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Originally Published: October 22, 2013

Good Government Group believes constitutional amendment is misplaced reform

Too small and insufficient a measure when far greater

Reforms are needed in State’s Judicial System

Citizens Union Board Chair Peter Sherwin and Executive Director Dick Dadey today announce that Citizens Union opposes the ballot proposition amending the state constitution by extending the retirement age for only certain state judges.  

Citizens Union is pragmatic in working for and achieving reform to our state government and appreciates that effective reform is often achieved in increments.  We are concerned, however, that the reform proposed by this amendment is too small a change. Citizens Union’s concerns are as follows:

  1. It is too selective in whose retirement age gets raised because it applies only to certain state judges and does so irregularly.
  2. It establishes different retirement ages for Court of Appeals judges based simply on the time when they are appointed or reappointed.
  3. Insufficiently addresses the need to create new Family Court judicial seats by transferring judges from the Supreme Court to sit in Family Court.
  4. It does very little to make the court system more efficient.

To understand Citizens Union’s reasoning, it is important to know first the specifics of the proposal.  

All New York State judges must currently retire at age 70; however, justices of the Supreme Court (one of the State’s trial courts) can remain until 76 upon being “certificated.”  This process requires the state’s court administrators to find the Supreme Court justice physically and mentally capable of performing her or his judicial duties, and that there is a need for the justice to continue to serve in the court system.  A justice continuing past age 70 must undergo this certification procedure every two years during the period from age 70 to 76. The amendment would increase the age at which Supreme Court justices may remain on the bench from 76 to 80, using the certification process.

The amendment would additionally permit judges of the State’s highest court, the Court of Appeals, to remain on the bench beyond age 70 without any certification process to finish out his or her term but not beyond age 80; if a Court of Appeals judge’s term expires after age 70, he or she would not be eligible for reappointment.

Citizens Union believes there is no principled reason for raising the retirement age for only two groups of judges – judges of the Court of Appeals and the Supreme Court – and not having the same apply to the majority of the state’s judges.  Further, even the amendment’s limited changes appear arbitrary. Supreme Court justices would be certificated, but no such evaluation process would be in place for Court of Appeals judges to determine whether they are able to perform the duties of the office.  In addition, Court of Appeals judges whose terms expire while in their 70s have to leave the bench immediately before reaching 80 and cannot be reappointed, whereas those judges whose terms expire in their late 60s can be reappointed to serve until 80. Their retirement age will thus be determined by the vagary of their age at the time of appointment.  

Proponents of this measure argue that it will provide additional judges to a court system that badly needs them.  Citizens Union believes, however, that on balance this is not a particularly effective way to address that need. Citizens Union has supported reforms to the judicial system to simplify and modernize the state’s court system by consolidating the nine trial courts into a two-tiered system.  While we recognize that this reform has not yet gained sufficient traction, we believe that this limited- effect amendment is not a substitute for this important and much needed systemic reform, which would address more effectively the shortage of judges and provide for greater efficiencies in the court system.  The State Legislature also currently has the authority to create additional judgeships in many courts, particularly in New York’s Family Courts where the number of judges has not kept up with the burgeoning caseload.

The current certification process for Supreme Court justices over 70 is also ineffective, in that virtually all justices who seek to remain on the bench past age 70 have been permitted to do so.  To address this concern, the Chief Judge of the State of New York has proposed improvements to the certification process, including providing for a public hearing process. We applaud the Chief Judge for proposing improvements to the process, which are needed and should be implemented regardless of whether this amendment is adopted.

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