Y. David Scharf Quoted in Press on Challenge to New York Judicial Retirement Age

Morrison Cohen Partner and Chair of the Executive Committee Y. David Scharf was quoted in the New York Law Journal and Bloomberg Law in connection with a closely watched constitutional challenge to New York’s mandatory judicial retirement age.

New York Deputy Solicitor General Ester Murdukhayeva argued that the state's Equal Rights Amendment (ERA) did not expressly or implicitly repeal a separate constitutional provision requiring state jurists to retire at age 70, subject to a certification process allowing continued service until age 76. The case, currently before the New York Appellate Division, First Department, examines whether New York’s recently adopted ERA, which prohibits age discrimination, affects the state's longstanding judicial retirement framework.

Representing the three judges challenging the retirement rule, David explained that the issue is not a right to remain on the bench, but rather the right to be free from age-based discrimination. He emphasized that competency-based assessments already exist and questioned whether mandatory retirement based solely on age is consistent with the ERA’s expanded protections.

“The mandatory retirement age was established in the 1800s and is the result of outdated views on the competency of people in their 70s,” David told Bloomberg Law. The legislation itself included age along with race, religion, sex and sexual orientation. David argued that it was put in as part of “a broad sweeping amendment” that was designed to “remedy a wrong, address discrimination that has gone on historically, including ageism.”   

The case raises significant questions about how New York courts will interpret the scope of the ERA and reconcile it with existing constitutional provisions. The outcome could have broader implications for age discrimination claims, constitutional interpretation and employment-related protections across the state.

The Morrison Cohen team representing the judges was led by Y. David Scharf and included Partners Hon. David. B. Saxe (Ret.), Gayle Pollack and Tracy A. Burnett.

Subscribers to New York Law Journal, read the full article here.

Subscribers to Bloomberg Law, read the full article here.