After reaching the age of 70, I was required to retire as a full-time trial judge, but was glad to receive designation as a judicial hearing officer, or JHO. As such, I presided at many trials, but, eventually, the authorities in Albany cut out compensation for JHOs in order to save the money. So the $300 a day we were being paid to preside at trials was gone.
I nevertheless volunteered to serve without pay. But after waiting a long time for a pro bono assignment, I decided to resign as a JHO. This I recently did. Being no longer part of the state judiciary, I can now once again be politically active.
Now that I am free to speak my mind, I am supporting one of the three Rye mayoral candidates. But here and now, I would like to argue against ballot Proposition 6, the one that would allow some, but not all, state judges to serve additional years at full pay, even to the age of 80. Those who bear the title of Supreme Court justice, as I once did, if in good health, can stay on the bench to age 80. Those who bear the title of family court judge or county court judge must still resign by the end of the year in which they turn 70.
The fact that the proposition discriminates against family court and county court judges makes it distasteful to me, not just because it offends against the constitutional principle of equal protection of the laws, but also because it brings back unpleasant memories of my own disappointing experience with that very same issue.
With the approach of the end of the year in which I was to turn 70, I brought a lawsuit in the U.S. District Court for the Southern District of New York, claiming that my rights to equal protection of the laws under both the federal and state Constitutions would be violated if I had to resign six years ahead of other judges who were doing the same work and receiving the same compensation I was. The only difference was the lucky ones had the title of Supreme Court justice while my title was county court judge. My lawsuit came to naught.
There are three statewide courts in New York, each with a branch in every county. They are the Supreme Court, the county court and the family court. Any discrimination among the occupants of these courts would have to meet stringent tests requiring a valid purpose and a rational means of achieving that purpose. Neither has been shown in justification for the discrimination that Proposition 6 would perpetrate against members of the family and county courts.
The highly respected Citizen’s Union has declared its opposition to Proposition 6 for some of the reasons I have just set forth. The New York Law Journal, on Oct. 23, announced the CU’s stance, quoting its executive director as saying, “To raise the retirement age for a very small group of judges, and not all the judges, when the court system is in systematic crisis over a burgeoning caseload, the solution here misses the problem.”
The League of Women Voters of Rye, Rye Brook and Port Chester takes no position in its voters guide on the merits of Proposition 6. But the Oct. 23 issue of the New York Law Journal reports that CU’s executive director “said the group will include its recommendation for a no vote on the ballot question in the Citizens Union Guide on all six of the proposed amendments on next month’s ballot.”
The New York Times, in its Oct. 28 editorial endorsing Proposition 6, chose to ignore the discrimination issue, which is out of character for the good “Gray Lady,” as the Times is sometimes called.