Motion — Maresca v. Cuomo

5, eae

No. 85-4 ~/ eer =

AUG 6 wo

IN THE :

Supreme Court of the United See: Mie

OcrosBerR TERM, 1985

Sealtiithin eat tent leanne

OREST V. MARESCA, SIDNEY ROSEN, JOSE RAMOS-LOPEZ,

MICHAEL WOLLIN, and WILLIAM C. BRENNAN,

Appellants,

VS.

MARIO CUOMO, GOVERNOR OF THE STATE OF NEW YORK,

EDWARD V. REGAN, NEW YORK STATE EMPLOYEES’ RETIRE-

MENT SYSTEM, POLICEMEN’S AND FIREMEN’S RETIREMENT

SYSTEM, NEW YORK STATE OFFICE OF COURT ADMINISTRA-

TION, NEW YORK CITY BOARD OF ELECTIONS, PHYLLIS

GANGEL JACOB, ANTONIO I. BRANDVEEN, CAROL

AARONOFF, ROBERT SILVERSON, RICHARD GUGLIATTO,

PHILIP C. MODESTO, SEYMOUR GERSCHWER, SIDNEY B.

LEVITT, CHARLES RAMOS, WILSON GRAVES AND

ENRIQUE CALDERON,

Appellees.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

MOTION BY APPELLEES MARIO CUOMO,

EDWARD V. REGAN AND NEW YORK STATE

EMPLOYEES’ RETIREMENT SYSTEM

TO DISMISS OR AFFIRM

ROBERT ABRAMS

Attorney for General of the

RoBert HERMANN State of New York

Solicitor General Attorney for Appellees

Cuomo, Regan and

OQ. PereR SHERWOOD

Retirement System

Deputy Solicitor General

Room 49-27

ARNOLD D. FLEISCHER* Two World Trade Center

Assistant Attorney General New York, New York 10047

Of Counsel (212) 488-7402

*Counsel of Record

Questions Presented

1. Whether Article VI, Section 25(b) of the New York State

Constitution and Section 23 of the New York State Judiciary

Law, in providing for expiration of the term of office of most

State judges on the last day of December in the year in which

they reach the age of seventy, are reasonably related to a

legitimate State purpose and thus within the due process and

equal protection clauses of the Fourteenth Amendment?

2. Whether Article VI, Section 25(b) of the New York State

Constitution, in providing that judges of the State Court of Ap-

peals and justices of the State Supreme Court may be certified

to perform the duties of a State Supreme Court justice until the

age of seventy-six, is reasonably related to a legitimate State pur-

pose and thus within the equal protection clause of the Four-

teenth Amendment?

Table of Contents

Page

ee i

EE iii

irae vn ook ve ede wev ees ewes 1

CN . 2

EE 4

A. Appellants’ Jurisdictional Statement Is

eT he hee i ine x 6 SoH 84 5 0 4

B. This Case Raises No Substantial Federal

SS 5

grt Se F 7

Appendix

Remittitur of the Court of Appeals of the State

ee NG 4 oye kde ened vas A-l

ill

Table of Authorities

Cases Page

Alvord v. United States, 99 U.S. 593 (1878) ..... 4

Cleburne v. Cleburne Living Center,

U.S. , 53 U.S.L.W. 5022 (July 1, 1985) 5

Dandridge v. Williams, 397 U.S. 471 (1970) ..... 6

Hicks v. Miranda, 422 U.S. 332 (1975).......... 7

Malmed wv. Thornburgh, 621 F.2d 565 (3d Cir.),

cert. denied, 449 U.S. 955 (1980) .......... ry 6

Massachusetts Board of Retirement v. Murgia,

I 8 iis vas See pk cae eae 5

Mcllvaine v. Pennsylvania, 415 U.S. 986 (1974),

dismissing appeal from 454 Pa. 129, 309 A.2d

ere Deered Uawaneau eee cs ms 6

Palmer v. Ticcione, 576 F.2d 459 (2d Cir. 1978) . 7

People v. Brundage, 78 N.Y. 403 (1879)......... 3

People v. Gardner, 45 N.Y. 812 (1871).......... 3

Rubino v. Ghezzi, 512 F.2d 431 (2d Cir.), cert.

