Mandatory Retirement for Judges

In the last legislative session (2011-2012) Senator Bonacic sponsored Bill S04587B to amend Article 6 Section 25 and to add Section 36 – d of the New York State Constitution.  This amendment very simply raises the age limit for Supreme Court and Court of Appeals Judges.  Currently Court of Appeals Judges are required to retire at the age of 70.  This amendment would raise that age to 80, though no judges could be appointed or re-appointed after the age of 70.  

What this means is that if a Court of Appeals judge’s term expires when they are 68, they can be reappointed and then certified to serve until the age of 80.  If, however, their term expires when they are 71 years old, they would have to retire.  The Bill also changes the age that Supreme Court justices can be recertified to serve until.  Currently that age is set at 76, this amendment would raise that to 80.

The following is a panel discussion on this topic which was held at the Effective New York Forum: A New New York: The Constitutional Dimension on November 29th, 2012 at the Rockefeller Institute of Government, in Albany, NY.

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Gerald Benjamin:

Some may remember Bill's dad , Howard Samuels, who was a great champion of constitutional reform in New York. So there is a family tradition in that.

I want to invite the uh... I want to thank Bill, and I want to invite the next panel to the front of the room: Peter Galie, Richard Rifkin, Robert Batson, and Bruce Gyory.

The task of this uh... panel is to talk about pending actions and recent debates. The two pending actions we mentioned had to do with the proposal on gambling and the proposal on uh... redistricting, we just heard a little about.

I know that I have some points of view that the gambling ah... ah... about both of these that may come up in the next panel as well.  Peter.

Peter Galie:

Our pursuit here this morning will be fairly simple. I am going to exercise the panel's leader prerogative not to take any positions on the issues I'm going to do a framing for the context for the speakers who are going to come.

We'll take roughly fifty minutes all told for the four of us, and that ought to leave a good thirty or forty minutes for interaction between the panelists um... between the audience and the panelists, and that is how we will proceed.

So uh... let me start with my opening remarks.

In The Republic Plato is pressed to answer the question as to how his republic could be realized when none of the inhabitants had been subjected to the rigorous education necessary to create the citizens who would constitute this new republic. In response to that pressing or pushing by his uh... questioners he makes a startling statement that all children over ten must be sent out of the city, wiping the slate clean.  

Now as an aside, I think there's a deeper issue involved in everything we're about here in wanting to change the New York State Constitution.

Plato's point was if you don't get people at the very earliest age, if you don't sing them the right songs, the right laws won't appear. And so what Chris and I and others have done and attempted to do with the New York State Bar Association and the wonderful help of uh... Eileen Gierridge is to begin to develop lesson plans to encouraged the teaching of the new york constitution in the schools. We don't do it and if we don't look at the background and knowledge for those students who come up when they hear about these issues it's in a completely blank context.

They have no way of understanding what's involved so we think that would be a significant measure to take. Unfortunately looking at the revised standards that are coming out now from the education department the New York Constitution uh...Eilleen tells me is going to be regulated to the fourth grade. You can't do anything in the fourth grade with the New York Constitution. You can sing songs, but you can't talk about the New York Constitution. So we're a little discourage about that but we're continuing to produce these lesson plans and hope there will be different ways of getting out to the social studies teachers in this state information on how to do this in an effective and meaningful way.

The dilemma of not having a clean slate, of having to begin not at the beginning, but in the middle of the things so to speak and thus not having citizens and civic virtue those things which will be both necessary and the result of this constitution has bedeviled thinkers from Plato through Machiavelli.

Coming down to earth, perhaps too quickly, it also bedeviled the writers of the latest addition of the model State Constitution. They introduced the model with this disclaimer: “…strictly speaking there is no such thing as a model State Constitution because there is no model state and such a state would not need a constitution anyway”, so back to Plato.

Just short of this utopia would be a state in which all citizens are active and responsible and in which only an extremely short document expressing basic principles of republican government and delineating it to essential features, three branches of government.

But then the model State Constitution writers go on to say: “What we really need to inaugurate republican government is to establish a representative legislature, which may then exercise the constituent functions with respect to all the rest of the government”. Now such a reduxeo ad absurdum was expressed believe it or not and endorsed by no less a person than Arthur Sutherland, back in the sixties. Arthur Sutherland.

Also a jurist on the New Jersey Supreme Court I believe and academic of sorts, I believe. Here's what he said: It's a remarkable statement. “A logically complete constitution could be written by describing the organization and selection of the legislature and conferring on it all the powers of the state. All the rest of the state's governmental mechanisms could conceivably be supplied by ordinary statutes instead of constitutional laws, and accordingly the effect of the rest of the constitution is to a feather the legislature”.

