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United States District Court, Southern District of New York

January 12, 1990


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


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.


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

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).

The certification process normally begins in January or February of the year before each term of certification is to begin, when the Administrative Board mails a letter to eligible justices inviting them to apply for certification. Affidavit of Matthew T. Crosson, December 13, 1989 ("Crosson Aff."), at ¶ 6. The Administrative Board makes arrangements for applicants to undergo medical and psychological examinations in the early spring, and the Board receives reports regarding applicants from other judges with administrative duties, as well as from bar associations and other interested individuals. Crosson Aff. at ¶ 8. In June, the Administrative Board, consisting of the Chief Judge of the Court of Appeals and the Presiding Justices of each of the four Appellate Divisions, meets to determine, in its discretion, which justices will be certificated. The Board considers the factors set forth in the Judiciary Law, including nature and extent of the applicant's prior judicial service. Crosson Aff. at ¶ 10. The Administrative Board's discretion in determining whether to certificate an applicant is broad and nearly unfettered. The Administrative Board can, and does, refuse to certify a judge for any reason it deems sufficient, including fiscal reasons. A judge who is not selected for certification has no right to a hearing, and no right even to a statement of reasons for the denial. Applicants are usually informed of the Board's determination in June.*fn1


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.

As of the date of the hearing on this motion, Justice Rubin had not gone through any of the steps of the certification process. Justice Rubin had, however, requested that the Governor consider him for redesignation to the Appellate Division, subject to a favorable determination in this lawsuit. Justice Rubin was advised that on November 17, 1989, the Governor's Statewide Screening Panel for the Second Judicial Department approved his name as qualified for redesignation to the Appellate Division by Governor Cuomo. Affidavit of Isaac Rubin, November 29, 1989 ("Rubin Aff."), at ¶ 32. Justice Rubin testified that he has been advised that the Administrative Board is willing to process his certification much more expeditiously than is usual if the ADEA is held to apply to certificated justices. Tr. at 17, 48.


The ADEA, 29 U.S.C. § 623, provides:

    It shall be unlawful for an employer (1) to
  fail or refuse to hire or to discharge any
  individual or otherwise to discriminate against
  any individual with respect to his compensation,
  terms, conditions or privileges of employment,
  because of his age.

As amended in 1974, the definition of "employer" in the ADEA includes states, political subdivisions, and state agencies. See 29 U.S.C. § 630(b). Although the ADEA originally protected only employees under seventy years of age, Congress deleted the age ceiling effective January 1, 1987. See 29 U.S.C. § 631(a).

The ADEA enumerates four exceptions to the definition of employees covered under the Act:

  The term "employee" means an individual employed
  by any employer except that the term "employee"
  shall not include any person elected to public
  office in any State or political subdivision of
  any State by the qualified voters thereof, or any
  person chosen by such officer to be on such
  officer's personal staff, or an appointee on the
  policymaking level or an immediate advisor with
  respect to the exercise of the constitutional or
  legal powers of the office.

29 U.S.C. § 630(f).

This case is unusual in that there is far more agreement among the parties here than there has been among parties to similar litigation in other states. Unlike the State of Vermont,*fn2 New York takes the position that judges are not "on the policymaking level" and thus do not fall within that exception to the ADEA's application.*fn3 Unlike the Commonwealth of Massachusetts,*fn4 New York takes the position that appointed state court judges are protected from age discrimination by the ADEA, which New York views as superseding the state constitution's requirement that all judges retire at age seventy. See fn. 3, supra. The only point of disagreement in this case is whether certificated justices should be categorized as "elected to public office" for purposes of the ADEA.

Plaintiff asserts that because Justice Rubin's elective office terminated upon his retirement after reaching age seventy, and because it was the Administrative Board, rather than the voters, who made the decision to select him for certification, he is outside the "elected" official exception to the ADEA; in plaintiff's view, having served in the past as an elected judge is merely one prerequisite to certification. Defendants assert that elected status is "inseparable" from certificated status: a certificated judge must have been an elected supreme court justice prior to his certification, and he "continue(s) to hold the office of Supreme Court Justice to which he or she was elected, and was now `retired,'"*fn5 with the same duties.

