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BUDGETARY CONCERNS RELATED TO THE COVID-19 PANDEMIC JUSTIFED THE DENIAL OF CERTIFICATION TO CONTINUE SERVING ON THE BENCH TO 46 SUPREME COURT JUSTICES WHO REACHED THE MANDATORY RETIREMENT AGE OF 70 IN 2020 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Lynch, over a partial dissent, determined the Administrative Board of the NYS Unified Court System did not act arbitrarily and capriciously when it denied certification to 46 of 49 Supreme Court Justices who reached the age of 70 in 2020. Retirement at age 70 is mandated by the NYS Constitution. But certification to continue serving on the bench can be granted by the Board. Here the Board based its decision to deny certification to 46 justices on budgetary concerns resulting from the COVID-19 pandemic:

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 … . …”[W]hether 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” … . 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 … . … [T]he Board made the extremely difficult judgment call that certification would prove too costly under the economic dilemma presented. … [C]ertification would significantly disrupt overall court operations given that the alternative savings mechanism would require more than 300 layoffs of nonjudicial personnel. Achieving the proper balance for the court system was for the Board to determine. … In our view, the Board acted in accord with the governing standard and within the scope of its broad authority in basing its ultimate decision on the overall needs of the court system. Matter of Gesmer v Administrative Bd. of the N.Y. State Unified Ct. Sys., 2021 NY Slip Op 01376, Third Dept 3-9-21

 

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