LONG ISLAND, N.Y. (CN) — In a Suffolk County virtual hearing Tuesday, attorneys debated whether an ageism suit brought by New York judges should continue in county court now that the state’s appellate court has agreed to hear its merits.
A group of judges filed the complaint after the state’s chief administrative judge denied 46 out of 49 requests to recertify judges who are at least 70 years old, the state’s mandatory retirement age for judges.
Judges older than 70 can reapply to continue serving every two years until age 76. Typically, those requests are approved, provided a judge is healthy and able to serve.
Citing a need for deep budget cuts due to the Covid-19 pandemic, however, the court administration denied all but three applications in September — a move that terminated seven appellate judges, including the four plaintiffs.
Henry Greenberg, representing the state court system, told the county court Tuesday there is “no earthly reason why this court should be in effect trying to jam the court with its own view,” since the matter is now “fully before” the Third Judicial Department of the New York State Supreme Court Appellate Division.
James Catterson, on behalf of the plaintiff judges, said he would avoid giving a “soliloquy” at the mostly procedural hearing, but that the judge is “free to rule” on current pending motions in the county court.
Because of the pandemic, New York’s judiciary had to cut its budget by $291 million — and labor accounts for 90% of spending, Greenberg wrote in a brief filed Tuesday in the Third Department. He said the “painful decision” to deny judges’ recertification requests saved $55 million and prevented 324 layoffs.
Attorneys for the plaintiffs argue that using an age cutoff to save money is “blatant age discrimination.”
“They decided to terminate the most experienced judges in the state and have already signaled their intention to replace those judges with younger and less experienced judges,” the judges’ complaint states, “some of whom have never been elected by the voters of this state.”
On Dec. 18, in a win for the judges, Suffolk County Justice Paul Baisley signed a temporary restraining order that allowed the judges to keep their jobs while the matter is decided.
Last week, however, the Third Department appeals court vacated Justice Baisley’s order. The court will hear an appeal by the state, following Baisley’s denial of a motion to dismiss, in January.
In the meantime, the judges suing will have to plan to retire in a few days.
The suit was brought by four appellate judges including Justice Ellen Gesmer, 70, who said she was “stunned” to learn her recertification would be denied, as she had planned on staying on through age 76.
Chief Judge Janet DiFiore, in her role overseeing the state unified court system, and Chief Administrative Judge Lawrence Marks are among the defendants.
The plaintiffs intend to depose both Judges Marks and DiFiore, something Greenberg argues in his Third Department brief was ordered on an ex parte basis and must be stopped.
“If this Court does not reverse and dismiss this matter, it must set aside the discovery ordered by Supreme Court,” Greenberg’s brief states.
“No court has ever before ordered depositions of the Judiciary’s leaders in a case challenging the denial of certification — and with good reason,” the brief continues. “A mountain of case law precludes depositions of high-ranking government officials and other comparable attempts to explore the deliberative processes of Judges.”
Greenberg, of the firm Greenberg Traurig, added that permitting discovery in this case “will destroy the constitutional and statutory design of the certification process,” making every denial of certification open to judicial review.
Plaintiffs have not yet filed a response to Greenberg’s appellate brief.
During the Dec. 18 hearing, Catterson called the notion of Baisley’s orders being partial to the plaintiffs a “canard,” saying court transcripts “establish beyond any doubt” that nothing was entered ex parte.
Catterson, of the firm Arnold & Porter, also argued that during the pandemic, the backlog of cases waiting to be heard has grown and it’s impossible for the Office of Court Administration to say that keeping judges older than 70 on the bench is unnecessary.
In New York Appellate Division’s Second Department, for instance, there is already a three-year backlog, which will “balloon to four, if not five years” in part because of the pandemic, Catterson said.