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E.E.O.C. v. STATE OF N.Y.

January 12, 1990

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
STATE OF NEW YORK, N YS. OFFICE OF COURT ADMINISTRATION, N.Y. ADMINISTRATIVE BOARD OF COURTS, AND N.Y.S. DEPARTMENT OF AUDIT AND CONTROL, DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, District Judge.

OPINION AND ORDER

This case presents the question whether New York State's refusal to consider judges over age seventy-six for service as "certificated" judges constitutes age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. § 621, et seq. Plaintiff moved for a preliminary injunction enjoining the defendants from refusing to consider a seventy-six year old judge, the Hon. Isaac Rubin, for recertification. Defendants moved for judgment on the merits. Pursuant to Fed.R.Civ.P. 65(a)(2), and with the consent of the parties, the Court consolidated the hearing on this motion with trial on the merits. For the reasons set forth below, the Court on December 22, 1989 permanently enjoined defendants from using age seventy-six as an automatic cut-off point to disqualify Justice Rubin from being considered for discretionary reappointment as a certificated retired justice.

BACKGROUND

Plaintiff EEOC is an agency of the federal government charged with the administration, interpretation, and enforcement of, among other laws, the ADEA. Defendants are agencies and instrumentalities of the State of New York that supervise the administration of the New York State courts.

The New York State Constitution provides for mandatory retirement of supreme court justices at age seventy:

  Each . . . justice of the supreme court . . .
  shall retire on the last day of December in the
  year in which he reaches the age of seventy.

N Y Const. art. VI, § 25(b).

However, a justice who so retires may thereafter serve as a supreme court justice (1) if he is certificated to serve, (2) for a term of two years which may be extended for additional terms of two years each, and (3) for no longer than the last day of the year in which he reaches age seventy-six:

  Each such former . . . justice of the supreme
  court may thereafter perform the duties of a
  justice of the supreme court, with power to hear
  and determine actions and proceedings, provided,
  however, that it shall be certificated in the
  manner provided by law that the services of such
  . . . justice are necessary to expedite the
  business of the court and that he is mentally and
  physically able and competent to perform the full
  duties of such office. Any such certification
  shall be valid for a term of two years and may be
  extended as provided by law for additional terms
  of two years. A retired . . . justice shall serve
  no longer than until the last day of December in
  the year in which he reaches the age of
  seventy-six.

Id. Section 115(2) of the New York State Judiciary Law describes the procedure for certification:

  1. Any justice of the supreme court, retired
  pursuant to subdivision b of section twenty-five
  of article six of the constitution, may, upon his
  application, be certified by the administrative
  board for service as a retired justice of the
  supreme court upon findings (a) that he has the
  mental and physical capacity to perform the
  duties of such office and (b) that his services
  are necessary to expedite the business of the
  supreme court.
  2. Any such certification shall be valid for a
  term of two years beginning on the date of filing
  the certificate. At the expiration of such term
  the retired justice may be certified for
  additional terms of two years each by the
  administrative board upon findings of continued
  mental and physical capacity and need for his
  services. No retired justice may serve under any
  such certification beyond the last day in
  December in the year in which he reaches the age
  of seventy-six.

N YJud.Law § 115 (McKinney 1983). The New York State Constitution also provides for the assignment of retired justices:

  A retired . . . justice shall be subject to
  assignment by the appellate division of the
  supreme court of his residence. Any retired
  justice of the supreme court who had been
  designated and served as a justice of any
  appellate division immediately preceding his
  reaching the age of seventy shall be eligible for
  designation by the governor as a temporary or
  additional justice of the appellate division. A
  retired . . . justice shall not be counted in
  determining the number of justices in a judicial
  district for purposes of section six subdivision
  d of this article.

N Y Const. art. VI, § 25(b).

FACTS

Justice Rubin was born on May 19, 1913. On November 2, 1976, he was elected to a fourteen year term as a Justice of the New York State Supreme Court, commencing January 1, 1977. Effective January 1, 1982, Justice Rubin was designated by then Governor Carey to serve as an Associate Justice of the Appellate Division, Second Department. While serving in that capacity, in 1983, Justice Rubin reached the age of seventy. As required by the judicial retirement provisions of the New York State Constitution and the New York State Judiciary Law, Justice Rubin retired on December 31, 1983. Pursuant to N Y Const. art. VI, § 25(b), the remaining seven years of Justice Rubin's fourteen year elected term expired at that time.

In 1983, Justice Rubin applied for and received certification; effective January 1, 1984, Justice Rubin began his first two-year term as a certificated justice. Concurrently with Justice Rubin's certification, Governor Cuomo redesignated Justice Rubin as an additional Justice of the Appellate Division, Second Judicial Department. Effective January 1, 1986, and January 1, 1988, respectively, the Administrative Board certificated Justice Rubin for service as a retired justice for second and third two-year terms, and Governor Cuomo each time redesignated him as an additional Justice of the Appellate Division, Second Judicial Department.

On May 9, 1989, Justice Rubin reached the age of seventy-six. Because he reached age seventy-six, Justice Rubin was ineligible for any additional certificated term, or for redesignation to the Appellate Division, pursuant to the sections of the New York State Constitution and the Judiciary Law cited above. Justice Rubin was thus not permitted to apply for, nor was he considered for, further certification by the Administrative Board. Crosson Aff. at ¶ 11.

On October 30, 1989, the EEOC filed this action on behalf of Justice Rubin. Concurrently, the EEOC began negotiations with defendants on Justice Rubin's behalf in which the EEOC specifically requested that Justice Rubin be allowed to participate in the preliminary steps of the certification process immediately so that, if plaintiff were successful in this lawsuit, Justice Rubin would be able to maintain his seat after December 31, 1989. Tr. at 19-20. Until the hearing on plaintiff's motion on December 21, 1989, defendants would not agree to allow Justice Rubin to take the required medical examinations, nor would they agree to take any other steps necessary to begin the certification process. Id. at 19-20, 26.


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