Judges - Mandatory Retirement Age - Equal Protection - Equal Rights Amendment

Douglas M. Jablonski, Wolcott, for petitioners.

Letitia James, Attorney General, Buffalo (Joel J. Terragnoli of counsel), for State of New York and another, respondents.

Office of Court Administration, New York City (Pedro A. Morales of counsel), for New York State Office of Court Administration and others, respondents.

[*2]New York State Board of Elections, Albany (Brian L. Quail and Kevin G. Murphy of counsel), for New York State Board of Elections, respondent.

Daniel C. Connors, County Attorney, Lyons, for Wayne County Board of Elections, respondent.

Holtzman Vogel Baran Torchinsky and Josefiak, PLLC, Buffalo (Joseph T. Burns of counsel), for Jeannie D'Alessandro, intervenor.

New York Civil Liberties Union Foundation, New York City (Jessica Perry and Robert Hodgson of counsel), amicus curiae.

Petitioner Arthur B. Williams is a sitting Wayne County Court Judge and an Acting Supreme Court Justice who will turn 70 years old on January 16, 2026. (Petition ¶¶ 17-19.) Judge Williams will be mandatorily retired as of December 31, 2026, pursuant to article VI, § 25 (b) of the New York State Constitution (the Constitution), notwithstanding his elected term extending through 2032. (Petition ¶ 20.) Petitioner Richard M. Healy is a sitting Wayne County Court Judge and also an Acting Supreme Court Justice who turned 70 years old on January 20, 2025. (Petition ¶¶ 21-23.) Judge Healy will be mandatorily retired as of December 31, 2025, notwithstanding his elected term extending through 2026. (Petition ¶ 24.)

Petitioners bring this hybrid CPLR article 78 and declaratory judgment action challenging the continuing applicability of portions of section 23 of the New York State Judiciary Law and article VI, § 25 of the Constitution. As authority for their challenge, petitioners rely on the expanded scope of the Equal Protection Clause contained within article I, § 11 of the Constitution, resulting from the newly enacted Equal Rights Amendment adopted by referendum on November 5, 2024 (hereinafter Equal Rights Amendment).

Presently before the court is petitioners' application, brought pursuant to CPLR 6301, seeking a preliminary injunction to enjoin respondents from taking any action to effect their respective mandatory retirements as jurists. The authority for this preliminary injunctive relief is the position that the mandatory judicial retirement age contained within both section 23 of the Judiciary Law and article VI, § 25 of the Constitution violates the current version of New York's Equal Protection Clause. Specifically, the order to show cause brought by petitioners requests the [*3]court enjoin respondents from terminating petitioners or declaring their seats vacant until their elected term expires, pursuant to CPLR 6301 and 6313. Thereafter, a motion to intervene was filed on behalf of Jeannie D'Alessandro, as candidate for Wayne County Court Judge and{**87 Misc 3d at 1122} as a voter in Wayne County, seeking an order pursuant to CPLR 401, 7802 (d) and 1012 or 1013. The State of New York and Governor Kathy Hochul have filed a cross-motion to dismiss through the Attorney General of New York, seeking an order pursuant to CPLR 3211 (a) (2), (7), 6301 and/or 7804. The State respondents seek an order dismissing the petition for failure to state a cause of action and as against the Governor on the grounds that she is not a proper party to the proceeding. Finally, the court received a motion from the New York Civil Liberties Union for leave to file a proposed amicus curiae brief.

The court considered arguments from all attorneys on June 4, 2025. At that time, by oral stipulation, petitioners agreed to withdraw the petition as to the Honorable Joseph A. Zayas and Governor Kathy Hochul. The court reserved with respect to all petitions after argument and allowed for submissions by petitioners' counsel in furtherance of argument, to be submitted on or before June 6, 2025, and for all others to June 12, 2025.

Prior to any decision regarding the merits, the court is compelled to address the issue of petitioners' standing. In order to have standing, petitioners must establish "both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated." (Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1, 4 [2014].) Petitioners must also assert facts to establish "imminent injury." (Lujan v Defenders of Wildlife, 504 US 555 [1992].) Petitioner, the Honorable Richard Healy, reaches the age of 70 in 2025. However, his term of office expires in December of 2026. Petitioner Healy's position was listed by the Wayne County Board of Elections as one of the vacant County Court seats in the November 2025 election. As alleged in the petition, Judge Healy was advised that his position would terminate as of December 31, 2025, based upon his attaining the age of 70 in 2025. In contrast, the Honorable Arthur Williams has not and will not attain the age of 70 in 2025. Petitioner Williams was advised that his position will terminate in December of 2026, the year that he attains the age of 70. His term would not expire until December 31, 2032. In light of the fact that petitioner Williams's seat is not listed as being{**87 Misc 3d at 1123} vacant until 2026, the court finds he has not established imminent injury and the issues he presents are not ripe at this time.

