It’s now up to judges on the New York state Court of Appeals to decide if there’s a change in the age a judge must retire.
Oral arguments in the matter of Miller v. State of New York were heard in the state’s Court of Appeals on Wednesday.
The argument centers around a provision in the New York state Constitution that requires judges and justices to retire at the end of the year when they turn 70.
“I think it’s a ban on explicitly on age which is unconstitutional now,” said John Leventhal, an attorney who represented the appellants. “That’s what I’m arguing.”
Under the state’s Constitution, after retiring at 70, judges are then allowed if they choose to go through a certification process to serve as a justice of the Supreme Court for two-year terms until they turn 76 years old.
Back in November 2024, voters approved the Equal Rights Amendment to the state’s Constitution. It added age as a category to the Civil Rights Clause.
“A civil right is those rights which appertain to a person by virtue of his citizenship in a state or community,” said Ester Murdukhayeva, an attorney for the State of New York. “Being a judge is not a right that appertains to a person.”
Three New York Supreme Court justices who were set to retire because of the state’s Constitution’s mandatory retirement claimed age being added to the Equal Rights Amendment voided the mandatory retirement.
The Supreme Court dismissed the case on the basis justices didn’t adequately demonstrate that adding age to the ERA nullified the state’s current law.
“The main argument against the plaintiffs’ case is that the law disfavors sometimes what is called repeal by implication,” said Michael Dorf, a constitutional law professor at Cornell University. “That is, you’ve got one expressed provision of the state constitution that sets a mandatory retirement age. You would think that if the voters meant to override that they would have said so explicitly rather than by doing it through this general prohibition on age discrimination.”