New York State Court of Appeals rejects ERA challenge to mandatory judicial retirement
LUTHMANN NOTE: This case was not just about New York State judges wanting more years on the bench. It was about whether New York’s Equal Rights Amendment is real law or political theater. Judge Leventhal made the clean textual argument: one constitutional provision cannot ban age discrimination while another commands it. The Court of Appeals refused to go that far, preserving the retirement rule because it is old, specific, and constitutionally embedded. But the concurrence matters. Judge Troutman warned the ERA created enforceable rights. Translation: the judges lost this round, but the next ERA collision may look very different. This piece is “Judicial Retirement Rule Survives.”
By Richard Luthmann
The ERA Argument Hit the Constitutional Wall
(ALBANY, NEW YORK) – Retired Judge John Leventhal and the Aidala Bertuna & Kamins team went to the New York State Court of Appeals with a clean, aggressive argument: New York voters added “age” to the state Constitution’s Equal Rights Amendment, and that should mean something.
Not symbolism. Not window dressing. Not a bumper sticker for progressive ballot language.
Their clients were three New York State Judges facing mandatory retirement because of their age: Robert J. Miller, Richard J. Montelione, and Orlando Marrazzo Jr.
The legal position was direct. If Article I, Section 11, now says the State cannot discriminate in civil rights on the basis of age, then Article VI, Section 25(b), which forces judges out at 70 and ends certified service at 76, cannot continue operating as if nothing happened.
It was a strong textual punch. Judge Leventhal argued that the Constitution cannot prohibit age discrimination with one hand and command age discrimination with the other. He said the ERA contains no carve-out for judges, no “subject to Article VI” escape hatch, and no grandfather clause preserving old constitutional age bars.
He also pressed the bigger point: once age was elevated into the Constitution’s protected classes, courts should apply strict scrutiny to laws that classify people solely by age.
The Court of Appeals did not bite.
In a per curiam decision, New York’s highest court held that the mandatory judicial retirement provision survived the ERA. The court’s answer was not that Judge Leventhal’s argument lacked force. It was that constitutional change by implication is disfavored, especially when the targeted provision has been in the Constitution for more than two centuries.
If voters wanted to abolish judicial retirement, the court said in substance, they needed to say so directly by constitutional amendment.
Judicial Retirement Rule Survives: Judge Leventhal Said Conflict; The Court Said Harmony
The central fight was over whether the two constitutional provisions could coexist. Judge Leventhal said no. Article I, Section 11, as amended by the ERA, says no person shall be subjected to discrimination in civil rights because of age by the State pursuant to law. Article VI, Section 25(b) says judges must retire because of age.
One provision forbids age discrimination; the other orders it. That was the appellants’ battlefield.
The Court of Appeals chose a different map. It treated Article I as a broad equality provision and Article VI as a specific judicial-eligibility rule. That distinction drove the outcome. The court leaned on the canon that specific constitutional provisions control over general ones unless the opposite intent is clearly shown.
In plain English, the court said the ERA speaks broadly to civil rights, while the retirement clause speaks narrowly to a particular class of public officers: judges and justices.
That was fatal to Judge Leventhal’s implied-repeal theory. He argued that the later constitutional command — the ERA — should control as the newest expression of the People. The court answered that implied repeal is not favored and that nothing in the ERA expressly mentioned judicial retirement, Article VI, Section 25(b), Judiciary Law Section 23, or Judiciary Law Section 115.
This was not a close-the-books ruling on the ERA’s future. It was a containment ruling. The court preserved the old age wall by refusing to read the new equality language as a silent wrecking ball against a specific, older constitutional command.
Judicial Retirement Rule Survives: The Court Refused to Constitutionalize the Move
The Court of Appeals was clearly bothered by the mechanism of the challenge. Judge Leventhal’s argument depended on the idea that the ERA, by adding “age” to Article I, implicitly wiped out or subordinated the mandatory retirement provision. The court saw that as too much constitutional surgery through too little textual notice.
That concern was sharpened by history. New York has had a judicial retirement age since 1777. The age started at 60, moved to 70 in 1869, and was later extended to allow certain certified retired judges and justices to serve up to 76.
In 2013, voters rejected an amendment that would have raised the retirement age to 80. No ballot measure has ever asked voters to eliminate the age requirement altogether.
That history mattered. The high court essentially said: New Yorkers know how to vote on judicial retirement when it is placed before them. They have done it before. If the People wanted to repeal the retirement mandate, the natural way was to amend Article VI directly, not hide the repeal inside a broad civil-rights amendment.
The court also pointed to post-ERA legislative activity. Three months after voters approved the ERA, lawmakers proposed amending Article VI, Section 25(b), to raise the judicial retirement age to 76.
The court treated that as practical evidence that even lawmakers did not think the ERA had already killed the retirement rule. If Judge Leventhal was right, the court reasoned, the proposed amendment would have been unnecessary — and perhaps unconstitutional itself.
Judicial Retirement Rule Survives: Judge Troutman’s Concurrence Kept the ERA Fuse Burning
The judges challenging the age rule lost. But Judge Troutman’s concurrence made clear that the ERA is not dead, decorative, or legally toothless. She agreed with the result, but she criticized the majority for failing to say more forcefully that the ERA created enforceable constitutional rights.
That concurrence is where the future fights live. Judge Troutman warned that the Court should not treat the ERA as some vague aspiration to be rolled out slowly and cautiously. In her view, the amendment created real rights, and lower courts need clear direction that those rights are self-executing and enforceable without having to borrow power from another statute or doctrine.
So the final decision gives the State the win, but not total victory. The mandatory judicial retirement age survives. Leventhal’s arguments did not persuade the court to blow open Article VI by implication. The old constitutional machinery remains in place.
But the ERA still walks out of the courthouse alive. The majority protected the judicial retirement clause because it was old, specific, and constitutionally embedded. Troutman signaled that future litigants challenging ordinary statutes or government actions may find a very different battlefield.
For now, New York judges still face the age clock. The court did not say age equality means nothing. It said this was not the vehicle to topple a two-century-old constitutional command.
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