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CAREY v. CUOMO

July 5, 1994

JOHN CAREY, as a County Court Judge of the State of New York, Plaintiff,
v.
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

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case presents the question of appropriate federal judicial response to a claim of irrational classification of state judicial officers for purposes of post-retirement service where no legitimate reason for the distinction has to date been provided. The resolution of the question is not simple, because finding a Fourteenth Amendment violation in what may amount to discretionary line-drawing by a state in the core area of its selection of personnel to perform key functions of sovereignty may run counter to the assumptions of federalism and tend to "trivialize" the Amendment. Daniels v. Williams, 474 U.S. 327, 330, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), quoting Stewart, J. concurring in Parratt v. Taylor, 451 U.S. 527, 545, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) (overruled on another point). The most appropriate outcome to this dilemma would be for state authorities either:

 (a) to rule the distinction inappropriate; or

 (b) to provide a rational, legitimate governmental purpose for its maintenance.

 In a memorandum order dated January 25, 1994 (the "January 25 decision"), I held that since ruling on constitutional issues should be avoided if possible, full opportunity for either of the options mentioned to be taken should precede any potentially inappropriate federal judicial ruling. Carey v. Cuomo, 842 F. Supp. 113 (SDNY 1994). *fn1" Familiarity with the January 25 decision is assumed.

 Plaintiff having unsuccessfully sought the administrative, but not the state judicial and if necessary legislative recourse, called for by the January 25 decision, renews his application for adjudication of the case here; defendants cross-move for dismissal. For the reasons and under the circumstances outlined below, I adhere to the January 25 decision; there is no basis for ignoring available state remedies absent irreparable injury of a type justifying accelerated decision on the federal constitutional issue.

 II

 The dispute in this case involves the circumstances under which New York State jurists utilized as acting Supreme Court justices are entitled to be considered for post-retirement opportunities equal to those afforded to Supreme Court justices. Plaintiff John Carey ("Carey"), a County Court judge who had served as an acting Supreme Court justice, who had served as an acting Supreme Court justice, filed suit in this court under 42 U.S.C. 1983, asserting that denial of such opportunities violated the Equal Protection Clause of the Fourteenth Amendment and state law.

 Since Carey has not asserted the denial of a fundamental right and no invidious classification is involved, the challenged categorization is subject to a rational basis standard of review. Thus, the classification will hold as long as it is rationally related to some legitimate state interest; there is a presumption of constitutionality. In Maresca v. Cuomo, 64 N.Y.2d 242, 485 N.Y.S.2d 724, 475 N.E.2d 95 (1984), the New York Court of Appeals held it rational for New York State to permit only Court of Appeals and Supreme Court justices to serve on the Supreme Court after the age of seventy. 64 N.Y.2d at 252-53. Here, no legitimate reason has been offered to support a distinction between acting and other Supreme Court justices if equally qualified by experience and otherwise to be considered for post-retirement service.

 Federal courts should nevertheless be reluctant to interfere with the internal dispositions of state judicial personnel by state authorities. This is especially so where an applicant for a public sector position is seeking affirmative relief under circumstances not involving invidious discrimination or deprivation of a fundamental right. It is unclear whether or not the Fourteenth Amendment as applied to state action as an employer, as distinct from state action in a sovereign capacity, reaches as far as would be necessary to award relief to Carey in the present case. See Watkins v. McConologue, 820 F. Supp. 70 (SDNY), aff'd without opinion 978 F.2d 706 (2d Cir 1992).

 To avoid this dilemma, further consideration of the purposes and validity under state law of the current distinction at the state level appeared warranted prior to ultimate consideration of federal judicial intervention. Having received a negative ruling from the state administrative authorities, Carey renews his motion for immediate relief without pursuing the concededly potentially lengthy route of seeking legislation, or invoking state judicial remedies. Carey points out that delay may make his claim to entitlement to consideration as a potential post-retirement Supreme Court justice moot, that the state judiciary itself is involved in the administrative decision rejecting his argument, and that legislative relief, if any, is not likely to occur quickly.

 Defendants seek dismissal of the case on the pleadings, relying in part on the problematic nature, recognized in the January 25 decision, of plaintiff's invocation of the Fourteenth Amendment to seek to compel New York State to structure its judicial ...


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