Defendants, however, are answering the wrong question. The question is not whether an elected judge's job title and duties continue unchanged after his retirement and certification, but whether his status as an elected judge remains unchanged.*fn6

To answer this question, the Court is required to construe the phrase "elected to public office" as it is used in the ADEA. The wording of the exemption "any person elected to public office in any state or political subdivision of any state" given its ordinary meaning, appears to apply to any person who holds his present office because the voters elected him to it, rather than, as defendants contend, to any person whose voter-elected term has ended, and who now holds office by virtue of having been selected by someone other than the voters. Thus, the wording of the exemption suggests that certificated judges should not be included in the category of "elected" officials.

Furthermore, neither the remainder of the statute nor the legislative history lends any support for defendants' position.*fn7

No other portion of the ADEA lends any assistance in defining "elected" or in explaining why elected officials were singled out for exclusion. The principle noscitur a sociis ("it is known from its associates"), which is often resorted to when interpreting one of several exceptions, is not helpful here. Although there may be a common thread among the other three exceptions (i.e., each exception excludes certain appointed officials), the elected official exemption is intuitively distinctive: the application of the ADEA to elected officials could have the absurd result of requiring a court to inquire into each voter's motives in voting, and could deprive the electorate of the representative it chose.*fn8

The legislative history of the ADEA is of no help on either the meaning of the word "elected" or the purpose of the elected official exemption; there is no mention of it in any report or any debate leading up to the ADEA's enactment.*fn9 See E.E.O.C. v. Massachusetts, 858 F.2d at 58. However, the exemption for certain government officials contained in the ADEA was taken in haec verba from the exemptions from the definition of "employee" under Title VII of the Civil Rights Act of 1964 ("Title VII"). See 42 U.S.C. § 2000e(f). Thus, in interpreting the elected official exemption of the ADEA, the Court will look to the relevant legislative history of Title VII, as all parties have urged the court to do. See E.E.O.C. v. Massachusetts, 858 F.2d at 55.

In 1972, Congress broadened the reach of Title VII to include state and local governments as employers. The elected official exemption was introduced on the floor of the Senate, after the bill was reported out of the Senate Committee; it is thus not mentioned in the Senate Committee Report, nor is it mentioned in the House Committee Report. It is mentioned in the Conference Report, which states only "i[t] is the intention of the conferees to exempt elected state officials. . . ." H.R. Conf.Rep. No. 899, 92nd Cong., 2d Sess., Joint Explanatory Statement of the Managers at the Conference on H.R. 1746 ("Conference Report"), reprinted in 1972 U.S. Code Cong. & Adm.News 2137, 2180. It is also mentioned in the Section-by-Section analysis of the bill as reported from the conference, which was prepared by Senators Williams and Javits, which states only "[t]his subsection is intended to exclude from the definition of `Employee' as used in Title VII those persons elected to public office in any state or political subdivision." 118 Cong.Rec. 7167 (1972).

The only discussion of the elected official exemption in the legislative history appears during debate on the Senate floor on January 31, and February 16 and 17, 1972.*fn10 On January 31, Senator Ervin, an opponent of the legislation, posed the question whether the bill covered elected officials. 118 Cong.Rec. at 1838. Senator Taft, a member of the committee that drafted the bill, responded "[t]he selection process there is by the voters of the State. I do not believe there is any inference in the legislation proposed which would include elected officers," and a few minutes later said "although there is no specific language to that effect, as to whether there is any intent to cover them, . . . there is in fact no intent to cover elected officials." Id. Senator Taft then said that if Senator Ervin were to propose an amendment making explicit the exclusion, Senator Taft would support it. Id.

On February 16, Senator Ervin proposed an amendment to exclude "any person elected to public office in any state or political subdivision of any state by the qualified voters thereof. . . ." Id. at 4095.*fn11 He stated:

  Mr. President, I really think that makes a bad
  bill a little less obnoxious, because I do not
  think the author of the bill ever intended to
  cover elected officials, those elected by the
  qualified voters. However, I fear that they have
  covered them by the breadth of the language.

Id. at 4097. He further stated that the purpose of the amendment was to avoid empowering a federal judge to remove

  [a] Governor . . . or other elected official of a
  State or county from office, if that federal
  judge finds that the voters of that State elected
  that Governor because they preferred a man of his
  race or a man of his religion or a man of his
  national origin or a person of his sex, rather
  than a person of some other race or religion or
  national origin or sex.

Id. at 4485.

