New York Mandatory Judicial Retirement Age Amendment, Proposal 6 (2013)

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Proposal 6
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Type:Constitutional amendment
Constitution:Article VI
Referred by:New York Legislature
Topic:State judiciary
Status:Defeated Defeatedd

The New York Mandatory Judicial Retirement Age Amendment, Proposal 6, was on the November 5, 2013 ballot in New York as a legislatively-referred constitutional amendment. It was defeated.

The measure would have increased the maximum age of judicial service to 80 for Justices of the Supreme Court and Judges of the Court of Appeals.[1]

State Representative Helene Weinstein (D-41) sponsored the measure in the state legislature as Assembly Bill 4395.[2]

When the Proposal 6 appeared on the ballot, Justices of the Supreme Court were required to retire in the year they turn 70, but were eligible to continue to perform their duties for three additional two-year terms upon certification of need for their services and competency to perform full duties. Judges of the Court of Appeals were required to retire in the year they turn 70. Since Proposal 6 was defeated, it did not change these stipulations.[1]

Election results

Below are the official election results:

Proposal 6
ResultVotesPercentage
Defeatedd No1,476,64658.17%
Yes 1,061,662 41.83%
These results are from the New York Board of Elections.

Text of measure

New York Constitution
Seal of New York.png
Preamble
Articles
IIIIIIIVVVIVIIVIIIIXXXIXIIXIIIXIVXVXVIXVIIXVIIIXIXXX

Ballot summary

The official ballot text read as follows:[3]

Increasing Age until which Certain State Judges Can Serve

The proposed amendment to the Constitution, amending sections 2 and 25 of article 6, would increase the maximum age until which certain state judges may serve as follows: (a) a Justice of the Supreme Court would be eligible for five additional two‐year terms after the present retirement age of 70, instead of the three such terms currently authorized; and (b) a Judge of the Court of Appeals who reaches the age of 70 while in office would be permitted to remain in service on the Court for up to 10 years beyond the present retirement age of 70 in order to complete the term to which that Judge was appointed. Shall the proposed amendment be approved? [4]

Constitutional changes

Proposal 6 would have amended Section 2 and Section 25 of Article VI of the Constitution of New York to read:[5]

Section 2

e. The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals; provided, however, that no person may be appointed a judge of the court of appeals unless such person is a resident of the state and, has been admitted to the practice of law in this state for at least ten years and who has not reached the last day of December in the year in which he or she reaches the age of seventy. The governor shall transmit to the senate the written report of the commission on judicial nomination relating to the nominee.

Section 25

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. Each judge of the court of appeals shall retire on the last day of December in the year in which he or she reaches the age of eighty. Each such former judge of the court of appeals and justice of the supreme court may thereafter perform the duties of a justice of the supreme court, with power to hear and determine actions and proceedings, provided, however, that it shall be certificated in the manner provided by law that the services of such judge or justice are necessary to expedite the business of the court and that he or she is mentally and physically able and competent to perform the full duties of such office. Any such certification shall be valid for a term of two years and may be extended as provided by law for additional terms of two years. A retired judge or justice shall serve no longer than until the last day of December in the year in which he or she reaches the age of seventy-six eighty. A retired judge or justice shall be subject to assignment by the appellate division of the supreme court of the judicial department of his or her residence. Any retired justice of the supreme court who had been designated to and served as a justice of any appellate division immediately preceding his or her reaching the age of seventy shall be eligible for designation by the governor as a temporary or additional justice of the appellate division. A retired judge or justice shall not be counted in determining the number of justices in a judicial district for purposes of subdivision d of section six of this article.

