Relates to retirement of judges and justices.
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.
(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.
STATE OF NEW YORK ________________________________________________________________________ 7755 IN 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.