senate Bill S4934

Relates to retirement of judges and justices

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 01 / May / 2013
    • REFERRED TO JUDICIARY
  • 04 / Jun / 2013
    • REPORTED AND COMMITTED TO FINANCE
  • 04 / Jun / 2013
    • TO ATTORNEY-GENERAL FOR OPINION
  • 18 / Jun / 2013
    • OPINION REFERRED TO JUDICIARY
  • 08 / Jan / 2014
    • REFERRED TO JUDICIARY
  • 13 / Jan / 2014
    • TO ATTORNEY-GENERAL FOR OPINION
  • 11 / Feb / 2014
    • OPINION REFERRED TO JUDICIARY

Summary

Relates to retirement of judges and justices.

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Bill Details

See Assembly Version of this Bill:
A7969
Versions:
S4934
Legislative Cycle:
2013-2014
Current Committee:
Senate Judiciary
Law Section:
Constitution, Concurrent Resolutions to Amend
Laws Affected:
Amd Art 6 §25, add §36-d, Constn

Sponsor Memo

BILL NUMBER:S4934

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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4934

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               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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