denied, 423 U.S. 891 (1975) ....,............ 6

Trafelet v. Thompson, 594 F.2d 623 (7th Cir.),

cert. denied, 444 U.S. 906 (1979) ............ 6, 7

Weisbrod v. Lynn, 420 U.S. 940 (1975), aff'g 383

F. Supp. 933 (D.D.C. 1974) (3-judge court) ... 6

Constitutions

United States Constitution 14th Amendment ..... passim

New York State Constitution of 1777 Art. XXIV.. 2

New York State Constitution Art. VI, Sect. 25(b). passim

iv

Page

Statutes

New York State Judiciary Law

le ee passim

GE a ee ee ae 2, 3

a $.3

Rules

United States Supreme Court Rules

ee be we tv awh coke coun cus 4

NN leis ss cas sha pds ene ON hws 4

NS oe oid ors Cdn od Seo ode oc eo oe 4

Miscellaneous

Plan of the Temporary Commission on the

SE ee 3

Record of 1967 New York State Constitutional

ES eee he eS: 3

Record of 1983 New York State Constitutional

MI, OS BE oes ores cc cucevccbhce, 3

No. 85-4

IN THE

Supreme Court of the United States

OcToBER TERM, 1985

OREST V. MARESCA, SIDNEY ROSEN, JOSE RAMOS-

LOPEZ, MICHAEL WOLLIN, and WILLIAM C. BRENNAN,

Appellants,

vs.

MARIO CUOMO, GOVERNOR OF THE STATE OF NEW

YORK, EDWARD V. REGAN, NEW YORK STATE

EMPLOYEES’ RETIREMENT SYSTEM, POLICEMEN’S

AND FIREMEN’S RETIREMENT SYSTEM, NEW YORK

STATE OFFICE OF COURT ADMINISTRATION, NEW

YORK CITY BOARD OF ELECTIONS, PHYLLIS GANGEL

JACOB, ANTONIO I. BRANDVEEN, CAROL AARONOFF,

ROBERT SILVERSON, RICHARD GUGLIATTO, PHILIP C.

MODESTO, SEYMOUR GERSCHWER, SIDNEY B.

LEVITT, CHARLES RAMOS, WILSON GRAVES AND

ENRIQUE CALDERON,

Appellees.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

MOTION BY APPELLEES MARIO CUOMO,

EDWARD V. REGAN AND NEW YORK STATE

EMPLOYEES’ RETIREMENT SYSTEM

TO DISMISS OR AFFIRM

Opinions Below

The opinion of the New York State Court of Appeals is reported

at 64 N.Y.2d 242, 48 N.Y.S.2d 724 (1984). The opinion of the

New York State Supreme Court, Appellate Division, First

Department, is reported at 105 A.D.2d 193, 483 N.Y.S.2d 690

(lst Dep’t 1984). The opinion of the New York State Supreme

Court, Special Term, Part I, New York County, is reported in

The New York Law Journal, Dec. 20, 1984, at p. 12, col. 6. These

opinions are set forth at J. la, 14a and 28a, respectively.*

Statement Of The Case

Appellants are four judges of the Civil Court of the City of

New York and one justice of the Supreme Court of the State

of New York. They contend that Article VI, Section 25(b) of

the New York Constitution and Section 23 of the New York

Judiciary Law violate the equal protection and due process

clauses of the Fourteenth Amendment.** In effect, these provi-

sions establish a retirement age of seventy for virtually all State

judges. However, Article VI of the State Constitution and Sec-

tions 114 and 115 of the Judiciary Law provide that judges of

the State’s highest court, the Court of Appeals, and justices of

the court with the broadest jurisdiction in the State, the Supreme

Court, may be certified fcr continued service on the bench un-

til age seventy-six.

Article VI, Section 25(b) of the State Constitution, which took

effect September 1, 1962, was an early step in the reorganiza-

tion and unification of the State court system. It continued in

effect a constitutionally mandated judicial retirement age that

for at least certain State court judges has appeared in every State

Constitution since the first New York Constitution of 1777. That

Constitution provided, in Article XXVI, that the judges of the

State Supreme Court and the first judge of every county court

had to relinquish office at age sixty.

Over time, various constitutional amendments have been pro-

posed which would have raised the mandatory retirement age

* References in the form J.____ are to appellants’ Jurisdictional Statement.

** The challenged provisions are set forth at J. 6-7.

to seventy-five, exempted Court of Appeals judges from man-

datory retirement, or eliminated the provision entirely, but none

of these proposals was ever approved by the Legislature and sub-

mitted to the public. See, e.g., Record of the 1983 New York

State Constitutional Convention, Vo. II, pp. 531-534. To the con-

trary, concern over the effects of advancing age on judicial per-

formance has been continually voiced both in the Legislature

and at successive constitutional conventions. See, e.g., Record

of the 1967 New York State Constitutional Convention, IV-845,

858, 887-889, 947-948. Thus, as the State Court of Appeals com-

mented early on, the State Constitution reflects “the apprehen-

sion that, during [a] long [judicial] term, the natural decay of

the powers of the man might at times leave upon the bench an

inefficient judge.” People v. Gardner, 45 N.Y. 812, 819 (1871).

Addressing that apprehension, the State Constitution, “instead

of prohibiting the election [to long judicia! terms] of those who

were too old to serve the full period, [limits] the term in such

cases to the length of time they could serve,” i.e., to age seventy.

