Public employees cannot be required to surrender their legal right to their continued receipt of retirement benefits otherwise provided by law
2015 NY Slip Op 05243, Appellate Division, Third Department
Upon reaching the age of 70 the New York State Constitution, Article VI, §25(b) and Judiciary Law §115 requires Supreme Court justices to apply for certification to continue their services on the Supreme Court bench.
In October 2013, the Administrative Board of the Courts of New York State [Board] adopted a new policy that "no judge henceforth certificated for service as a Justice of the Supreme Court pursuant to Judiciary Law §115 may receive, concurrent with receipt of a salary for such service, a retirement allowance for prior judicial service within the Unified Court System." In December 2013, Justice Gerald E. Loehr and certain of sitting Justices [Justice Loehr] were informed of their need to comply with the new policy and that approval for certification would therefore be conditioned on such compliance.
Justice Loehr filed an Article 78 petition and an action for declaratory judgment seeking, among other things, a declaration that the Board’s policy that certificated justices not receive such pension benefits during such employment was illegal, a ruling annulling approval of Justice Loehr's recertification being contingent upon suspension of such pensions during such employment and a declaration that Justice Loehr is not subject to such policy.
Supreme Court granted the Board’s motion to dismiss Justice Loehr's complaints, declared the policy to be neither illegal nor unconstitutional and Justice Loehrappealed.
The Appellate Division reversed Supreme Court’s ruling and held that the Board’s policy violated Retirement and Social Security Law §212, Judiciary Law §115 (3) and NY Constitution, Article V, §7. The Appellate Division explained that as relevant in this action Retirement and Social Security Law §212(1) provides that "there shall be no earning limitations under the provisions of [Retirement and Social Security Law § 212] on or after the calendar year in which any retired person attains age [65]."
The court said that the language of Retirement and Social Security Law §212 explicitly allows New York public employees — including justices of the Supreme Court — to retire in place and continue to work while collecting their state pension, rejecting the Board’s argument that §212(1) implicitly permits state employers, including the Board, to require employees to bargain away their legal right to the continued receipt of retirement benefits is unpersuasive. Indeed, noted the Appellate Division, “the plain language of §212(1) grants this right to public employees without mention of employers or an employer's discretion to condition recertification upon suspension of a statutory right.
Noting that the history of Retirement and Social Security Law §212 supports the conclusion that the Legislature intended to give certain pension rights to public employees and those rights are not subject to their employer's preferences, the Appellate Division said that it “cannot discern a rational argument for the proposition that a Supreme Court justice's pension-taking falls under the category of necessity when determining a justice's eligibility for certification” and declared that the Board's policy was "illegal and contrary to law.”
The decision is posted on the Internet at: