Federal Judges are appointed for life. The New York State Constitution requires that judges retire at the age of 70.
Mandatory retirement of judges is a constitutional issue because it is established in the State Constitution, and in order to change it in any way, the State Constitution would need to be changed. The requirement was instituted to ensure that judges did not become infirm due to old age while on the bench, but therein lies the issue.
The age requirement is arbitrarily set at 70 years of age, and does not reference ability. Some claim that mandatory retirement age requirements are discriminatory, and violate the equal protection clause of the US constitution. Others believe that the requirement was set at 70 years old early in the 20th century, and does not take into account that people live longer and are more productive in their advanced age now. They see the remedy as raising the age requirement.
One amendment (A4395/S886A) sought to provide just such a remedy, authorizing retired supreme court justices to serve as justice of supreme court until age 80. This proposal passed for the second time June, 2013 but was defeated by voters in November.
Currently, we lose our most experienced jurists at age 70. They have a lifetime of experience to draw from, and often decades on the bench. The current Constitution is serving to hamper our Judicial system instead of empowering it. The New York State Constitution sets an arbitrary limit to how old a person can be, and still serve on the bench. This limit does not in any way test the mental or physical acumen of the justices, but rather makes a sweeping generalization about the ablilities of judges of advanced age. As a result, we are pushing out some of our best judges on an arbitrary basis.
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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§25. b. Each judge of the court of appeals, 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 shall retire on the last day of December in the year in which he or she reaches the age of seventy.