Aging New York judges lose challenge to forced retirement at 76

MANHATTAN (CN) — A New York judge on Tuesday sided against a group of his fellow justices, dismissing a lawsuit brought against the state’s age cap that forces them off the bench at 76 years old.

In a 10-page ruling, New York Supreme Court Justice Lyle Frank denied the judges’ bid for a preliminary injunction and tossed the case, finding that the mandatory age cap does not constitute a violation of their civil rights.

“The petitioners have not shown, nor is the court aware of, a civil right consisting of the ability to remain a judge,” Frank wrote.

The suing judges claimed the longstanding age cap, set in 1869, runs afoul of New York’s 2024 Equal Rights Amendment, which bars age discrimination “on the same level as race and religious discrimination.”

But Frank found Tuesday that the law could not apply to all societal age limits. That could be a slippery slope, he warned.

“Certainly, this court is not prepared to hold that all laws containing an age restriction, such as driving, drinking, working laws, and so on, are now void, given the drastic and assuredly unforeseen impact this would have on a functioning society,” he wrote.

John Leventhal, who represents the suing judges, told Courthouse News on Tuesday that his clients’ challenge was solely focused on the age cap of the judges. A retired state judge himself, Leventhal said he respects the ruling and does not intend to criticize it.

“We respect the judge’s decision and the process,” Leventhal said. “We intend to appeal, and we think we should have a good chance of prevailing.”

“No one argued this should apply to everything,” he said of the contested law. “We just said it shouldn’t apply to judges.”

At oral arguments last week, Frank expressed some skepticism over the forced retirement law, acknowledging that “it was a long time ago” when the cap was instituted. In the plaintiffs’ lawsuit, they argued that life expectancy was in the early 40s when the law was passed more than a century ago.

Frank noted in his ruling that “there are serious public policy concerns with the current judicial mandatory retirement age scheme,” but those are not concerns he has a right to address in his court.

“Whatever this court may believe regarding the ability of the average justice to perform the duties of their job past the age of 76, the fact remains that the judicial retirement scheme is mandated by our state’s constitution, and the court has no authority to override that mandate,” Frank wrote.

He even suggested he may disagree with the law in principle, writing: “The court may be able to add its voice to those urging the New York Legislature to reconsider the issue of mandatory judicial retirement ages, but that remains all it has the power to do.”

Frank noted last week that individuals have no constitutionally protected right to be a judge.

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

State judges in New York are required to go through a certification process to remain on the bench once they turn 70. They can continue recertifying until they hit 76, when they are forced to retire.

One of the suing judges, mid-level appellate jurist New York Supreme Court Justice Robert Miller, turned 76 in May and will be required to leave the bench at the end of the year.

The other two judges behind the lawsuit don’t face imminent retirement, which the state argued weakens their case for an injunction. New York Supreme Court Justice Orlando Marrazzo Jr. turns 76 next year and won’t be required to retire until the end of 2026. New York Supreme Court Justice Richard Montelione is 70 and is seeking certification to continue serving, but he has another six years until he’ll be forced off the bench.

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