Bill S4934-2013

Relates to retirement of judges and justices

Relates to retirement of judges and justices.






VOTE: COMMITTEE VOTE: - Judiciary - Jun 4, 2013
Ayes (18): Bonacic, Flanagan, Hannon, Lanza, LaValle, Nozzolio, O'Mara, Savino, Zeldin, Carlucci, Hassell-Thompson, Breslin, Dilan, Espaillat, Perkins, Stavisky, Hoylman, Addabbo
Ayes W/R (3): Fuschillo, Ranzenhofer, Adams
Nays (2): DeFrancisco, Little



TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to article 6 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 section 25(b) of Article VI of the State Constitution to increase the mandatory retirement age for all judges and justices of the Unified Court System (except for justices of the Town and Village courts, for whom there would remain no constitutional retirement age, and judges of the Court of Appeals for whom mandatory retirement would continue at age 70) from 70 to 74. The measure also would make a corresponding change in the Constitution's provision permitting Justices of the Supreme Court and Judges of the Court of Appeals to continue in service to the Supreme Court past the mandatory retirement age for up to three two-year terms provided the State's Administrative Board certifies that they are able and competent to do so and that their services are needed to expedite court business. Thus, retiring Justices who remain in good health and for whose services there remains a need could serve until the end of the year in which they turn 80. Lastly, this measure would establish age 74 as the mandatory retirement age for City Court judges outside New York City, superseding the current statutory age 70 retirement requirement for these judges{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.

Notably, as of the late 1990's, many other states, as well as the Federal government had recognized that judges perform effectively well beyond their 70th year. A significant majority of states nationwide either compelled judicial retirement at age 72 or above, or had no mandatory retirement age at all{5}. The Federal judiciary, of course, has never had any retirement age at all.

The choice of 74 as a new mandatory retirement age (and that of 80 for ending the certificated judicial service of retired justices of the Supreme Court) reflects respect for the community's paramount need for experienced jurists, its concern that there be a retirement age more in keeping with contemporary understanding of the aging process and its interest in ensuring a continuing influx of new blood into the Judiciary.

2011-12 Legislative History: OCA 2011-30 Senate 4587-B (Sen. Bonacic) (Rules)

2010 Legislative History: OCA 2010-87

{1} See judiciary Law § 23. There is no reason to exclude City Court Judges from their other judicial colleagues for purposes of fixing 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.

{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 180481 (1995).

{4} See Staudinger, Cornelius & Baites, 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} As of this writing, only 19 of the 50 states compelled judicial retirement for their judges at age 70. Of the remaining 31, 17 states have no retirement age for their judges, while the rest impose retirement at ages ranging from 72 to 90.


STATE OF NEW YORK ________________________________________________________________________ 4934 2013-2014 Regular Sessions IN SENATE May 1, 2013 ___________
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 Judiciary CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to article 6 of the constitution, in relation to retirement of judges and justices Section 1. Resolved (if the Assembly concur), That subdivision b of section 25 of article 6 of the constitution be amended to read as follows: b. 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 SEVENTY AND EACH 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] SEVENTY-FOUR. 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 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 addi- tional 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 department of his or her residence. Any retired justice of the supreme court who had been designated to and served as a EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD89114-01-3 S. 4934 2 justice of any appellate division immediately preceding his or her reaching the age of [seventy] SEVENTY-FOUR shall be eligible for desig- nation 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. S 2. 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. A. THE AMENDMENTS TO SUBDIVISION B OF SECTION TWENTY-FIVE OF THIS ARTICLE, AS FIRST PROPOSED BY A CONCURRENT RESOLUTION PASSED BY THE LEGISLATURE IN THE YEAR TWO THOUSAND THIRTEEN, ENTITLED "CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY PROPOSING AN AMENDMENT TO SECTION 25 OF ARTICLE 6 OF THE CONSTITUTION, IN RELATION TO RETIREMENT OF JUDGES AND JUSTICES," SHALL BECOME A PART OF THE CONSTITUTION ON THE FIRST DAY OF SEPTEMBER NEXT AFTER THE APPROVAL AND RATIFICATION OF THE AMENDMENTS PROPOSED BY SUCH CONCURRENT RESOLUTION BY THE PEOPLE AND THE PROVISIONS THEREOF SHALL BECOME EFFECTIVE ON SUCH DATE. B. WHERE A FORMER JUDGE OF THE COURT OF APPEALS OR JUSTICE OF THE SUPREME COURT WHO, PURSUANT TO THE PROVISIONS OF SUBDIVISION B OF SECTION TWENTY-FIVE OF THIS ARTICLE IN EFFECT ON AUGUST THIRTY-FIRST, TWO THOUSAND SIXTEEN, IS PERFORMING THE DUTIES OF A JUSTICE OF THE SUPREME COURT OR OF A TEMPORARY OR ADDITIONAL JUSTICE OF THE APPELLATE DIVISION, HE OR SHE SHALL, FOR THE REMAINDER OF THE TWO-YEAR TERM FOR WHICH HE OR SHE SHALL HAVE BEEN CERTIFICATED, CONTINUE PERFORMING SUCH DUTIES. AT THE EXPIRATION OF SUCH TERM, HIS OR HER CERTIFICATION MAY BE EXTENDED FOR ADDITIONAL TERMS OF TWO YEARS IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION B OF SECTION TWENTY-FIVE OF THIS ARTICLE IN EFFECT ON SEPTEMBER FIRST, TWO THOUSAND SIXTEEN. S 3. Resolved (if the Assembly concur), That the foregoing amendments be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and, in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.


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