Maresca v. Cuomo

• Decision Date: 31 December 1984
• Citation: 64 N.Y.2d 242,485 N.Y.S.2d 724,475 N.E.2d 95
• Parties: , 475 N.E.2d 95, 45 Fair Empl.Prac.Cas. (BNA) 1606, 48 Empl. Prac. Dec. P 38,525 Orest V. MARESCA et al., Appellants, v. Mario CUOMO, as Governor of the State of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 724

485 N.Y.S.2d 724

64 N.Y.2d 242, 475 N.E.2d 95, 45 Fair

Empl.Prac.Cas. (BNA) 1606,

48 Empl. Prac. Dec. P 38,525

Orest V. MARESCA et al., Appellants, v. Mario CUOMO, as Governor of the State of New York, et al Respondents.

Court of Appeals of New York.

Dec. 31, 1984.

Joseph O. Giaimo and Peter C. Roth, Forest Hills, for appellants

Robert Abrams, Atty. Gen., Albany (Arnold D. Fleischer, New York City, Robert Hermann, Albany, O. Peter Sherwood and Howard L. Zwickel, New York City, of counsel), for Mario Cuomo and others, respondents.

Burton C. Agata, Hempstead, for Phyllis Gangel Jacob, respondent.

Dudley Gaffin and Morton S. Minsley, New York City, for Seymour Gerschwer, respondent.

Lewis R. Friedman and Nicholas J. Miglino, New York City, for Charles E. Ramos, respondent.

Michael Colodner, John Eiseman and Barbara Zahler-Gringer, New York City, for Office of Court Administration, respondent.

OPINION OF THE COURT

JASEN, Judge.

On this appeal, plaintiffs challenge the State constitutional and statutory requirements that certain Judges of the State retire at age 70. The challenge is based upon both the equal protection and due process clauses to the Fourteenth Amendment of the United States Constitution. ¹

Plaintiffs Maresca, Rosen, Ramos-Lopez and Wollin are Judges of the Civil Court of the City of New York who have reached the age of 70 in 1984, and pursuant to article VI ( § 25, subd. b) of the New York State Constitution ² and section 23 of the Judiciary Law, ³ are compelled to retire on December 31, 1984. Plaintiff Brennan is a Justice of the Supreme Court who will reach age 70 in 1988, and would be compelled to retire on December 31, 1988.

In their complaint, plaintiffs sought judgment: (a) declaring article VI ( § 25, subd. b) of the New York State Constitution and section 23 of the Judiciary Law unconstitutional under the Fourteenth Amendment to the United States Constitution; and (b) enjoining, during the pendency of the action and permanently, defendants Governor Cuomo, Comptroller Regan, New York State Employees' Retirement System, and the Office of Court Administration, from causing the involuntary retirement by reason of age of any of the plaintiffs or any member of the class. At Special Term, plaintiffs moved for a preliminary injunction and defendants cross-moved pursuant to CPLR 3211 (subd. par. 7) to dismiss the complaint. Additionally, at Special Term and on appeal before this court, defendants have maintained that the complaint should be dismissed under the doctrine of laches since plaintiffs should have sought relief prior to the election of Judges to fill their vacancies. Inasmuch as we reach the merits of the case with respect to plaintiff Brennan, as against whom no laches claim can be made, and agree with the determination below, we need not resolve the substantial issue of laches.

By order and judgment entered December 20, 1984, Special Term, New York County, granted plaintiffs' motion for a preliminary injunction, denied the cross motion to dismiss, enjoined the defendants from compelling the retirement of plaintiffs prior to the expiration of their judicial terms of office, directed plaintiffs to continue their work as Judges and ordered the Office of Court of Administration to continue them in their respective titles on its payroll. Special Term specifically held both article VI ( § 25, subd. b) of the State Constitution and section 23 of the Judiciary Law violative of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution.

Defendants, including the Office of Court Administration, immediately took an appeal to the Appellate Division, First Department. The Appellate Division, 105 A.D.2d 193, 483 N.Y.S.2d 690, in a Per Curiam opinion, unanimously reversed the order of Special Term, on the law, denied the motion for a preliminary injunction and granted defendants' cross motion to dismiss the complaint. Plaintiffs have pursued an expedited appeal to this court. The action, insofar as it sought a declaratory judgment, should not have been dismissed by the Appellate Division, upon its holding that the provisions in question were constitutional. A declaration to that effect should have been made (Lanza v Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670). Accordingly, the order of the Appellate Division should be modified by declaring article VI ( § 25, subd. b) of the New York Constitution and section 23 of the Judiciary Law constitutional under the Fourteenth Amendment of the United States Constitution and, as so modified, the order of the Appellate Division should be affirmed.