A few minutes later, Senator Williams, the manager of the bill in the Senate, supported the proposed exemption of elected officials, stating:

  I certainly subscribe, and for many reasons, to
  the exclusion of the elected official at the
  State and local governing level. His test comes
  at the polls rather than under a law of this
  nature. I think that is certainly sufficient test
  as to propriety in the undertaking of his office,
  in view of the people that have the opportunity
  to select him for elected office. For another
  reason, I would think he should not be in a
  position to have unwarranted and irresponsible
  charges made against him. Again, his test would
  be at the polls.

Id. at 4492.

No other Senator spoke during the debate on the elected official exemption except Senator Javits, who said he believed that elected officials were not encompassed by the bill as originally proposed, but who had no quarrel with making the exemption explicit. Id. at 4097. Senators Williams, Javits and Ervin all voted in favor of the Ervin amendment. Id. at 4494.

The legislative history contains no discussion of the meaning of the word "elected."*fn12 The only clues to its meaning are in the statements of the rationale for the elected official exemption, cited above, i.e., Senator Ervin's intention to preclude federal courts from examining the voters' motivations in voting and to preclude federal courts from overriding the voters' choice of elected officials, and Senator Williams' statement that an elected official's "test comes at the polls rather than under a law of this nature."

The legislative history of the other exemptions adopted along with the elected official exemption does not shed light on the meaning of the word "elected."*fn13

The only legislative history on point thus suggests that the words "elected to public office" refer to someone who holds his present office because the voters elected him to it. It also suggests that if a position is claimed to have both elective and appointive aspects, it should be categorized as "elective" only if an inquiry into whether discrimination motivated the choice would require probing the motives of the electorate, and only if a finding of discrimination would result in the ouster of someone chosen for the position by the electorate. Defendants' argument that Justice Rubin should be categorized as "elected" because his job title and duties are the same after certification as they were before certification ignores the only rationales for the elected official exemption found in the legislative history, and must be rejected.

An inquiry into whether a justice was denied certification because he was discriminated against would entail an examination of the motives of the Administrative Board members who made the certification decision, not the motives of voters who elected him to office years before.*fn14 The electorate has no voice at all in the certification process.*fn15 In evaluating an application for certification, the Administrative Board carefully reviews each applicant's then-current physical and mental fitness, the views of members of the bar regarding the applicant's experience and abilities, and less personal criteria such as fiscal constraints. As defendants state:

  Applicants eligible for certification are
  screened by medical examinations to determine
  their physical and mental capacity to continue
  performing their duties as a Supreme Court
  Justice; bar associations and other groups and
  individuals are consulted for their views of the
  applicant's experience and abilities; and
  District Administrative Judges provide reports

  evaluating applicants and the need for their
  continued judicial service.

Defendants' Memorandum of Law at 4. Defendants acknowledge that the Administrative Board then exercises broad discretion in making its decision:

  Pursuant to section 115 of the Judiciary Law, the
  Administrative Board then exercises its
  discretion in selecting Justices for
  certification, based upon the standards set forth
  in the statute, as well as other criteria that
  may be considered by the Board (e.g., the nature
  and extent of prior judicial service, judicial
  competency, fiscal impact, etc.)

Crosson Aff. at ¶ 10.*fn16 Justice Rubin's testimony at the hearing confirmed the broad, unchecked discretion of the Administrative Board to decline to certify an applicant for virtually any reason. Tr. at 17, 46. See also, Marro v. Bartlett, 46 N.Y.2d at 681, 416 N.Y.S.2d 212, 389 N.E.2d 808 (Administrative Board has "nearly unfettered" discretion in certification determination).*fn17

Given that only the motives of Administrative Board members, not those of the electorate, would be scrutinized in an inquiry into whether denial of certification violated the ADEA, Congressional intent in creating the elected official exception is best followed by declining to categorize certificated Supreme Court Justices as elected officials.

This conclusion is bolstered by the Title VII conferees' explicit instruction to construe its exceptions "narrowly." In referring to all the exceptions that became codified in 42 U.S.C. § 2000e(f), the Congressional conferees stated: "It is the conferees [sic] intent that this exemption shall be construed narrowly." Conference Report, 1972 U.S.Code Cong. & Ad.News at 2179-80. The Section-By-Section Analysis of the bill as reported out of the Conference, which was prepared by Senators Javits and Williams, states that this exemption is "to be construed very narrowly." 118 Cong.Rec. at 7167.