People v. Brundage, 78 N.Y. 403, 406 (1879).

Article VI, Section 25(b) also permits mandatorily retired

judges of the State Court of Appeals and justices of the State

Supreme Court, but not judges of the Civil Court, to apply for

certification to perform the duties of a Supreme Court justice

for as many as three two-year terms, but in any event not beyond

age seventy-six. Together with the new Sections 114 and 115 of

the Judiciary Law,* Article VI, Section 25(b) thereby replaced

the official referee, an anomalous position abolished in the

reorganization of the courts, and at the same time sought to

make better use of the talents of former Court of Appeals judges

and Supreme Court justices. Plan of the Temporary Commis-

sion on the Courts, July 2, 1956, p. 57.

* Sections 114 and 115 of the Judiciary Law, both added by L. 1962, c. 704,

§ 2, provide that State Court of Appeals judges (§ 114) and State Supreme

Court justices (§ 115) retired pursuant to Article VI, Section 25(b) of the State

Constitution may be certified for continued service upon findings that they

have the requisite mental and physical capacity and that their services are

necessary to expedite the business of the State Supreme Court.

Appellants brought this action seeking a declaration that Ar-

ticle VI, Section 25(b), and Judiciary Law, Section 23, violate

the equal protection and due process clauses of the Fourteenth

Amendment. The State Supreme Court, at Special Term, granted

appellants’ motion for preliminary injunctive relief, but on ap-

peal, the Appellate Division, First Department, unanimously

reversed and dismissed the complaint. In the order which ap-

pellants seek to appeal to this Court, the State Court of Appeals

unanimously determined that Article VI, Section 25(b), and

Judiciary Law, Section 23, are reasonably related to a legitimate

State purpose and, accordingly, modified the Appellate Divi-

sion’s order to declare these provisions constitutional.

Argument

A. Appellants’ Jurisdictional Statement Is Untimely

The Rules of this Court provide that an appellant must docket

a case by inter alia filing a jurisdictional statement with proof

of service within ninety days after entry of the judgment ap-

pealed from. U.S. Sup. Ct. Rules, Rule 12.1, 12.3. The remit-

titur of the New York State Court of Appeals was entered in

the Office of the County Clerk, New York County, on January

8, 1985. Appendix to Appellees’ Motion To Dismiss or Affirm,

infra, at A-1. Accordingly, appellants were required to file their

Jurisdictional Statement on or before April 8, 1985.

Appellants’ Jurisdictional Statement was not filed, however,

until July 3, 1985. It is therefore untimely by almost three

months. Appellants never moved for an enlargement of time pur-

suant to Rule 12.2 of the Rules of this Court, and they fail to

offer a reasonable excuse for their untimely docketing. Although

appellants’ counsel of record disclaims awareness of or respon-

sibility for this delay, J. 3-5, he has been appellants’ attorney

throughout this action, and he is ultimately responsible for com-

pliance with the Rules of this Court. “Counsel who enter their

appearance...must understand that the court will hold-*them

responsible for all that such an entry implies until they relieve

themselves from the obligation they assume, by substitution or

otherwise.” Alvord v. United States, 99 U.S. 593 (1878).

Therefore, the appeal should be dismissed as untimely docketed.

ee eee Oe

B. This Case Raises No Substantial Federal Questions

According to appellants this case raises two substantial federal

questions which warrant review by this Court. The first con-

cerns age discrimination claims of judges, J. 15, and the second

concerns the level of scrutiny to be applied under the Fourteenth

Amendment to age-based classifications, id.

We submit that neither is a substantial federal question

meriting plenary review. The mere fact that redress is being

sought by judges and not janitors does not render the questions

in the case substantial. Moreover, on July 1, 1985, this Court

reaffirmed the rule that differential treatment based on age is

subject to neither “strict” nor “heightened” scrutiny in deter-

mining compliance with the equal protection clause of the Four-

teenth Amendment. Cleburne v. Cleburne Living Center,

US. , 53 US.LW. 5022, 5024 (1985); see also,

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313

(1976). Thus, contrary to appellants’ suggestion, there is no need

to “clarify for the nation the question of ... whether age is now

a suspect class.” J. 15.

Appellants argue that Article VI, Section 25(b) of the State

Constitution and Section 23 of the Judiciary Law deny them

equal protection in three ways:

(1) by unreasonably discriminating between judges over the

age of seventy and judges under the age of seventy without

regard to individual competence;

(2) by unreasonably discriminating between judges and all

other elected and appointed public officials in the State and its

political subdivisions who are not subject to a mandatory retire-

ment age;

(3) by unreasonably discriminating between judges of the Civil

Court and justices of the State Supreme Court, since the latter,

but not the former, may apply for certification to perform the

functions of a State Supreme Court justice for successive two-

year terms until age seventy-six.

