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.