If you take the conclusion, that's what you end up with. That's really all you need. Well since states already have power, unlike the federal government, all State Constitutions in their nature are directive insofar as they mandate certain functions or duties to the legislature and confining or limiting what otherwise would be unlimited governmental authority. In spite of these differences the National Municipal League did have a model. It was the nation's founding document, a document they describe as one of simplicity and clarity, but in almost biblical terms the model state constitution writers said we lost our way somewhere along the path to justice, and the lost of way or the fruits in this case of the tree consisted of "unclear thinking and bungling workmanship, over elaboration of checks and balances, built-in weaknesses of all the branches of the government, proliferation of thou shalt nots, statutory declarations of public policy in the guise of constant supervisions."

So what they recommended when constructing or revising constitutions, the task which in general what we're about here today, was to conduct a hard-headed review of all except the clearly basic provisions to determine whether or not they need present or future needs. Again, this idea we could just get almost everything out of the constitution but the basics and let it go from there. But we're back to the dilemma of founders, aren't we?

There is a history, which constitutes our constitutional tradition, our political practices, there's an institutional memory that cannot simply be erased wiped clean. We cannot wipe the slate clean and so change must perforce take place within the limits and possibilities set by those conditions, and you see the dilemma expressed I think in what we're going to be dealing with in this first panel.

The fact that government advocates seek problems they create agendas based on those problems, and propose solutions: The Brennan Center, Common Cause Citizens Union, of course, the Committee for Effective New York, Bill Samuells and Jerry Benjamin's project. Power holders have their own agendas and their own needs. These agendas and needs are dictated by a range of factors that often have little to do with the but the goals and modus operondi of the advocates of more effective government. No wonder Plato gave up the game when he made the startling admission in the republic that the only way a just regime could ever come into existence would be either by luck, fortuna in Machiavelli’s terms, or divine intervention.

Do we have either one of those with Andrew Cuomo? Question of what should be in a constitution is another way of asking what a constitution would look like if we were starting with a clean slate but of course we start with a mixture reform impulses, historical necessity, ideas, economic interests, politically configurations and so forth. We have on the one hand then to start this conference some worthy and thoughtful proposals for constitutional change coming from these reform organizations. Clearly we're in the consideration. And we have three proposals emanating from power holders that are making their way through the political process. On this panel we will focus on the changes brought to us courtesy of the Governor and the State Legislature.

I've always thought that the word reform kinda begs the question. I wrote a little paper once which I didn't published: When is constitutional change constitutional reform?

I mean every change is not reform so how do you determine that when we want to reform the constitution, but why do we assume that it's a reform?

It may be changing it, but not be reforming it. There's that kind of conflation of the two times which has always troubled me. So are these proposals then, we have to ask this morning, are these proposals worthy of adoption and even if they are worthy of adoption, do they belong in the constitution?

With us today are three individuals who are interested in and some expertise on these proposals. Their bios are in the biography of the little brochures, so I won't waste the time of the convention repeating them, but we'll start with I think uh...

Why don't we start with you Richard with the judicial...yes.

Richard Rifkin:

Good morning. I guess Peter decided to start with me because no one is awake yet.

We're going to talk about the judiciary article of the constitution and as soon as you hear judiciary article everybody sort of goes to sleep.

But let me say, let me say the judiciary article and the whole judicial branch of government is absolutely critical and fundamental to the nature of our government.

And in fact I was down yesterday in Washington and lobbying congress on funding for the federal court system given the fact that we face sequestration there and talk more about the importance of the court system.

So with that little introduction uh... that we're headed let me talk about the constitutional amendment that has received first passage

It certainly doesn't have the dramatic effects of reapportionment, which Bruce is going to talk about or casinos, which Bob's going to talk about. It deals with the age of judges and let me first open by telling you what's in the amendment. One of the concerns we've had in the state is that judges under the constitution are forced to retire at a certain age.

And in fact our lunch speaker is one of the judges who's been the victim of uh... that provision because he was forced to leave the court of appeals

As, by the way, was Chief Judge Kay and Judge Howard Levine. All three of them were superb judges who simply had to leave at a time when they were certainly functioning effectively, because of the mandatory um... age requirement. So what does this constitutional amendment do? It does two things.

One currently for the court of appeals and only for the court of appeals right now judges are required to retire at age 70. It moves it up to 80.

But it says that no judge may be appointed or reappointed if they're reaching the age of seventy

So what does this mean?

It means that if you have a judge on the court and the judge's term expires when the judge is 68 years of age, to use an example, that judge can be reappointed and continue to serve until he or she reaches the age of 80. However if the judge’s term expires when the judge is 72 that judge is not been eligible for reappointment and therefore cannot serve until 80.

That's what it says, whether it makes sense or not, I leave to you. I certainly have my doubts about that. The other piece to this constitutional amendment is really very simple. Judges of the Supreme Court, our court of general jurisdiction now have to retire at the age of 70,but they can be certified to continue to serve until the age of 76. This amendment would allow them to continue to be certified until the age of 80. That's it. There have been many much more substantial proposals that have been proposed this very small limited proposal is the one that has received first passage.

I admit this is hardly earthshaking and raises the question of why on an issue like this should we require a vote of the populace of the state of New York?

