Sixty-one Supreme Court justices may have reached the mandatory retirement age of 70, but they don’t have to leave the bench just yet. Several say they are hoping that a constitutional amendment now pending in the Legislature will extend their reprieve still further.
The 61 judges have been “certificated,” a process that allows judges who are found fit to serve to stay on the bench for up to three two-year terms before they must leave.
Thirty-one justices have been certificated for the first, second or third time this year. Court administrators say that figure and the number of certificated justices serving at any one time has remained fairly steady over the last decade. They will not say how many are denied certification or recertification.
Certification is available only to elected Supreme Court justices, of which there are 328. According to the Office of Court Administration, 64 of some 1,200 judges of all kinds left the bench last year due to death, resignation, retirement or defeat at the polls.
That compares to 50 in 2011 and 110 in 2010. Chief Judge Jonathan Lippman (See Profile) has attributed the decline since 2010 to a long-anticipated pay increase for judges that was authorized by a special state commission in 2011 and which went into effect last year.
Manhattan Commercial Division Justice Ellen Bransten (See Profile), one of 14 justices certificated this year for the first time, said many judges support second passage in the Legislature of an amendment that would extend the certification process to five terms and allow justices to serve until the end of the year in which they turn 80.
“We hope very much that the passage of the constitutional amendment that is pending in the state Legislature goes through, that it gets put before the voters and that the voters vote how they should vote, which is to allow people to stay so long as they can pass the certification process,” said Bransten, a justice since 1996.
Justice Charles Ramos, who is the longest-serving justice in the Commercial Division, also started his first term as a certificated justice this week.
“I would love it if they would extend it to 80,” he said. “Who wants to retire?”
The proposed measure, A8469/S5827 in 2012, would amend Article VI, §2, of the state Constitution.
It also would allow Court of Appeals judges, who must now retire at the end of the year in which they turn 70, to stay on the court until the conclusion of the year in which they turn 80.
Constitutional amendments must be passed by two separately elected Legislatures and ratified in a statewide referendum, which could be held this year or next, depending on legislative action.
The amendment is being sponsored by Assemblywoman Helene Weinstein, D-Brooklyn, and Senator John Bonacic, R-Mount Hope. It is backed by the OCA, which said in a memo that the current retirement rules are “arbitrary and obsolete” and that they deprive the Judiciary of some of the state’s most experienced judges.
Several judges who have been recertified were critical of the current retirement age, which was enacted in 1869.
“As long as we can do the job, and they really check on you to make sure, let us keep doing the job,” said Bronx Supreme Court Justice Richard Price, 74, who began his third, and last extended term this week. “I think it is a sin that Carmen Ciparick, who is so able, so bright and so fit, has to leave the bench.”
Ciparick was forced off the Court of Appeals and into retirement on Dec. 31 by the rules (NYLJ, Dec. 26) after serving 18 years. She will join Greenberg Traurig next week as of counsel.
Bonacic has reintroduced the constitutional amendment as S886 and plans to pursue its final legislative passage in 2013, said Langdon Chapman, counsel to the Judiciary Committee that Bonacic chairs.
Weinstein’s office did not respond to inquiries about the chances of final legislative passage. She is chair of the Assembly’s Judiciary Committee.
The Assembly gave first passage to the amendment last year by a vote of 116-21. The vote in the Senate was 61-1.
The certification process, which is authorized under Judiciary Law §115, requires elected Supreme Court justices seeking extra terms to undergo a physical examination. Opinions about the justices’ job performance are solicited from local bar associations and the administrative judges who oversee the applicants’ courts.
To be eligible for certification, a justice must be deemed indispensable to the operation of the courts. The final decision on applications is made by the joint administrative board of the courts, which is comprised of the four presiding justices of the Appellate Division departments and the chief judge.
Judges qualifying for certification may find their duties altered in some cases. For example, justices serving as administrators, such as Nassau County Administrative Judge Anthony Marano (See Profile), have traditionally had to relinquish their supervisory roles.
Certificated judges in 2013 include three Appellate Division justices: Helen Freedman (See Profile) and David Saxe (See Profile) in the First Department and Salvatore Martoche (See Profile) in the Fourth. All were notified on Dec. 31 by Governor Andrew Cuomo that they have been redesignated to continue sitting on their respective benches for at least the next two years.
