NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7969
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.
