Judge recertification bill hits gov’s desk
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Governor Kathy Hochul has until the end of the year to sign or veto a bill that would make the recertification of judges nearly automatic. Photo by Kevin P. Coughlin / Office of Governor Kathy Hochul
By Jacob Kaye
A bill that would essentially make the recertification of older justices an automatic process has hit the governor’s desk, and will either be passed into law or vetoed by the state’s executive by the end of the year.
The bill, which has near unanimous support in both the State Senate and Assembly, was sent to Governor Kathy Hochul earlier this week after she pocket vetoed an earlier version of the bill at the start of this year.
The bill, if passed into law, would change one word of the state’s judicial law in a way that the bill’s supporters say would make it unlikely for a judge to not be recertified, as was the case for nearly 50 older justices in 2020.
The state’s judiciary law currently states that judges over 70 years old “may” be recertified if they’re proven to be mentally and physically fit and if there is a need for them on the bench. If the bill is signed into law, the state’s judiciary law will be amended to read that judges “shall” be recertified if they meet both qualifications.
Proponents of the bill, which include a number of New York State Supreme Court justices associations, lawmakers and legal professional groups, say that the bill would beneficially take power away from the Administrative Board of the Courts to make decisions about whether or not a judge is recertified – judges have to apply for recertification at the ages of 70, 72 and 74 and are required to retire at 76.
“We continue to strongly support this bill as essential to judicial independence,” Supreme Court Justice Barbara Kapnick, the president of the Association of Supreme Court Justices of the State of New York, and Judge Ralph Porzio, the president of the New York City Supreme Court Justices Association, said in a combined statement. “The new bill would respect the mandates of the State Constitution and require that each and every Supreme Court Justice who seeks certification for continued service be given individual and unbiased consideration.”
The bill’s supporters also argue that the bill will allow the court to retain experienced jurists who can help bite into the large backlog of cases mounting in courts throughout the state, many of which grew in the past three years.
“We're short handed,” Assemblymember Jeffrey Dinowitz, who is carrying the bill in the Assembly, told the Eagle this week.
“Case backloads backlogs are worse than ever, largely because of COVID, so we can't afford to lose a lot of judges,” he added. “I'm hoping that these changing conditions will have convinced the governor to sign this legislation.”
A previous version of the bill was sent to Hochul’s desk on Dec. 30 of last year, giving her 30 days to either sign the legislation, veto it or pocket veto it by not taking action on it all. At the time, former Chief Judge Janet DiFiore and former Chief Administrative Judge Lawrence Marks were in office and both stood strongly opposed to the legislation.
The situation is different this year.
To start, the bill was sent to Hochul before the last several days of the year, eliminating her pocket veto option – she has to take action, one way or the other and she’ll have until the end of the year to do so.
In a statement sent to the Eagle earlier this week, a spokesperson for the governor said Hochul was reviewing the legislation.
Additionally, DiFiore and Marks are no longer in office, although court leadership’s position doesn’t appear to have changed.
“Our position has not changed, we oppose it as strongly as ever,” Lucian Chalfen, a spokesperson for the Office of Court Administration, told the Eagle on Monday.
The impetus for the bill was the mass layoffs of 46 senior justices – and their staff – who applied for recertification in 2020.
Facing a budget crisis brought on by the first year of the pandemic, the Office of Court Administration declined to recertify a majority of judges over the age of 70 looking to continue serving in the courts.
Though a vast majority of those judges were offered the chance to apply for recertification the following spring once the court’s budget had been restored, only half of the laid off justices took up the offer. Additionally, only half of those judges ended up taking positions back on the bench.
“The terrible abuse that took place a couple of years ago, when 46 judges who reached the age of 70 were summarily fired by Chief Judge Judge DiFiore is what inspired this legislation,” Dinowitz said.
“What the bill does is that it kind of shifts the onus a little bit so that the judges who reach 70 would be reappointed unless there's a reason [not to reappoint],” he added.
Though OCA blamed the denial of recertifications on budget issues, the denials have continued.
Of the 15 judges who applied to be recertified this year, 13 were accepted and two were denied – reasons were not given for either denial.
Among those to be denied was Queens Supreme Court, Civil Term Judge Darrell Gavrin. After hearing of the board’s decision earlier this year, Gavrin issued an appeal, but was again denied several weeks ago.
According to several sources who spoke with the Eagle on the condition of anonymity, there may be a chance the board reconsiders Gavrin’s denial should the bill pass into law. However, there is no apparent language in the bill that would allow the board to do so.
Whether or not the situation in the courts and within its leadership is enough to change Hochul’s opinion on the bill is unclear. However, those who support it are hopeful.
“We are really excited about the fact that it’s on her desk and that’s a huge change,” said Queens Supreme Court Justice Carmen Velasquez, who was recently elected as the president of the Queens Supreme Court Justices Association.
“Last year it died in transition,” she added. “[Now] she has to act on it.”
