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Amendment would let older judges serve

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On Nov. 5, Election Day, my father will be turning 88 years old.

He is a vibrant, hard-working and capable man who will be doing something that I will not be able to do. He will be re-elected to his position as a town justice for the town of Bolton in Warren County.

He will have served more than 18 years since he turned 70. Like federal judges, there is no mandatory retirement age for town and village justices in New York State.

I am a justice of the Supreme Court of the State of New York and, currently, I must retire at the end of the year in which I turn 70 years old, despite five years being left on my term of office. Currently, Supreme Court justices may apply to be re-certified for three two-year terms, permitting us to serve until age 76. To be certified, the Unified Court System must demonstrate the need for additional judges and the judge needs to be found to be mentally and physically able and competent to perform the duties of the office.

Proposition 6, which will be voted on this Election Day, begins the process of removing the impediment of mandatory retirement for many of New York’s judges. If approved by the voters, Proposition 6 will amend New York’s Constitution to permit Supreme Court justices to be certified for up to five two-year extensions, that is, up to age 80. It does not change the mandatory retirement age of 70. Once a Supreme Court justice turns 70, his or her seat will be vacated and filled by the voters at the next general election.

The benefit of this certification system is that it will permit a regular influx of new and younger judges while permitting the most able and experienced judges to continue to serve when they are still in their prime. It will also provide for more judges to deal with increasingly larger calendars of cases. It is unfortunate that the Legislature did not see fit to include all New York judges, including those who serve in the County, Family, Surrogate Courts and the Court of Claims.

In 1961, when the New York Constitution was last amended to permit certification, the average life expectancy was 69.7 years. Today, it is 79.45. It is time to recognize that 70 or 76 is too young to put out to pasture those judges who can and want to continue serving the people.

Proposition 6 will also provide for an increased mandatory retirement age for judges of the Court of Appeals, New York State’s highest court. Those judges are appointed by the governor to 14-year terms but must retire in the year they turn 70. They are not eligible for any two-year certifications.

The amendment will permit them to continue serving until the year they reach the age of 80. Many of our finest Court of Appeals judges have been required to leave the bench, despite the fact that they were more than physically and mentally capable of fulfilling their duties. Currently, there are four members of the United States Supreme Court who are 75 or older. Why should New York not allow judges with equal experience to serve as they are able?

Obviously, I have a personal bias in supporting Proposition 6. It will affect me if I decide to continue to work beyond age 70. But I also know that too many of my colleagues have had to give up a profession that they not only love but performed extremely capably when they were at the top of their game.

I urge those who will be voting this Nov. 5 to say “Yes” to the Amendment and “No” to New York’s outdated age discrimination against judges.

David DeMarest

Canton

The writer is a justice of the Supreme Court.

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