Mandatory retirement for New York judges hits state’s highest court

(CN) — New York voters in 2024 approved ageism as a protected civil rights category. What that means for the judicial system’s mandatory retirement age is now a question for the state’s highest court.

Three septuagenarian judges brought their case before the seven-judge New York State Court of Appeals, arguing that the Equal Rights Amendment to the New York Constitution overrules court law provisions requiring judges to retire at age 70, with provisions allowing them to recertify for two-year terms up to age 76.

The justices harshly questioned the plaintiffs’ attorney John Leventhal of the firm Aidala, Bertuna & Kamins during oral arguments that lasted nearly an hour. They asked how the Civil Rights Act could be understood as repealing the mandatory retirement age when it was not explicitly presented to voters as doing so.

“Your argument is that, without saying it, by putting it in a completely different section of the Constitution, the framers and the voters understood that they were now eliminating the work criteria. It sounds surprising to make such an argument,” said New York Court of Appeals Associate Justice Jenny Rivera.

Leventhal, himself a retired judge, argued that the age limit for New York jurors is age discrimination, plain and simple, and said the Equal Rights Amendment’s inclusion of the words “under the law” means “you can’t have any discrimination … whether it’s in the Constitution or not.”

“They also added civil rights,” replied Associate Court of Appeals Judge Anthony Cannataro, asking if Leventhal reasoned that all New Yorkers have a constitutional right to be judges.

Leventhal compared the judge to the right to participate in jury duty, citing case precedent in The People v. Kern.

Arguing on behalf of the state, lawyer Ester Murdukhayeva echoed the lower court’s findings: “Being a judge, having that office, is not a civil right,” she said.

Murdukhayeva faced a series of questions from Court of Appeals Associate Justice Shirley Troutman about why a judicial age limit does not discriminate against older judges.

“What is civil law, is what Kern said, it is a right that belongs to a person by virtue of his citizenship in a state or community. Being a judge is something very different,” argued Murdukhayeva.

One of suing judges, New York Supreme Court Justice Robert Miller turns 76 in 2025, triggering mandatory retirement at the end of the year. New York Supreme Court Justice Orlando Marrazzo Jr., another plaintiff, turns 76 in August. The third plaintiff, New York Supreme Court Justice Richard Montelione, is 70 years old.

In November 2025, New York Supreme Court Justice Lyle Frank rejected the plaintiffs’ bid for a pension law order, pointing out that becoming a judge is not a civil right.

“Let me tell you, it took years,” he said oral arguments.

The justices also failed to show that the legislature did not expressly repeal the mandatory judicial retirement age with the passage of the state’s Equal Rights Amendment.

Frank was not sold under the law.

“There are serious public policy concerns with the current mandatory judicial retirement age scheme,” he wrote, but concluded that he did not have the power to override the state mandate. The Appellate Division, First Department, affirmed Frank’s decision.

In 2013, New York voters refused to extend the retirement age for judges to 80 years.

The appeals panel reserved judgment after Wednesday’s hearing — but not before Leventhal had the final say.

After thanking the judges, he added: “I’m 77 years old and I’m still here.”