A bill that would make it easier for judges over 70 — the state’s mandatory retirement age for judges — to remain on the bench has been sent by the legislature to Gov. Kathy Hochul’s desk.
Currently, a board made up of New York’s highest-ranking jurists can choose to certify a state supreme court or appellate court judge in two-year increments until they turn 76. That’s if the board deems their services necessary and they are found to have the requisite physical and mental abilities.
The bill would make such certifications mandatory for judges found to meet the criteria.
State Sen. Brad Hoylman (D-Manhattan), sponsor of the state Senate version of the bill, told THE CITY the law was necessary to dial down tensions between state judges and court administrators. They got into a legal battle in 2020 after Janet DiFiore, New York’s then-chief judge, denied recertification for 46 judges over 70 years old, citing pandemic budget issues.
“Under the previous chief judge, there was so much animosity,” Hoylman said. “Their rights to continue to serve on the bench shouldn’t be dependent on one person.”
Justice Barbara Kapnick, president of the Association of Justices of the Supreme Court of the State of New York, said the law would benefit the quality of jurisprudence. “This goes a long way towards the independence of the judiciary, so people won’t be afraid if they make a controversial decision,” Kapnick said.
New York’s Administrative Board for Service, which makes certification decisions for judges after they turn 70, is made up of the state’s chief judge — who is currently Acting Chief Judge Anthony Cannataro — and the four presiding justices of the appellate division.
Kapnick, who serves in the First Department’s Appellate Division, which covers Manhattan and The Bronx, said she supported the legislature’s decision to send the bill to the governor. She noted the timing of the move means that the bill will go into effect unless Hochul signs a veto.
In February, Hochul had a chance to sign a nearly identical bill into law, but the timing of the bill’s passage allowed the then-new governor to “pocket veto” the proposal — thus avoiding a fight with DiFiore, a once-towering figure in state politics.
Despite DiFiore’s absence now, the Office of Court Administration is still strongly opposing the bill.
Not in Favor
“The Governor’s office is aware of our past position on this bill,” said Lucian Chalfen, a spokesperson for the Office of Courts Administration. “Whatever political wrangling that may or may not be going on is not our concern. What is, is that our position hasn’t changed: we, in the strongest terms, oppose it.”
Chalfen also provided THE CITY with a June letter then-Chief Administrative Judge Lawrence Marks sent to Elizabeth Fine, the governor’s counsel, arguing the proposal would make it harder for the agency to block compromised jurists from the bench.
“For example, under this measure, a judge who expressed racist views or who engaged in sexual harassment (not a hypothetical example), but who otherwise is physically healthy and productive on the bench, would have to be certificated,” Marks wrote.
Kapnick disputed these claims, arguing that the constitutional language revised by the statute would still hold bad actors accountable.
“We agree that the court system has no need for a judge who acts in a racist or misogynist manner,” said Kapnick. “Any judge that would be disrespectful to lawyers or litigants, that judge would not feel the requirement of being competent to perform the full duties of such office.”
Hoylman said he believes the governor’s office will be more open to the bill this time around, noting that DiFiore is gone and her successor will soon be selected by Hochul herself.
“The governor is in the selection process for a permanent chief judge, so I think that she has more freedom to sign into law the will of the legislature without any potential repercussions from the judicial branch,” he said.
Certification does not automatically guarantee that judges can continue to serve as long as they want. Supreme Court judges younger than 70 are elected to 14-year terms. But once a judge turns 70, even if they have time left in their term, they must apply for “senior status” certification, opening up their elected judicial ballot lines to other candidates.
In an email, Avi Small, a spokesperson for Hochul, said the governor “is reviewing the legislation.”
The governor has until the end of Dec. 30 to veto the bill or allow it to pass.
