A New York state trial judge rejected court administrators' early attempts to dismiss a lawsuit claiming the state court system is illegally forcing older judges into retirement amid a COVID-19 budget cut, ordering the case to "proceed expeditiously."
On Thursday, New York State Supreme Court Justice Paul J. Baisley denied four motions by the Administrative Board of the
New York State Unified Court System, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks, who have sought to delay, derail or transfer the lawsuit from Suffolk County, over which two plaintiff appellate judges preside, to Albany County, where the chief judge presides.
The ruling follows the plaintiff judges' bid to
hold the court leaders in contempt for failing to abide by Justice Baisley's order last month directing the chief judges to submit to depositions and the Office of Court Administration to turn over documents about how it decided to deny 46 judges older than 70 the opportunity to stay on the bench.
The plaintiff judges say court leaders are dragging their feet ahead of a Dec. 31 deadline, when they will be forced off the bench and the state payroll, leaving them with the choice to either lose income as the lawsuit continues or put in retirement papers and forfeit any potential to be reinstated.
"OCA has made a decision that these 46 judges don't have a place in the system and why that is, at some point, they're going to have to answer for that," plaintiffs' counsel Y. David Scharf of
Morrison Cohen LLP told Law360 on Friday. "Because the budget issue doesn't seem to be holding water."
By the nature of its litigants, the case is engulfed in judicial politics, featuring sitting appellate judges as plaintiffs and the chief judges of the state court system as defendants.
In his decision, Long Island-based Justice Baisley sided with the plaintiffs in deciding that the risk of an appearance of bias was more acute in Albany than it would be in his Suffolk County court.
While his trial court decisions would be appealed to the Second Department in Brooklyn — where plaintiff Justices Sheri. S. Roman and John M. Leventhal sit — Justice Baisley agreed with the plaintiffs that "the risk of a 'close personal connection existing between a litigant and the judge presiding over this case is much greater in Albany than in Suffolk County' given the close geographic proximity" of Albany's trial court, appellate court and high court, where the chief judge presides.
The court administrators immediately appealed the ruling and sought an automatic stay. "We expect to prevail on appeal," said OCA spokesperson Lucian Chalfen.
To date, Justice Baisley's rulings have been appealed to the Second Department, only to have a panel there quickly transfer the appeal to the Third Department in Albany. It seems likely that while the lawsuit proceeds in Suffolk, any appeals may be forwarded to Albany.
"We can certainly see that this case became a political hot potato in the Second Department," Scharf said of the transfer. "We continue to hope and expect that the Third Department will give us a fair hearing and will remain impartial."
"This is an extremely political case," he continued, citing his murky understanding of the court administration's logic for excusing the 46 judges and the appellate courts' cryptic explanations for transferring the appeal. "I can't explain it. But we can certainly feel it."
In denying the court administrators' motions, Justice Baisley pointedly recounted how the chief judges and OCA had failed to show up for the first hearing on the discovery order they were now striving to undo.
"No one on behalf of the respondents appeared before this court on November 5, 2020, in opposition to the order to show cause, nor did this court receive any communication whatsoever from anyone on behalf of respondents before the order to show cause was signed," the judge said.
"In fact," the judge continued, it was not until one week later that OCA "first raised an objection to this court regarding expedited discovery."
Justice Baisley repeatedly attacked the court administrators' understanding of the law as he denied their motions.
The judge batted away another motion asking him to rescind his order expediting discovery and depositions of the chief judges, saying "there is no procedural or factual basis for the court to 'reconsider' its prior order."
"The expedited discovery previously ordered by this court shall proceed expeditiously," Justice Baisley said.
He said the administrators' dismissal motion was brought under the wrong statute, was "not procedurally appropriate," and that the administrators' counsel "fail to undertake any analysis of the pleading requirements."
The judge reserved a measure of subdued irritation for a so-called supplemental motion to dismiss based on the claim that the judge's order for discovery was never properly served on the court administrators, despite plaintiffs' affirmation that a security guard turned away a process server at OCA headquarters twice and OCA not making that argument until it had already actively participated in the case for weeks.
Moreover, the judge noted, OCA "admitted on the record ... that they had been 'served on the 6th' and concede they were also served by email." Therefore, OCA had waived that defense, he said in dismissing the motion.
The appellate judges launched their suit on Nov. 5, claiming that when the state courts announced a $300 million budget cut in response to the governor's directive to reduce spending by 10% due to a shortfall caused by the COVID-19 pandemic, administrators chose to force 46 of the state's most experienced judges — those 70 years old or older — into retirement by denying requests for certification, which are typically granted.
The decision to deny 46 of 49 judges applying for certification was not based on an individual assessment of the judges' continued fitness, the suit says, and was therefore a violation of proper procedure as well as a violation of human rights law barring age discrimination.
OCA has countered that it has the right to terminate the services of judges 70 or older, and that state law empowers it with broad discretion to choose whether to certify judges or not.
Broadening the legal battle over the alleged forced retirements, several New York state judicial associations sued shortly before Thanksgiving, making similar claims as the appellate judges. That lawsuit is trailing closely behind the first procedurally, with OCA's motions for a venue change and dismissal still pending.
That case is also pending before Justice Baisley.
The appellate 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.
The judicial associations are represented by Alan M. Klinger, Dina Kolker and Elizabeth C. Milburn of
Stroock & Stroock & Lavan LLP.
The administrative board, Judge DiFiore and Judge Marks are represented by Elizabeth A. Forman of the Office of Court Administration.
The case is 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 Emma Cueto. Editing by Adam LoBelia.
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