By Marco Poggio

Law360 (December 21, 2020, 11:24 PM EST ) New York's top state courts officials late Friday night appealed a Suffolk County judge's order from the same day that allowed older state court judges to continue to serve on the bench pending two age-discrimination lawsuits, court documents show.

Chief Judge Janet DiFiore, Chief Administrative Judge Lawrence Marks and the court system's administrative board, who collectively are defending against two lawsuits alleging the board had forced more than 40 judges over the age of 70 to retire amid COVID-19-related budget cuts, filed an appeal shortly before midnight.

The judges said the courts' administrators used budget limitations caused by the pandemic as an excuse to terminate the judges by not certifying them to serve for the next two-year term, though the real reason they were singled out was their age, according to a complaint filed in early November. 

The state constitution says judges can sit on the bench until the age of 70, after which they have to undergo a certification process to be able to serve additional time. Judges can serve up to three 2-year terms after the benchmark. Courts have the discretion to grant certification. The judges who filed suit say the courts have abused that discretion by choosing to force them to retire, the complaint alleges.

"In denying certification to these judges, the Respondents have engaged in 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, some of whom have never been elected by the voters of this state," the suit alleges.

Trial court Justice Paul Baisley Jr., who sits on the Supreme Court of Suffolk County, on Friday evening issued the order, which requires the state court judges and their staff to remain in office at least until the lawsuits are resolved and sets a hearing for an injunction on one of the suits for Dec. 29. After hearing oral arguments, the judge said the Administrative Board of the New York State Unified Court System had no legal right to prevent the judges from being certified, pending the lawsuits' outcomes.

In the appeal notice, the board asked the New York Supreme Court's Appellate Division, Second Department, to stay Justice Baisley's order, saying it violates the state constitution-given power the agency has in deciding which judges to certify for a new judicial term.

"This is one in a series of orders issued by [the trial court] intended to prolong this matter and avoid decision and appellate review of the substantive issues of law raised in respondents' motion to dismiss relating to the certification of judges for post-retirement service," the notice of appeal says.

Court spokesperson Lucian Chalfen dismissed the order as a waste of time:

"Friday's order continues to be about frosting a nonexistent cake. The justice in Suffolk is handing down orders that he knows are not about the merits of the case and will be stayed," Chalfen said.

Chalfen said the law gave the agency the right to an automatic stay of the order.

David Scharf of Morrison Cohen LLP, the firm that co-represents judges who filed one of the lawsuits, disagreed, saying the appeal has "absolutely no merits."

"We think the concepts that they are trying to invoke an automatic stay of the temporary restraining order is absolutely frivolous and has no basis in law," Scharf said.

New York's Office of Court Administration declined to make the attorneys in this case available for interviews.

The board had announced in September that it had denied all but three requests for judge certifications, effectively terminating the employment of the judges by Dec. 31. During the previous three years, the board denied only three of those requests.

Judges Ellen Gesmer, David Friedman, Sheri Roman, John Leventhal and Daniel Tambasco sued the board alleging it "committed acts of blatant age discrimination in violation of the New York State and New York City Human Rights Law," according to the complaint.

Earlier this month, Justice Baisley had denied four motions filed by the board seeking 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 Second Department determined that all appeals coming out of the lawsuits — the second one was brought by the state's and city's associations representing supreme court justices and is currently pending before the same judge — are to be heard in the Third Department to avoid potential conflict of interests, since some of the plaintiffs in the lawsuits are appellate judges who sit on the Second Department.

In an order to show cause entered Monday afternoon, Justice Baisley asked the courts' administrative board for reasons why the two lawsuits should not be consolidated.

Alan M. Klinger of Stroock & Stroock & Lavan LLP, the firm representing the supreme court judges in the second lawsuit, said the courts' administration is violating its duty to ensure courts are adequately staffed with judges because it's effectively striking out the most seasoned workforce at a time when a backlog of cases caused by the pandemic is already crippling the courts.

"There's going to be an explosion of cases that will backlog the court system," Klinger told Law360. "The court administration is failings its obligations." 

Saying he was "very pleased" with Friday's order, Scharf doubled down on his clients' right to keep their jobs on the bench, pointing out that the board's decision not to certify the judges put the jobs of their staff on the chopping block as well.

"The determination that was made not to certificate our clients and the other ... judges that were not certificated was inappropriate, unlawful and discriminatory," Scharf said. "We will prevail."

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.

--Editing by Michael Watanabe.

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