Background

In the 1777 New York Constitution, the section regarding judicial retirement stated, “[T]hat the chancellor, the judges of the supreme court, and first judge of the county court in every county, hold their offices during good behavior or until they shall have respectively attained the age of sixty years.” At the Constitutional Convention of 1821, this mandatory retirement provision was reconfirmed in the state’s constitution. At the Constitutional Convention of 1846, the provision was excluded. Then, at the Constitutional Convention of 1867, an article was revised to once again include mandatory judicial retirement at the age of 60. At the Constitutional Convention of 1894, the mandatory retirement age was increased to 70. This was reaffirmed five times at constitutional conventions in 1915, 1921, 1938 and, with different wording, in 1961 and 1966. Thus, the state has had a mandatory judicial retirement age since the Revolutionary War.[6]

At the time of Proposal 6's defeat, New York was one of fifteen states with laws that required judges to retire at age 70. At the time, 32 states had a law on judicial retirement age, though none were lower than age 70, and federal judges did not have mandatory retirement dates. Of current New York state judges, nine will face required retirement between 2013 and 2017.[7]

One of Governor Cuomo’s (D) primary concerns was older judges “double-dipping,” meaning collecting both a salary and a pension. On October 16, 2013, the state court system unexpectedly announced a decree disabling working judges from receiving a pension until full retirement from any judiciary roles. Previously, a judge could retire from one position, thereby collecting a pension, then serve on another court, thereby collecting a salary. Fourteen of the state’s judges were “double-dippers.”[8]

Support

The measure was sponsored by State Representative Helene Weinstein (D-41).[5]

Justice for All, Inc. led the campaign in support of Proposal 6.[9]

Supporters

Officials

Organizations

  • Justice for All 2013[9]
  • New York City Bar Association[17]
  • Brooklyn Bar Association[16]
  • Bronx County Bar Association
  • Richmond County Bar Association
  • Jewish Lawyers Guild
  • Puerto Rican Bar Association
  • Dominican Bar Association
  • Black Bar Association of Bronx County
  • Women’s Bar Association of the State of New York
  • LGBT Bar Association of Greater New York
  • New York County Lawyers Association[12]
  • New York State Trial Lawyers Association
  • New York State Academy of Trial Lawyers
  • New York State Court Officers Association
  • New York State Supreme Court Officers Association
  • Detectives’ Endowment Association
  • Fund and Committee for Modern Courts[12]
  • Structural and Ornamental Ironworkers[9]
  • Bricklayers and Allied Craftworkers Local #2
  • Sheet Metal Workers’ International Association, Local Union No. 83.

Arguments

The seal of the New York Court of Appeals

The Advisory Committee on Judicial Ethics issued and circulated a memo giving judges supportive talking points for Proposal 6
. The talking points included:[18][19]

  • The memo argued that "people are living longer and healthier lives." It furthermore stated, "Studies have rebutted the constitutional "presumption" of incompetency at age 70."
  • Other public policies, especially those regarding retirement ages, disfavor "mandatory retirement requirements." For example, "It has been the public policy of New York State since the 1980s to prohibit employers from subjecting their employees to mandatory retirement, in both the public and private sectors [N.Y. Executive Law, Article 15, Section 296(3-a)]." Also, "The statutory retirement age for judges is the only mandatory retirement age of its kind that remains in the New York State Constitution."
  • "Judging," stated the memo, "is a 'late peak' occupation." The statement continued, "Public interest requires that would-be judges have had significant and years' long legal experience... Judging is a craft that benefits immensely from past experience."
  • Records from other states with no or higher judicial retirement requirements demonstrated high productivity by judges over 70.
  • The proposal would provide additional judicial resources at a time when these resources are critically needed.
  • The proposed amendment does not limit opportunities for judicial service to others.
  • Passage of the measure will make it easier to achieve broader retirement age reform in the future. The memo stated, “Passage of the current amendment will make it easier for the Legislature to adopt a bill permitting judges of... other courts to serve after the age of 70.”


