Several New York State Supreme Court justices have filed a lawsuit in Suffolk County that, in light of the COVID-19 budget crisis, profoundly threatens court operations statewide.
In November, in the 10th Judicial District (Nassau and Suffolk counties), we elected eight justices to the Supreme Court to replace those who reached the constitutionally mandated retirement age of 70. Separately, the Administrative Board of the Courts — consisting of the chief judge of New York State, Janet DiFiore, and the presiding justices of the four departments of the Appellate Division — is empowered to "certificate" any, all, or none of the soon-to-be retired justices to allow them to continue on the bench for three two-year periods if they are "mentally and physically able and competent" and the administrative board finds that their service is "necessary to expedite the business of the court."
Certification is not automatic. If a retired justice is certificated, he or she continues to serve at the same salary as an elected justice but would not count against the 48 justices allotted by statute for the 10th Judicial District. This year, due to New York’s fiscal crisis, the administrative board declined the applications of 46 of 49 justices from across the state who sought to remain active past mandatory retirement. Justices from among these 46 filed the lawsuit at issue challenging this decision.
They ignore the reality that the courts are absorbing a monumental $300 million (or 10%) budget cut. Although the chief judge with Chief Administrative Judge Lawrence K. Marks met this challenge by adopting a strict hiring freeze, deferring negotiated pay increases, canceling almost all discretionary spending, and delaying required payments wherever possible, they were still short of the $300 million target. Additional reductions had to be found.
With 90% of the judiciary budget devoted to personnel, the courts could have reduced their workforce by laying off some 324 non-judicial employees on Jan. 1. This would have included clerks, officers, analysts and other support staff who assist the public as well as judges. In addition to the untold hardship to these employees and their families, the impact of such widespread layoffs would have been felt most acutely in the lower courts — the family, city, criminal, civil, and district courts — that most often touch the lives of ordinary New Yorkers. These courts, where Supreme Court justices do not sit, provide vital services that disproportionately impact millions of vulnerable individuals and families in struggling communities often underserved by our justice system. Therefore, the administrative board instead made the very difficult decision to forgo the continued judicial service of 46 retired justices to enable the business of the courts to continue and to preserve the jobs of 300-plus essential employees.
When I served on the Court of Appeals, the State’s highest court, we held that the administrative board "had very nearly unfettered discretion" in determining whether to certificate a retired justice. Our state constitution does not leave this determination to local bureaucrats or politicians. Nor is it left to any one judge or justice. The administrative board is given this responsibility because it is comprised of five highly experienced appellate judges from across the state, each appointed by the governor, and charged with making these decisions based on the broadest range of perspectives in the best interests of the court system as a whole.
Their determination not to certificate 46 retired justices should be left undisturbed.
Sol Wachtler, a former chief judge of New York State, is distinguished adjunct professor at Touro Law School.