Mandatory Retirement Age for New York Judges Upheld
By: Joseph T. Burns
The mandatory retirement age for most New York State judges has been upheld by the Appellate Division, First Department. This resolves what some have characterized as a conflict between two sections of the New York State Constitution, the recently adopted Equal Rights Amendment (ERA) and the mandatory judicial retirement provision of Article VI.
Under the state constitution and the Judiciary Law, most New York State judges are required to leave the bench by December 31 in the year in which they turn seventy years old. New York State Supreme Court Justices must retire at 70, but they may have their service extended for three, two-year terms with the approval of the court system. The plaintiffs in this proceeding argued that the state constitution’s mandatory retirement age had been made null and void by a 2024 amendment to Article I, Section 11 of the state constitution. This amendment, which is commonly known as the Equal Rights Amendment, prohibited a number of forms of discrimination including discrimination based on age. The plaintiffs in this proceeding argued that the mandatory retirement provisions of Article VI of the state constitution were a form of age discrimination and now inapplicable because of the ERA.
The First Department disagreed with the plaintiffs’ arguments and upheld a lower court decision holding that the mandatory retirement provisions of the state constitution’s Article VI as well as the similar mandatory retirement provisions of the Judiciary Law remained in effect. In its decision, the First Department found that there was no indication that the authors of the ERA intended for it to apply to the state constitution’s mandatory retirement age for judges or repeal the provision of the state constitution that imposed the mandatory retirement age for judges. The First Department noted that when two provisions of the state constitution appear to conflict, the courts must reconcile these provisions while allowing both to remain in effect. The ERA, the First Department noted, contains no reference whatsoever to Article VI of the state constitution.
In its decision, the First Department also declined to address the issues of whether the ERA made the Civil Rights Clause of Article I, Section 11 of the state constitution self-executing as well as whether age-based statutory classifications are subject to strict scrutiny by the courts. These questions, the First Department noted, were “academic” given the court’s decision upholding the mandatory retirement provision of Article VI.
The First Department is one of New York State’s four intermediate-level appellate courts. It is comprised of New York County and Bronx County. The plaintiffs in this case may still seek to have their appeal heard by the Court of Appeals, New York State’s highest court.
The issue of the constitutionally mandated retirement age for judges was addressed by the voters of New York in 2013. In that year’s general election, New Yorkers voted on an amendment to the state constitution that would have raised the mandatory retirement age for Supreme Court Justices and Judges of the Court of Appeals to 80. The voters, however, overwhelmingly rejected this amendment.