"Preliminary injunctive relief is a drastic remedy that is not routinely granted." (Sutherland Global Servs., Inc. v Stuewe, 73 AD3d 1473, 1474 [4th Dept 2010] [internal quotation marks and brackets omitted].) In order to establish their entitlement to a preliminary injunction, petitioners must establish, by clear and convincing evidence, three separate elements: "(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor." (Destiny USA Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212, 216 [4th Dept 2009] [internal quotation marks omitted].)

Likelihood of Success on the Merits

Petitioners argue that the addition of "age" as a protected category among the other enumerated protected classes within the Equal Protection Clause of New York's Constitution, by virtue of the recent Equal Rights Amendment, necessarily changes the nature of the court's review of statutory age restrictions under a constitutional equal protection challenge. In [*4]particular, petitioners posit that age-based restrictions enacted by the government must now be reviewed under a "strict scrutiny" analysis because, by virtue of the Equal Rights Amendment, age must be deemed a "suspect class." Under such strict scrutiny analysis, petitioners contend that legislative restrictions requiring New York judges to be younger than age 70 are not narrowly tailored to serve any compelling governmental interest and, as such, must be deemed unenforceable.

Prior to the enactment of the Equal Rights Amendment, the constitutionality of the mandatory judicial retirement age under section 23 of the Judiciary Law was settled law in New York. (See Maresca v Cuomo, 64 NY2d 242, 249 [1984]; Diamond v Cuomo, 70 NY2d 338, 342 [1987]; Gregory v Ashcroft, 501 US 452, 473 [1991].) But at the time of those decisions, age was not deemed a suspect class under either the federal or state Equal Protection Clause, and thus age-based restrictions were reviewed under the deferential "rational basis standard of review." (Maresca, 64 NY2d at 250 ["Judges who have attained {**87 Misc 3d at 1124}the age of 70 do not constitute a suspect class for purposes of equal protection analysis"].)

The Court of Appeals in Maresca outlined a number of government interests that could be rationally served by age-based restrictions on the judiciary, including:

"(1) advancement of general considerations of judicial efficiency . . . ; (2) motivation and encouragement of qualified, younger attorneys with judicial aspirations, by this orderly process of attrition . . . ; (3) elimination of the unpleasantness and embarrassment of selectively removing aged and disabled Judges . . . ; (4) prevention of harm by a few disabled Judges which more than offsets loss of Judges who retain full powers past age 70 . . . ; (5) elimination of the administrative burden of testing each Judge attaining the age of 70 to assess competency; (6) avoidance of the economic burden of testing and removing incapable Judges; and (7) the fixing of a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfills a societal demand for the highest caliber Judges in the system." (Id. at 251.)

But again, in Maresca, the Court's review of these interests was limited to determining whether they were rationally based. (Id.)

In Gregory v Ashcroft, the United States Supreme Court considered many of those same interests in determining whether a Missouri statutory judicial retirement age (also age 70) passed muster under the Fourteenth Amendment's Equal Protection Clause—also under the deferential rational basis review. (Gregory v Ashcroft, 501 US at 471-472.) In its decision, the Court signaled that if a higher level of scrutiny were applied, those same interests might not be sufficient to uphold a statutory age limit for jurists at age 70. (Id. at 473.) The Court observed that "[i]t is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all." (Id. at 473.) Despite this hesitation, because the level of scrutiny was low, the Court was nonetheless able to uphold the Missouri statute as rationally based.

If, however, strict scrutiny is applied here to the same government interests recited in Maresca, the observations made by the Supreme Court in Gregory would probably condemn any legislative attempt to create an age-based restriction for jurists{**87 Misc 3d at 1125} at age 70. Under strict scrutiny, the government bears the burden of demonstrating "the exactitude of the relationship between the means chosen and the legislative end to be served and establish that the end is justified by a 'compelling state interest.' " (Board of Educ., Levittown Union Free School Dist. v Nyquist, 83 AD2d 217, 235 [2d Dept 1981], mod 57 NY2d 27 [1982].) Indeed, where a suspect class is involved, strict [*5]scrutiny is "usually fatal" to laws intending to differentiate based on that class. (Id. at 234-235.)

For example, respondents have provided the court with no evidentiary record to demonstrate the "exactitude" between the "advancement of general considerations of judicial efficiency" and the attainment of age 70 by jurists. In fact, it stands to reason that many experienced jurists reaching the age of 70 are more efficient than their younger, less experienced, colleagues. Thus, under a strict scrutiny analysis, the holdings of Maresca and Diamond have little applicability to the present request for relief.

