Age Discrimination Case ~ New York

 Hi Readers, I will follow this, as it may be the case that these judges lost their jobs due to age discrimination. Typically, this is almost impossible to prove but this case may be the exception. I am keeping an open mind in the meantime until more facts emerge. AgeDoc

 

New York Judges Sue State For Age Discrimination

 

BY BETH FERTIG, WNYC

DEC. 4, 2020 5:00 A.M.

 

A state judge on Long Island is considering hearing arguments on whether the court system illegally discriminated against 46 judges by refusing to renew their certification to serve after they turned 70 or older.

 

The mandatory retirement age is 70 for state supreme, appellate, and court of appeals judges. However, they can apply for re-certification in two-year increments until they turn seventy-six. Judges are normally re certified so long as they are mentally and physically sound, and their services are still needed.

But in late September, forty-six out of the forty-nine judges who applied for recertification were denied. The state’s chief administrative judge, Lawrence Marks, sent a letter noting “economic fallout of the coronavirus pandemic has led to enormous pressure” on the state’s budget.  

 

He said Governor Andrew Cuomo had asked for a 10% cut to the judiciary budget, totaling $300 million, and that declining to recertify most of the judges who applied would save $55 million over the next two years. Along with other cost-cutting measures, he said this would help the court system avoid more layoffs.

 

A similar lawsuit was filed by the Association of the Justices of the Supreme Court of the State of New York on behalf of all 46 who were not renewed. Both lawsuits claim the state’s court system took actions that are “arbitrary and capricious.”  The lawsuits were filed in Suffolk County, which they claim is especially hard hit because it is losing three lower court judges and four appellate judges among the 46. The second department of the appellate division hears not only civil and criminal appeals from Suffolk but also Brooklyn, Queens, and Westchester among other counties. 

 

Subtracting the four judges who weren’t re-certified, as well as a retirement and vacancies, the suit by the appellate judges claims the second department is losing thirty percent of its judges. It asserts the backlog in the second department is the worst of the state’s four divisions, and that its counties have large populations of minority groups and residents who don’t speak English.

Schaf said losing so many judges in this region could double the amount of time from trial through appeal, adding years to the process for family court cases, personal injury suits, and criminal appeals. “Those are the cases that are going to be the most delayed,” he explained. “And the statistics show that people of color are the ones that have a larger proportion of those types of cases.”

The state’s unified court system and chief judge have asked for the case to be dismissed. They also claim it should have been filed in Albany, the seat of state government, instead of in Suffolk.

 

“This lawsuit is about senior judges, with little regard to both the legal and fiscal realities staring them in the face, who have six figure pensions and health benefits, refusing to relinquish their positions,” said Lucian Chalfen, a spokesman for the Office of Court Administration. “Their unabashed self-interest would translate into 324 much needed court clerks and court officers, who have reported to work throughout this pandemic, being laid off in a very challenging employment environment.

 

But attorneys for the plaintiffs said the fact that the judges will continue drawing their pensions after January proves their removal isn't saving money. Scharf said the concept of a budgetary need is “pretextual for getting rid of a class of people who are protected because of their age,” referring to state and city laws.

Some of the judges have been on the bench for thirty years or longer. Ellen Gesmer, who has been a judge for sixteen years, said she was “stunned” to learn in September that she would not continue as an appellate court judge after December 31. 

 

Now 70, she is an appellate judge in the first department, which covers Manhattan and the Bronx, and hears appeals on everything from personal injury cases to teacher firings and criminal cases. “The kinds of cases we cover include the very poorest people in the state and multi-billion dollar corporate disputes,” she said.

 

Gesmer was a public interest lawyer and ran a family law practice in Manhattan before she was elected as a civil court judge in 2003. She said she wanted to return to public service and was elected again as a supreme court judge, eventually becoming an appellate court judge in 2016. She had planned to stay on through the maximum of three more recertifications, taking her to the age of seventy-six. She was even asked to run a training session for new judges in January - after she was told of her own termination. “I'm certainly fit and able to do the job,” Gesmer said. “And my court certainly needs me,” she added, referring to the pandemic.

 

That is a key issue in both lawsuits. They claim the court system failed to properly assess whether it needed the judges - a step that’s required during recertification. Alan Klinger, a co-managing partner of Stroock & Stroock & Lavan who is representing the association of judges, predicted an “explosion of trials” after the pandemic, because jury trials were so rare and difficult this year.

“Our argument is that yes, there is some savings of money by denying the 46 judges certification but the cost is too great,” he said. “There’s literally tens of thousands of cases that have to be reassigned and this is to an already burdened judiciary.” The Office of Court Administration says it will fill the vacant positions with a combination of elected judges and appointed judges, but no details have been provided yet.

 

Several legal organizations, from the city’s bar association to the LGBT Bar Association of Greater New York, filed their own letters opposing the state’s cost-cutting move. The Judicial Friends Association, which is composed of minority judges, noted that more than 130 employees are being cut, when adding in the clerks and other staffers who work with the 46 judges. It asked if the state even considered the impact of losing so many employees in light of a recent study finding implicit bias within the courts.

 

Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.