There are a number of other matters affecting the fair administration of justice that could be considered if a Constitutional Convention is convened.
- Raise the Mandatory Judicial Retirement Age
- Eliminating or Reforming the Judicial Convention System
- Certification of All Judges
- Public Financing of Judicial Elections
- Monetary Jurisdiction of Civil and District Courts
- Housing Court Judges
- Simplify Article VI
Raise the Mandatory Judicial Retirement Age
The mandatory retirement age of judges and justices in New York State is 70 years of age except for Supreme Court justices who can be “certificated” to serve for three additional two year terms beyond 70 until the year in which they reach 76. [Art. VI, § 25(b)].
Modern Courts has supported increasing the retirement age of judges and justices in the past given that the current mandatory retirement age of 70 was enacted in the Constitution in 1869 when the average life expectancy was below 50 years of age; today it exceeds age 80 in New York State. Many individuals who have reached the age of 70 have a substantial number of productive years ahead of them and many states and the federal judiciary permit judges to serve past the age of 70.
Modern Courts previously supported a Constitutional amendment to raise the judicial retirement age on a limited basis – 80 years old for only Court of Appeals judges and Supreme Court justices. It should be noted that this Proposal was rejected by the voters in November 2013.
Modern Courts believes that the retirement age of all judges and justices should be increased.
Eliminating or Reforming the Judicial Convention System for Supreme Court Justices
The Constitution states that Supreme Court Justices “shall be chosen by the electors of the judicial district in which they are to serve.” [Art. VI, §6(c)]. Under the authority of this provision of the Constitution, the Legislature created a judicial convention system to determine which candidates for the position of Supreme Court justice shall be placed on the ballot for the voters to choose in the general election. The Convention system is controlled and dominated by political parties. As a result, candidates for Supreme Court do not run in primaries nor are they appointed through a qualification commission-based appointment system rather, they are nominated by the judicial conventions in their districts. No other state has judicial conventions like New York’s.
In July 2007, Modern Courts, along with the New York City Bar Association, the New York State Bar Association and the Corporation Counsel of the City of New York, submitted an amicus brief to the U.S. Supreme Court in Lopez Torres v. Board of Elections supporting U.S. District Court Judge John Gleeson’s decision to enjoin and hold unconstitutional New York State’s current judicial convention system for nominating candidates for Supreme Court justice. While his decision was affirmed by the Circuit Court, it was unanimously reversed by the U.S. Supreme Court. However, Justice Stevens, in a concurring opinion joined by Justice Souter, wrote “I think it appropriate to emphasize the distinction between constitutionality and wise policy” in reference to New York’s electoral selection system.
The delegates to the constitutional convention should consider adding a constitutional provision that changes or reforms the way we chose our Supreme Court justices by establishing a commission-based appointment system, similar to one we have for the Court of Appeals. This would eliminate the judicial convention system and the non-democratic way in which it operates.
As an alternative, if the delegates to the Constitutional Convention do not create a commission-based appointive system, at a minimum they must consider addressing the serious infirmities of the current convention system, which Judge Gleeson characterized as “an opaque, undemocratic selection procedure that violates the rights of the voters and the rights of candidates who lack the backing of the local party leaders.”
Certification of All Judges and Justices
The Constitution permits “certification” of Supreme Court justices and Court of Appeals judges, which allows these jurists to perform the duties of a justice of the Supreme Court after their mandatory retirement age of 70. The Constitution requires a demonstration that “the services of such judge or justice are necessary to expedite the business of the court and that he or she is mentally and physically able and competent to perform the full duties of such office. Any such certification shall be valid for a term of two years and may be extended as provided by law for additional terms of two years. A retired judge or justice shall serve no longer than until the last day of December in the year in which he or she reaches the age of seventy-six.” [Art. VI, § 25 (b)]. The Constitutional provision does no apply to any other judges of courts of record. However, if there is merger of the courts, as recommended by Modern Courts, judges who are merged into the Supreme Court would be eligible to be certificated.
Modern Courts believes all judges of courts of record should be eligible for certification after the current retirement at age 70.
Modern Courts supports, however, that the retirement age of all judges and justices should be increased. This would obviate the need for the current certification process.
Public Financing of Judicial Elections
If the Convention delegates are not willing to support a commission-based appointive system, the delegates should consider public financing of judicial elections in order to eliminate even the perception of inappropriate influence by campaign contributors.
Monetary Jurisdiction of Civil and District Courts
Modern Courts believes that, pending possible merger through a constitutional amendment, the jurisdiction of Civil and District Courts should be increased to reflect the impact of inflation, last dealt with in 1983. The Constitution’s monetary jurisdiction for the New York City Civil Court remains at $25,000 and for the District Court at $15,000. The delegates to the Constitutional Convention should consider increasing those amounts to at least $50,000 or whether a specific monetary amount be included in the Constitution at all. It would preferable to allow the Legislature to set the amount by amendment to the Judiciary Law, which can be accomplished more easily than by constitutional amendment.
It should be noted that in November 1995, by a narrow margin, the voters declined to approve a Constitutional amendment which would have increased the monetary jurisdiction of the New York City Civil Court and the District Courts, which are only in Nassau and Suffolk Counties, to $50,000.
Housing Court Judges
Modern Courts recommends that Housing Court Judges should be made full constitutional judges, in other words serving in “courts of record,” appointed pursuant to a “qualification commission based appointive system” that would continue the current requirements of Section 110 of the New York City Civil Court Act as to particular requirements of experience and knowledge.
Although called judges, those individuals who preside in the housing parts of the New York City Civil Court are not constitutional judges under Article VI. The responsibilities they exercise and the workloads they carry do not justify treating them differently from Civil Court judges.
Simplify Article VI of the Constitution
Merger of all trial courts would result in the simplification of the Judiciary Article, because there would no longer be a need to specify in great detail the jurisdiction of “inferior” courts. Even if merger is not achieved, Article VI should be substantially simplified, giving the Legislature the authority to determine issues of monetary and geographic jurisdiction. As the Constitution currently stands, certain courts have their monetary jurisdiction set out in Article VI (e.g., the Civil Court), while the jurisdiction of other courts is subject to legislation (e.g., the District Court).
The Constitution need do no more than establish courts, set forth minimal descriptions of their composition and jurisdiction and provide for the method of selection of the judges of those courts. The rest should be left to the Legislature and administrators of the Unified Court System for their determination as situations and needs evolve over time.