senate Bill S4587B

2011-2012 Legislative Session

Increases the mandatory retirement age for all judges and justices of the unified court system, except for justices of town and village courts, from 70 to 74

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Archive: Last Bill Status - In Committee


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

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Actions

view actions (21)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 21, 2012 committed to rules
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
amend and recommit to judiciary
Jan 04, 2012 referred to judiciary
returned to senate
died in assembly
Jun 22, 2011 referred to judiciary
delivered to assembly
passed senate
May 26, 2011 to attorney-general for opinion
May 16, 2011 amended on third reading 4587a
May 09, 2011 advanced to third reading
May 04, 2011 2nd report cal.
May 03, 2011 1st report cal.445
Apr 27, 2011 opinion referred to judiciary
to attorney-general for opinion
Apr 13, 2011 referred to judiciary

Votes

view votes

Mar 20, 2012 - Judiciary committee Vote

S4587B
20
1
committee
20
Aye
1
Nay
1
Aye with Reservations
1
Absent
0
Excused
0
Abstained
show Judiciary committee vote details

May 3, 2011 - Judiciary committee Vote

S4587
20
1
committee
20
Aye
1
Nay
2
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show committee vote details

Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

S4587 - Bill Details

Current Committee:
Law Section:
Constitution, Concurrent Resolutions to Amend
Laws Affected:
Amd Art 6 §25, add §36-d, Constn

S4587 - Bill Texts

view summary

Increases the mandatory retirement age for all judges and justices of the unified court system, except for justices of town and village courts, from 70 to 74; permits justices of the supreme court and judges of the court of appeals to continue in service past the mandatory retirement age for three two year terms.

view sponsor 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.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4587

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             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.

S4587A - Bill Details

Current Committee:
Law Section:
Constitution, Concurrent Resolutions to Amend
Laws Affected:
Amd Art 6 §25, add §36-d, Constn

S4587A - Bill Texts

view summary

Increases the mandatory retirement age for all judges and justices of the unified court system, except for justices of town and village courts, from 70 to 74; permits justices of the supreme court and judges of the court of appeals to continue in service past the mandatory retirement age for three two year terms.

view sponsor memo
BILL NUMBER:S4587A

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 hear 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 tile 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, 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 ranges from 72 to 90.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4587--A
    Cal. No. 445

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             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 -- reported favorably from
  said committee, ordered to first and second report, ordered to a third
  reading, amended and ordered reprinted, retaining  its  place  in  the
  order of third reading

            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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD89117-02-1

S. 4587--A                          2

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
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  FOURTEEN,  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 FOURTEEN.
  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.

S4587B (ACTIVE) - Bill Details

Current Committee:
Law Section:
Constitution, Concurrent Resolutions to Amend
Laws Affected:
Amd Art 6 §25, add §36-d, Constn

S4587B (ACTIVE) - Bill Texts

view summary

Increases the mandatory retirement age for all judges and justices of the unified court system, except for justices of town and village courts, from 70 to 74; permits justices of the supreme court and judges of the court of appeals to continue in service past the mandatory retirement age for three two year terms.

view sponsor memo
BILL NUMBER:S4587B

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

2011 Legislative History:
OCA 2011-30
Senate 4587-A (Bonacic) (Passed)

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, 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 ranges from 72 to 90.

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

                                 4587--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             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 -- reported favorably from
  said committee, ordered to first and second report, ordered to a third
  reading, amended and ordered reprinted, retaining  its  place  in  the
  order of third reading -- recommitted to the Committee on Judiciary in
  accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

            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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD89117-04-2

S. 4587--B                          2

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
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 TWELVE, 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 FOURTEEN, 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 FOURTEEN.
  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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