Appellate judges sue New York court leaders over ‘arbitrary’ terminations and 'blatant age discrimination'
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Five appellate judges are suing the OCA Administrative Board over their decision to terminate judges 70 and older. Photo by Rob Abruzzese
By David Brand
Five appellate judges set to lose their jobs on Dec 31 sued New York state court leaders Thursday, charging the Office of Court Administration’s administrative board with ‘blatant age discrimination’ after they decided to terminate nearly every judge over 70 in the state.
The plaintiffs in the lawsuit, filed in Suffolk County Supreme Court, include Second Department Justice Sheri Roman, a former Queens judge.
In late September, OCA’s administrative board declined to recertify 46 of 49 judges over age 70 for another two-year term on the bench, citing a need to trim 10 percent, or $300 million, from the judiciary budget. Chief Administrative Judge Lawrence Marks has said that letting the judges and their staff go will save the court system about $55 million over the next two years.
Under state rules, New York supreme court justices are required to apply for recertification and undergo cognitive exams every two years after turning 70 until they reach a mandatory retirement age of 76. Before this year, those recertifications were typically routine.
The judges say the decision to deny their recertifications was “arbitrary and capricious” and will hinder New York’s legal-justice system while courts face deep case backlogs as a result of the COVID-19 pandemic.
Cutting the 46 judges demonstrates “total disregard for the impact of their actions on the administration of justice for the citizens of this state,” they write in the lawsuit.
“Wholesale denial of certifications by Respondents will result in even greater delays in decision making by the Appellate Divisions, delays in decision making by the trial courts, a decrease in resources for the provision of justice to the state’s most disadvantaged citizens, and a decrease in diversity among the state’s judiciary,” they continue.
“All of these consequences will be inflicted on a court system teetering on the edge of total dysfunction.”
In addition to the appellate judges who brought the lawsuit, six Queens Supreme Court justices — three in Criminal Term and three in Civil Term — were also denied recertification. The Eagle was the first publication to report on the full list of 46 judges being terminated.
The lawsuit also argues that OCA’s Administrative Board “engaged in blatant age discrimination” by cutting the judges. It names Marks and Chief Judge Janet DiFiore as respondents.
“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 complaint states.
Marks and OCA have consistently said the terminations — which will also include judicial staff — were necessary to trim the budget because of a state budget shortfall.
“While we will be responding accordingly in Court, it is the unfortunate that the idea of shared sacrifice is too much to be considered even in this seminal moment that we all are living through,” said OCA spokesperson Lucian Chalfen.
The Queens judges facing termination include Civil Term Justices Bernice Siegal, Joseph Esposito and Maureen Healy. Two others, Justice Martin Schulman and Justice Rudy Greco, are retiring.
On the Criminal Term side, Justice Richard Buchter, Ira Margolis and Daniel Lewis were not recertified after they completed the process. Justices Barry Schwartz, Ronald Hollie and Leslie Leach, a former Civil Supreme Court administrative judge, have each decided to retire.
An organization representing hundreds of state supreme court justices has also weighed filing a lawsuit against OCA on behalf of the the judges whose careers will come to an end Dec. 31.
Last month, the Association of Justices of the Supreme Court of the State of New York reached out by email to the judges to see if they were interested in becoming plaintiffs in an Article 78 lawsuit.
“The Association’s Executive Board is having discussions whether to proceed against the Administrative Board with an Article 78 proceeding and would appreciate your input,” Association President Charles Merrell wrote to the judges in an email shared with the Eagle. Merrell is a supreme court justice in Lewis County.
The association did not respond to requests for comment.
At least one of the affected Queens judges said he supports the legal challenges because OCA agreed to recertify three judges who they say have special responsibilities.
“I do think there’s some merit to the lawsuit,” Esposito said. “I think there is more explaining to do when they have certified some judges and not others.”
He also said state court leaders have mishandled the terminations and disrespected the judges and staff members losing their jobs.
“I haven’t even gotten a letter from the powers that be saying, ‘Thank you for your service,” Esposito said.
