Judges Gain a Win in New York Ageism Suit

(Courthouse News photo/Adam Klasfeld)

LONG ISLAND (CN) — Judges suing New York state for ageism pulled a win Friday, when a Suffolk County judge issued a temporary restraining order blocking the state constitution’s rule saying judges who turn 70 years old can finish out the year and then must retire. 

After age 70, judges can apply for a two-year recertification, and continue doing so until age 76. Typically, those requests are granted, provided the judge is fit to serve. 

But in September, the state’s chief administrative judge denied recertification to all but 3 of the 49 judges who applied for it, citing a state budget squeeze due to the Covid-19 pandemic. 

That was “blatant age discrimination,” on the part of state court chiefs, four appellate judges suing over the decision say in their 42-page complaint. 

“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 complaint reads, “some of whom have never been elected by the voters of this state.”

Justice Paul Baisley Jr. signed the order requiring the state to allow the judges filing suit, and their staffs, “to continue serving as Supreme Court Justices and remain in office” as the case proceeds. 

The decision came after more than an hour of virtual arguments, which took a heated turn after an attorney for the state called arguments of arbitrary and unreasonable denials “absurd” and “ridiculous.” 

“What they’re asking you to do is to stay the operation of the New York State Constitution,” said attorney Henry Greenberg of the firm Greenberg Traurig, pleading with Justice Baisley not to grant the temporary restraining order, which would essentially hand the judges a win.  

“That’s the whole ball of wax,” he said, pledging to immediately appeal such an order and saying he believes he would be granted an automatic stay in doing so. 

Earlier this month, Justice Baisley denied the state’s motion to change venue or dismiss the case altogether. The state appealed that decision, and is awaiting a decision on whether the Appellate Division’s Third Department will take up the case, which is expected next week. 

Greenberg wanted Justice Baisley to wait for the Third Department’s word. 

“If the TRO is issued, we will be in the appellate division again,” he said. 

With the year’s end and holidays quickly approaching, however, plaintiffs’ attorneys said they are running out of time. 

“This is one of those instances where you can’t put the toothpaste back in the tube,” said attorney James Catterson of the firm Arnold & Porter. Come January, his clients will be out of a job. 

“Despite pounding on his own desk,” Catterson said, Greenberg failed to mention that the state’s appellate division had twice refused to stay the case in its entirety. Catterson also accused Greenberg of repeating a “canard” by calling previous orders ex parte.

“You can shake your head all you want, Mr. Greenberg,” Catterson said, but Baisley’s decision and court transcripts “both establish beyond any doubt” that nothing was entered ex parte. 

Catterson represents Justice Ellen Gesmer, 70, and said she was “stunned” to learn this year that she would have to give up her seat after 16 years. Other judges have held their spots for 30 years or longer. 

Thirty-three states and the District of Columbia have mandatory retirement ages, according to the website Ballotpedia, most between 70 and 75 years old. In Vermont, the age is 90 years, the highest in the country. 

The New York judges’ suit names Chief Judge Janet DiFiore, in her role overseeing the state unified court system, and Chief Administrative Judge Lawrence Marks, who made the Sept. 29 decision to deny 46 of 49 recertification requests, terminating 7 appellate judges in the process. 

Marks said Governor Andrew Cuomo had requested a 10% budget cut, and that denying recertification would help avoid layoffs. 

The denials countered the state administrative board’s decades-long practice of allowing judges over age 70 to continue serving until age 76, provided they were mentally and physically fit to do so, and that their service was needed to expedite the court’s business. 

During the Covid-19 pandemic, the backlog of cases waiting to be heard has grown, making it impossible for the Office of Court Administration to say that keeping judges older than 70 on the bench is unnecessary, Catterson said. 

In the second department of the state’s appellate division, for instance, there is already a three-year backlog, which will “balloon to four, if not five years” in part because of the pandemic. 

But the global pandemic has also caused “a fiscal calamity of the highest order,” Greenberg said, with the state having to make “impossibly difficult choices.” Personnel accounts for 90% of the state’s court budget, he said, noting that employing judges also means hiring legal secretaries, clerks and other court staff. 

Justice Baisley said that given the uncertainty of the state court budget, things may not be as bad as they seem to Judge Marks — or they could be worse. 

Looking ahead to a time that proceedings can resume as normal, the court will need “as many judges as we can,” Baisley said. 

“In my corner of the state, it’s going to be a tremendous backlog of cases,” Baisley said, asking what would be the harm in retaining the status quo while awaiting the Third Department decision. 

Greenberg said he’d report back to his clients, but that — “respectfully” — Justice Baisley’s temporary restraining order would be “a needless waste of time.” 

Catterson said that in the meantime, his clients would submit their resignation, to be held in escrow while they maintain certification and the case proceeds. 

“If they win, the resignation goes in the shredder,” Catterson said. “If they lose, it’s all over.” 

Neither Catterson nor Greenberg responded to emails requesting comment.

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