A Supreme Court justice in Nassau County is challenging the state's mandatory retirement age, saying he should not be forced to retire at age 76 if he still is physically and mentally fit.
Justice William LaMarca has until Dec. 31 to persuade a panel of judges at the state Appellate Division to halt his mandatory retirement.
If that court rules against his request for a stay or does not hear his case by that deadline, LaMarca will be forced to retire at the end of the year - an action that cannot be reversed even if he goes on to win the lawsuit.
LaMarca won an early victory Wednesday when another local judge, Justice John Galasso, signed a stay, halting the retirement.
Ralph Pernick, an assistant attorney general arguing the case against LaMarca, immediately gave notice that he will challenge that stay, effectively reversing it unless the Appellate Division acts by Dec. 31, lawyers in the case said.
"This is clearly age discrimination," Galasso, who is 65, said in court. "Elders in most societies have lived a lot of life. They've seen a lot of things. And they have become better for it."
Under the state constitution, all state judges must retire at the end of year in which they turn 70. Supreme Court justices are allowed to apply for three two-year extensions, which is how LaMarca is on the bench at 76.
Federal law, however, prohibits employment discrimination on the basis of age.
Pernick did not argue the merits of LaMarca's case. Rather, he said that if the law is to be changed, it should be through a constitutional amendment, not a court ruling.
Former Supreme Court Justice Edward McCabe, who was Nassau County's top administrative judge until 2003, retired in September because he is 76. He said yesterday he probably would have stayed on if he had not been required to leave. However, he said he can see arguments on both sides of the issue.
"Ronald Reagan was pretty old when he was president, and I thought he was pretty good," McCabe said. "Still, there's no doubt that as you get older your capabilities diminish. If someone doesn't tell you it's time to go, maybe you don't know."
This is not the first time a judge has challenged New York's mandatory retirement age. In 1985, the state's highest court ruled against a group of judges who challenged the requirement.
The 1985 Court of Appeals decision said a mandatory retirement age may increase efficiency, make way for younger attorneys with judicial aspirations and eliminate "the unpleasantness and embarrassment of selectively removing aged and disabled judges."
But Galasso said in court that the 1985 ruling is outdated.
"That's a decision they came down with in the 1980s," he said. "It doesn't sit well with us any more."