photo: Corbis
At 76, Howard A. Levine is too old to sit on the New York Court of Appeals, the state Constitution decrees.
But six years after being forced to step down from the court after reaching its mandatory retirement age, Levine is not too old to be senior counsel at Whiteman Osterman & Hanna in Albany, N.Y., to preside over arbitrations and mediations, to referee disputes before Manhattan Surrogate's Court, to testify as an expert witness on New York law in international commercial cases, to be co-administrator of Brooke R. Astor's estate or to be a member of the Commission on Public Integrity.
He also is not too old to argue before the Court of Appeals, which he did for the first time in November on behalf of the estate of a smoker who sued tobacco companies for marketing high-tar and high-nicotine cigarettes when "lighter" varieties were available.
"I have to tone down," Levine said in an interview. "I have really got myself tired."
Levine's crowded schedule is typical of what former Court of Appeals judges say they have experienced in "retirement" and illustrates the legal expertise that is lost to the court when judges like Levine or, on Wednesday, Chief Judge Judith S. Kaye, are forced to retire at the end of the year in which they turn 70.
"At 70, in a sense, you are still well in your prime," said Levine, who lost his case before the court. "You have a wealth of experience to draw upon and I surely felt that I was as mentally acute at 70 as I was 10 or 20 years earlier. ... It is a shame to waste that kind of accumulated wisdom that you gain through your experience and every year you gain a little more perspective on your role as a judge."
Chief Judge Kaye declined to be interviewed for this article. She has made occasional negative references to the mandatory retirement requirement, once saying experienced jurists were being forced from the bench to the "great detriment" of the courts.
Levine called the age ceiling, adopted in 1869 when life expectancies were in the 40s, "archaic." The current life expectancy for Americans is 78.
An admirer of Chief Judge Kaye and opponent of the court's retirement age, state Assemblywoman Helene Weinstein, D-Brooklyn, said the chief judge's seemingly boundless energy and good health should prompt a reconsideration of the mandatory retirement rule.
"I think if you need a reason why there should not be mandatory retirement for judges at 70, all you have to do is look at Judge Kaye," Weinstein, chairwoman of the Assembly's Judiciary Committee, said in an interview.
She cited advances in personal fitness and medical care that she said have made 19th-century notions of old age outmoded.
"I was just at an event where there were several 100-year-olds and somebody made a joke that 100 is the new 80," Weinstein said. "The reality is that people are living longer and, more importantly, are staying healthy longer, functioning longer and there is no rational basis for saying, 'This is the age and you can no longer serve.'"
However, the chairman of the Senate Judiciary Committee, John A. DeFrancisco, called mandatory retirement a "good thing."
"The Court of Appeals, the highest court in the state, has such a great role in deciding policies in the state of New York on many issues and it's always good to have new blood rather than waiting for somebody who should not be on the bench forever to leave," said DeFrancisco, R-Syracuse.
At least 23 states have mandatory retirement rules for judges, generally set at age 70 or 75, according to the National Center for State Courts.
Appointments to federal judgeships are for life, although district judges with 15 or more years of experience can accept senior status, and a reduced workload and staff, starting at age 65.
New York's judicial age limit is contained in Article VI, §25[b] of the state Constitution. It applies to all state-paid judges.
Supreme Court justices may seek up to three two-year extensions. Sixty-three of the 373 Supreme Court justices have certificated status, according to the state Office of Court Administration.
Amending the state Constitution to eliminate or modify mandatory retirement would require approval by two separately elected state Legislatures and of the voters in a statewide referendum.
VALID PUBLIC POLICY
The Court of Appeals entertained, and rejected, a challenge to the mandatory retirement age in 1984. Then-Judge Kaye joined in a 6-0 majority in Maresca v. Cuomo, 64 NY2d 242, in which the court held that valid public policy objectives were met by the mandatory retirement requirements and that changing rules established by the Constitution should be up to voters, not courts.
Judge Matthew J. Jasen, who wrote the opinion in Maresca, was facing mandatory retirement at the end of 1985. Judge Hugh R. Jones, who had to retire at the end of 1984, concurred, as did Judge Bernard S. Meyer, who retired at the end of 1986, the year he turned 70.
Michael Powers, Jasen's clerk from 1982 to 1984, said he discussed the mandatory retirement ruling often with Jasen.
