39 judges certified to stay on the bench past 70

Dozens of judges across New York state were recently certified to stay on the bench past the age of 70.

Most judges in the state must retire at the end of the year in which they turn 70. But Court of Appeals and state Supreme Court justices can stay on for at least two years, with the approval of the state’s top court officials.

Of the 40 judges who turned 70, but were certified to stay on the bench for two years, starting this month, 11 are in the First Department, 21 are in the Second Department, one is in the Third Department and seven are in the Fourth Department. One judge in the First Judicial District was certified but decided to retire anyway.

Judges certified in the Rochester area include: Henry J. Scudder, who served as presiding judge in the Appellate Division, Fourth Department, for nine years, and is now an associate justice; and state Supreme Court Justices Francis A. Affronti and Thomas A. Stander. Jeremiah J. Moriarty III was certified in the Eighth Judicial District.

Stander said he just wasn’t ready to retire.

“I love what I do. I love going in every day,” he said.

State Supreme Court and Court of Appeals justices can be certified for three two-year stints, until the reach 76. The certification process requires a physical exam and a review by the state Administrative Board of the Courts, which consists of the chief judge of the state of New York and the four presiding justices.

“They then vote on whether you should be certified or not,” Scudder said.

Stander said he took a basic physical with some “mini mental tests.”

“In terms of their review, I believe the Monroe County Bar is contacted and or attorneys in the community are contacted to see whether they have any thoughts about you continuing on the bench,” Stander said.

State Supreme Court Justice John J. Ark was elected in 2007. He turns 70 on Friday, but plans to apply for certification to stay on the bench.

“On balance, the procedure that we have really sort of makes sense,” Ark said.

“If a person’s capabilities diminish in the two years then they may not be interested in going for another two years, or they might not be fit and able to go for another two years. It’s really a pretty logical way of handling it,” Ark said.

If certified, Court of Appeals justices must transfer to a trial court. County Court judges must retire at the end of the year in which they reach 70, which doesn’t make sense to Scudder.

“If you’re going to have certification I have a hard time understanding why it can’t be for the county-level judges as well,” Scudder said.

Initially, Scudder planned to stay on only into the fall of this year, but his plans may be changing.

“At one point that was what I kind of intended, but now I don’t know. Right now I’m enjoying it,” he said.

When he served as presiding judge, Scudder said, he carried the same caseload as the associate justices, which increased his total workload.

In his new role as an associate justice, Scudder doesn’t have those administrative responsibilities.

“This allows me to concentrate on the law and I don’t have the administrative burdens,” he said.

Justice Gerald Whalen has taken over as presiding judge.

“I’m very much enjoying working with the very exceptionally talented and gifted team of lawyers and administrators and support staff of the Fourth Department. Balancing the work of the court with the cases and the administrative duties presents a challenge, no doubt. But I’m confident that the court will continue to maintain the excellent reputation it earned under presiding justice Scudder,” Whalen said.

Whalen said some administrative changes are likely, but it’s too soon to be specific.

“It would be premature at this point — I was appointed less than a month ago — to be able to articulate any changes I anticipate going forward, but I certainly expect certain changes to be made,” he said.

“I need time to talk to everybody in the Fourth Department and find out how things are running. In any organization there’s room for more efficiency and that’s what I’ll be looking to do,” he said.

One set of changes will come when the four vacancies in the department are filled by Gov. Andrew Cuomo.

“The governor is reviewing applicants for vacancies in the Appellate Division and expects to make some designations in the short term,” Cuomo spokesperson Maxwell Morgan said in an email.

There are 12 judicial seats in the Fourth Department, but only eight are filled. Salvatore R. Martoche, Joseph D. Valentino and Rose H. Sconiers have retired. Eugene M. Fahey, moved from the Fourth Department to the Court of Appeals.

“I’m confident the vacancies on our court will be addressed in due time. In the meantime, we in the Fourth Department will continue to handle the cases brought to our court in a proper and efficient manner,” Whalen said.

Scudder said operating with one-third fewer justices has affected the workload.

“What we’ve had to do is to reduce the number of cases that we hear, and of course that just means it’s going to take longer for people to get their appeals heard because we don’t hear as many per term,” Scudder said.

Although there are 12 seats in the Fourth Department, each case is assigned to a panel of five judges.

“We’re really going in the wrong direction right now because we don’t have the judges,” Scudder said.