A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Andino v Mills, 2018 NY Slip Op 04273, Court of Appeals

Does a retired New York City police officer's accident disability retirement (ADR) benefits are a collateral source that a court must offset against the injured retiree's jury award for future lost earnings and pension?

The Court of Appeals held that a New York City retired police officer's accident disability retirement (ADR) benefits does so operate by [1] replacing earnings during the period when the officer could have been employed absent the disabling injury and then [2] serving as pension allotments. Accordingly, a court must offset the retiree's projected ADR benefits against the jury award for both categories of economic loss.*

Niurka Andino [Plaintiff] is a retired police officer who was injured on duty while riding in a police car that collided with a vehicle owned by the New York City Transit Authority (NYCTA) and operated by NYCTA employee Ronald Mills [Defendants].

Defendants moved to offset the jury award pursuant to CPLR §4545, which permits a court to find that certain awarded damages were or will, with reasonable certainty, be replaced or indemnified from a collateral source. Defendants contended that "when a police officer retires due to an on-the-job injury that leaves the officer disabled, the ADR benefits allotted to that officer for those years when the officer could have been working, if not for the disability, operate as lost earnings. Once the retired officer reaches the age for regular retirement from service, absent the retirement-inducing injury, ADR benefits serve as a pension."

Andino argued that [1] "there is no direct correspondence between her ADR benefits and the categories of economic loss awarded by the jury" and [2] "that ADR displaces Ordinary Disability Retirement (ODR), and the higher amount of ADR benefits as compared with ODR allotments is paid as a reward for services previously rendered." As the Court of Appeals characterized Andino's argument, "... the premium in ADR benefits as compared to ODR benefits is neither "earnings" nor "pension" but paid in gratitude for past services".

The Court of Appeals explained that ADR benefits, and the text and legislative intent of CPLR §4545, as interpreted by the court in Oden v Chemung County, 87 NY2d 81,** provide the basis for concluding that "ADR benefits operate sequentially as payment for future lost earnings and pension benefits." Accordingly, said the court, on a motion pursuant to CPLR §4545, "a court must apply ADR benefits, dollar-for-dollar, to offset the jury award for future lost earnings during the period they represent lost earnings, and future lost pension during the period they represent lost pension."

The court also rejected Andino's alternative argument that "ADR benefits are a 'reward' for the retiree's service which may not be offset against a jury award" as unpersuasive, explaining that "there is no support in the Administrative Code or CPLR §4545 or any available legislative history to treat ADR benefits as a category on its own, exempt from mandatory offset." In any event, said the court, "even if the Legislature sought to reward service members like Andino, who suffer an injury in the line of duty, that would not change the classification of ADR benefits as a replacement for lost earnings and pension allowances" as there is no legal justification for treating a portion of ADR benefits as a reward based on the 25% differential between ODR and ADR benefits. In the words of the Court of Appeals, "CPLR 4545 anticipates a dollar-for-dollar  offset" and that offset "is based on the category of reimbursement, not on a stratification of the collateral source total amount."

The case was remitted Supreme Court for further proceedings "in accordance with the opinion herein and, as so modified, affirmed," Judges Wilson dissenting in an opinion in which Judge Fahey concured.

* By stipulation, the parties agreed to set the period for future lost earnings at 19.24 years and future lost pension at 17.7 years.

** The specific facts of Oden, said the court, explain why that decision provides a different disposition than is called for Andino's case. In Oden, the plaintiff's private sector retirement pension benefits could not offset the jury's award for his future lost earnings because the pension allotments did "not necessarily correspond to any future earning capacity plaintiff might have had," because Oden "would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04273.htm

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

Ortiz v. United States, Docket: 16-1423, Government & Administrative Law

In addition to "Company Punishment,"* a non-judicial proceeding, the United States “court-martial system” provides for an initial judicial determination of the guilt or innocence of military personnel charged with one or more violations of the federal Code of Military Justice. If the accused is found guilty, the court levies the punishment to be imposed.**

There are four appellate courts: the Court of Criminal Appeals (CCA) for, respectively, the Army, Navy-Marine Corps, Air Force, and the Coast Guard. CCA decisions may be subject to review by the Court of Appeals for the Armed Forces (CAAF). CAAF is a “court of record” composed of five civilian judges.

Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography. The penalty imposed, two years’ imprisonment and a dishonorable discharge. Ortiz asked the CAAF to review the matter, challenging the qualification of one of its members, Colonel Martin Mitchell, to serve on the CCA panel because he had been appointed to the Court of Military Commission Review (CMCR) by the Secretary of Defense. Further, to moot a possible constitutional problem with the assignment, the President (with the Senate’s advice and consent) also appointed the Colonel Mitchell to the CMCR pursuant to §950f(b)(3).

As Judge Mitchell participated in Ortiz’s CCA appeal, Ortiz claimed that Judge Mitchell’s CMCR appointment barred his continued CCA service under both a statute and the Constitution, contending that the appointment violated §973(b)(2)(A), which provides that unless otherwise authorized by law,” an active-duty military officer “may not hold, or exercise the functions of,” certain “civil office[s]” in the federal government. Ortiz also argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA.

The CAAF denied Ortiz's appeal.

Ultimately the Supreme Court said that it had jurisdiction to review the CAAF’s decisions, explaining that "The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex."

The Supreme Court's decision notes that Professor Aditya Bamzai had filed a brief amicus curiae with the Supreme Court contending that cases decided by the CAAF do not fall within Article III’s grant of appellate jurisdiction to the Supreme Court. The Supreme Court, citing Marbury v. Madison, 1 Cranch 137, said that then Chief Justice Marshall had explained that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”

Here, said the Supreme Court, Ortiz’s petition asks the Supreme Court to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.”

Unless, opined the court, Chief Justice Marshall’s test implicitly exempts cases instituted in a military court, the case is now appellate. But, the court concluded, "There is no reason to make that distinction. The military justice system’s essential character is judicial. Military courts decide cases in strict accordance with a body of federal law and afford virtually the same procedural protections to service members as those given in a civilian criminal proceeding. The judgments a military tribunal renders “rest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals.”

Justice Kagan delivered the opinion of the court, in which Justices Roberts,  C. J., and Justices Kennedy, Thomas, Ginsburg, Breyer and Sotomayor joined. Justice Thomas filed a concurring opinion and Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined., holding that the Court has appellate jurisdiction to review the CAAF’s decisions. "In exercising that jurisdiction, [the majority said] that Judge Mitchell’s simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A)’s office-holding ban nor the Constitution’s Appointments Clause" and affirmed the judgment below."

* 10 U.S. Code Chapter 47 - UNIFORM CODE OF MILITARY JUSTICE, §815 - Art. 15. Commanding officer’s non-judicial punishment.

** See, generally, 10 U.S. Code Chapter 47, §816 - Art. 16. Courts-martial classified. See, also, New York State Military Law, Article 7 - Code of Military Justice.

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1423_bq7c.pdf

Employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee

Employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee

Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 85 U. S. ____ (2018).

Petitioner Mark Janus, an Illinois state employee whose collective bargaining unit is represented by a public-sector union [Union], refused to join the Union because he opposes many of its positions, including those taken by the Union in the course of collective bargaining. Janus, however, was required to pay an "agency shop fee" in lieu of paying "regular dues" to Union. The Governor of Illinois also opposed to many of the Union's positions and attempted to join in the litigation as a plaintiff but was held to "lack standing."

Janus, contending that the state law authorizing agency fees to be paid to a union representing state employees in collective bargaining was unconstitutional, sued the State of Illinois.

The United States Supreme Court held that the State’s extraction of agency fees from nonconsenting public-sector employees violated the First Amendment, overruling its earlier decision in Abood v Detroit Board of Education, 431 U. S. 209.

In Abood the high court ruled that an agency shop fee may cover a union's expenditures attributable to those activities “germane” to the union’s collective-bargaining activities, referred to as chargeable expenditures, but may not cover the union’s political and ideological projects, i.e., nonchargeable expenditures.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts  and Justices Kennedy, Thomas, and, Gorsuch joined. Justice Sotomayor filed a dissenting opinion and Justice Kagan filed a dissenting opinion in which Justices Ginsburg and Breyer and Sotomayor joined.

In the words of the majority, "... States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf