S4587-2011 Actions

• Mar 22, 2012: ADVANCED TO THIRD READING
• Mar 21, 2012: 2ND REPORT CAL.
• Mar 20, 2012: 1ST REPORT CAL.393
• Feb 28, 2012: TO ATTORNEY-GENERAL FOR OPINION
• Feb 17, 2012: PRINT NUMBER 4587B
• Feb 17, 2012: AMEND AND RECOMMIT TO JUDICIARY
• Jan 4, 2012: REFERRED TO JUDICIARY
• Jan 4, 2012: returned to senate
• Jan 4, 2012: died in assembly
• Jun 22, 2011: referred to judiciary
• Jun 22, 2011: DELIVERED TO ASSEMBLY
• Jun 22, 2011: PASSED SENATE
• May 26, 2011: TO ATTORNEY-GENERAL FOR OPINION
• May 16, 2011: AMENDED ON THIRD READING 4587A
• May 9, 2011: ADVANCED TO THIRD READING
• May 4, 2011: 2ND REPORT CAL.
• May 3, 2011: 1ST REPORT CAL.445
• Apr 27, 2011: OPINION REFERRED TO JUDICIARY
• Apr 27, 2011: TO ATTORNEY-GENERAL FOR OPINION
• Apr 27, 2011: OPINION REFERRED TO JUDICIARY
• Apr 13, 2011: REFERRED TO JUDICIARY

S4587-2011 Meetings

S4587-2011 Calendars

S4587-2011 Votes

S4587-2011 Memo

BILL NUMBER:S4587

TITLE OF BILL:

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

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 mid19th 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.

2010 LEGISLATIVE HISTORY:
OCA 2010-87

FOOTNOTES:
(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 180-181 (1995).

(4) See Staudinger, Cornelius & Baltes, The Aging of Intelligence.
Potential and Limits, 50.3 The Annals 4.3, 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 ranges from 72 to 90.

S4587-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         4587
 2011-2012 Regular Sessions
 I N  SENATE
 April 13, 2011
 
 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 section 25 of 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.
 LBD89117-01-1
 
       S. 4587                             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 ELEVEN, ENTITLED "CONCURRENT RESOL
 UTION 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 THIRTEEN, 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 THIRTEEN.
 

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 one of article nineteen of the constitution, be
 published for three months previous to the time of such election.

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