"He essentially wrote an opinion that put himself out of work and put himself out of the office that he loved more than any other professional relationship that he had," said Powers, now with Phillips Lytle in Buffalo. "But it wasn't a difficult decision for him. He believed very, very deeply that the courts had their place and the Legislature had its place and the two should never try to usurp the other's function."
Jasen practiced law for nearly 20 years following his retirement from the court until his death in February 2006.
In 1999, a task force on mandatory retirement appointed by then-Chief Administrative Judge Jonathan Lippman and chaired by Walter M. Schackman proposed two methods to modify age limitations. However, the recommendations would not have permitted Court of Appeals judges to serve past 70.
One would have allowed state judges to take senior status as early as age 62 and require them to do so when they turned 70. They then would have been permitted to serve until 78 as long as they were certificated.
The other proposal would have extended the current certification system for Supreme Court justices to all state judges except those on the Court of Appeals and the Appellate Division.
The state Constitution gives Court of Appeals' judges who reach the mandatory retirement age the opportunity to submit to the certification process and serve on the Supreme Court bench.
Court of Appeals' Judge John F. Scileppi (1962-72), who served four additional years as a Suffolk County Supreme Court justice, is believed to have been the only judge in the last half century to take advantage of the provision.
Neither of the 1999 task force proposals was adopted by the Legislature. No bills to extend the retirement age are pending.
A certificated Supreme Court justice, Joseph G. Golia of Queens, is also president of the Association of Supreme Court Justices. His group wants to extend the mandatory retirement age for all state-paid judges to 80, with screening done when a judge reaches 70 and 75 to confirm his or her fitness to remain on the bench.
"There is no reason why judges are just thrown to the wind at age 70," said Golia, who is 70. "It should be at least 80, especially today. We are all living a lot older and we are all a lot healthier than we think. I feel like a kid."
In 2007, just after swearing in Chief Judge Kaye for what would turn out to be a 22-month second term as chief judge, then-Gov. Eliot Spitzer said he was "serious" about reviewing the court's mandatory retirement rules. However, Spitzer's administration soon became embroiled in a political and legal battle with the Senate and the former governor did not follow up on the retirement review before resigning in March 2008 due to a prostitution scandal.
Also last year, a New York State Bar Association task force recommended raising the retirement age for Court of Appeals' judges to 76 and extending the certification option to all state judges.
DIFFERING OPINIONS
Kaye's former colleagues on the Court of Appeals are divided about mandatory retirement.
"It is arbitrary, and in this day and age, it doesn't make a whole lot of sense," said Richard D. Simons, a Court of Appeals' judge from 1983-1997.
Simons retired from the bench on Dec. 31, 1996, at 69. He opted not to seek reappointment by then-Gov. George E. Pataki for one last year, when he would have had to step down due to mandatory retirement.
Simons has been counsel to McMahon & Grow in Rome, N.Y., since leaving the bench. He and Stewart F. Hancock Jr., a Court of Appeals member from 1986-94 before Hancock was forced to retire, also preside over the Oneida Indian Nation's independent court system.
"I am sitting here at almost 82 and I don't pretend that I have the vigor and clarity of mind that I had at 70, but I certainly could have gone on for four or five years," Simons said in an interview.
Former Court of Appeals Judge George Bundy Smith said there is "no longer any justification" for the mandatory retirement age of 70. He cited the long and active post-70 careers of Simons, Hancock and Levine as demonstrating the talent and wisdom lost to the court through mandatory retirement.
"All retired when they were, as far as I could see, at the height of their judicial skills and lawyering skills," said Smith, a judge from 1992 to 2006 who is now partner at Chadbourne & Parke. "I, for one, think that rule ought to be done away with."
Sol Wachtler and Joseph W. Bellacosa, both Former Court of Appeals judges, have endorsed a mandatory retirement rule, though Bellacosa suggested 75 may be a more realistic maximum.
"I think there is a value in having a constitutionally mandated retirement because it allows for freshness and generational changes that are important to institutions like courts," said Bellacosa, who left the bench in 2000 at 62 to become dean of St. John's University School of Law.
Despite the enormous energy Kaye has continued to show, Wachtler said, most judges inevitably slow down.
"After you have been on there for a while, you start slacking off a bit in your enthusiasm," said Wachtler, a member of the Court of Appeals from 1973 until his resignation in 1992. "It's not that you become a lesser judge, but it's just that ... there is a need for infusion of new blood and I think that this system allows for that."
