'No right to be a judge': Aging New York justices face hurdle in fight against forced retirement

MANHATTAN (CN) — A New York judge on Thursday questioned his peers’ challenge to the state’s mandated retirement age that forces judges off the bench at 76, mulling whether the century-old law constitutes discrimination.

New York Supreme Court Justice Lyle Frank was fielding oral arguments from the suing judges, who claim the age cap violates their equal rights under the state constitution. The New York Civil Liberties Union — an amicus in this case backing the aging justices — argues that it does.

“The two most fundamental civil rights we have in New York are equal protection and the right to vote,” the NYCLU’s Thomas Munson claimed Thursday.

But Frank noted that the rights being questioned in this case are not fundamental ones like the right to vote, or to drink alcohol, or to drive.

“You have no right to be a judge,” Frank said, quipping, “Let me tell you, it took years.”

A group of elderly state judges sued New York last month, challenging the mandatory retirement age. The cap was set in 1869, when life expectancy was in the early 40s, the judges claim in a 29-page complaint.

These days, a person reaching their 70s is hardly the “extreme” feat it was when the age limit was ratified, the justices argue, and now represents needless discrimination.

The judges’ attorney John Leventhal, a retired state-level appellate judge in his own right, noted Thursday that his clients are not asking for “the right to be a judge.”

“What we’re asking for is no age discrimination when you are already a judge,” he said.

Leventhal argued that the cap runs afoul of New York’s Equal Rights Amendment, enacted in 2024 through a ballot measure, which bars age discrimination “on the same level as race and religious discrimination.”

“You want to do it on the basis of performance, on the basis of incompetence, on the basis of not passing a mental acuity test, that’s fine,” Leventhal said. “But not on the clear unadulterated basis of an age cutoff.”

The retired judge added that there is no compelling state interest to implement the forced retirements based solely on age. He argued that the state doesn’t place such a cap on driving; New Yorkers can continue renewing their licenses so long as they pass certain tests to prove they can be trusted behind the wheel.

State judges in New York are currently required to go through a certification process to remain on the bench once they hit 70 years old. They can continue recertifying until they hit 76, when they are forced to end their service.

According to Leventhal, the limit unnecessarily forces capable, knowledgeable judges with the most experience off the bench.

Frank appeared to sympathize, acknowledging that “it was a long time ago” when the age cap was instituted.

“Respectfully, it just doesn’t make any sense,” the judge said in reference to the outdated law.

The state argues that the judges’ gripes aren’t for the court to handle, but instead the legislative process. Additionally, it says the suing jurists don’t face enough pressing harm to justify a preliminary injunction, which would temporarily pause the forced retirement law. Two of the three suing judges don’t face imminent retirement, and the one that does waited too long to bring the case, the state claims.

New York Supreme Court Justice Orlando Marrazzo Jr. turns 76 next year and won’t be forced to retire until the end of 2026. New York Supreme Court Justice Richard Montelione is 70 and is seeking certification to continue serving, but won’t be forced off the bench for another six years.

New York Supreme Court Justice Robert Miller, a mid-level appellate judge, turned 76 in May and will be required to step down by the end of 2025, barring an injunction in this case.

Frank didn’t immediately rule Thursday on the state’s motion to dismiss or the judges’ preliminary injunction request. The New York Supreme Court is not the top court in the state, so the New York Court of Appeals might eventually have the final word on this matter.

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