Is this really something that is so fundamental that requires the people to cast their judgment about this? I think not.

And this is the problem with the entire Judiciary Article of the Constitution, Article Six. For example the State Constitution judiciary article has 37 sections. Federal constitution in essence has two. It's got three, but the third one deals with treason so that doesn't count.

It's really got two provisions. Do we really need all this and I submit that the constitution hamstrings the courts in a number of different ways and if i can give you just a couple of examples.

Section Six-D of Article Six limits the number of Supreme Court judges in any judicial district to in essence one for every 50,000 of population It's not exact but that fundamentally what it is. What it means is the legislature cannot create additional judgeships where you've reached the limit, we have in many judicial districts. So, no matter what the workload of the court, no matter what population shift we've seen since 1938, we're left with this one for every 50,000. I could tell you how absurd it's become.

The legislature has figured out a work around:

There's a Court of Claims. The court claims hears cases against the State of New York. There's no limit on the number of Court of Claims judges and Section 26 of Article Six allows Court of Claims judges to sit in Supreme Court on a temporary assignment. The concept was to help out, a temporary need in the Supreme Court.

Well what we have done in order to get around a constitutional provision, the legislature has created additional Court of Claims judges and you now have what are called "A Judges" and "B Judges".

The "A Judges" are the judges who do the traditional work with the Court of Claims. They hear cases against the State of New York.

The "B Judges" have never heard a case against the state of New York in their entire careers.

They're fundamentally criminal court judges who sit in criminal term in Supreme Court. They are Court of Claims Judges. They are assigned to Supreme Court. They are intended to be assigned to the Supreme Court. The judges who've been appointed have criminal background because they’re gonna sit in the criminal part of Supreme Court. Court of Claims has no criminal jurisdiction whatsoever.

And so you have an absurd system where the constitution says you can't have additional Supreme Court Judges.

The legislatures says: “Well we can't do Supreme Court Judges so we'll have Court of Claims judges and we'll assigned them to Supreme Court”.

Which also is done by the way judges are taken from other courts and are made acting Supreme Court judges. A judge who I know has been a Court of Claims judge, acting Supreme Court judge for better than 20 years. He's getting close to the age of 70. Court of Claims judges can't be certified. So, what he just did last year is run for Supreme Court, was successful, and now he can be certified to age 76. This is what the State Constitution is doing to the judiciary. They ought to have a provision, which allows the legislature to deal with the problems of the courts and adjust the problems of the courts.

Let me quickly give you couple of other examples. Court of Appeals, our highest court, the legislature has defined the jurisdiction of the court of appeals in nine highly technical subdivisions most of which are incomprehensible and the legislature can only one remove certain items of the jurisdiction of the court of appeals but not others.

Why shouldn't the legislature be able to fix the jurisdiction of the court of appeals so that the courts jurisdiction can meet the needs of the current day?

When you take a jurisdictional lower courts, the constitution sets the jurisdiction of the lower courts on a monetary basis County Court $25,000, New York City Civil Court $25,000, District Courts $15,000, meaning they can hear cases up to that amount. Is that a fundamental policy of the state of New York as to whether or not the district court can have jurisdiction of $10,000 or $20,000 or $30,000.

Is that so fundamental that the entire populous has to vote on that? In fact it has. The populace says raise the jurisdiction out of desperate necessity because after all we have inflation, the value of money changes, and what was $10,000 jurisdiction in 1938 certainly is not what it is today. So if you limited to $10,000, you're really limiting the number of cases, unless anybody think there's an argument that there's really some fundamental issue here.

The Supreme Court, our court of general jurisdiction, has the power to send down to a lower court any case brought in Supreme Court without monetary limitation.

So if somebody brings a case in Supreme Court and it's worth say $250,000 the Supreme Court has a right to send it down to the New York City Civil Court and say: You hear it, despite the fact that you've got a $25,000 monetary limit. So, again there's no fundamental issue here and this just ties the hands of the courts and the judiciary.

And in closing to come back to the amendment let me just say that I think this amendment raising the age of judges is a perfect example of why fundamentally we've got to scrap the judiciary article and start from scratch. We need a constitution that allows the courts to function and that gives flexibility to the legislature to define the courts so it can meet the modern and changing needs of the courts, and remove the provisions that hamstring both the legislature and the judiciary from really making our courts an efficient system.

Peter Galie:

Richard, we thank you. First question from the audience: If you were advising us as citizens and we're coming to vote on this thing, this particular amendment, up-or-down? What's your recommendation?

Richard Rifkin:

Well, my first answer probably doesn't make much difference. um... because it's so small, it does next to nothing.

But if I were gonna vote on it, I believe that the idea of setting an artificial age of 70, in this day in age when people...I'm over seventy so I guess I have a biased view.

But when people reach the age of 70 in today's world many many people function very well and the idea of forcing people who are functioning well and serving well to leave the bench just because they've reached an age is totally artificial, and so to the extent that this gives a little bit more flexibility, I would urge you to vote yes on it.




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