Gesmer v. Admin. Bd. of the N.Y. State Unified Court Sys.

• Decision Date: 09 March 2021
• Docket Number: 532566, 532590
• Citation: 145 N.Y.S.3d 145,194 A.D.3d 180
• Parties: In the Matter of Ellen GESMER et al., Respondents—Appellants, v. ADMINISTRATIVE BOARD OF the NEW YORK STATE UNIFIED COURT SYSTEM et al., Appellants—Respondents.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 180

145 N.Y.S.3d 145

In the Matter of Ellen GESMER et al., Respondents—Appellants,

v.ADMINISTRATIVE BOARD OF the NEW YORK STATE UNIFIED COURT SYSTEM et al., Appellants—Respondents.

532566, 532590

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 9, 2021

Decided and Entered: March 9, 2021

OPINION AND ORDER

Lynch, J.P.

(1) Appeal, by permission (transferred to this Court by order of the Appellate Division, Second Department), from an order of the Supreme Court (Baisley Jr., J.), entered December 11, 2020 in Suffolk County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, denied respondents’ motion to dismiss the petition/complaint, and (2) cross appeals (transferred to this Court by order of the Appellate Division, Second Department) from a judgment of said court, entered December 30, 2020 in Suffolk County, which, among other things, partially granted petitioners’ application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to annul a determination of respondent Administrative Board of the New York State Unified Court System denying certification for certain appellate Supreme Court justices.

On September 22, 2020, respondent Administrative Board of the New York State Unified Court System (hereinafter the Board) voted to deny certification to 46 of the 49 elected Supreme Court Justices who, having reached the mandatory retirement age of 70 or more at the end of 2020, applied for certification for a two-year period (see N.Y. Const, art VI, § 25 [b]; Judiciary Law § 115 ). Petitioners include four elected Supreme Court Justices serving on the Appellate Division, First or Second Department, who reached the mandatory retirement age as of December 31, 2020 (hereinafter collectively referred to as the petitioner Justices), as well as an attorney residing in Suffolk County who litigates civil actions.¹ The certification denial also applied to three other Supreme Court Justices serving on the Second or Third Department, and to Supreme Court Justices throughout the state. The Board consists of respondent Janet DiFiore, as Chief Judge of the Court of Appeals, and the Presiding Justices of each of the four judicial departments of the Appellate Division (see N.Y. Const, art VI, § 28 [a]).

On November 5, 2020, petitioners commenced this combined CPLR article 78 proceeding and action for declaratory judgment in Supreme Court, Suffolk County, seeking, among other relief, to have the Board's determination annulled and a new determination made in accord with the governing constitutional and statutory standards. Various motion practice ensued and, by decision and order entered December 11, 2020, Supreme Court denied respondents’ motions for (1) a change of venue, (2) dismissal for failure to state a cause of action and lack of personal jurisdiction, and (3) a protective order regarding a previously ordered expedited discovery schedule. This Court granted respondents’ motion for permission to appeal from that nonfinal order, stayed discovery and expedited the appeal (see CPLR 5701[b][1] ; 2020 N.Y. Slip Op. 76627[U], 2020 WL 7693500 ).

In the meantime, respondents filed a verified answer on December 16, 2020, attaching a copy of the Board's meeting minutes and an affidavit, bearing the same date, from respondent Lawrence K. Marks, as Chief Administrative Judge of the Unified Court System (hereinafter the Chief Administrative Judge), explaining the budgetary information that the Board considered in making its determination. Two days later, petitioners applied for a preliminary injunction, which Supreme Court made returnable on December 29, 2020, while granting a temporary restraining order "to allow the [petitioner Justices] and their staffs to continue to serve as Supreme Court Justices and remain in office" pending a decision on the motion. On December 28, 2020, this Court vacated the temporary restraining order (see 2020 N.Y. Slip Op. 76952[U], 2020 WL 7920946 ). That same day, respondents filed papers in opposition to the injunction request, including an additional affidavit from the Chief Administrative Judge dated December 28, 2020. At a virtual conference held on December 29, 2020, Supreme Court informed the parties that it would render a determination on the merits. By judgment entered December 30, 2020, Supreme Court granted the second cause of action in the petition/complaint and annulled the Board's determination as arbitrary and capricious (see CPLR 7803[3] ).² The court then impliedly dismissed the remaining causes of action, holding that they "need not be addressed or are without merit," and further noted that it did not consider any additional papers submitted by the parties after respondents filed their answer.³ Respondents appeal from the judgment and petitioners cross-appeal from so much thereof as dismissed all but the second cause of action. This Court granted respondents’ motion to consolidate the appeals (see 2021 N.Y. Slip Op. 60490[U], 2021 WL 139041 ).⁴

