Governor Andrew Cuomo’s PowerPoint presentation to editorial boards in New York City, opposing the adoption of a constitutional amendment to raise the retirement age for some judges, borrowed heavily from a memorandum written by former New York City Corporation Counsel Victor Kovner, a longtime champion of merit selection of judges. The full text of Kovner’s memorandum is published immediately below this article.
After reading my article on Cuomo’s PowerPoint presentation, Kovner contacted me to advise that he was the author of the language that the governor had used in his presentation. As I reported last Friday (Oct. 18) that the key language in Cuomo’s PowerPoint presentation was that the amendment “impacts the ‘Wrong Courts’, provides relief to the ‘Wrong Judges’ and comes at the ‘Wrong Time.’ ” At my request, Kovner provided me with a copy of his memorandum. Click here to read my article.
The precise words Kovner used in the opening paragraph were, “In short, [the amendment] raises the retirement age for the wrong judges, to the wrong ages, in the wrong courts at the wrong time.”
The New York Daily News cited that language, attributing it to an “eminent court observer” in its editorial, published on Monday (Oct. 21) opposing the adoption of the amendment which would raise the retirement age of Court of Appeals judges to 80 from 70, and as practical matter extend the time Supreme Court justices can sit by four years to 80 from 76. Click here to read the Daily News editorial.
Also, in opposing adoption of the amendment yesterday, the Citizen Union, one of the New York City’s pre-eminent good government groups, incorporated many of the Kovner’s arguments in a statement explaining its stance. Click here for Citizen Union’s statement. On Oct. 14, the Albany Times-Union urged its readers to vote for the amendment. Click here to read the editiorial.
Though using the same slogans, Kovner’s reasoning was more nuanced, and less combative, than the governor’s presentation. Under the rubric of the “Wrong Time,” the PowerPoint raises the issue that approval of the amendment will be costly and wasteful by providing an added incentive for judges to “double dip” i.e. taking advantage of a loophole that allows judges who are appointed to a new court to collect a pension at the same time they receive a salary for their work on the new court. The Kovner memorandum did not mention the double-dipping issue.
The double-dipping issue raised by the governor at his meeting with the Daily News’ board meeting, had the scent of scandal, and once reporters from the Daily New raised the issue with OCA, a new rule was immediately issued squelching the issue for the justices who would benefit from a new retirement age. Click here to read the Daily News article.
OCA hustled out the rule change even though, according to its own figures, only 14 of the state system’s 1,100 judges have taken advantage of the anomaly that allows some judges to collect both a pension and salary. And only five of those would directly benefit if the amendment passes.
Similarly, under the heading of the “Wrong Judges,” the Cuomo presentation describes the amendment as protecting Republican-appointed judges on the Court of Appeals, two of whom would “get additional time on the bench.” Kovner makes no mention of party affiliation, but instead faults the “half a loaf” approach (my characterization) being taken by OCA in support of the amendment.
In meetings with good government groups, both Chief Judge Jonathan Lippman and Chief Administrative Judge A. Gail Prudenti have ardently argued in favor of a two-step process — first pass the current amendment, which will be before the state’s voter on election day, Nov. 5 — and then put forward an amendment that would raise the retirement age for judges sitting on New Yorks’ seven lower courts, including Family, Criminal, and Civil courts. The amendment covers about 30 percent of the state’s 1,100 judges. That would leave 70 percent of the state’s judges at the status quo unless a second amendment is adopted.
Kovner is unpersuaded that OCA’s strategy will work because of the amendment’s substance and its timing. In his memorandum, he cites statistics that the amendment would add 44 judges over the next four years at a cost of at least $22 million.
Kovner goes on to question OCA’s strategy as an “inefficient” way to increase the number of judges in Family, and other, lower courts. The raising of Supreme Court justices retirement age by four years from 76 to 80, he wrote, is “not in the public interest” because, while “some judges of that age” may be able to handle the intense pressures of a trial calendar, “many will not.”
In short, though he does not say so expressly, the amendment’s timing is off because it will sap public and legislative support for an attempt to win passage of a second amendment in 2015 to raise the retirement age of the remaining 70 percent of the state’s judiciary. Over the last several years, the state Legislature has refused to take up OCA sponsored bills to fund more Family Court judges.
Likewise, the current amendment is aimed at the wrong judges, since many of them are unlikely to be able to bear the burdens of a hectic trial calendar.