NY Appeals Judges Sue To Stave Off Forced Retirements

By Emily Lever
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Law360 (November 9, 2020, 7:17 PM EST) -- A group of New York appeals court judges are suing the state court system for deciding to cut them loose as part of austerity measures in response to the state's COVID-19-induced budget deficit, arguing the move will worsen a case backlog and fail to make a serious dent in the state's budget shortfall.

Forty-six judges older than 70 will be forced to retire at the end of the year after the administrative board of the New York State Unified Court System denied their applications for recertification. The court system said the cuts would save $55 million over several years and prevent job losses for court support staff.

Five of those judges sued on Thursday, claiming they faced age discrimination and were denied due process, and that the savings generated by the forced retirements would be closer to $1.2 million than $55 million. The judges would still receive pensions, so the cost to taxpayers would be substantially the same while the court system would be deprived of their necessary services, according to the complaint.

The cuts come ahead of a budgetary crisis in New York state, which faces a $14.5 billion budget deficit in fiscal year 2021.

Under the New York state constitution, judges must retire the year they turn 70, but they can apply for certification to continue serving for two years — a certification that can be renewed until they reach the age of 76 — if they are fit and their services are "necessary to expedite the business of the supreme court."

"Budget issues aren't part of the criteria for certification; necessity is," Y. David Scharf, an attorney for the judges, told Law360. "If you told a hospital that they needed to have cost savings, you wouldn't remove your most senior, experienced surgeons."

Justices on the administrative board have previously acknowledged that at least one department is understaffed and have told the governor as much, even before COVID-19 caused a severe backlog, according to the complaint.

The plaintiffs say that the administrative board is engaging in age-based discrimination by systematically cutting only judges over 70, as well as depriving them of their ability to serve on the court without due process.

The court system is also replacing the forcibly retired judges by promoting lower civil court judges to acting Supreme Court justices without holding elections, a move that takes away the people's right to choose their judges at the ballot box, according to the 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, some of whom have never been elected by the voters of this state," the judges said. As late as June 2020, the court system promoted three freshly confirmed Court of Claims judges to acting Supreme Court justices, according to the complaint.

Scharf says his clients were told the forced retirements would stand whether or not there was a federal stimulus, even as Gov. Andrew Cuomo has held off on announcing permanent cuts to the state budget pending the possible arrival of a friendlier presidential administration.

These cuts are only being made under the pretext of a budget crunch, according to Scharf, and are actually intended to open the door for the judiciary to seat a bevy of new judges without having to hold elections.

"The budgetary savings is really pretextual," he said. "This is just a clearing-out process that is getting blamed on COVID-19."

Contacted for comment, the Unified Court System said, "While we will be responding accordingly in court, it is the unfortunate that the idea of shared sacrifice is too much to be considered even in this seminal moment that we all are living through."

The judges are represented by Y. David Scharf, David B. Saxe, Danielle C. Lesser and Collin A. Rose of Morrison Cohen LLP, and James M. Catterson of Arnold & Porter.

Counsel information for the Unified Court System could not be determined Monday.

The case is the Gesmer et al. v. the Administrative Board of the New York Unified Court System et al., case number 616980/20, in the Supreme Court of the State of New York, County of Suffolk.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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