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The Appellate Courts Committee of the New York County Lawyers Association (the “Committee”) is dedicated to promoting the efficient and fair administration of New York’s state and federal appellate courts. Given the Committee’s interest in the efficacy of New York’s appellate courts, the Committee believes that it is important to issue this statement regarding Governor Kathy Hochul’s Veto No. 196, signed on December 30, 2022, which vetoed Senate Bill Number 9341.
Under the New York State Constitution, justices of the Supreme Court, which necessarily includes those elevated to the Appellate Division, must retire on the last day of the year in which they reach the age of 70. N.Y. Const. art. VI, § 25(b). However, under the Judiciary Law, justices who have reached the mandatory retirement age may seek certification from the Administrative Board to continue to serve beyond the mandatory retirement age and up until the year in which the justice reaches the age of 76. N.Y. Judiciary Law § 115. As the New York Court of Appeals has stated, and as acknowledged in the Governor’s veto, the Administrative Board has “very nearly unfettered discretion in determining whether to grant applications of former Judges for certification.” Marro v. Bartlett, 46 N.Y.2d 674, 681 (1979); Gesmer v. Admin. Bd. of New York State Unified Ct. Sys., 194 A.D.3d 180, 185, appeal dismissed, 37 N.Y.3d 1103 (2021).
Senate Bill Number 9341, which passed both chambers of the legislature with only a single nay vote, was drafted to place sensible constraints on the Administrative Board’s discretion. Specifically, the bill would have amended the Judiciary Law to make certification automatic, as opposed to discretionary, if (a) the applying retired justice was deemed to have the capacity to continue to serve and (b) that justice’s continued service was necessary to expedite the court’s business.
The mandatory retirement age of 70 has grown increasingly arbitrary since the New York State Constitution was amended in 1869 to increase the mandatory retirement age from 60 to 70.1 As was argued eloquently by the sponsors of Senate Bill S4934 in support of the failed 2013 bid to amend the Constitution to increase the mandatory retirement age to 74, the retirement age of 70
shortchange[s] 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 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. 2
Indeed, senior justices serve as leaders on the appellate bench, and their mentorship helps guide those appellate jurists newly elevated by the Governor.
Moreover, New York’s courts are some of the busiest in the world.3 And New York’s appellate courts chronically operate below capacity because vacancies are not expeditiously filled. And fewer judges serving on the bench means more four-judge panels, which complicates judicial deliberations and dissents. Fewer judges also means that judges must sit more frequently, taking away precious time from their work in chambers, which necessitates greater reliance on brief memorandum decisions.
Perhaps most importantly, allowing the Administrative Board nearly unfettered discretion to grant or deny applications for certification jeopardizes the independence of New York’s judiciary. As the Honorable Judge Fuchsberg observed in dissent in Marro, under the current framework, a justice anticipating seeking or applying for certification must be “ever conscious of the fact that his or her tenure may be forfeit to unpopularity or nonconformity, be it the result of doctrinal differences, a lack of gregariousness, or any other expression of personality, ideology or style. Or, perhaps, just whim or caprice.” 46 N.Y.2d at 685. Senate Bill Number 9341 would have removed this yoke on judicial independence.
For the foregoing reasons, the Committee remains ardently convinced that the New York State court system would have benefitted from the bill becoming law.4
January 24, 2023
Steven Benathen & Scott Henney
Co-Chairs, Appellate Courts Committee
Vice Chair, Appellate Courts Committee
1 The New York State Senate, Senate Bull S4934, available at https://www.nysenate.gov/legislation/bills/2013/S4934#:~:text=%7B2%7D%20Age%2070%20was%20imposed,mandatory%20retirement%20at%20age%2060.
2 Id. (internal citations omitted).
3 New York Unified Court System, 2021 Annual Report 6 (2021), available at https://www.nycourts.gov/legacyPDFS/21_UCS-Annual_Report.pdf (“New York’s court system is one of the largest and busiest in the world, with typically 3 million filings a year heard in over 300 courthouses in 62 counties[.]”)
4 The New York County Lawyers Association was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence, including through the work of its many committees that provide in-depth analysis and insight into legal practice areas. The views expressed are those of the Appellate Courts Committee only and approved for dissemination by the President; these views have not been approved by the New York County Lawyers Association Board of Directors, and do not necessarily represent the views of the Board.