Parenthetically, respondents argue that the Equal Rights Amendment does not elevate age to a "suspect class" because its inclusion of age and other classes in the amendment did not alter the first sentence of section 11. The State appears to argue that the scope of equal protection is defined only by the first sentence of section 11, and thus that the limited definition of "suspect class" remains coextensive with the limited definition articulated under the Federal Constitution and the case law prior to the Equal Rights Amendment.

On this issue, the court does not find the respondents' argument compelling. It would seem that since its inception, article I, § 11 has defined "suspect class" in terms of those groups enumerated in the second sentence of the provision. (See e.g. Neuman v City of New York, 186 AD3d 1523, 1526 [2d Dept 2020].) While the New York and federal Equal Protection Clauses were coextensive for a long period of time, that certainly can no longer be the case following the Equal Rights Amendment. Finally, it would appear that one of the direct purposes of the Equal Rights Amendment was to designate age as a suspect class.

Thus, were the petition based solely on a challenge to section 23 of the Judiciary Law, petitioners' position that the New York Equal Protection Clause prohibits the continued enforcement of a mandatory judicial retirement age might have been deemed meritorious. However, the flaw in petitioners' application{**87 Misc 3d at 1126} is that the petition also seeks to challenge the constitutionality of a separate standalone provision of the Constitution.

Compulsory retirement for jurists at age 70 is also enshrined in article VI, § 25 of the Constitution, which states in relevant part:

"Each judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of the county court, judge of the surrogate's court, judge of the family court, judge of a court for the city of New York established pursuant to section fifteen of this article and judge of the district court shall retire on the last day of December in the year in which he or she reaches the age of seventy." (NY Const, art VI, § 25.)

Petitioners have provided the court with no authority that a separate standalone part of the Constitution can be invalidated by an article I, § 11 equal protection challenge. In other words, there does not appear to be a recognized basis for a petitioner to use one part of the Constitution to strike down a separate part of the same Constitution.

Rather, rules of statutory and constitutional interpretation require the court to harmonize any constitutional amendment with any separately existing provisions of the State Constitution. (See People ex rel. Williams Eng'g & Contr. Co. v Metz, 193 NY 148, 158-159 [1908]; Matter of Burger King v State Tax Commn., 51 NY2d 614, 620-621 [1980] ["It is a familiar and salutary canon of construction that courts, in construing apparently conflicting statutory provisions, must try to harmonize them"].) In addition, amendments to the constitution are only presumed to repeal or void "any prior version of the particular section so amended." (Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 22 NY3d 606, 625 [2014] [emphasis added].) Finally, it "is a well established principle in the construction of statutes that, whenever there is a general and a particular provision in the same statute, the general does not overrule the particular but [*6]applies only where the particular enactment is inapplicable." (McKinney's Cons Laws of NY, Book 1, Statutes § 238.) Here, we have a general amendment establishing age as a protected class and are asked to find that it impliedly repeals a more specific age-based constitutional restriction relative to judges. However, under the above rules of construction, the court must find that while the Equal Rights Amendment supersedes the prior language of article I, § 11, {**87 Misc 3d at 1127}there is no presumed or implied repeal of any other section of the Constitution. Nor have the petitioners provided any evidence or authority that the Equal Rights Amendment was intended to alter other portions of the Constitution beyond article I, § 11.^[FN*]

For this reason, the court finds that petitioners have not met their burden of providing clear and convincing evidence of their likelihood of ultimate success on the merits. As indicated in Maresca, to the extent the petitioners wish to challenge the wisdom of article VI, § 25 of the Constitution, the avenue of challenge "lies to the ballot and to the legislative processes of democratic government, not to the courts." (Maresca at 249.) Petitioners' application for preliminary injunctive relief is therefore denied.

Jeannie D'Alessandro is a candidate for Wayne County Court Judge in the November 2025 election. Ms. D'Alessandro asserts that she filed designating petitions under the Election Law as a candidate for the Conservative and Republican Parties in April 2025. (NY St Cts Elec Filing [NYSCEF] Doc No. 11 ¶¶ 13, 14.) She claims that the petitioners' request for relief would affect her candidacy and that the relief would ultimately render her designating petitions "null and void." (NYSCEF Doc No. 11 ¶ 22.) A motion to intervene under CPLR 1012 governs intervention as of right and requires that "the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment." (CPLR 1012 [a] [2].) A motion to intervene pursuant to CPLR 1013 governs intervention by permission, simply requiring a "common question of law or fact." (CPLR 1013.) In exercising jurisdiction pursuant to CPLR 1013, the court may consider whether the "intervention will unduly delay the determination of the action or prejudice the substantial rights of any party." (CPLR 1013.){**87 Misc 3d at 1128}