Other arguments for the measure included:

  • Professor Vincent Bonventre of the Albany Law School said that constituents are best served by judges with experiential wisdom, something that judges forced to retire have.[15]
  • Judge Robert S. Smith said, "So if you care about the quality of the judiciary, you should vote yes on Proposition 6. And if you don’t care about the quality of the judiciary — if you are just a cheapskate who doesn’t like to spend taxpayer dollars — you should still vote yes, because it’s not a good deal to give taxpayer-subsidized pensions to judges who could be working, but aren’t."[20]
  • In preceding years, New York's courtrooms saw an increase in court cases while the number of judges remained the same. At the time of Proposal 6's defeat, the number of trial court judges was mandated by law and had not seen an increase despite growing caseloads. Judge Lippman said that judges who stay on longer could help alleviate the state's overburdened court system. Judge Knipel elaborated, "According to the state Office of Court Administration, caseloads have increased 50 percent in the last 20 years while judicial ranks have grown only eight percent. Forcing judges to retire while they are still willing and able to work exacerbates the shortage."[7][16]

Campaign contributions

Supporters of Proposal 6 raised $632,080.

The following data was obtained from the New York State Board of Elections. The following were committees registered in support of Proposal 6:[21]

PAC info:

PAC Amount raised Amount spent
Justice for All, Inc. $632,080 $632,080
Total $632,080 $632,080

Top 5 contributors:

Donor Amount
Kramer, Dillof, Livingston & Moore $100,000
Duffy & Duffy, PLLP $50,000
Block, O’Toole & Murphy LLP $25,000
Gair, Gair, Conason, Steigman, Etc. $25,000
Sullivan Papain Block McGrath & Cannavo P.C. $25,000

Opposition

Opponents

Arguments

Arguments against Proposal 6 included the following:

  • The current retirement age allows for more rotation and new judges, allowing the courts to not be ruled by a few individuals for long periods of time.[11]
  • Regarding issues of demographic diversity, New York City Councilman Charles Barron (D-42) said, "Too often, it's white males that stay there for a tremendously long time. So I think any kind of legislation that perpetuates the status quo, that keeps them in longer is not good for Democracy, is certainly not good for the black, Latino and Asian community."[22]
  • As people age, their health needs increase. Increasing the retirement age for judges will cost taxpayers money.[11]

Media editorial positions

See also: Endorsements of New York ballot measures, 2013

Support

  • Adirondack Daily Enterprise said, "Vote yes to Proposal 6... Of all jobs, this is one that requires wisdom and insight - qualities traditionally seen as increasing with age, as long as dementia or other ailments are held at bay. We know many 70-somethings who continue to have their act together enough to continue careers, and we see no reason to force them out to pasture."[24]
  • Albany Times Union said, "Why is the state still using a standard set just after the Civil War?... Ultimately, the question before voters is whether this is a good move for New York's justice system, not one judge's or another's career. Clearly, it is. New York should end the practice of putting seasoned, capable judges out to pasture."[25]
  • The Herald-Leader said, “We recommend you vote yes... How many other 70-somethings do you know who continue to have their act together enough to continue careers and, in some cases, to be better than ever at their jobs? We know many and see no reason to force them into retirement.”[26]
  • Livingston County News said, “The current requirement deprives New Yorkers of the services of judges whose abilities are not impacted by age. There is no justification for a constitutional presumption of senility in New York State! The amendment should be approved.”[27]
  • New York Post said, “This coming Tuesday, New Yorkers will be asked to vote on an amendment to the state Constitution that would raise the mandatory retirement age to 80 for judges on its top courts. We find it a reasonable and long-overdue reform.”[28]
  • New York Times said, "The judicial retirement ages embedded in New York State’s Constitution are a relic of a time when average life expectancy was much shorter than it is today. A sensible proposal on the Nov. 5 ballot, Proposition 6, would modestly extend the age limits for certain state judges and help ease court system backlogs by allowing seasoned judges to stay on past age 70. We urge voters to approve the change."[29]
  • The Observer said, “Over the next four years, it is estimated that New York state will lose more than 40 members of the Supreme Court and three members of the Court of Appeals due to this mandatory retirement age that applies to no other public official in the state.”[30]
  • Poughkeepsie Journal said, "What’s more, experience matters, especially when we are talking about handling the intricacies and complexities of court proceedings. New Yorkers should want the best and most-qualified people to serve on the bench. Period... Voters have good reasons to approve the proposal giving judges the opportunity to stay on the bench in the older and most-informed years."[31]
  • Staten Island Advance said, "Proposition 6 will strengthen our judiciary by retaining experienced and qualified justices without in any way diminishing or delaying the timing of new Supreme Court justices being elected. The net result will be more Supreme Court justices to handle the ever growing caseload and a more efficient and effective judicial system... Vote YES on Proposition 6!"[32]
  • Watertown Daily Times said, "The current requirement deprives New Yorkers of the services of judges whose abilities are not impacted by age. There is no justification for a constitutional presumption of senility in New York State! The amendment should be approved."[33]

