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Defendant Seeks TRO to Prevent Plaintiff From Filing Retirement Documents

 

This is a family case wherein, the plaintiff, by way of Order to Show Cause, obtained a Temporary Restraining Order, (TRO), restraining and enjoining the defendants and their officers, agents, servants and employees, from filing or causing to be filed, any retirement papers for the plaintiff, and from acting with regard to removing any of the powers of authorization afforded to the plaintiff.

The Second Department, by way of Decision and Order on Motion, dated December 31, 2009, granted the defendants leave to appeal those provisions of the order of the Honorable Justice, Supreme Court, Nassau County, dated December 23, 2009, which prohibited the defendants from requiring the plaintiff to retire as of December 31, 2009, whereby the Second Department stayed such provisions pending the hearing and determination of the appeal, or pending determination by the Supreme Court, Nassau County, the Order to Show Cause returnable on January 11, 2010, whichever comes first.

The plaintiff, by way of the instant proceeding, seeks (a) a declaratory judgment declaring the statutory provision of Article VI, Section 25(b), unconstitutional as a violation of the plaintiff’s rights to the equal protection of the laws under the Federal and State Constitutions and violations of the State and Federal age discrimination statute; (b) judgment permanently enjoining the mandatory retirement of the plaintiff and directing the Chief Administrative Judge of the Court Administration not to enforce mandatory retirement of the plaintiff; (c) granting an order that this court retain jurisdiction pending such action by the New York State legislature as may be required to effectuate this Court’s Judgment; (d) judgment declaring that plaintiff complete his full elective term which expires in 2015; and for such further and different relief which the Court may deem just and proper together with all costs and judgments.

The defendants submit opposition to the Order to Show Cause and then move, by way of notice of motion, for an order pursuant to CPLR § 3211(a)(7) to dismiss the instant proceeding for failure to state a cause of action. The defendants submit a Memorandum of Law in support of their motion. The plaintiffs submit opposition to the defendants’ motion, and a Memorandum of Law in support of plaintiff’s opposition. The defendants submit a reply affirmation and a reply Memorandum of Law.

The plaintiff, by way of the instant application, the Order to Show Cause, seeks an order staying the enforcement of Article VI, Section 25(b), of the New York State Constitution, which requires the plaintiff to retire, pending a hearing on the merits of this action, so that the plaintiff will be able to continue his term as Supreme Court Justice in the County of Nassau.

The plaintiff claims that “disparate treatment” applies to the plaintiff under the plain language of the Age Discrimination in Employment Act, (ADEA), as “but-for” his age, his employment has been terminated.. Plaintiff submits that he is forced to retire solely because of the mandate of the New York State Constitution, Article VI, Section 25.

Plaintiff acknowledges that under Gregory v. Ashcroft, 501 US 452, it has been held that judges are not a “suspect class” under ADEA. However, plaintiff, by way of counsel, respectfully sets forth that in the eighteen years that have transpired since Gregory v. Ashcroft, supra, it is “time for the courts and judiciary to recognize the change of work force in all occupations and that age discrimination, just as discrimination based upon race, sex, creed, nationality, origin, martial status or gender has no place in our society”.

Plaintiff submits there is no reasonable explanation to exclude the plaintiff, a Supreme Court Justice, from the protection of the ADEA, as there are safeguards to protect the public should a judge be deemed incompetent or incapable for fulfilling his or her duties, to wit, the two year extension after the age of 70, pursuant to New York State Constitution, Article VI, Section 25(b).

The defendants, by way of letter, delivered by hand on December 23, 2009, submitted opposition to plaintiff’s application for a TRO, and incorporated the arguments set forward in such letter in defendants’ opposition to the Order to Show Cause. The defendants submitted that venue is improper, that plaintiff is not an “employee” within the meaning if ADEA, that rational basis, and not strict scrutiny, is the appropriate standard to determine whether equal provisions of the United State Constitution and the State Constitution have been violated in the context of an age-based classification, and that there is no basis for emergency relief.

The defendants move, by way of notice of motion, to dismiss this proceeding pursuant to CPLR § 3211(a)(7), for failure to state of a cause of action. The defendants submit a Memorandum of Law in support of their motion, and in opposition to plaintiff’s Order to Show Cause.

The defendants, by way of motion to dismiss, at the outset, argue that the primary issue in this action is whether this Court has the power to overrule the Court of Appeals-which answer is self-evident-as this Court cannot do so.

The defendants provide that since age is not one of the expressly-enumerated protected classes, “race, color, creed or religion”, proscriptions against age-related discrimination based upon State law must rely upon either the State Constitution’s more general equal protection clause, the State Constitution’s due process clause, or on statutory provisions. The defendants assert that none of these State law provisions entitle plaintiff to relief.

The defendants submit that plaintiff’s claim that his mandatory retirement violates State’s age discrimination statute, under Executive Law § 296, also known as the Human Rights Law, is baseless as the State Constitution itself specifies the challenged retirement age.

The defendants provide that the Court of Appeals has already expressly held that the provisions for mandatory retirement in Article VI § 25(b) and Judiciary Law § 23 do not violate the due process clause of the Fourteenth Amendment to the United States Constitution, and have outright rejected the federal equal protection claim

Defendants assert that plaintiff cannot rely on a claim under ADEA as he is not an employee, but rather, “elected to public office”.

New York State Constitution, Article VI § 25(b), provides, in pertinent part as follows: “each judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of the county court, judge of the surrogate’s court, judge of the family court, judge of a court for the city of New York established pursuant to section fifteen of this article and judge of the district court shall retire on the last day of December in the year in which he or she reaches the age of seventy…”

Thereafter, Article VI § 25(b) provides that a judge or justice: “shall be certificated in the manner provided by law that the services of each judge or justice 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. 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 judge or justice shall serve no longer than until the last day of December in the year in which he or she reaches the age of seventy-six.”

“No person, other than one who holds such office at the effective date of this article, may assume the office of judge of the court of appeals, justice of the supreme court, our judge of the court of claims unless he or she has been admitted to practice law in this state for at least ten years. No person, other than one who holds such at the effective date of this article, may assume the office of judge of the county court, surrogate’s court, family court, a court for the city of New York established pursuant to section fifteen of this article, district court or city court outside the city of New York unless he or she has been admitted to practice law in the state at least five years or such greater number of years as the legislature may determine.”

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