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46 judges, thousands of cases: Legal fight leaves careers and caseloads in the balance

December 22, 2020 David Brand
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The careers of 46 older judges across New York state are in limbo amid a court battle over an Office of Court Administration decision to deny them new terms.

So too are the tens of thousands of cases that those judges handle.

The 38 Supreme Court justices facing termination handle approximately 21,000 cases, according to the Supreme Court Justices Association of the State of New York, which has sued state court leaders to block dismissal of the judges. Eight others are on the appellate bench.

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The number of newly elected justices will not be enough for the courts to absorb that additional caseload, already exacerbated by COVID-19 complications, said Queens Civil Supreme Court Justice Carmen Velasquez, president-elect of the Supreme Court Justices Association.

“I’m glad we have the new judges, and we were hoping the new judges can help us with the backlog, but now we have a double backlog,” she said.

Her organization’s lawsuit accuses the OCA Administrative Board of age discrimination for targeting the older judges. OCA says letting go of the judges will save $55 million during a state-imposed judicial budget crunch and prevent layoffs of other court staffers. Their cases will be dispersed among existing and incoming judges, OCA said.

Velasquez said she was “cautiously optimistic” after a Suffolk County judge temporarily sided with her organization and blocked OCA from following through with their plan to deny certification to the judges over 70. Under state law, judges 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.

“We are just hopeful that everyone has the courage to do the right thing,” Velasquez said. “Doing the right thing means allowing these justices to continue.”

OCA and the Supreme Court Justices Association will be back in court Dec. 29.

Other judges are less hopeful about the outcome.

“It’s not that they can’t be reinstated, but I don’t see any positive coming out of” the court challenge, said one judge familiar with many of the jurists facing termination. The judge asked to remain anonymous to talk openly about OCA, their colleagues and the litigation.

OCA has appealed the Suffolk County judge’s decision to the Third Department, Appellate Division — potentially moving the matter closer to the Court of Appeals, New York’s highest court. Chief Judge Janet DiFiore, head of OCA Administrative Board, sits on the Court of Appeals and would almost certainly recuse herself from the case, leaving it up to the remaining six justices.

“Judges have tried to sue in the past and the Court of Appeals was never friendly to them,” the judge who talked with the Eagle said, citing past battles for pay raises. “They got smacked down.”

Further complicating a potential appeal: An amicus brief submitted to the Appellate Division Third Department by previous chief judges and chief administrative judges.

In their brief filed Monday, New York’s former top judges Jonathan Lippman and Sol Wachtler and former chief administrative judges Ann Pfau, E. Leo Milonas, and Joseph Bellacosa said OCA’s Administrative Board “exercised its obligation and discretion to make a difficult policy choice in order to best serve the public,” in essence reinforcing OCA’s main argument. The brief also says ruling against OCA’s decision threatens the constitutional powers of the Administrative Board.

But several judges facing termination, their colleagues, legal leaders and good government groups have consistently countered that removing the judges is far from best serving the public.

“I think the best interest of the public is to have a full complement of judges so that the court system can continue. It’s very hard now to get your case heard and less 46 experienced judges will be even harder,” said past president of the Brooklyn Bar Association Steven Cohn.

Eight appellate judges are also facing termination, further straining an understaffed judiciary handling thousands of cases a year. The Second Department, which includes Queens and Brooklyn, was already short judges and will now lose four more — three denied recertification and one, Presiding Judge Alan Scheinkman, who is retiring.

“This will have a tremendous impact on the Second Department. It’s devastating,” Cohn said.

The appeals are typically a defendant’s last chance for a favorable ruling because few cases make it to the Court of Appeals after appellate judges weigh in.

Thus each case requires careful reading, and a grasp of many fields of law, said Justice Sheri Roman, who sits in the Second Department Appellate Division.

“Commercial to zoning to maritime to matrimonial. I had one case where I had to figure out how someone could get a divorce in India in the 1950s,” Roman said.

Roman has joined other appellate judges on a related lawsuit filed in Suffolk County to reverse the decision to terminate older judges.

OCA spokesperson said the Suffolk County judge’s decision has flimsy legal standing.

“We remain on this farcical merry go round of orders being issued by the trial level justice only to be automatically stayed by the appellate division based on our pending appeal,” Chalfen said.
“At some point the continued frosting of a nonexistent cake will end and the case will be decided on the merits.”

Whatever happens in the Suffolk County court, the appellate division or even the Court of Appeals, Velasquez said her judges’ association is committed to seeing the case through all the way to the U.S. Supreme Court.

“We understand that the budget crisis is really hard, and hopefully the stimulus coming to the state will help out,” she said. “It’s hard but sometimes you have to step up to the plate.”

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