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Monday, May 08, 2017

Retired judges may not simultaneously drew both a full judicial salary and a full pension upon certification for further service as a Justice of the Supreme Court


Retired judges may not simultaneously drew both a full judicial salary and a full pension upon certification for further service as a Justice of the Supreme Court
Loehr v Administrative Bd. of the Cts. of the State of New York, 2017 NY Slip Op 03558, Court of Appeals

The Chief Administrative Judge signed an administrative notice declaring that the policy of the Administrative Board of the Courts of the State of New York [Board] henceforth would be that "no judge . . . 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."

The policy was grounded on the Board's belief that judges who simultaneously drew both a full judicial salary and a full pension, typically referred to as "double-dipping," adversely affected both the public's impression of the court system and the court system's negotiations with the other branches over crucial budgetary and personnel matters.

While three retired Supreme Court Justices' [Plaintiffs] applications were pending "certification," the Board released an administrative order reflecting this policy and gave notice that it would no longer certify applicants who would, on reappointment, choose to receive both a retirement allowance for prior judicial service and their salary as a certified justice. Subsequently a memorandum from the Office of the Chief Administrative Judge clarified the situation, indicating that retired Justices otherwise approved for certification would be certified only if they deferred receipt of their New York State pensions until their judicial service ended.

Plaintiffs filed an Article 78 petition seeking an order annulling the policy. Supreme Court dismissed their petition for failure to state a claim and declared the Board's policy to be neither illegal nor unconstitutional. Plaintiffs appealed to the Appellate Division, which reversed the lower court and granted the petition. The Appellate Division held that  the Board's administrative order "violated the New York Constitution, the Judiciary Law, and the Retirement and Social Security Law."

The Board appealed the Appellate Division's ruling and the Court of Appeals reversed the Appellate Division's decision "Because the Board enjoys nearly unfettered discretion in determining whether to certify a retired Justice, and because its decision here was not contrary to any law or constitutional mandate raised by Plaintiffs."**

The Court of Appeals decision notes that "New York's public policy strongly disfavors the receipt of state pensions by persons also receiving state salaries, citing §150 of the Civil Service Law as establishing New York State's general public policy against the simultaneous receipt of a state pension and a state salary.

§150 provides that "Except as otherwise provided by sections one hundred one, two hundred eleven, and two hundred twelve of the retirement and social security law*** . . . if any person subsequent to his or her retirement from the civil service of the state . . . shall accept any office, position or employment in the civil service of the state . . . to which any salary or emolument is attached . . . any pension or annuity awarded or allotted to him or her upon retirement, and payable by the state . . . or out of any fund established by or pursuant to law, shall be suspended during such service or employment and while such person is receiving any salary or emolument therefor [sic] except reimbursement for traveling expenses."

Further, said the court, §101(c) of the Retirement and Social Security Law provides that  "In the event that a judge or justice shall ... [h]ave retired and is receiving a retirement allowance from this retirement system, or another retirement system of which he [or she] was a member, and . . . [b]e certified for service as a justice of the supreme court pursuant to section one hundred fourteen or one hundred fifteen of the judiciary law, his [or her] retirement allowance shall cease" (emphasis supplied in the opinion).

In this action, said the Court, the issue presented is whether the Board's policy is rationally related to whether certification is "necessary to expedite the business of the court." The Court of Appeals, per curiam, concluded that this prospective rule was necessary, reversing the order of the Appellate Division and reinstating the judgment of Supreme Court.

* §115 of the Judiciary Law provides that a retired Court of Appeals Judge or Supreme Court Justice, if otherwise eligible for such certification, may perform the duties of a Supreme Court Justice if the services "of such . . . justice are necessary to expedite the business of the court and that he or she is mentally and physically able and competent to perform the full duties of such office."

** Citing Marro v Bartlett, 46 NY2d 674, the Court of Appeals noted that "[p]rovided it complies with the two criteria set forth in the Constitution, and absent proof that its determination violates statutory prescriptions or promotes a constitutionally impermissible purpose, the Board's authority is not subject to judicial review."

*** §212.1 of the Retirement and Social Security Law provides, in pertinent part, "there shall be no earning limitations under the provisions of this section on or after the calendar year in which any retired person attains age sixty-five."

The decision is posted on the Internet at:

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