This court is fully cognizant of the arguments that can be made against the wisdom of the challenged provisions; however, for the repeal of such provisions, appeal lies to the ballot and to the legislative processes of democratic government, not to the courts (Noble State Bank v. Haskell, 219 U.S. 575, 580, 31 S.Ct. 299, 300, 55 L.Ed. 341 United States v. Butler, 297 U.S. 1, 79, 56 S.Ct. 312, 325, 80 L.Ed. 477 ). This constitutes the very core of the democratic process which, under law, proscribes only unconstitutional action (Abraham, The Judicial Process Oxford 1980, pp. 396-397; see, also, Cardozo, The Nature of the Judicial Process, Yale University 1921, p. 141; Lochner v. United States, 198 U.S. 45, 74, 25 S.Ct. 539, 551, 49 L.Ed. 937 ). Hence, we observe at the threshold that as a court of law, our only concern is with plaintiffs' claims that the mandatory retirement provisions do violence to the equal protection and due process clauses of the Fourteenth Amendment of the Federal Constitution.

On appeal to this court, plaintiffs contend that the mandatory retirement restrictions are violative of the Fourteenth Amendment to the United States Constitution on the grounds that the provisions discriminate between Judges under age 70 and those over age 70, and discriminate against plaintiffs by permitting Justices of the Supreme Court and Judges of the Court of Appeals to receive certification for service, as Justices of the Supreme Court, until the age of 76, in contrast to those members of the judiciary who serve upon the Civil Court, Criminal Court, Family Court, County Court, Surrogate's Court and Court of Claims, none of whom may be so certified. Also, plaintiffs seek to invalidate the mandatory retirement provisions under the due process clause of the Fourteenth Amendment.

Turning to plaintiffs' first equal protection argument, it is clear that the Judges who have attained the age of 70 do not constitute a suspect class for purposes of equal protection analysis. (See Vance v. Bradley, 440 U.S. 93, 96-97, 99 S.Ct. 939, 942-943, 59 L.Ed.2d 171; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520.) Nor do the constitutional and statutory age restrictions impermissibly interfere with the exercise of a fundamental right. (See Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, supra; Massachusetts Bd. of Retirement v. Murgia, supra.) Thus, the challenged provisions are not to be subjected to strict judicial scrutiny, but, rather, to a rational basis standard of review. Pursuant to traditional rational basis analysis, a legislative enactment will pass constitutional muster if the governmental classification is based upon some conceivable and legitimate State interest (People v. Drayton, 39 N.Y.2d 580, 385 N.Y.S.2d 1, 350 N.E.2d 377). If any conceivable state of facts will support the classification, said provisions will not be held violative of the equal protection clause (Matter of Catapano Co. v. New York City Fin. Admin., 40 N.Y.2d 1074, 1075, 392 N.Y.S.2d 255, 360 N.E.2d 934, app. dsmd. 431 U.S. 910, 97 S.Ct. 2165, 53 L.Ed.2d 221, citing Carmichael v. Southern Coal Co., 301 U.S. 495, 509, 57 S.Ct. 868, 872, 81 L.Ed. 1245). As this court said in Wiggins v. Town of Somers, 4 N.Y.2d 215, 218-219, 173 N.Y.S.2d 579, 149 N.E.2d 869). "The principles which are applicable to this case are familiar indeed. Legislative enactments are presumed to be constitutional, i.e., they are presumed to be supported by facts known to the Legislature * * * While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt * * * Particularly apropos is the rule that the law may not be arbitrary and it must be reasonably related to some manifest evil * * * which, however, need only be reasonably apprehended * * * And we must be guided by the familiar principle that 'it is only as a last resort' that courts strike down legislative enactments on the ground of unconstitutionality." (Citations omitted.) A fortiori that reasoning applies where, as here, the validity of a State constitutional provision, rather than a mere ordinance or statute, is adjudged under the Federal Constitution.

The legitimate purpose justifying the provision need not be the primary purpose of the provisions (McGinnis v. Royster, 410 U.S. 263, 276, 93 S.Ct. 1055, 1062, 35 L.Ed.2d 282) ⁴ and indeed, a court may even hypothesize the motivations of the State Legislature to discern any conceivable legitimate objective promoted by the provision under attack (Weinberger v. Salfi, 422 U.S. 749, 780, 95 S.Ct. 2457, 2474, 45 L.Ed.2d 522). The mandatory retirement age limitation for State Judges is rationally related to the promotion of any or all of the following State interests: (1) advancement of general considerations of judicial efficiency (Rubino v. Ghezzi, 2nd Cir., 512 F.2d 431, 433, cert. den. 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122); (2) motivation and encouragement of qualified, younger attorneys with judicial aspirations, by this orderly process of attrition (Rubino v. Ghezzi, supra; Vance v. Bradley, 440 U.S. 93, 100, 99 S.Ct. 939, 944, 59 L.Ed.2d 171, supra ); (3) elimination of the unpleasantness and embarrassment of selectively removing aged and disabled Judges (Malmed v. Thornburgh, 3rd...