Defendants point out that this Court's interpretation of the word "elected" to exclude certificated judges is at odds with a decision of the New York Court of Appeals, and contend that this Court must follow the New York court's decision. In that decision, Diamond v. Cuomo, 70 N.Y.2d 338, 530 N.Y.S.2d 732, 514 N.E.2d 1356 (1987), appeal dismissed, 486 U.S. 1028, 108 S.Ct. 2008, 100 L.Ed.2d 597 (1988), the New York Court of Appeals declined to overrule the Administrative Board's determination that certificated justices should be viewed as "elected" as that term is used in the ADEA.*fn18

It is well settled that, absent any clear indication to the contrary from Congress, the meaning of words in a federal statute is a question of federal law. Western Airlines v. Board of Equalization of So. Dakota, 480 U.S. 123, 107 S.Ct. 1038, 94 L.Ed.2d 112 (1987) (whether a state tax is an "in lieu tax which is wholly utilized for airport and aeronautical purposes," as those words are used in the federal Airport and Airway Improvement Act of 1982, is a question of federal law); Popkin v. N.Y. State Health and Mental Hygiene Facilities Improvement Corp., 547 F.2d 18, 19 (2d Cir. 1976), cert. denied, 432 U.S. 906, 97 S.Ct. 2950, 53 L.Ed.2d 1078 (1977) (whether state agency is an "employer" under Title VII of Civil Rights Act is a question of federal law; "Congressional intent concerning the coverage of Title VII and the actual nature of appellee's relationship to the state determine whether or not the corporation was covered by Title VII before 1972").

Decisions construing analogous terms of Title VII of the Civil Rights Act suggest that the determination of which state employees are protected by federal antidiscrimination laws is a particularly appropriate area for a uniform federal rule that is independent of state law. In Calderon v. Martin County, 639 F.2d 271 (5th Cir. 1981), the Fifth Circuit decided that whether a Florida deputy sheriff is an "employee" of a state or political subdivision of a state is a matter of federal law; the Fifth Circuit reversed the decision of the district court, which had followed Florida law in categorizing deputy sheriffs as "appointees" rather than "employees." The Fifth Circuit stated:

  Congress amended Title VII specifically to bring
  "governments, governmental agencies, [and]
  political subdivisions" under the Act's
  requirements. It would defeat the purpose of the
  amendment to allow the state governments
  themselves to designate which of their workers
  will receive Title VII protection. In addition,
  having each state determine when Title VII will
  apply would create an unmanageable lack of
  uniformity in the application of the Title VII

Id. at 272 (citations omitted); see also Teneyuca v. Bexar County, 767 F.2d 148, 150 (5th Cir. 1985) (whether an assistant district attorney is a member of an elected official's personal staff and thus excepted from Title VII definition of "employee" is a matter of federal law); Curl v. Reavis, 740 F.2d 1323, 1327 (4th Cir. 1984) (same holding re. deputy sheriff); Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir. 1981) (same holding re. undersheriff).

Defendants next argue that the United States Supreme Court adopted the view that a certificated judge in New York should be categorized as "elected" for ADEA purposes, when it summarily dismissed the appeal from the decision in Diamond v. Cuomo for want of a substantial federal question, and that this Court is bound by the Supreme Court's decision.

Defendants are correct in stating that summary actions by the United States Supreme Court are considered "on the merits" and thus are binding upon lower courts. See Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). However, in Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977), the Court emphasized that, due to the absence of any opinion by the Supreme Court in summary actions, lower courts need to ascertain the "reach and content" of such actions in order to determine their precedential effect. Id. The Court also stated:

  Because a summary affirmance is an affirmance of
  the judgment only, the rationale of the
  affirmance may not be gleaned solely from the
  opinion below. "When we summarily affirm, without
  opinion, . . . we affirm the judgment but not
  necessarily the reasoning by which it was

Id. (quoting Fusari v. Steinberg, 419 U.S. 379, 391, 95 S.Ct. 533, 541, 42 L.Ed.2d 521 (1975) (Burger, C.J., concurring)). The Court went on to indicate that it is the Statement of Jurisdiction that one looks to to determine what specific challenge was rejected for want of a substantial federal question:

  Summary affirmances and dismissals for want of a
  substantial federal question without doubt reject
  the specific challenges presented in the
  statement of jurisdiction. . . .

