Should elderly judges be forced to retire?

In a few days, New Yorkers will vote on a referendum to amend the state constitution to raise the mandatory retirement age for some state judges. As The New York Times reports, "[I]t would raise the mandatory retirement age for State Supreme Court justices and Court of Appeals judges to 80. Currently, the State Supreme Court, a trial-level court, requires justices to leave at age 76; the Court of Appeals, the state’s highest court, has a cutoff at 70."

Proponents argue that the mandatory retirement age was adopted at a time when life expectancy was lower, and they note that other state officials are not forced into retirement. Chief Judge Judith Kaye calls the age restriction "bad public policy" because it forces "experienced judges [to] leave the bench when they are at the top of their game." She also says that raising the retirement age will keep skilled judges on the bench, and that these judges can be used to alleviate the pressure on lower courts with considerable backups.

Opponents, however, claim that the measure is flawed because lower court judges are not subject to the increase, and lower courts are under the most stress. "It leaves out lower-court judges," reports The Times, and they "make up about three-quarters of the 1,259 jurists in the state. These judges would still be compelled to step down at 70, yet they are the ones burdened with mountainous caseloads and backlogs."

Gov. Cuomo shares their concern, and his position has put him at odds with much of the state's legal establishment. But, the payoff might be worth it. As The Times observes:

If the amendment fails and he wins re-election next year, Mr. Cuomo will have a chance to replace four Republican judges in his second term, all appointed by Gov. George E. Pataki: Victoria Graffeo, Eugene F. Pigott Jr., Susan P. Read and Robert S. Smith. The amendment would extend the terms of Judge Pigott and Judge Smith.

The governor would also be able to name a new chief judge to replace Judge Lippman, who turns 70 in May 2015 and has butted heads with Mr. Cuomo over the judiciary budget. Passage of the would allow Judge Lippman to serve until 2023. Judge Lippman denied he wanted to extend his own time in office.

The bill he first proposed to the legislature did not include the Court of Appeals for that reason, he said. It was the Senate Republicans, led by Senator Dean G. Skelos, who added the high court to the mix, legislative aides said.

The Supreme Court addressed the constitutionality of mandatory retirement laws in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which it ruled inter alia that state judges are exempted from the Age Discrimination in Employment Act (ADEA). The question was whether state judges fall under the definition of "employee," which the ADEA says "shall not include...an appointee at the policy making level." Justice O'Connor authored the majority opinion, and she concluded:

We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly, though it does. Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state officials, "appointee on the policy making level" is sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not.

Justice Blackmun, joined by Justice Marshall, dissented by claiming that 1) the "structure and legislative history of the policymaker exclusion" inform the view that Congress did not intend for judges to be excluded; and, 2) that deference should be given to the EEOC's "reasonable construction" of the law.

The Court's decision was particularly interesting for its application of the Tenth Amendment and federalism concerns to invoke the plain statement rule, under which a federal law will be applied to state government activities only if Congress expressed a clear intent that the law have that effect. The Court concluded that Congress did not intend for the ADEA to apply to judges. Thus, states retained the authority to determine the qualifications for state judges.

Today, thirty-two states place mandatory-retirement restrictions upon at least some judges. Next week, New Yorkers will determine whether to amend the current restriction, but they appear unready to take that step. According to one poll from the Siena College Research Institute, New Yorkers oppose the amendment by a wide margin--71 to 27 percent.

While political realities render opposition understandable, New York's age restriction on some judges seems rather outdated. C.J. Kaye's claim that "the age limit has deprived the New York courts of great legal minds in their prime" might go too far, but judges over 70 likely have some good years left. If the amendment were to pass, the former restriction would be forgotten to history as fearful projections are usually mistaken ones.

While we wait for a decision, CRL&P knows of at least one state judge who ought to consider retirement.