Opposition

  • The Buffalo News said, "While the current retirement age, which was set in the 1800s, is clearly too low, we urge a “no” vote. The proposal affects only some judges in the state: Supreme Court and Court of Appeals. If, as proponents say, citizens will benefit greatly by keeping experienced judges on the job, why doesn’t it apply to all of the state’s more than 1,100 judges?"[34]
  • NY Daily News said, "What started out as a reasonable attempt to raise the mandatory retirement age for all of the state’s judges by a few years wound up on the November ballot as a mishmash of a constitutional amendment... As one eminent court observer put it, the proposed amendment “raises the retirement age for the wrong judges, to the wrong ages, in the wrong courts, at the wrong time.” On balance, vote no on Proposition 6."[35]

Polls

See also: Polls, 2013 ballot measures

In September 2013, the Siena Research Institute of Siena College released a poll that asked 807 voters if they support or opposed Proposal 6. The question submitted to voters read:

Another proposed constitutional amendment on the ballot would increase the mandatory retirement age of certain judges - including those on the state's highest court - from 70-years-old to 80-years-old. If you were voting today and were asked whether that amendment should be approved, would you vote yes or no?[4]
New York Proposal 6 - Support vs. Opposition
Poll Support OppositionUndecidedMargin of ErrorSample Size
Siena Research Institute
September 22-26, 2013
26%71%2%+/-3.4807
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to editor@ballotpedia.org.

Controversies

“Jonathan’s Law”

Assembly Speaker Sheldon Silver (D-65) helped push the amendment and some critics suspected he did so to help his lifelong friend, then-Chief Judge of the New York Court of Appeals Jonathan Lippman. Sheldon urged Former Governor David Paterson to name Lippman the Chief Judge in 2009. Critics noted that Silver had no interest in raising the retirement age until Lippman’s service on the Court of Appeals. Because of this, the New York Post deemed the amendment “Jonathan’s Law.”[36] New York City Councilman Charles Barron (D-42) said, "Shelly Silver has a way of sneaking things in. He probably cut some deal somewhere. Trying to help some of his pals." A spokesperson for Silver stated that this controversy was "nonsense."[22]

Judicial advocacy

When Proposal 6 appeared on the ballot, judges were not allowed to raise money or campaign for ballot measures in New York. Dick Dadey, the Executive Director of Citizens Union, expressed concern over whether or not judges were "campaigning" in support of Proposal 6. He said, "It's ethically permissible for judges to participate in appropriate advocacy on matters that improve the administration of justice. Their involvement in making the case is acceptable. What becomes questionable is the intensity of the advocacy. We've never had something like this in decades, so we're not used to seeing impartial judges advocating public policy matters."

David Bookstaver, the spokesperson for the Office of Court Administration, said that advocacy material was drafted with constraints in mind. He said, “On any piece of legislation or any referendum, we look carefully at what we can do. We can't raise money, we can't do campaigning, but we can certainly tell the public why this is good for the court system. The judges should know why and be able to tell the public why.”
[19]

Path to the ballot

See also: Amending the New York Constitution

According to the New York Constitution, a majority vote is required in two successive sessions of the New York State Legislature in order to qualify an amendment for the statewide ballot.