Id. 432 U.S. at 176, 97 S.Ct. at 2240. See also League of Women Voters v. Nassau County Board of Supervisors, 737 F.2d 155 (2d Cir. 1984), cert. denied, 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 (1985).

An examination of the per curiam opinion of the New York Court of Appeals, in Diamond, as well as the Jurisdictional Statement filed in the United States Supreme Court, reveal that the summary dismissal by the United States Supreme Court is not binding precedent on the question of whether a certificated justice should be categorized as "elected" for purposes of the ADEA. As discussed above, the plaintiffs in Diamond were asserting an equal protection challenge to the action of the Administrative Board. Their Jurisdictional Statement makes clear that the only question before the United States Supreme Court was whether the ADEA's distinction between elected and appointed judges violates the Equal Protection Clause:

  Appellants brought these proceedings upon the
  sole theory that the Administrative Board's
  application of the New York State mandatory
  retirement provisions as interpreted under the
  provisions of the ADEA, violates their rights to
  equal protection of the laws under the United
  States Constitution. Specifically, it is
  appellants' position: that there is no rational
  basis for distinguishing between elected judges
  and appointed judges who reach the age of 70 . ..

Appellants' Jur.St. (No. A-513) at 9, Diamond v. Cuomo, appeal dismissed, 108 S.Ct. 2008. Indeed, the Jurisdictional Statement in Diamond does not even mention the issue of whether a certificated justice is properly considered an elected official for ADEA purposes.

If the question whether certificated judges are elected officials for ADEA purposes were "fairly included" within the question posed in the Jurisdictional Statement, the summary dismissal of plaintiffs' appeal would be binding precedent on both issues. See Sup.Ct.R. 15.1(a). But in order to decide that the challenge to the ADEA's distinction between elected and appointed officials does not pose a substantial federal question, it is not necessary to decide whether certificated judges should be categorized as elected or appointed. Compare Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989) (dismissing equal protection challenge to mandatory retirement for judges in part due to summary action of Supreme Court in Diamond). The United States Supreme Court's summary dismissal of plaintiffs' appeal in Diamond is thus not binding precedent on the question whether certificated judges should be categorized as elected judges.

Defendants argue next that the will of the electorate is being foiled if judges can serve beyond age seventy-six — i.e., voters might not have elected someone older than fifty-six to a fourteen year term if they had known that after his retirement he could be certificated to serve beyond age seventy-six. Defendants have offered no evidentiary support for their speculative proposition that, in electing particular judges, voters look as much as twenty years down the road (or even as few as seven years down the road) and consider whether the judge will be certificated, and, if so, for how long. It is equally plausible that the voters repose their trust in the Administrative Board's exercise of its discretion to certificate only well qualified judges, and that voters do not attempt, when casting their ballots, either to predict how fit a judge will be as much as twenty years later, or to predict whether, if he is unfit at an advanced age, he will nonetheless be certificated.

Finally, defendants argue that to permit Justice Rubin to serve more than six years as a certificated justice creates a longer term of office than exists under state law, the creation of which would violate principles of federalism.*fn19 Defendants' argument rests on the implication that New York law limits the service of certificated justices to six years, independent of the age limitation. However, no such independent limitation exists. Neither the New York State Constitution nor the New York Judiciary Law imposes any limit on the number of terms for which a justice may be certificated; the only limit they impose is an age limit.*fn20 In effect, defendants are asking this court to rewrite the New York State Constitution and Judiciary Law, substituting a time limitation for the impermissible age limitation. This the court cannot do. As defendants themselves point out, "[a] Federal Court cannot create a State term of office where none exists under State law." Defendants' Memorandum of Law at 17.

Defendants' claim that this Court's holding would in effect be granting lifetime tenure to elected supreme court justices is simply wrong. See fn. 16, supra. Certificated judges will merely be eligible to be recertificated by the Administrative Board for successive two year terms, without being automatically disqualified because of their age.


Accordingly, defendants' motion for summary judgment is denied, and judgment for plaintiff is granted. Defendants are permanently enjoined from enforcing any provision of the New York State Constitution and laws that would operate to disqualify Justice Rubin from applying for certification as a certificated retired justice of the New York State Supreme Court, and from serving in that position if he is certificated, due solely to the fact that he has reached the age of seventy-six.


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