Aging NY judges challenge ancient state law that would force them to retire at 76

A group of elderly judges are taking New York to court over an ancient state law forcing them off the bench at the ripe old age of 76.

The three septuagenarian jurists claim the mandatory retirement age set by law in 1869 is blatant age discrimination as defined by New York’s Equal Rights Amendment, according to their suit filed in Manhattan Supreme Court.

Currently, judges are forced to “retire” at 70 — a rule formed when the life expectancy was in the early 40s, the suit notes.

But some judges can remain on the bench until 76 through a certification process, after which they are “arbitrarily” forced to end their service based solely on their age, the filing states.

The ERA — enshrined in 2024 through a ballot measure — prohibits age discrimination “on the same level as race and religious discrimination, and state policies that embrace it are similarly constitutionally suspect,” according to the suit.

“While living until 70 was a rare occurrence when the mandatory retirement age was implemented, most people today live meaningfully longer than that,” the suit states.

The suit notes that there are currently no age limitations for members of the state Legislature and that, if Albany lawmakers were subject to the same rules, 30 members of the Assembly and Senate would be forced to retire this year.

“This is an historic piece of litigation,” said retired state appellate judge David B. Saxe, one of the attorneys representing the aging jurists. 

“You’re losing some of the best people available to decide cases and decide appeals,” Saxe told The Post. “It’s a terrible loss. It’s a terrible loss to the judicial system. And we have the possibility of allowing these people to continue their superb service in the future.” 

Since those age limits were first set, the state court system has developed a number of tools to ensure judges can perform their jobs, like a biennial certification process which includes physical and mental exams, and avenues for addressing inappropriate behavior from the bench, Saxe said.

“Forced retirement is not only personally devastating, but also institutionally damaging,” said plaintiff and appellate judge Robert J. Miller, who turned 76 in May.

Under current rules, he would be forced to leave his Brooklyn courthouse at the end of the year.

Miller said that would only serve to damage his court, currently “burdened with historically high caseloads.”

“Arbitrarily removing me and similarly situated justices because of age alone undermines the judiciary’s capacity to provide timely and effective justice,” Miller said.

In 2020, Saxe and his firm, Morrison Cohen, successfully fought another high-profile effort to kick out nearly 50 older judges as part of COVID-era state budget cuts.