Senior state court officials urge Cuomo to veto bill

Bill pending Gov. Andrew M. Cuomo action would change just a word in the approval process for state Supreme Court justices to remain on the bench past mandatory retirement age 70 years old.

But the change would be ill-conceived, costly and possibly unconstitutional, according to a senior state court official who will urge the governor to veto the legislation when it reaches his office.

“This is a very bad bill,” said Law Beat Lawrence K. Marks, the chief administrative judge of the unified judicial system, to Law Beat.

Judges investigated for alleged sexual harassment, racist remarks or other serious allegations of wrongdoing by the State Commission on Judicial Conduct may be allowed to work beyond 70 years of age in the language of the proposed law, Marks said.

“The way this bill reads, it couldn’t be taken into consideration,” Marks said.

When asked if the justice system would ask the governor to veto the bill, Marks said, “We are going to write a very strong letter outlining the problems.”

Rich Azzopardi, spokesman for the governor, said the bill was under consideration.

The judges of the Supreme Court of the States are elected for a term of 14 years. They earn $ 210,900 per year. Like all judges in New York State, they must retire at the end of the year in which they turn 70. The state’s constitution allows judges (and appeals court judges) to receive up to three two-year extensions to serve in the state. Supreme Court level. Judges must apply for certification from the judicial system board, which includes Chief Justice Janet DiFiore and the presiding justices of the four departments of the state Supreme Court’s Appeal Division.

Judges, if approved three times, can stay on the bench until the end of the year when they turn 76.

Now, the wording of New York judicial law states that the board of directors “may” extend retired judges who request to remain on the bench beyond 70 years. Under the bill, it would state that the board “shall” criteria.

“It’s a very important thing, even if it’s simple,” Marks said. “It changes the word ‘may’ to ‘must’. It takes away the stealth. “

To be prorogued, judges must meet two requirements: have the mental and physical capacity to do the job, and provide the services “necessary to expedite the business” of the court. At present, the board of directors has “almost unlimited discretion” in determining whether to approve the certification of judges, according to a 1979 Court of Appeal ruling. The board can obtain l advice from bars, lower-level administrative judges and the State Commission on Judicial Conduct. Judges requesting extensions must waive confidentiality to allow the board to be informed of any pending investigations.

Under the bill, that discretion would be eliminated. A judge who presides over even a handful of cases a year could meet the criteria for service delivery, Marks told Law Beat.

“This would have the effect of forcing the certification of judges who meet the minimum qualifications,” Marks said.

The bill is sponsored by Congressman Jeffrey Dinowitz, a Democrat from the Bronx, and Senator Brad Hoylman, a Democrat from Manhattan. A memo supporting the legislation, included in the bill, stated that certification “should be virtually automatic until the board finds that the applicant lacks mental or physical capacity and there is a need to resort to additional judicial services to expedite Supreme Court cases. “

The memo called it “a matter of judicial independence”. He quoted the late Court of Appeal Judge Jacob Fuchsberg, who dissented in the 1979 case.

Fuchsberg said that giving the board such broad discretion creates a situation in which a judge serving a pre-retirement sentence would “always be aware that his or her tenure may be lost for unpopularity or non-compliance, whether it is the result of doctrinal differences, a lack of gregariousness, or any other expression of personality, ideology or style. Or, perhaps, just a whim or a whim. ”

In the meantime, there’s this: In 2019, DiFiore proposed a constitutional amendment for a massive restructuring of New York’s court system, which now has 11 separate trial courts, the most of any state. Under this plan, county court, family court, claims court and surrogate court judges would all become state Supreme Court judges. The proposed change would require two consecutively elected state legislatures and then be approved by the voters.

If this were to be approved, the number of state Supreme Court justices would increase dramatically. And it would be the same, logic would follow, with the number of judges seeking certification to work beyond 70.

When asked if the restructuring plan would become unworkable if Cuomo signed the bill, Marks said, “There would be a lot more judges eligible and a lot more judges approved under it. That might be a good one. or a bad thing. It would depend on the operational needs of the moment, but the board would not be able to calibrate or integrate that part of the analysis. “

The justice system has been forced to cut its budget by $ 300 million by approximately $ 3 billion due to the COVID-19 pandemic. To save $ 55 million over two years, the court system overturned the extensions of 46 state Supreme Court justices, which locally included Appeals Judge Eugene “Gus” Devine and Judge Raymond Elliott III, based in the Rensselaer County.

The court system then rolled back those plans in the 2021 budget, but Marks defended the cuts as a difficult but wise move in a crisis. He said the budget for the justice system is almost entirely made up of salaries and benefits.

“If we had gone ahead and approved all of these people (for certification) at the time, we would have had to lay off the equivalent of 325 people,” Marks said. He said this would have particularly affected young employees who were allegedly made redundant due to a lack of seniority. Marks said it would have had “a devastating impact on the operations of courts, number one and number two, would have been inhumane.”

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