Impact of a Raise
Freedman said that in addition to believing she can “do more for the general good” as a judge than in a possibly more lucrative job in the private sector, the pay raises that judges began receiving in April 2012 made her more inclined to stay on the bench.
“More than the money itself, it was the recognition [provided by]the raise,” she said. “The idea that we had gone 13 years without anything—13 years and three months, as a matter of fact. It was kind of embarrassing to tell other people about it, the fact that we were so far behind other courts in other states.”
The judges received 17 percent pay raises on April 1, 2012, and will get 4.4 percent salary increases on April 1, 2013. For Supreme Court justices whose annual salaries were stuck at $136,700 since 1999, that meant a jump to $160,000 last April and to $167,000 this April.
Justice Louis York of Manhattan (See Profile), who began his third certificated term this month, said the pay raise also factored into his decision to stay until he is 76.
“If the pay raise hadn’t come through, there would be a lot of anger and lack of morale and it is quite possible I would have gone on to seek private employment,” York said. “But it did come through and I decided it would be worthwhile to stay on at this point.”
Freedman and Saxe both turned 70 last year and are on their first certificated terms. Martoche, 72, is on his second.
Saxe said he is eager to dive into his 15th year on the Appellate Division.
“Seventy to me is not old,” he said. “I don’t feel old. I feel sharp. I feel interested in the work. It is still a challenge. I think that judges of this vintage are a resource for the court.”
Several judges opting to return echoed that sentiment.
“I love Monday mornings,” Saxe said. “I am excited about the cases. Even though I torture them, I love the lawyers. There is a lot at stake too. People work their lifetimes to build up their businesses and it matters a lot to them. And the stuff is interesting. It is not boring. It is not repetitive.”
Two Appellate Division justices, Anita Florio in the Second Department and Jerome Gorski in the Fourth, retired at the end of 2012.
A third, Second Department justice Ariel Belen, resigned because of dissatisfaction with judicial pay (NYLJ, Aug. 16).
Three Appellate Division justices were defeated for reelection—James Catterson in the First and E. Michael Kavanagh and Bernard Malone Jr. in the Third (NYLJ, Nov. 8).
The defeat of Malone, 69, thwarted his plans to seek certification at the end of 2013. He said he is looking for a position in a private sector, possibly as a JAMS arbitration and mediation specialist or with an Albany firm.
“I have not had more than one week vacation in 50 years, so I promised my wife that I would take two weeks,” said Malone, who was on the First Department bench from 2005 to 2008 and on the Third from 2008 to 2012.
Malone said he was frustrated by the year he spent “begging, also called campaigning” for votes in the seven counties of the Third Judicial District because of the prohibitions about what judges can and can’t say about their work on the bench while seeking reelection.
“Appellate Division judges in New York state are invisible to the public and when we do campaign for reelection and people ask us why they should vote for us, we can’t tell them,” said Malone, who favors the appointment of Appellate Division justices.
Malone said the rating he received from the state’s Independent Judicial Election Qualification Commission, which was higher than that of the two winning candidates, carried no apparent weight with voters.
Still, Malone said, “I knew how the system works. When I ran for reelection, I was prepared to accept the results. I do accept those results.”
A few judges left the bench for reasons other than retirement or defeat at the polls.
Penelope Clute, a former Clinton County district attorney, lost her seat after a decade on the Plattsburgh City Court because she was not reappointed to a new term by Plattsburgh Mayor Donald Kasprzak.
Former Monroe County Court Judge Frank Geraci was confirmed by the U.S. Senate as a federal judge for the Western District (NYLJ, Dec. 14), while former Suffolk County District Court Judge Dennis Cohen is now county attorney in Suffolk (NYLJ, Jan. 5).
Four sitting state judges died in 2012: Court of Claims Judge Lawrence Cullen (NYLJ, Nov. 27), Court of Appeals Judge Theodore Jones Jr. (NYLJ, Nov. 7), Brooklyn Supreme Court Justice Herbert Kramer (NYLJ, Nov. 6) and Brooklyn Supreme Court Justice Gustin Reichbach (NYLJ, July 17).
Cullen died before he could take the Queens Supreme Court seat he was elected to in November.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.