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"A New Judicial Article for New York" |
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Just as it is important to get good men on the bench, it is important to get unfit men off. This can be accomplished by restricting tenure, and by providing systems of retirement and removal. In New York today, Court of Appeals judges, Supreme Court justices and Surrogates in New York City hold office for 14 years; County Court judges, Family Court judges, Surrogates outside New York City and judges of the Civil and Criminal Courts of New York City hold office for ten years; Court of Claims judges have nine-year terms.[77] It was not always so. Under the state's first constitution, the Chancellor and the justices of the Supreme Court held office during good behavior until age 60. Subsequent provisions introduced limited terms and fixed the age of retirement at 70.[78] Are the current terms of office satisfactory? Under a political system of judicial selection, such as now prevails and is likely to prevail in the future even if its form is changed, it is probably better to give judges longer rather than shorter terms. A longer term helps to insulate judges from the pressures of the moment, freeing them from worry about the effect of their decisions on the next election. New York's present 14-year term for the judges of its higher courts approaches the life tenure given judges in the federal courts. That is because most men are well along in their fifties when they become judges. Thus it is unlikely that a man will serve more than one term; and if he begins a second term, it is likely that lie will have to retire at age 70 before it has expired. Why judges of the lower courts should have shorter terms of office is not clear. Perhaps all should be accorded the same tenure, or perhaps life tenure, as in the federal system, should be accorded to all. This could be done either explicitly and unequivocally, or it could be done indirectly and less certainly by instituting the Missouri plan system of having a judge run for re-election only against his own record. As indicated above, very few judges would ever fail of re-election under that plan, so that the net effect would be to grant them something approaching life tenure. Retirement and removal are closely related to the matter of tenure. Workable systems of retirement and removal become increasingly important as a judge's term increases in length. According to New York's present judicial article, a judge must retire when he reaches age 70, hut judges of the Court of Appeals and justices of the Supreme Court, upon certification by the Administrative Board of the Judicial Conference may be continued as senior judges until age 76.[79] Since permission to continue is virtually never withheld, a question is raised as to whether such discretion should continue to exist. If there is to be an arbitrary retirement age, should it not be observed strictly and without exception; and if 76 is a better age for retiring judges than 70, should not that figure be used? Such problems, however, concern details which need not and should not be frozen into the constitution. A simpler and better solution is to provide that judges shall be retired as provided by law, thus leaving to the legislature the power to fix the proper age as well as to determine the financial conditions of retirement. Mandatory retirement deals adequately with disability which occurs by reason of old age, but it does not dispose of the problems posed by judges who become disabled before reaching the statutory age or who misbehave in office. What can and should be done when a judge misbehaves in office, or becomes physically or mentally disabled? The present constitution provides four methods of removing judges, but three are of hardly more than theoretical interest. One is impeachment,[80] but only one judge of a major New York court has ever been removed by that method. That was in 1872. Another method is removal by a concurrent resolution of the senate and assembly. This provision has never been used. A third possibility is removal by a two-thirds vote of the senate, on recommendation of the Governor. This method was used only once—also in 1872.[81] The only potentially practical procedure for removal is found in Section 22 of the judiciary article. It provides for removal for cause or disability by a specially constituted Court on the Judiciary, composed of the Chief Judge and senior Associate Judge of the Court of Appeals and one justice of the Appellate Division from each judicial department. The Court may he convened by the Chief Judge of the Court of Appeals, the Governor, the executive committee of the state bar association, or any of the presiding justices of the Appellate Division departments.[82] It has no staff and no continuing existence as a body.[83] The Court on the Judiciary was never convened between January 1, 1948, its effective date, and December, 1959;[84] and since December, 1959, only three cases have been brought, all involving judicial misconduct. Though the court has power to remove a judge for disability, it has never done so.[85] Judges below the level of Supreme Court may be removed by the appropriate department of the Appellate Division of the Supreme Court. Again there is no special staff or machinery to assist the judges in the exercise of their disciplinary powers.[86] California's experience with judicial removal has attracted nationwide attention and deserves consideration by New York's constitutional delegates. Since 1961 that state has had a Commission on Judicial Qualifications to deal with removal problems.[87] The Commission has nine members, including five judges, two lawyers, and two laymen. Supreme Court justices are not eligible, since the Supreme Court in effect acts as an appellate body to review actions of the Commission. The Commission has the power to subpoena witnesses, make investigations, take evidence, and make findings, but it does not have the power to remove. Rather it files a record and recommendations with the Supreme Court, which after reviewing the proceedings and possibly taking additional evidence, then may order removal or retirement of the judge whose conduct is in question, or may reject the recommendation of the Commission.[88] The number of actual dismissals through formal proceedings of the Commission has been small, but much of the work of the Commission goes on beneath the surface. A number of judges in California have resigned or retired once an investigation was begun;[89] and the mere existence of such a body is thought to exert pressure upon judges to refrain from questionable behavior and to retire when disability occurs. When the California Commission was first proposed, many judges were opposed to it.[90] They were afraid that they would be tried in absentia, and that they would be at the mercy of cranks. They also argued that the provision would discriminate unfairly against judges because there was no similar removal machinery for officers in other branches of the government. Finally, they asserted that such a provision was an infringement on the right of the people to select their judges. These objections appear now to have disappeared,[91] and the California Commission seems to be giving general satisfaction. The essential question the delegates to the constitutional convention should ask is whether New York's current machinery for judicial removal is adequate, or whether it needs improvement, possibly along the lines of the California Commission. The delegates should also determine whether it is necessary or important to have sanctions less severe than removal for judicial misconduct; these could include measures such as reprimand or temporary suspension from office. Finally, the delegates must determine the extent to which removal procedures should be included in the constitution or left to legislative discretion. |
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 The Historical Society of the Courts of the State of New York |