The Reform Party is seeking to eliminate age limits for judges in New York, although a lawsuit the third party filed last week would have to overcome longstanding legal precedents at both the federal and state level to succeed. 

Frank Morano, a Reform Party official who filed the lawsuit in state Supreme Court on Staten Island on June 28, said the requirement that many judges in New York cannot serve past the age of 70 is inconsistent and discriminatory and should be struck down.

“How insane is that, that if you’re 71 years old, you can be a federal judge, you could be an acting state Supreme Court justice, you can be a state Supreme Court justice … you could be president … but you can’t be a Civil Court judge and you cannot be a Surrogate Court judge,” Morano said on his radio show on Sunday, while noting the even the 71-year-old President Donald Trump would not be eligible for those judgeships in New York City if he had a law license. “What sense does that make?”

The lawsuit centers on Judge Philip Straniere of Staten Island, who was elected last year to a 10-year term on the Republican and Democratic lines while also garnering the backing of several third parties. However, since the New York City Civil Court judge recently turned 70, a primary election has been scheduled for his post in September.

“I’m trying to get them to not have that election, because the 70-year-old retirement age is unconstitutional,” Morano said.

Vincent Bonventre, an expert on judical matters in New York and a professor at Albany Law School, agreed that judges should be able to serve past the age of 70, saying that many of them are just reaching their peak at that stage in terms of experience and perspective. But the lawsuit has little chance of finding success, he said.

Bonventre pointed to decisions in the New York state Court of Appeals and U.S. Supreme Court that have upheld age limits for judges. Additionally, New York’s state constitution specifically provides for a mandatory retirement age. In 2013, a proposed state constitutional amendment that would have raised the retirement age to 80 for state Supreme Court justices and extended the terms of several Court of Appeals judges fell short.

“It’s not even that the New York courts can take an independent state constitutional perspective on this thing, because the state constitution itself provides for this mandatory retirement age,” Bonventre said. “The state courts, in order to overturn mandatory retirement age, would have to do it under federal law.”

Richard Luthmann, the Reform Party’s law chairman, wrote in an email that the state Court of Appeals in 1984 upheld the state’s mandatory judicial age limit. But Luthmann argued that judges over 70 could now be assessed based on measurable metrics instead of age. And in the case of Straniere, Luthmann added, voters who overwhelmingly supported the judge last year have a right to keep him in office.

Morano added that basing the decision on age alone is discriminatory. “Look, you can’t stop yourself from being 70, just as you can’t stop yourself from being black, or a man,” he said. “There’s no reason somebody who’s 70 should be discriminated against and not be able to finish the term they were elected to.”

But age doesn’t have the same legal weight as factors like race or religion or even gender, Bonventre said. And in the 1991 Gregory v. Ashcroft ruling, the U.S. Supreme Court ruled that the federal Age Discrimination in Employment Act does not cover judges since they are considered policymakers, allowing for such age limits.

“In short, it’s a nearly impossible task judicially to overrule the mandatory age requirement,” Bonventre said.

Morano filed the challenge against the state Board of Elections, the New York City Board of Elections and state Attorney General Eric Schneiderman. The city and state elections boards did not immediately respond to a request for comment. The court proceedings are scheduled to continue on Thursday.

Read the full lawsuit below: 

Judicial retirement age lawsuit by City & State NY on Scribd