NY Mandatory Judicial Retirement Age of 70 Is Upheld by Court

New York’s mandatory judicial retirement age of 70 doesn’t violate the state’s anti-discrimination law, a New York intermediate appellate court ruled, brushing back a challenge from a trio of state judges.

The state’s newly passed provision banning several forms of discrimination, the Equal Rights Amendment, doesn’t render the age cap repealed, the Manhattan-based appeals court said Thursday.

“Because there is no support for petitioners’ position within the ERA’s legislative history, their cause of action asserting an implicit repeal necessarily fails,” the New York Supreme Court First Appellate Department said, upholding a lower court decision.

The ruling comes amid controversies over elderly people on the bench. New York’s constitution requires judges to retire at 70 or get certified to stay on the bench through 76. The judges challenged both aspects of the age requirement.

Many states have a similar requirement, while the US Constitution gives federal judges lifetime appointments.

The oldest active federal judge, Judge Pauline Newman, on Thursday petitioned the US Supreme Court to lift her suspension from hearing new cases. Newman has argued that the suspension, stemming from a probe into her cognitive abilities and subsequent refusal to cooperate with demands for medical information and evaluation from her colleagues, is the equivalent of removal of a federal judge, an action reserved for Congress under its impeachment powers.

The plaintiff-judges in New York argued the state constitution’s age requirement for judges was implicitly repealed by the ERA, the 2024 law banning discrimination based on age or a host of other factors.

But the four-judge First Appellate Department panel wasn’t persuaded that the passage of the ERA voided the state’s judicial age cap, saying an implicit repeal “requires that the repugnancy between two laws” be so obvious that they cannot possibly remain in force at the same time.

The ERA “contains no reference” to “the eligibility of persons to serve as judges or justices, or the judicial retirement age,” the court said.

The legislative history indicates that the ERA’s drafters were focused on “the changing national legal landscape endangering abortion rights” and hadn’t viewed the measure as repealing the age cap, the court said. State lawmakers have considered making changes to the judicial retirement age since the ERA passed, the court noted.

Attorneys for the plaintiff-judges said they plan to appeal to New York’s highest court. “The First Department’s decision overlooked the transcendent importance of the Equal Rights Amendment,” Y. David Scharf of Morrison Cohen LLP said. Aidala Bertuna & Kamins PC also represents the judges.

The New York Attorney General’s Office, which defended the age cap, declined to comment.

The case is Miller v. State of New York, N.Y. App. Term, 1st Dep’t, No. 2025-07659, order and judgment 3/12/26.