Governor Andrew Cuomo has lobbied editorial boards of New York City newspapers to oppose an amendment to the state Constitution, which would raise the required retirement age of Court of Appeals judges and Supreme Court justices to 80.
Since 1869, the state Constitution in Article 6, Section 25 has required all judges to retire at age 70. But an exception has been carved out for Supreme Court justices, who, if they are certificated by the Office of Court Administration as fit to sit on the bench, can serve until they turn 76. A referendum on the issue will go before the state’s voters on election day, Nov. 5
According to four slides in a power point presentation, which the Governor made at meetings with editorial boards in recent days, the amendment impacts the “Wrong Courts,” provides relief to the “Wrong Judges,” and comes at the “Wrong Time.” A copy of the power point presentation was made available to WiseLawNY. The governor’s office did not respond to a call requesting a comment.
Under the rubric of the “Wrong Time,” a slide asserts that the amendment will allow more judges to “double dip” by simultaneously collecting a pension and receiving a salary while sitting on the Supreme Court as a “certificated” justice. The result is that the justices will be taking home a total of “roughly” $300,000 a year. Justices currently receive an annual salary of $167,000.
An article in yesterday’s New York Daily News (Oct. 17) described Cuomo as arguing at a meeting with the newspaper’s editorial board that extending the retirement age of Supreme Court justices from 76 to 80 “could open the floodgates to more double dipping.” Click here to read the Daily News article.
According to OCA, only 14 of some 1,300 judges statewide have taken advantage of a loophole that allows judges, when they move from one court to another, to “retire” from the court they are leaving and collect a pension. Meanwhile they are paid a salary, often higher than previously, in their new position. Of the 14 collecting both a salary and pension, only five are are certificated justices between the ages of 71 and 76.
Nonetheless, the court system moved promptly to issue a rule that will bar the practice of double-dipping after the Daily News brought the issue to OCA’s attention. Click here for an article in today’s New York Law Journal (Oct. 18) about the new rule.
Other slides of the Governor’s presentation made the following negative points about the proposed amendment:
• “The amendment takes care of the political class: Supreme Court judges are nominated through the party machines rather than primaries.”
• “It also protects the Chief Judge, who will get to serve an additional 7 years under the amendment” and two Republican judges would get additional time on the bench.” All of this under the heading “Wrong Judges.”
• The amendment “only impacts State Supreme and Court of Appeals, exempting all trial courts.”
If the retirement age for Court of Appeals judges is raised to 80, Cuomo will lose the opportunity to appoint replacements for two of the seven judges on the Court: Chief Judge Jonathan Lippman and Judge Eugene Pigott Jr. Under the state Constitution as now written, Lippman would be required to retire at the end of 2015, the year in which he turns 70 as would Pigott in 2016. Assuming he has a second term, Cuomo would remain as governor until 2018.
Even if the amendment passes, Cuomo will retain the ability to appoint replacements for Justice Robert S. Smith and Susan Phillips Read, both of whom will be 70 or over when their 14-year terms on the Court expire in 2017. The amendment bars the governor from appointing or reappointing any judge to the Court who turns 70 in the year of his or her appointment.
Three judges are not affected by the amendment. Judge Victoria A. Graffeo, a Republican, who is 62, comes up for reappointment in 2014, and Cuomo will have to decided whether to reappoint her if she seeks it. Earlier this year, Cuomo made his first two appointments to the bench, Judges Sheila Abdus-Salaam and Jenny Rivera, both Democrats. Neither will turn 70 until well after Cuomo has left office.
Limited Impact on Appellate Division Appointments
The amendment operates differently with respect to Supreme Court justices. Under current law, Supreme Court justices must retire at age 70 but are eligible to be “certificated” by the Office of Court Administration as fit to remain on the bench for three additional two-year terms until they are 76.
The amendment would extend the number of certificated terms “retired” justices are eligible to receive to five. The bottom line is that the amendment would allow most justices to serve an additional four years until they turn 80. As a practical matter, OCA finds most justices fit for continued service, and that practice would likely continue whether the limit is 76 or 80.
In terms of judicial selection, the governor is responsible for the appointment of judges to two courts: the Court of Appeals and the Appellate Division, which consists of four separate departments, each with their own judges.
I reviewed the ages of the 53 judges now sitting in the four departments of the Appellate Division, and found that the application of the amendment would have limited impact upon the governor’s appointment authority. I found only three Appellate Division justices whom the amendment would save from a forced retirement during a two-term Cuomo governorship: Justice Karla Moskowitz in the First Department, who without the amendment would be required to step down in 2017; Justice Edward O. Spain, who likewise would be required to leave the bench in 2017; and Fourth Department Justice Salvatore Martoche in 2016.
Several lawyers, who asked not to be identified, said they could understand that Governor Cuomo would be dismayed by the amendment, particularly because it would deprive him of the ability to select the next chief judge of the Court of Appeals. “It has all the earmarks of a political deal engineered by Lippman and Assembly Speaker Sheldon Silver to box the governor in,” said one. Noting that Lippman and Silver grew up together on Manhattan’s Lower East Side and have remained close since,” the lawyer added, “The legislature didn’t do that for [Lippman’s predecessor] Chief Judge Judith S. Kaye.”
But John Moscow, a partner at Baker & Hostetler, pointed instead to policy reasons why the governor might oppose the lifting of the age limit. Extending the age limit, he said, tends “to freeze the bench as it is and makes it more difficult for new groups to have an impact on the selection of judges.” It also “denies the governor the right to influence selections and in some cases to make new appointments,” he added.
Judge Smith, who as noted above will have to retire in 2017, even if the amendment passes, described the 70-year age limit as an anachronism. Compared to 1869 when the limit was set at 70, he wrote in an op-ed piece in the Daily News, “Today, most judges in their 70s have the brains and energy to do as good a job as they ever did—maybe even better, because judging is a job in which long experience helps. Under current rules New York is firing a lot of talented employees when they are in top form.”
David Bookstaver, OCA’s spokesman, noted that in 1869 the average life expectancy was only 40 years. He added that passage would provide a boost in judicial firepower, which “will finally provide the judiciary with the resources to address the backlogs in many of our courts.”
“In the last 20 years,” he pointed out, caseloads have increased by 50 percent and judicial resources only by 8 percent.” The amendment will address that dichotomy,” he added.