Giving up the gavel: New York upholds mandatory retirement age for judges

(CN) — New York’s mandatory retirement age for judges will remain in place after the state’s top appellate court determined on Thursday that newly instated ageism protections don’t repeal the longstanding age limit.

State law requires judges to lay down the gavel at 70, with provisions allowing them to be recertified for two-year terms until they are 76. Three septuagenarian judges argued that the Equal Rights Amendment to New York’s Constitution, which added age as a protected civil rights category, nullified the rule.

The New York Court of Appeals disagreed, finding the lower court was right to dismiss the judges’ petition claiming voters “implicitly repealed” the age rule, which has been on the books since the Revolutionary War, when they approved the constitutional amendment.

Judges on the panel said the state’s high court has “long held that implied repeal is disfavored.”

“The text, purpose and history of these constitutional provisions establish that they operate independently: article VI, § 25 (b)’s retirement mandate addresses a different constitutional matter than the ERA, and the two provisions are not antagonistic and may be harmonized,” the majority wrote in an unsigned 13-page ruling.

Associate judges of the New York Court of Appeals Jenny Rivera, Michael Garcia, Anthony Cannataro and Caitlin Halligan concurred. Associate Judge Shirley Troutman concurred in result in a separate opinion, while Chief Judge Rowan Wilson and Associate Judge Madeline Singas did not take part.

John Leventhal of the firm Aidala, Bertuna & Kamins represents the plaintiff judges.

He said the state constitutional amendment means the mandatory retirement age is subject to strict scrutiny instead of “rational basis” review.

“We wish they would have reached that,” Leventhal told Courthouse News.

“My clients and I are disappointed," he said. “We respect the rule of law, we respect the decision."

Judges sharply questioned Levanthal during oral arguments last month that ran for nearly an hour. They asked how the civil rights law can be understood as repealing the mandatory retirement age when it wasn’t explicitly presented to voters as doing so.

“Your argument is that, without having said it, putting it in a completely different section of the Constitution, the drafters and the voters understood that they were now eliminating a job criteria. It sounds astounding to make such an argument,” Rivera said.

Leventhal, a retired judge himself, argued that the age limit for New York jurists is age discrimination, plain and simple. “You can’t have any discrimination … whether it’s in the Constitution or not,” he said.

One of the suing trio of judges, New York Supreme Court Justice Robert Miller, turned 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 denied the plaintiffs’ bid for an injunction of the retirement law, noting that becoming a judge is not a civil right. The jurist, however, wasn’t sold on the law itself.

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

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

A representative for the state court system did not return a request for comment.

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