BILL NUMBER:S4934

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 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


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
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.

2011-12 Legislative History: OCA 2011-30 Senate 4587-B (Sen. Bonacic)
(Rules)

2010 Legislative History: OCA 2010-87

{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 180481 (1995).

{4} See Staudinger, Cornelius & Baites, 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 ranging from 72 to 90.