Split Appeals Court Shuts Down NY Judges in Ageism Suit

An appellate court reversed a lower court’s ruling in favor of judges, ages 70 and older, who sued court administrators over their forced retirement due to pandemic budget cuts. 

The New York County Courthouse in Manhattan. (Courthouse News photo/Adam Klasfeld)

(CN) — The septuagenarian judges who sued New York court administrators over their forced retirement will indeed have to leave the bench, a panel of appellate judges ruled Tuesday. 

In a 3-2 decision, the Third Judicial Department of the New York State Supreme Court Appellate Division ruled that the court system did not violate the state constitution when it used pandemic-related budget cuts as a reason to deny recertification to judges older than 70. 

While 70 is New York’s mandatory retirement age, judges can apply to stay on the bench until age 76, requesting recertification in two-year increments. Typically, recertification is granted as long as a judge is fit to serve. 

But in September 2020, the state’s chief administrative judge denied 46 out of 49 judges’ requests to stay on the job, saying because of the Covid-19 pandemic, Democratic Governor Andrew Cuomo had demanded a 10% budget cut

Labor accounts for more than 90% of the court budget, administrators said, and having the judges retire would avoid hundreds of layoffs. 

After four appellate judges filed suit against the state, a Suffolk County judge annulled the September decision, writing an order that called the move “arbitrary and capricious, unconstitutional and discriminatory.” 

A Third Department panel ultimately disagreed, publishing a 17-page opinion that settled on the side of court administrators and reversed a Suffolk County denial of a motion to dismiss the claims. 

When deciding whether or not to recertify judges, the administrative board must base individual decisions on whether a judge’s service is needed to court business, and whether each judge is fit to satisfy the court’s needs. 

Since New York’s administrative board granted 3 of the 49 recertification requests, the Third Department panel determined that it had individually assessed each judge, satisfying state requirements.  

“Certainly, it should be recognized that the continued services of the petitioner Justices would advance the needs of the court in managing an expanding caseload,” Justice Michael C. Lynch wrote in the majority opinion. 

“That positive contribution, however, is not the deciding factor, as the Board is charged with balancing the costs of certification with the overall needs of the court system.” 

The board made an “extremely difficult judgment call that certification would prove too costly under the economic dilemma presented,” Lynch continued, echoing the board’s claim that alternative savings methods could have caused more than 300 layoffs. 

The majority of the panel also found that age discrimination was not at play, because judges were not discharged; rather, the state constitution mandated that their terms expire at the end of 2020. 

Dissenting were Justices Nancy E. Smith and John M. Curran, who were both brought in from the Fourth Department after plaintiff attorneys filed a letter with the court citing concerns about conflicts of interest for two judges initially on the Third Department panel. 

Smith and Curran said they would affirm the lower court’s decision nullifying the board’s recertification denials. 

Since the board cited the budget as its sole reason for denying recertifications, the judges therefore did not get the required individual assessment, the judges argued in their dissent. 

“In support of its determination, the Board submitted the minutes of its meeting at which the determination was made, which reflect that the sole reason it denied certification was based on the ‘severe budgetary constraints occasioned by the coronavirus pandemic,’” Curran wrote in the dissenting opinion. 

“The Board’s reliance purely on this budget-driven, categorical consideration did not establish that it conducted the individualized review of each applicant necessary to comply with the two-step process.” 

Procedurally, the difference of opinion is good news for the judges, said plaintiffs’ attorney Y. David Scharf, because it means his clients don’t need permission to appeal to the New York State Court of Appeals. 

“We have an absolute right to have this matter heard by New York’s highest court,” Scharf said during a phone interview Tuesday. “And we are extremely confident in prevailing for our clients once we get to that court.” 

In the New York State Court of Appeals, the state will have to work around other conflicts. Of the seven judges who sit on the state’s highest court, one of them — Chief Judge Janet DiFiore — is also a named defendant in the suit. 

“Obviously the chief judge can’t sit on her own case, and it remains to be seen which judges of the court of appeals would be conflict-free to hear the case,” said Scharf, of the firm Morrison Cohen. 

Scharf said the ruling lines up with his expectations following oral argument, held by video call on Feb. 9, which lasted for the better part of an hour. 

In his argument on behalf of the court system, attorney Henry Greenberg of the firm Greenberg Traurig called the issue of individualized review of judge recertifications a “red herring.” 

No legal precedent, Greenberg said, has “ever held remotely that a reviewing court should put itself in the boardroom and inquire the process for determination.” 

The court can consider whether the budget is rationally related, Greenberg said, “but with that, the inquiry ends,” and no one is entitled to know precisely how board decisions are made. 

Scharf said his clients are only asking for an individual assessment. 

“It is correct: We’re not entitled to a reasoned decision,” Scharf said. “We’re not entitled to transparency. But what we are entitled to is the individualized review, which we know we didn’t get.” 

Greenberg did not immediately respond to a request for comment.

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