New York judges must continue stepping off the bench at age 70, as the New York Court of Appeals ruled that the state’s newly enacted Equal Rights Amendment did not implicitly repeal the long-standing constitutional mandate requiring judicial retirement.
The decision, handed down on June 18, 2026, in Matter of Miller v. State of New York (No. 64), closes the door on a constitutional challenge brought by sitting and former state justices. The petitioners argued that when New Yorkers ratified the Equal Rights Amendment in 2024—adding age to the list of classifications explicitly protected from civil rights discrimination in article I, § 11 of the State Constitution—voters implicitly invalidated article VI, § 25 (b), the constitutional provision establishing a mandatory retirement age for the judiciary, as well as its statutory implementation in Judiciary Law §§ 23 and 115.
In a Per Curiam opinion, the state’s highest court rejected the challenge, affirming an Appellate Division, First Department order that dismissed the petition. Judges Rivera, Garcia, Cannataro, and Halligan concurred in the per curiam opinion. Judge Troutman authored a separate concurring opinion, agreeing with the result while offering a distinct constitutional analysis. Chief Judge Wilson and Judge Singas took no part in the decision, and the bench noted it heard the case under the Rule of Necessity because members of the court are subject to the same constitutional age limitations.
The dispute pitted former and active jurists against state executive officials over the structure of New York’s bench. Attorney John Leventhal represented the appellants, while Ester Murdukhayeva argued on behalf of the respondent State of New York. Amici curiae including the New York Civil Liberties Union, The Legal Aid Society, the Marcy Syms Equality Initiative at NYU School of Law’s Birnbaum Women’s Leadership Center, and If/When/How: Lawyering for Reproductive Justice submitted briefs in the appeal.
In resolving the dispute, the Court of Appeals focused on long-standing rules governing constitutional interpretation, reiterating that implied repeals are distinctly disfavored under state law. The court traced New York’s judicial retirement rules back to the state’s original 1777 constitution, which initially capped judicial tenure at age 60 before voters expanded it to age 70 in 1869. In 1961, voters amended article VI, § 25 (b) to permit certain retired supreme court justices and court of appeals judges to obtain two-year administrative certifications allowing service up to age 76. Voters reaffirmed this framework as recently as 2013, when they decisively rejected a proposed constitutional amendment that would have raised the mandatory retirement age to 80.
The court concluded that the 2024 Equal Rights Amendment and the mandatory judicial retirement rule operate on distinct planes and do not conflict. The general anti-discrimination clause in article I, § 11 protects broad civil rights across the state, whereas article VI, § 25 (b) sets specific employment eligibility criteria for a discrete group of public officers.
“The text, purpose, and history of these constitutional provisions establish that they operate independently: article VI, § 25 (b)’s retirement mandate addresses a different constitutional matter than the ERA, and the two provisions are not antagonistic and may be harmonized,” the court wrote.
Emphasizing that specific constitutional directives supersede general ones unless a contrary voter intent is clearly shown, the court stated that
“What the voters made in 1777, as reaffirmed in 1869 and 1961 in article VI, § 25 (b), was not unmade in 2025 in the ERA.”
Judge Troutman concurred in the result, writing separately to criticize the majority for declining to address whether the newly amended Civil Rights Clause creates self-executing rights that can be enforced against the government without enabling legislation. However, Judge Troutman agreed that the petitioners failed to overcome the heavy burden required to establish an implicit repeal, observing that setting judicial age boundaries does not inherently conflict with the Equal Rights Amendment.
Why it matters
This ruling carries significant practical and legal consequences for New York’s judicial system, preserving an administrative framework that mandates veteran jurists retire at age 70, or age 76 if certified. The decision directly affects state supreme court justices, county judges, and appellate jurists approaching these constitutional caps, ensuring that judicial vacancies will continue to open systematically through age limits rather than individualized fitness evaluations.
Legally, the analysis reinforces a high threshold against finding implied constitutional repeals in New York jurisprudence, signaling that broad constitutional rights amendments will not be interpreted by courts to silently erase specific structural provisions elsewhere in the state constitution. Because the Court of Appeals is the ultimate authority on state constitutional interpretation, the petitioners have exhausted their judicial appeals on these state claims.
As a result, any future effort to alter or raise the judicial retirement age must proceed through legislation and direct voter approval rather than court challenges. The state Legislature has already shown interest in this legislative route, having introduced constitutional amendments in 2025 to raise the maximum age of service to 76. For any such change to take effect, lawmakers must pass proposed constitutional language in two consecutive legislative sessions before placing the measure directly before New York voters on a statewide ballot.
Source: New York Court of Appeals opinion in Matter of Miller v. State of New York
