Several older Judges have who were not re-certified because of their age have sued Chief Judge DiFiore for violating their Due Process rights. Due to budget cuts all Judges over the age of 70 were not recertified. Due process under the Fourteenth Amendment can be broken down into two categories: procedural due process and substantive due process. Procedural due process, based on principles of “fundamental fairness,” addresses which legal procedures are required to be followed in state proceedings. Relevant issues, as discussed in detail below, include notice, opportunity for hearing, confrontation and cross-examination, discovery, basis of decision, and availability of counsel. Substantive due process, although also based on principles of “fundamental fairness,” is used to evaluate whether a law can be applied by states at all, regardless of the procedure followed. Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has alternately emphasized the importance of economic and noneconomic matters. In theory, the issues of procedural and substantive due process are closely related. In reality, substantive due process has had greater political import, as significant portions of a state legislature’s substantive jurisdiction can be restricted by its application.
Although being sued and ordered to provide expedited discovery, the Court system has ignored Court orders to provide discovery. A Suffolk County judge did not hold any state court system defendants in contempt of court for not complying with expedited discovery in a lawsuit filed by older Appellate Division justices that claims the court system’s decision to terminate them for budgetary reasons violates the law.
“This motion is about recognizing the Rule of Law,” said Y. David Scharf, a Morrison Cohen partner and a lead lawyer for the Appellate Division justices in their lawsuit.
