Albany Times Union

Not one for the law books

- Tuletters@timesunion.com

Here’s a math puzzle: If the law says a judge must retire at 70 but also must be allowed to hold office until the age of 76 if they’re of sound mind and body, which of the following is true:

a) 76 = 70. b) 76 is the new 70. c) The law is an ass. d) All of the above.

You’re probably thinking, this must be a trick question; no one would make a law like that. But under a bill passed by New York’s Legislatur­e, the correct answer would arguably be “d” — if Gov. Andrew Cuomo signs it into law. Which he should not.

As the law now stands, judges in New York must retire at the age of 70, but those on the Supreme Court and Court of Appeals may apply to stay on for terms of two years, up to three times, to the age of 76. An administra­tive board comprising the chief judge and the presiding justices of the four department­s of the Appellate Division have the discretion to accept or reject a judge’s request to continue working past 70.

To comment:

Concerns about declining taxes and other revenues in the COVID -19 pandemic prompted the governor to warn that the state might have to impose spending cuts to deal with a potentiall­y huge budget deficit. Faced with an estimated $300 million in cuts to the court system — cuts that were canceled in the 2021 budget — the extensions for 46 septuagena­rian judges were revoked to save $55 million over two years.

That prompted a bill in the Legislatur­e to change the wording of the law, which currently says that the state “may” extend judges’ terms for two years and up to three times. The new wording would say that the state “shall” extend their terms as long as they have the mental and physical capacity to do the job, and provide services “necessary to expedite the business” of the court.

As Lawrence K. Marks, the chief administra­tive judge for the Unified Court System, told the Times Union’s courts reporter Rob Gavin, this would end the discretion the administra­tive board has, and would open the door to some troubling scenarios. A judge’s performanc­e couldn’t be taken into account if he or she is slow to handle cases. Nor could a pending investigat­ion of their conduct impede their reappointm­ent. The wording change, Judge Marks points out, could force the reappointm­ent of judges accused of sexual harassment, making racist remarks or other serious misconduct.

The reappointm­ent system, it’s worth noting, takes the place of the normal electoral process for Supreme Court justices, who serve 14-year terms. Since they no longer run for reelection, there’s no opportunit­y for voters to vet them as they normally would. So the public relies on the administra­tive board to do that. This law would turn the board into a rubber stamp that essentiall­y would have to reappoint judges regardless of whether they are competent, productive, and of unquestion­ed character.

This is not to say that the mandatory retirement age of 70 shouldn’t be revisited. Studies have found that people are staying mentally and physically stronger as they age, particular­ly among those with better education, earnings, and access to good health care. But if the Legislatur­e wants to raise the age, this is an awfully cumbersome way to do it. And, as Dickens’ Mr. Bumble might say, a rather asinine way, too.

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