JOSEPH F DEFELICE
When you vote on November 5, you will find a number of propositions on your ballot.
Proposition 6 refers to the maximum mandatory retirement age for certain judges of our state courts. In particular the proposal, which would amend Sections 2 and 25 of Article VI of the New York State Constitution, would permit justices of the Supreme Court, who now must retire at 70 years of age but can obtain three two-year extensions so that service actually can be extended to 76 years, to serve until 80 years of age. In effect, the proposal would allow justices of the Supreme Court to obtain five rather than three extensions so that their service could extend to the age of 80.
The proposed amendment would also allow judges of the Court of Appeals, this State’s highest court, who reach the age of 70 in office to remain in service on the Court of Appeals for up to 10 additional years in order to complete the term to which that judge was appointed.
As a background it should be noted that in 1777 the mandatory judicial retirement age under the State Constitution was 60 years of age. This remained in effect until 1894 when the mandatory retirement age was extended to 70 years of age, which is the current state of the law. So why should the present proposal be approved?
A study by the Advisory Committee on Judicial Ethics has demonstrated that people are living longer and healthier lives and that various studies have rebutted any presumption of incompetency at the age of 70. Further, the public policy of New York State since the 1980s has been to prohibit employers from subjecting their employees to mandatory retirement in both the public and private sectors.
If our public policy has prohibited such age discrimination, why should it be allowed for judges? Additionally, the current retirement age for judges in the only mandatory retirement age of its kind that remains in the New York State Constitution. It should also be noted that “judging” is usually a late peak occupation and that it is in the public interest that would be judges have had significant and long legal experience.
The craft of being a judge is one that benefits from immense past experience. Studies have also demonstrated that in states with higher judicial retirement age requirements, there is a high record of productivity for judges over the age of 70. In fact, there is no mandatory age requirement for federal judges. If they had the same requirement, former US Supreme Court Justices such as Earl Warren, William Brennan and Thurgood Marshall would have had to retire years before they actually did. In the case of Justice Brennan his term would have been shortened by 14 years and Justice Marshall’s by 13 years. Justice Antonin Scalia, who still currently serves on the US Supreme Court, would have needed to retire some seven years ago.
These are only a few examples of judges who have worked and been highly productive after the age of 70. The current ballot proposal makes sense and on November 5, you should vote YES to allow the mandatory retirement age to be extended to 80 years of age.
Joseph F DeFelice is an attorney practicing Criminal and Immigration law with offices in Kew Gardens, NY and is currently President of the Queens County Bar Association.
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