Experienced Judges Are Already Taking the Death Gamble; They Should Not Be Targeted in Budget Cuts

Experienced Judges Are Already Taking the Death Gamble; They Should Not Be Targeted in Budget Cuts

Amend Section 60 of New York’s Retirement and Social Security Law to protect our judges and other state workers and their families

By Lisa Zeiderman, Esq. | December 4, 2020

Managing Partner, Miller Zeiderman, LLP 

It has been well-documented in the legal press: a recent Office of Court Administration memorandum announced that in response to the fiscal crisis that the COVID-19 pandemic has created, New York State is planning to effectively force many judges over the age of 70 into retirement in a budgetary cost-cutting measure.

This means 46 judges, including Appellate and Supreme Court judges, will not be allowed to certify or recertify, notwithstanding that many if not all passed their recertification tests. Effectively, they will be off the bench as of December 31, 2020, saving approximately $55 million according to media reports. 

It also means that our justice system will lose many esteemed court attorneys and clerks, who will also find themselves out of work at the end of the year. Such a decision means that our already overworked, overrun and backlogged system will devolve into further chaos. 

As a matrimonial and family law litigator who spends a great deal of time in the court system both virtually and in-person, I find the decision to thin the front line of the judicial system to be a disturbing turn of events. 

Most importantly, it is deeply concerning that the jurists who are being eliminated are over age 70. Due to their age and years of experience both on and off the bench, these jurists have the wisdom, perspective and institutional knowledge of New York State law that is always critical, but is even more important in these challenging times we all face. Literally, the cream is being taken off the top of the court system. 

Each day since the pandemic began, I have spent much of my time calming clients who are worried about their cases and well aware that the court system can’t possibly service the amount of people who need its help.

What does that mean when the court system is not able to work at full capacity staffed with the judges that it most certainly needs? It means that it cannot deliver decisions in a timely way, that orders of protection are given without as much as a hearing, that it may take months if not longer to actually have that hearing, that child support remains unpaid and uncollected, that people who can no longer pay child support cannot receive timely modifications to their support orders and/or agreements and that often there will be less available judges to make the so-needed immediate custody decisions that are critical to people’s lives. 

It is not like judges aren’t working hard already. During this pandemic, many have been working even longer and harder to serve the public, but there are only a certain amount of hours in a day, and with fewer judges, court attorneys and clerks, the expectation of any improvement is severely if not entirely diminished. This does not bode well for the men, women and children awaiting hearings, resolution and justice.

And, beyond the affect this will have on a functional court system, while some elected officials and other groups are calling this age discrimination, there is yet another twist that few have discussed.  

In the time of a world-wide pandemic and health crisis, these very judges and their staff who reported to work while COVID-19 was literally in the air continued to take the “Death Gamble,” which is set forth in Section 60 of New York State’s Retirement and Social Security Law. 

As explained in a report by the New York County Lawyers Association in 2015: 

Judges do not often die in office. When they do, however, their families not only suffer the loss of a loved-one, but they also suffer significant financial loss due to an anomaly in Section 60 of New York’s Retirement and Social Security Law. 

“In essence, for members of the judiciary, there is what many refer to as a ‘Death Gamble’– if a judge (and certain other New York State employees) dies while in office, his or her beneficiaries receive a more modest death benefit compared to the more substantial pension benefits that beneficiaries of a retired judge receive if the judge dies while retired. Additionally, the beneficiaries of a judge who dies in office may not elect any of the benefit options available to a judge who retires.” 

Taking the “Death Gamble” means that these dedicated jurists’ family members would not receive their spouse’s full pension benefit if the judge died in office. These men and women, many of whom are in higher risk groups based on their age, have continued to work through COVID-19, many of them required to enter courtrooms and work from chambers although the attorneys and litigants were on Skype. They often sat and Skyped to resolve issues everyday while sitting in empty courtrooms. 

And while they were willing to risk their lives and their families’ pension benefits during this pandemic, they now have been told to leave when we need them most. 

The costs of the pandemic are extraordinary, but it seems that the court system, and New York residents who have been seeking resolution and justice, have already paid a steep price. 

These jurists and their staffs are integral to a healthy, functioning court system, and have, in many cases, dedicated their careers to public service and the common good, working through this pandemic as essential workers, risking their lives and their pensions.

We must amend Section 60 of New York’s Retirement and Social Security Law to protect our judges and other state workers and their families, and in the shorter term, understand that it is an absolute tragedy to our courts and to the public to lose so many wise, experienced jurists at this time, when we need them most. 


Reprinted with permission from the “December  4, 2020 edition of “The New York Law Journal”© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].   

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