Proposal 6 was referred to the ballot after being approved by both houses in successive terms by simple majority. A4395 was approved for a second time by the New York State Senate on June 21, 2013.[37] A4395 was approved for a second time by the New York State Assembly on February 28, 2013.[5]

Senate vote

June 21, 2013 Senate vote

New York Proposal 6, A4395 Senate Vote
ResultVotesPercentage
Approveda Yes 54 85.71%
No914.29%

Assembly vote

February 28, 2013 Assembly vote

New York Proposal 6, A4395 Assembly Vote
ResultVotesPercentage
Approveda Yes 117 82.39%
No2517.62%

See also

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Suggest a link

External links

Additional reading

References

  1. 1.0 1.1 1.2 1.3 1.4 1.5 New York Board of Elections, "Proposed Constitutional Amendments," accessed September 27, 2013
  2. New York State Assembly, "Assembly Bill 4395," accessed September 18, 2013
  3. New York State Board of Elections, "Proposed Constitutional Amendments," accessed September 13, 2013
  4. 4.0 4.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  5. 5.0 5.1 5.2 5.3 New York State Assembly, "Assembly Bill 4395," accessed July 17, 2013
  6. Gavel to Gavel, "New York Proposal 6: State has had mandatory judicial retirement age since Revolutionary War," September 24, 2013
  7. 7.0 7.1 7.2 7.3 Gotham Gazette, "How Old Is Too Old To Judge In NY? Voters Will Decide," October 1, 2013
  8. NY Daily News, "Older state Supreme Court judges no longer able to collect salary and pension simultaneously," October 17, 2013
  9. 9.0 9.1 9.2 9.3 9.4 9.5 Justice for All, Inc
  10. The Wall Street Journal, "New Retirement Age Sought for Judges," June 4, 2013
  11. Cite error: Invalid <ref> tag; no text was provided for refs named njlaw
  12. 12.0 12.1 12.2 12.3 Law 360, "Voter Apathy Could Doom Later Retirement For NY Judges," September 16, 2013
  13. Cite error: Invalid <ref> tag; no text was provided for refs named justice2013
  14. The New York Times, "Too Old to Judge? Albany Reconsiders," June 4, 2013
  15. 15.0 15.1 Greenwich Times, "NY voters could push top judges' retirement to 80," September 26, 2013
  16. 16.0 16.1 16.2 Brooklyn Daily Eagle, "Increase in judicial retirement age gains support," October 17, 2013
  17. Legal Newsline Legal Journal, "N.Y.C. Bar Association backs proposal to raise mandatory retirement age to 80," October 8, 2013
  18. State of New York Unified Court System Third Judicial District, "Memorandum 3JD/2013/M-23," accessed October 21, 2013
  19. 19.0 19.1 Capital New York, "In memo, judges share retirement-age talking points," October 21, 2013
  20. New York Daily News, "Let judges serve in their prime years ," October 3, 2013
  21. New York State Board of Elections, "Campaign Financial Disclosure," accessed October 25, 2013
  22. 22.0 22.1 22.2 22.3 Rochester YNN, "Should the retirement age of judges be raised?," October 10, 2013
  23. Daily Courier-Observor, "Gray says vote no on casino gaming proposition," October 20, 2013
  24. Adirondack Daily Enterprise, "One no and five yeses on back of ballot," November 4, 2013
  25. Albany Times Union, "Editorial: Raise the age for judges," October 13, 2013
  26. The Leader-Herald, “Let judges serve until 80”, November 1, 2013
  27. Livingston County News, “Voters are asked to OK 5 worthy proposals”, November 3, 2013
  28. New York Post, "NY’s highest court judges should stay another decade," November 1, 2013
  29. New York Times, "For Extending New York’s Judicial Terms," October 27, 2013
  30. The Observer, “ENDORSEMENT: Propositions get backing”, November 1, 2013
  31. Pughkeepsie Journal, "Raise retirement age for judges in N.Y.," October 29, 2013
  32. Staten Island Advance, "Vote 'Yes' on Proposition 6," October 26, 2013
  33. Watertown Daily Times, "Worthy proposals," October 27, 2013
  34. The Buffalo News, "State proposals: Yes to casinos and Adirondack land deals, no to judicial retirement age," October 26, 2013
  35. NY Daily News, "The age-old question," October 21, 2013
  36. New York Post, "Shel's court 'favor'," March 4, 2013
  37. New York State Senate, "Senate vote on Assembly Bill 4395," accessed July 17, 2013