Supreme Court erred in annulling the Board's determination. By constitutional mandate, a Supreme Court Justice is required to "retire on the last day of December in the year in which he or she reaches the age of [70]" ( N.Y. Const, art VI, § 25 [b]). The N.Y. Constitution allows an exception by which a retired Supreme Court Justice may be authorized to perform the duties of a Supreme Court Justice if it is certified "in the manner provided by law that the services of such ... [J]ustice are necessary to expedite the business of the court and that he or she is mentally and physically able and competent to perform the full duties of such office" ( N.Y. Const, art VI, § 25 [b]). This constitutional provision is implemented through Judiciary Law § 115(1), which provides that a Supreme Court Justice "may, upon his [or her] application, be certified by the [Board] for service as a retired [J]ustice of the [S]upreme [C]ourt upon findings (a) that he [or she] has the mental and physical capacity to perform the duties of such office and (b) that his [or her] services are necessary to expedite the business of the [S]upreme [C]ourt."

Given this framework, the Court of Appeals has determined that the Board enjoys "the very broadest authority for the exercise of responsible judgment" and "very nearly unfettered discretion in determining whether to grant applications of former Judges for certification" ( Matter of Marro v. Bartlett, 46 N.Y.2d 674, 681, 416 N.Y.S.2d 212, 389 N.E.2d 808 [1979] ). "Provided it complies with the two criteria set forth in the [NY] Constitution, and absent proof that its determination violates statutory prescriptions or promotes a constitutionally impermissible purpose, the Board's authority is not subject to judicial review" ( Matter of Loehr v. Administrative Bd. of the Cts. of the State of N. Y., 29 N.Y.3d 374, 382, 57 N.Y.S.3d 450, 79 N.E.3d 1113 [2017] ; see Matter of Marro v. Bartlett, 46 N.Y.2d at 681–682, 416 N.Y.S.2d 212, 389 N.E.2d 808 ). As in both Marro and Loehr, the record presents no issue as to the mental and physical abilities of the petitioner Justices. This dispute focuses on the second component of certification – i.e., whether the services of the Justices are necessary to expedite the business of the courts. As explained in Marro, this component "must be a two-pronged determination – that there is a need for additional judicial [personnel] and that the individual applicant can meet this need at least in part. An individualized evaluation is contemplated, focused more decisively on the applicant than on the need for judicial services" ( Matter of Marro v. Bartlett, 46 N.Y.2d at 680, 416 N.Y.S.2d 212, 389 N.E.2d 808 ).

Respondents maintain that the Board acted within the scope of its broad authority by determining as a matter of economic necessity occasioned at least in part by the COVID–19 pandemic that certification of the petitioner Justices was not necessary to fulfill the needs of the court. Petitioners counter, and Supreme Court agreed, that the Board failed to provide the individualized review of each applicant as required under the dual criteria defined in the N.Y. Constitution and the Judiciary Law. The Board minutes explain that the Board "declined to certify 46 of the 49 [Justices] applying for certification owing to current severe budgetary constraints occasioned by the coronavirus pandemic. Three [Justices], having specialized additional assignments[,] were certified." The Board's certification of three applicants reflects both an individualized assessment and a recognition – "at least impliedly" – that additional judicial services are necessary ( Matter of Marro v. Bartlett, 46 N.Y.2d at 679, 416 N.Y.S.2d 212, 389 N.E.2d 808 ). As explained in Loehr, however, "whether the services of a particular Justice are ‘necessary to expedite the business of the court’ encompasses much more than a mechanical inquiry into the size of the courts’ docket divided by the number of Justices" ( Matter of Loehr v. Administrative Bd. of the Cts. of the State of N.Y., 29 N.Y.3d at 382, 57 N.Y.S.3d 450, 79 N.E.3d 1113, quoting N.Y. Const, art VI, § 25 [b]). Certainly, it should be recognized that the continued services of the petitioner Justices would advance the needs of the court in managing an expanding caseload. That positive contribution, however, is not the deciding factor, as the Board is charged with balancing the costs of certification with the overall needs of the court system (see Matter of Loehr v. Administrative Bd. of the Cts. of the State of N.Y., 29 N.Y.3d at 382, 57 N.Y.S.3d 450, 79 N.E.3d 1113 ). As explained by the Chief Administrative Judge in his December 16, 2020 affidavit, the Board made the extremely difficult judgment call that certification would prove too costly under the economic dilemma presented. The Chief Administrative Judge emphasized that...