Relates to retirement of judges and justices

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.