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January 25, 1994

JOHN CAREY, as a County Court Judge of the State of New York, Plaintiff,
MARIO M. CUOMO, as Governor of the State of New York; and JUDITH S. KAYE, FRANCIS T. MURPHY, GUY J. MANGANO, LEONARD A. WEISS and M. DOLORES DENMAN, members of and constituting the Administrative Board of the Courts of the State of New York, Defendants.

The opinion of the court was delivered by: VINCENT L. BRODERICK



 This case is brought under 42 USC 1983 based upon the Equal Protection clause of the Fourteenth Amendment, challenging failure of New York State to afford post-retirement opportunities to County Court judges equal to those afforded certain other judges, even where the county judges performed the same duties as the more favored jurists. The litigation presents a delicate issue with respect to whether or not it is necessary to accord equal treatment to jurists performing functions similar to those performed by other jurists in spite of the absence of an Equal Pay Act *fn1" dealing with such a situation. It also presents a troublesome federalism issue: to what extent, if any, may federal courts intrude into internal state court judicial administration? *fn2"

 The New York State Judiciary Law and the State Constitution, quoted as Appendix A to this memorandum order, permit under certain circumstances judges of the State's highest court, its Court of Appeals, and justices of its Supreme Court, the basic state trial court, to serve as justices of the Supreme Court for up to three additional two-year terms after having attained the mandatory retirement age of seventy (70). As now interpreted these provisions do not afford similar opportunities to County Court judges, whether or not they have served as Acting Supreme Court justices.

 Plaintiff John Carey ("Carey"), a County Court judge who has served during some periods as an acting Supreme Court justice of Westchester, Rockland and Orange Counties, seeks a declaratory judgment that current interpretations of Article VI, Section 25(b) of the New York State Constitution and of New York Judiciary Law § 115 ("§ 115") are inconsistent with the Fourteenth Amendment's guarantee of equal protection under the laws because they discriminate without a rational basis against judges of the County Court by depriving them of the same opportunity for continued service enjoyed by Supreme Court justices and judges of the Court of Appeals.

 Defendants have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), asserting that the challenged provisions as currently interpreted by New York State do not violate Judge Carey's equal protection rights because they are rationally related to a legitimate government purpose. The defendants further assert the that current interpretations of the State Constitution and § 115 follow from their plain meaning. *fn3"

 Defendants' motions are denied without prejudice to renewal if, after the proceedings outlined in part V have been pursued, there remains an unlikely necessity for the motions to be determined. See cases cited, Lichtler v. County of Orange, 813 F. Supp. 1054 (SDNY 1993).


 Age of retirement does not constitute a suspect classification under the Equal Protection Clause, and no independently fundamental right is at stake; hence with respect to the differentiation at issue, only a rational relationship between a differentiation and a legitimate government purpose must be established. See Gregory v. Ashcroft, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1993).

 Maresca v. Cuomo, 64 N.Y.2d 242, 485 N.Y.S.2d 724, 475 N.E.2d 95 (1984), constitutes a New York State judicial determination of the legitimacy of legislative judgments concerning which courts need additional assistance from retired jurists are legitimate. In Maresca, it was deemed rational for New York State to permit Court of Appeals judges and Supreme Court justices to serve on the Supreme Court after the age of seventy because that court required greater experience and manpower than are necessary in other courts. 64 N.Y.2d at 252-53.


 Whether County Court Judges designated at times as acting Supreme Court justices must be offered the opportunities to be considered for subsequent service offered to elected or appointed ("titular") Supreme Court justices, or whether budgetary considerations or perceptions of differing experience permit another approach, remains to be evaluated. Any rational grounds for legislative action will suffice, whether or not set forth in available legislative history - which tends to be scanty in New York. See Cashman, "Availability of Records of Legislative Debates," 24 Record of The Ass'n of the Bar of the City of New York 153 (1969).

 If a legislative act is on its face permissible, it cannot be held impermissible because of inadequate explication - unless unlawful intent such as invidious discrimination or intent to interpose mercantilist barriers to the "national common market" *fn4" can be inferred. Such unlawful intent is not suggested here. See United States v. O'Brien, 391 U.S. 367, ...

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