Rather Than Institutionalize Inequality in the Judiciary, Voters Should Vote “No” on Proposal 6

Written by City & State on . Posted in Opinion, Trials/Hearings.

By Dick Dadey

The proposed amendment to the state constitution allowing casino gambling in New York State has received loads of attention, yet another equally important one—raising the retirement for some state judges— has received little. The amendment, Proposal 6, has been widely discussed within the legal community, but is barely known about by the larger public. As a nonpartisan good-government watchdog organization concerned with the form and function of government, Citizens Union believes the amendment is too small and uneven a change to deserve support from the voters.

Citizens Union is pragmatic in working for and achieving reform, and appreciates that reform is often achieved in increments. This too-small-a-step proposal, however, falls short because it is too selective in whose retirement age gets raised, and does so irregularly. It also fails to adequately address a central issue: Our state court system has too few judges spread over too many court systems handling too many cases that take far too long to resolve. The result is delayed justice for too many New Yorkers.

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,” which deems the justice capable of performing her or his judicial duties. A justice continuing past age 70 must undergo this certification procedure every two years until age 76. The amendment would increase the retirement age for Supreme Court justices to 80, using the certification process.

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

Confused yet? That may be because even the amendment’s limited changes appear arbitrary, and there is no principled reason for raising the retirement age for only two groups of judges—who do not even constitute the majority of the state’s judges. That a certification process would be required for Supreme Court Justices but not for Court of Appeals judges would result in unequal treatment among judges.

Court of Appeals judges whose 14-year terms expire while they are in their 70s have to leave the bench immediately before reaching 80 and could not be reappointed, whereas those judges whose terms expire before they turn 66 could be reappointed and serve until 80. Their retirement age will thus be determined by the vagary of their age at the time of appointment—yet another example of the uneven application of the amendment.

Proponents of this measure argue that it will provide additional judges to a court system that badly needs them. We agree that more judges are needed in the lower courts, but this amendment is not an effective way to address the problem. Citizens Union has supported much stronger medicine to simplify and modernize the state’s court system by consolidating the nine trial courts into a two-tiered 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—and has neglected to use this important power.

A further criticism of the proposal is that the current certification process for Supreme Court justices is ineffective. To address this concern, the chief judge has proposed improving the certification process, including providing for a public hearing process. We applaud the chief judge for these proposed changes, which should be implemented regardless of whether this amendment is adopted.

This proposed amendment is well-intentioned in that it would remove an outdated retirement age requirement for certain judges. But what is good for some judges should be good for all judges. It is a shame that the state Legis-lature has recommended a proposal that essentially takes our state judiciary— which is tasked with providing equal justice under the law—and institutionalizes inequality among our judges by creating different retirement ages. New Yorkers deserve better. Let’s hope the voters feel the same on November 5.

Robert B. Smith argues for raising the age limit for judges.

Dick Dadey is the executive director of the good-government group Citizens Union of the City of New York.

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