As set forth in Global Team Vernon, LLC v Vernon Realty Holding, LLC (93 AD3d 819, 820 [2d Dept 2012]), "[w]hether intervention is sought as a matter of right under CPLR 1012 (a), or as a matter of discretion under CPLR 1013, is of little practical significance, since intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings" (internal quotation marks omitted). The court finds that Ms. D'Alessandro has a real and substantial interest in the outcome of these proceedings as the candidate of choice for the Conservative and Republican Parties. The petitioners' argument that Ms. D'Alessandro's position is "too speculative" is not compelling. Ms. D'Alessandro filed designating petitions for the vacancy created by virtue of Judge Healy attaining the age of 70. (NY Const, art VI, § 25 [b]; Judiciary Law § 23.) Finally, the petitioners have failed to provide any facts to support their argument that allowing Ms. D'Alessandro to intervene would delay and/or impede the rights of petitioners. In fact, all [*7]attorneys were allowed to present arguments regarding the pending motions at oral argument. The court will grant the motion to intervene and consider the arguments made by Ms. D'Alessandro regarding the remaining motions.

Respondents cross-move pursuant to CPLR 3211 (a) (7) to dismiss the petition for failure to state a claim. Petitioners' claims challenging article VI, § 25 of the Constitution or other state statutes as violative of article I, § 11, would nevertheless be dismissed as a matter of law as against Governor Hochul. While petitioners agreed, by stipulation on the record, to withdraw the petition as to the Honorable Joseph A. Zayas and Governor Kathy Hochul, the court notes that claims brought against Governor Kathy Hochul would nevertheless be dismissed as a matter of law. The dismissal would be appropriate as petitioners have not "alleged a sufficient nexus, independent of the general duty to enforce state laws, between the Governor and the statute alleged to be unconstitutional." (New York County Lawyers' Assn. v Pataki, 188 Misc 2d 776, 787 [Sup Ct, NY County 2001], affd 294 AD2d 69 [1st Dept 2002].)

As to all other claims, respondents' cross-motion is denied without prejudice. Under the discretion afforded it by CPLR 103 (c), the court converts this action to a plenary declaratory judgment action.{**87 Misc 3d at 1129}

The New York Civil Liberties Union (NYCLU) filed a motion for leave to file a proposed amicus curiae brief. In determining whether a nonparty should be allowed to file an amicus curiae brief, the court may consider whether the movant makes

"(a) a showing that the parties are not capable of a full and adequate presentation and that movant could remedy this deficiency; or

"(b) that movant would invite the court's attention to the law or arguments which might otherwise escape its consideration; or

"(c) that its amicus curiae brief would otherwise be of special assistance to the court; and

"(4) whether the amicus curiae application or status would substantially prejudice the rights of the parties, including delaying the original action/proceeding; and

"(5) whether the case concerns questions of important public interest." (Kruger v Bloomberg, 1 Misc 3d 192, 198 [Sup Ct, NY County 2003].)

There is no question that many of those issues were addressed within the amicus curiae brief. In light of the court's allowing all present to argue and be heard, the matter has not been unduly delayed as a result. Therefore, the court grants the motion and has considered the submitted brief as part of its deliberations.

In its brief, the NYCLU requests that the court find that the amendment contained in article I, § 11 creates a standalone cause of action to challenge alleged discrimination by state actors. In addition, the NYCLU requests the court find the standard of review applicable to those allegations of discrimination be based on a strict scrutiny standard. The court declines to consider any request for relief from the amicus curiae that is not before the court as part of the relief sought by named parties to this action.

Accordingly, based upon the record presented and after due deliberation, it is hereby ordered and adjudged that petitioner Arthur B. Williams lacks standing to file the petition at this time; and it is further ordered and adjudged that remaining petitioner Richard M. Healy's motion for a preliminary injunction pursuant to CPLR 6301 is hereby denied; and it is further ordered and adjudged that the motion to intervene filed on behalf of Jeannie D'Alessandro, pursuant to CPLR 401, 7802{**87 Misc 3d at 1130} (d) and 1012 or 1013, is hereby granted; and it is further ordered and adjudged that the cross-motion to dismiss by the State of New York on behalf of Governor Kathy Hochul is resolved by stipulation to withdraw the above petition as to both Governor Kathy Hochul and the Honorable Joseph A. Zayas; and it is further ordered and adjudged that this matter is hereby dismissed by stipulation as to Governor Kathy Hochul and the Honorable Joseph A. Zayas, the caption being amended to remove them as parties; and it is further ordered and adjudged that the motion by the New York Civil Liberties Union for leave to file a proposed amicus curiae brief is hereby granted; and it is further ordered and adjudged that pursuant to CPLR 103 (c), the court converts this action to a plenary declaratory judgment action.