NY Court Leaders Face Contempt In Judges' Age Bias Suit

By Emma Cueto
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Law360 (November 20, 2020, 9:08 PM EST) -- A New York state trial court has ordered the court system's administrative board and the chief judge to justify why they should not be held in contempt for not complying with an order for expedited discovery in a lawsuit alleging that the court system illegally targeted older judges for forced retirement during the 2020 budget crunch.

Justice Paul J. Baisley of the Supreme Court of Suffolk County said in an order Thursday that the Administrative Board of the New York State Unified Court System, along with Chief Judge Janet Difiore, and Chief Administrative Judge Lawrence K. Marks, were ordered to appear Nov. 30 to show cause why they should not be sanctioned and to justify their request that the court should reconsider its decision to grant expedited discovery.

Pending the hearing, Judge Marks and Judge DiFiore should also be made available for virtual depositions, the order added.

The suit, filed earlier this month, was brought by judges Ellen Gesmer, David Friedman, Sheri Roman, John Leventhal and Daniel Tambasco.

The judges alleged that when the state courts cut their budgets in response to the COVID-19 pandemic, administrators chose to force 46 of the state's judges 70 or older into retirement by denying their requests for certification. This determination was not based on an individual assessment of the judges' continued fitness, the suit alleged, and was therefore a violation of proper procedure and amounted to age discrimination.

The administrative board responded by arguing that it was within its rights to terminate the services of judges 70 or older, and that state law gives the board the discretion to choose whether to certify such judges or not.

It also argued that the suit should be moved to Albany and objected to the expedited discovery request that was granted before the state responded to the lawsuit. The discovery demands were overly broad, the state argued, saying that the judges were on a "fishing expedition" and that their exhaustive records requests contradicted the supposed need for speed.

"Petitioners cannot transform a legally meritless suit into an excuse to second-guess the budgetary choices of the judiciary, never mind to engage in the proverbial fishing expedition in order to burden or harass the court system and its administrators," the state said in a motion filed Nov. 13.

On Thursday, however, Justice Baisley took the state to task for not delivering the discovery documents in compliance with the earlier order. He also ordered the state to produce the documents by Nov. 30, the date of the hearing.

Counsel for both parties did not respond Friday to requests for comment.

The New York judicial system has announced plans to cut $300,000 from its $3 billion budget, a move that has drawn criticism from judges, staff and others. Critics have cited the worsening backlog in the court system, saying it would only be exacerbated by budget cuts, and warned of a disproportionate impact on communities that already experience curtailed access to justice.

Critics have also said that the 46 judges who allege they were forced into retirement were overseeing a total of over 20,000 cases.

The judges who filed suit 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.

The administrative board, Judge DiFiore and Judge Marks are represented by Elizabeth A. Forman of the Office of Court Administration.

The case is Hon. Ellen Gesmer et al. v. Administrative Board of the New York State Unified Court System et al., case number 616980/2020, in the Supreme Court of the State of New York, County of Suffolk.

--Additional reporting by Emily Lever. Editing by Michael Watanabe.

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

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