOME A
 PART OF THE CONSTITUTION ON THE FIRST DAY  OF  JANUARY  NEXT  AFTER  THE
 APPROVAL  AND RATIFICATION OF THE AMENDMENTS PROPOSED BY SUCH CONCURRENT
 RESOLUTION BY THE PEOPLE AND THE PROVISIONS THEREOF SHALL BECOME  EFFEC
 TIVE ON SUCH DATE EXCEPT THAT THE AMENDMENTS TO SUBDIVISION B OF SECTION
 TWENTY-FIVE  OF  THIS ARTICLE SHALL NOT BECOME EFFECTIVE UNTIL THE FIRST
 DAY OF JANUARY IN THE YEAR TWO THOUSAND FIFTEEN.
 

S 4. RESOLVED (if the Assembly concur), That the foregoing be referred
 to the first  regular  legislative  session  convening  after  the  next
 succeeding general election of members of the assembly, and, in conform
 ity with section 1 of article 19 of the constitution, be published for 3
 months previous to the time of such election.

*By contributing or voting you agree to the Terms of Participation and Privacy Policy and verify you are over 13.

Discuss!