RIVERHEAD, N.Y. (CN) — On the eve of what would have been four New York appellate judges’ last day on the bench, the group suing the state for ageism over its mandatory retirement age received good news from Suffolk County.
Justice Paul Baisley wrote an order Wednesday annulling state court administrators’ decision to deny recertification to 46 of 49 judges ages 70 or older, a move Baisley called “arbitrary and capricious, unconstitutional and discriminatory.”
New York judges have to retire at age 70, but they can apply to keep their jobs until age 76. Their applications are reviewed for the judges’ fitness to serve, and are typically approved every two years.
The ruling means that, “without penalty,” the judges may withdraw their applications to retire at the end of 2020, Justice Baisley wrote in the 6-page decision.
Because the Covid-19 pandemic has created a need for deep budget cuts and the judiciary spends most of its money on labor, court administrators decided in September to deny recertification to all but three judges to save money and avoid layoffs.
That much was not contested, Justice Baisley noted.
“The facts of this controversy are undisputed and the parties agree that the causes of action in this proceeding/action are ripe for determination on the merits,” he wrote.
In determining whether to certify a judge beyond age 70, the New York Constitution requires the court administrative board to consider two things: and the judge’s mental and physical competency, and whether the judge’s service is necessary for expediting the court’s business.
Each judge petitioning the court satisfies the former criteria, Baisley said, and there is no evidence to suggest that the board conducted individual reviews of each judge requesting recertification to determine the latter.
The administrative board’s decision, then, “simply cannot reasonably be viewed as the exercise of the ‘integrity and collective wisdom of a carefully selected, high level certifying authority endowed with peculiar experience and expertise’ to which the Constitution and Judiciary Law entrusts this determination,” Baisley wrote.
Baisley also knocked down the idea that the administrative board has “unfettered discretion” in its review process, saying that notion “smacks of such alien concepts as to the divine right of kings and papal infallibility.”
“In fact, the record of the proceedings before the Board is devoid of any evidence that supports a finding that the Board employed its discretion at all,” he wrote.
Y. David Scharf, an attorney at the firm Morrison Cohen representing the judges, said in an email that the next step is for the Office of Court Administration and Governor Andrew Guomo to allow his clients to keep their jobs.
“We are delighted with the thoughtful ruling by Justice Baisley,” Scharf said, “and we hope that OCA and the Governor will now recognize the value of these appellate division judges and allow them to continue to serve.”
Apart from today’s decision in Suffolk County, the case is already proceeding in the Third Judicial Department of the New York State Supreme Court Appellate Division.
After Baisley denied a motion to dismiss the case, the Third Department agreed to hear an appeal of the matter, which names as a defendant Chief Judge Janet DiFiore — the head of the same Albany-based appeals court.
Henry Greenberg, attorney for the court administration, filed a Third Department brief Tuesday asking the court to dismiss the ageism suit altogether, or at least to block the plaintiffs from deposing Judge DiFiore.
“No court has ever before ordered depositions of the Judiciary’s leaders in a case challenging the denial of certification — and with good reason,” wrote Greenberg, of the firm Greenberg Traurig. “A mountain of case law precludes depositions of high-ranking government officials and other comparable attempts to explore the deliberative processes of Judges.”
Permitting discovery “will destroy the constitutional and statutory design of the certification process,” he continued, making every denial of certification open to judicial review.
Greenberg has not responded to requests for comment. The Third Department will hear the appeal in January.