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A07969 Summary:

Amd Art 6 S25, add S36-d, Constn
Relates to retirement of judges and justices.
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A07969 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Weinstein
  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 retire- ment age for City Court judges outside New York City, superseding the current statutory age 70 retirement requirement for these judges.* 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**, and it has long since ceased to bear any mean- ingful 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***. 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****. Given the volume and complexity of so much of the liti- gation 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 Feder- al 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*****. The Federal judiciary, o 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 Judici- ary.   2011-12 LEGISLATIVE HISTORY: OCA 2011-30 Senate 4587-B (Sen. Bona- cic)(Rules)   2010 LEGISLATIVE HISTORY: OCA 2010-87 * 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. **Age 70 was imposed as the retirement age via amendment to the Constitution's judi- ciary article in 1869. Prior to that time, judges were subject to mandatory retirement at age 60. ***See Richard A. Posner, Aging and Old Age, University of Chicago Press, at 180-181 (1995). ****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). *****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 retire- ment at ages ranging from 72 to 90.
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A07969 Text:

                STATE OF NEW YORK
                               2013-2014 Regular Sessions
                   IN ASSEMBLY
                                      June 12, 2013
        Introduced  by  M. of A. WEINSTEIN -- (at request of the Office of Court
          Administration) -- read once and referred to the Committee on  Judici-
        proposing  an amendment to article 6 of the constitution, in relation to
          retirement of judges and justices

     1    Section 1. Resolved (if the Senate  concur),  That  subdivision  b  of
     2  section  25  of  article  6  of  the  constitution be amended to read as
     3  follows:
     4    b. Each judge of the court of appeals[,] shall retire on the last  day
     5  of  December  in  the year in which he or she reaches the age of seventy
     6  and each justice of the supreme court, judge of  the  court  of  claims,
     7  judge  of the county court, judge of the surrogate's court, judge of the
     8  family court, judge of a court for the  city  of  New  York  established
     9  pursuant to section fifteen of this article [and], judge of the district
    10  court  and  judge  of  a  city  court outside the city of New York shall
    11  retire on the last day of December in  the  year  in  which  he  or  she

    12  reaches the age of [seventy] seventy-four. Each such former judge of the
    13  court of appeals and justice of the supreme court may thereafter perform
    14  the  duties  of  a  justice of the supreme court, with power to hear and
    15  determine actions and proceedings, provided, however, that it  shall  be
    16  certificated  in  the  manner  provided by law that the services of such
    17  judge or justice are necessary to expedite the business of the court and
    18  that he or she is mentally and physically able and competent to  perform
    19  the  full  duties  of such office. Any such certification shall be valid
    20  for a term of two years and may be extended as provided by law for addi-
    21  tional terms of two years. A retired judge or  justice  shall  serve  no
    22  longer  than  until  the last day of December in the year in which he or

    23  she reaches the age of [seventy-six] eighty. A retired judge or  justice
    24  shall  be subject to assignment by the appellate division of the supreme
    25  court of the judicial department of his or her residence.   Any  retired
    26  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.

        A. 7969                             2
     1  justice of any appellate  division  immediately  preceding  his  or  her
     2  reaching  the age of [seventy] seventy-four shall be eligible for desig-
     3  nation by the governor as a  temporary  or  additional  justice  of  the

     4  appellate  division.  A retired judge or justice shall not be counted in
     5  determining the number of justices in a judicial district  for  purposes
     6  of subdivision d of section six of this article.
     7    §  2. Resolved (if the Senate concur), That article 6 of the constitu-
     8  tion be amended by adding a new section 36-d to read as follows:
     9    § 36-d. a. The amendments to subdivision b of section  twenty-five  of
    10  this article, as first proposed by a concurrent resolution passed by the
    11  legislature  in  the  year  two  thousand thirteen, entitled "Concurrent
    12  Resolution of the Senate and Assembly proposing an amendment to  section
    13  25 of article 6 of the constitution, in relation to retirement of judges
    14  and  justices," shall become a part of the constitution on the first day

    15  of September next after the approval and ratification of the  amendments
    16  proposed  by such concurrent resolution by the people and the provisions
    17  thereof shall become effective on such date.
    18    b. Where a former judge of the court of  appeals  or  justice  of  the
    19  supreme  court  who,  pursuant  to  the  provisions  of subdivision b of
    20  section twenty-five of this article in effect  on  August  thirty-first,
    21  two  thousand  sixteen,  is  performing  the  duties of a justice of the
    22  supreme court or of a temporary or additional justice of  the  appellate
    23  division,  he  or  she shall, for the remainder of the two-year term for
    24  which he or she shall have been certificated, continue  performing  such

    25  duties.  At the expiration of such term, his or her certification may be
    26  extended for additional terms  of  two  years  in  accordance  with  the
    27  provisions  of  subdivision  b of section twenty-five of this article in
    28  effect on September first, two thousand sixteen.
    29    § 3. Resolved (if the Senate concur), That the foregoing amendments be
    30  referred to the first regular legislative session  convening  after  the
    31  next  succeeding  general  election  of members of the assembly, and, in
    32  conformity with  section  1  of  article  19  of  the  constitution,  be
    33  published for 3 months previous to the time of such election.
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