NY Mandatory Judge Retirement Age Upheld by State’s Top Court (1)

New York’s requirement that state judges retire by the age of 70 remains intact after the state’s top court ruled Thursday the longstanding constitutional mandate doesn’t clash with a recent amendment banning age discrimination.

The state Court of Appeals rejected arguments from three judges above the age of 70 who argued the retirement mandate was superseded by the state’s ban on age bias that was added to the state constitution through the landmark 2024 Equal Rights Amendment.

“The text, purpose, and history of these constitutional provisions establish that they operate independently,” four judges wrote in an unsigned opinion. Chief Judge Rowan Wilson and Judge Madeline Singas took no part.

The retirement mandate “addresses a different constitutional matter than the ERA, and the two provisions are not antagonistic and may be harmonized,” the opinion says, siding with appellate and trial court orders dismissing the case.

Judge Shirley Troutman wrote a separate concurring opinion “to address gaps in the majority’s reasoning.” She said the majority “does the ERA disservice” by not addressing whether the constitutional provision is self-executing and allows New Yorkers to seek redress for discrimination. Amicus briefs filed by four organizations, including the New York Civil Liberties Union and the Legal Aid Society, urged the court to make clear it is.

This case was an opportunity for the court to definitively state the ERA created rights that can be enforced without needing another enacting law, Troutman said. It’s “unfortunate,” she added, that the majority failed to take seriously the rights created by the provision and instead “chooses to delay the promise of the ERA and to roll out its protections slowly ‘with all deliberate speed.’”

Voters’ Intent

New York’s constitution requires judges retire at the age of 70, but allows them to continue serving three two-year terms until they reach 76. It’s one of 32 states, plus D.C., that has some mandatory retirement age as of December 2025, according to National Center for State Courts data.

The suing judges—now-retired Robert J. Miller, Richard J. Montelione, and Orlando Marrazzo Jr.—argued the ERA effectively repealed the retirement mandate when it passed by amending the constitution’s civil rights clause to ban discrimination based on age, sexual orientation, gender identity, and pregnancy.

That argument “runs afoul of our rule disfavoring implied repeal,” the court said.

There’s no evidence that lawmakers and voters wanted to make “such a dramatic change” to the retirement age provision “merely by inference, and we see no indication that they intended to do so by adopting the ERA,” the opinion said.

New Yorkers for more than 200 years have only voted to modify the age limit, but never to eliminate it, the opinion said. Efforts to raise the age to 80 failed in 2013.

“The retirement age is part of New York’s constitutional design. The State’s voters, Legislature, members of the bench, and judicial candidates have understood that judicial service is limited in this specific way,” the opinion said.

Undermining the ERA

Troutman, in her separate opinion, agreed with the outcome and premise of the majority’s opinion. But she took issue with its failure to address the state’s argument that the ERA didn’t change the fact that the constitution’s civil rights clause isn’t self-executing, meaning it needs legislation to become effective.

The majority said it didn’t need to address this because the question is academic, but that’s “incorrect,” Troutman said. The case has “broad implications for our State’s constitutional jurisprudence,” she added.

Attorney General Letitia James’ (D) argument “would undermine the entire purpose of the ERA,” which is to ban discrimination against the listed protected classes and provide those people with enforceable legal rights, Troutman said.

The ERA prohibits discrimination “pursuant to law.” Those words were added to clarify the civil rights clause “applies to any government action ‘with force of law, including action by the executive or legislative branch, local governments, or any subdivision thereof,” Troutman said.

The ERA would be ineffective if the court failed to recognize that change, the judge said, noting it would affect rights beyond the retirement age issue, such as reproductive health rights.

Limited Ruling

The plaintiffs are “disappointed in the decision” but they respect it as former judges and attorneys, John M. Leventhal of Aidala Bertuna & Kamins PC said on behalf of the suing judges. Leventhal himself is also a retired jurist who served on the appellate bench with one of the plaintiffs.

Leventhal added he’s glad Troutman addressed the ERA’s enforceability.

The ruling is limited, but it does indicate the ERA created broad anti-discrimination protections for New Yorkers, JP Perry, senior staff attorney at the NYCLU, said.

“By only addressing judicial retirement age, this decision was a missed opportunity to clarify the ERA’s enforceability once and for all,” Perry said. Troutman laid “a pathway for future cases to undeniably conclude the ERA is enforceable,” and the organization is confident the next case to come before the high court “will vindicate that the ERA guarantees every New Yorker equal treatment,” Perry said.

There are at least two other lawsuits challenging the judicial retirement age in the lower courts. The New York Supreme Court Fourth Appellate Department in Rochester this fall will hear an appeal in one of those cases brought by a pair of near-retirement-age Wayne County judges. The trial court dismissed it because one of the plaintiffs, Justice Arthur Williams, lacked standing as the complaint was filed before he turned 70.

The state and court system are appealing in Albany the second case brought by a pair of judges in their 70s in the towns of Oneida and Tonawanda. The lower court ruled the retirement age requirement is unconstitutional as it relates to city court judges outside of NYC.

Morrison Cohen LLP also represents Miller, Montelione, and Marrazzo.

The case is In the Matter of Miller v. State of New York, N.Y., No. APL-2026-00033, 6/18/26.