It is clear from appellants’ recitation of the decision by the

New York Court of Appeals, J. 10-15, that all of these claims were

addressed and properly rejected by that court, just as virtually

identical claims have been uniformly rejected by other appellate

courts. See, e.g., Malmed v. Thornburgh, 621 F.2d 565, 569 (3d

Cir.), cert. denied, 449 U.S. 955 (1980); Trafelet v. Thompson,

594 F.2d 623 (7th Cir.), cert denied, 444 U.S. 906 (1979); Rubino

v. Ghezzi, 512 F.2d 431 (2d Cir.), cert. denied, 423 U.S. 891 (1975).

The State Court of Appeals confirmed that the challenged age

limitation is rationally related to the promotion of a number of

legitimate State interests, J. 9a. The Court also confirmed the

existence of a rational basis for restricting post-retirement ser-

vice in the State Supreme Court — a court of “broad, general

jurisdiction” and “State-wide reach” — to former judges of the

State’s highest two courts, J. 10a. Indeed, the wisdom of New

York’s decision to address only the problems of State Supreme

Court, and the “mathematical nicety” of that decision, are not

appropriate matters for the courts to consider. Dandridge v.

Williams, 397 U.S. 471, 485 (1970).*

The same reasons that defeat appellants’ equal protection

claims also defeat their claim under the due process clause that

the challenged provisions create an “irrebuttable presumption”

that persons over seventy cannot perform their judicial duties.

The irrebuttable presumption doctrine has no application to cases

of this kind. This Court did not apply it in McIlvaine v. Penn-

sylvania, 415 U.S. 986 (1974), dismissing appeal from 454 Pa. 129,

309 A.2d 801 (1973) (upholding constitutionality of state statute

mandating retirement at age sixty for Pennsylvania State Police)

or Weisbrod v. Lynn, 420 U.S. 940 (1975), aff'g 383 F. Supp. 933

(D.D.C. 1974) (3-judge court) (upholding constitutionality of

Federal Employee Mandatory Retirement Law [mandating retire-

ment at age seventy]). Such summary affirmances and dismissals

* Appellants lack standing to raise any claims on behalf of individuals who

voted for them. No voter is a party to this action. Such claims, moreover, are

plainly insubstantial, for under New York’s constitutional and statutory scheme,

appellants’ terms were openly delimited from the outset by the mandatory retire-

ment provisions they now contest.

for want of a substantial federal question are rulings on the

merits. Hicks v. Miranda, 422 U.S. 332, 344 (1975).

In short, the doctrine of irrebuttable presumptions is merely

“coextensive with the equal protection clause.” Trafelet v.

Thompson, 594 F. 2d at 630. If “a classification is sustainable

as rationally based, then it should not fall because it might also

be labeled a presumption.” Palmer v. Ticcione, 576 F. 2d 459,

463 (2d Cir. 1978). This appeal, therefore, presents no substan-

tial federal questions for this Court’s determination and should

be dismissed.

CONCLUSION

The appeal should be dismissed or in the alternative

the order of the New York State Court of Appeals

should be affirmed.

Dated: New York, New York

July 31, 1985

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Appellees

Cuomo, Regan and

Retirement System

ROBERT HERMANN

Solicitor General

O. PETER SHERWOOD

Deputy Solicitor General

ARNOLD D. FLEISCHER

Assistant Attorney General

Of Counsel

Remittitur

Court of Appeals

State of New York

The Hon. Lawrence H. Cooke, Chief Judge, Presiding

No. 698

OresT v. MARESCA, et al.,

Appellants,

v.

Mario Cuomo, Governor &c., et al.,

Respondents.

The appellant(s) in the above entitled appeel appeared by

Giamo & Vreeburg; the respondent(s) appeared by Hon. Robert

Abrams, Attorney General, State of New York; Fried, Frank,

Harris, Shriver & Jacobson, Esqs.; Michael Colodner, Esq.;

Nicholas J. Miglino, Esq.; Gaffin & Mayo, P.C.

The Court, after due deliberation, orders and adjudges that

the order is modified, with costs to respondents, in accordance

with the opinion herein and, as so modified, affirmed. Opinion

by Judge Jasen. Judges Jones, Wachtler, Meyer, Simons and

Kaye concur. Chief Judge Cooke took no part.

The Court further orders that the papers required to be fil-

ed and this record of the proceedings in this Court be remitted

to the Supreme Court, New York County,

there to be proceeded upon according to law.

I certify that the proceeding contains a correct record of the

proceedings in this appeal in the Court of Appeals and that the

papers required to be filed are attached.

s/

Donald M. Sheraw, Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, December 31, 1984.

FILED January 8, 1985

County Cierk’s OrFiceE, NEw York