A 77-year old retired New York state appellate court justice made the case on behalf of three other septuagenarian jurists in the state’s highest appeals court last week that the court system’s mandatory retirement age of 76 is a form of civil rights discrimination.
The state constitution requires Supreme Court justices to undergo an administrative capacity certification process beginning at age 70 and mandates retirement at age 76.
But since the state voters expanded civil rights protections in the state constitution in 2024, the judicial age cap is among the new legal conflicts to emerge from the change.
The Equal Rights Amendment amended state constitutions to expand protections against discrimination based on ethnicity, national origin, age, disability, and sex.
Three state Supreme Court justices — Robert J. Miller, Richard J. Montelione and Orlando Marrazzo, each on the cusp of mandatory certification or retirement — sued the state last year to have the retirement laws declared unenforceable, arguing they were impliedly repealed by the ERA.
The justices’ attorney, John M. Leventhal, a retired Second Department Appellate Court justice, argued that the amendment and the state’s retirement rules “can’t be harmonized or reconciled” before the Court of Appeals on Wednesday.
“One forbids age discrimination. The other mandates it,” he said. “If I may, the state does not want the court to reach whether the ERA is [a] self-executing, free-standing, stand-alone civil right and whether it is subject to strict scrutiny, as it knows that if you should reach it, it spells doom for their position.”
Miller and his fellow judges had also sought a preliminary injunction to stop the state from enforcing the age limits while the lawsuit was pending.
Manhattan Supreme Court dismissed the suit last year, finding that its logical conclusion would make all age restriction laws are explicitly unconstitutional. In March, the Appellate Division, First Department upheld that decision that the ERA had not implicitly repealed the state constitution because the “ERA contains no reference to… the eligibility of persons to serve as judges or justices, or the judicial retirement age.”
Legal representation for New York argued that serving as a judge is not a civil right.
“I think what a civil right is… a right that appertains to a person by virtue of his citizenship in a state or community. Being a judge is something just very different,” said the state’s attorney, Ester Murdukhayeva.
Interrogating the arguments that the three judges were making, the Associate Judge of the Court of Appeals Anthony Cannataro pushed back on the notion that the people of New York had consciously voted for the ERA with the understanding “that they were now eliminating a judge criteria.”
“It sounds astounding to make such an argument,” he added.
Cannataro was not the only one who seemed to approach the case with some credulity. Associate Judge Jenny Rivera said that, because there are no term limits for Supreme Court justices, the lawsuit would effectively enable lifetime appointments.
“You’re basically arguing for lifetime appointments as long as you get for those who are elected, they get reelected, right?” Rivera asked.
Leventhal quibbled with the term lifetime appointment, but clarified that if a 78-year-old justice wants to run for another 14-year term, they should be able to.
At the end of the hearing, Leventhal took a moment to thank the judges and added a personal note.
“I’m 77 years old, and I’m still here,” he said.