A narrow view of NY senior judges

In September, the administrative board that runs New York’s courts decided to compel the retirement of 46 of the 49 judges 70 years or older who applied for the certification necessary to continue working until age 76, the mandatory retirement age. Amid a pandemic and preexisting budgetary and staffing shortfalls, this drastic action is a dagger in the heart of the New York Unified Court System and threatens its ability to effectuate justice for all New Yorkers.

Suffolk County Supreme Court Justice Paul A. Baisley has ruled that this determination was made illegally. Nonetheless, the administrative board has appealed, with the result that, as of Jan. 1, these judges are no longer performing their duties, despite their fitness and willingness to do so, to the great detriment of New Yorkers.

Make no mistake — the denial of certification has a significant local impact. It will eliminate 16% of the elected Supreme Court justices in the trial courts on Long Island.

The original justification for the board’s decision was a request from Gov. Andrew M. Cuomo earlier this year that all state agencies propose budget cuts of 10% in response to COVID-19-related revenue shortfalls. There are many reasons why the board’s response is shortsighted, counterproductive, and ultimately, may not result in any meaningful savings to the court system.

Critically, the board’s decision must be undone because the conditions that caused Cuomo to request budgetary cuts across the state have materially changed.

On Dec. 27, a $900 billion stimulus package was signed into law and took immediate effect. U.S. Sen. Chuck Schumer estimates that New York State will receive $54 billion from those funds. It is likely the state will soon receive more, as President Joe Biden supports passing a more substantial package in the early months of his administration and Schumer is now the Senate’s majority leader.

The funding that New York will receive under the current package more than adequately addresses the budgetary concerns the board said informed its decision. The claimed savings of $55 million, not billion, over two years from the permanent removal of these judges is a tiny fraction of the federal aid that New York will receive in the coming weeks. Indeed, Cuomo has repeatedly asserted that all of the announced cuts and layoffs in state government will be reversed in light of the stimulus package.

The jurists facing this mandatory retirement have sued, claiming the board’s decision to force these senior judges into retirement is unconstitutional and constitutes age discrimination. That lawsuit proceeded on an expedited basis and the judges have received several victories, including Suffolk County State Supreme Court Justice Paul J. Baisley’s decision that their terminations violated both state law and the constitution. Appellate argument is scheduled for Feb. 5, but even that decision may not resolve the situation immediately. One cannot prejudge the merits or outcome of these claims, and the state has appealed these early victories.

Since the very reasons for the drastic budget cuts are now largely gone, the justices’ lawsuit does not threaten court operations, but rather protects the independence and integrity of the judiciary. Their lawsuit is a reflection of their commitment to dispensing justice, since they could simply have retired and taken their pensions. Any threat to the independence and integrity of the judiciary comes from dismissing en masse senior judges who have served with distinction for decades.

Victor A. Kovner formerly served at New York City corporation counsel and is a partner of Davis Wright Tremaine in New York City.