Court of Appeals March Session: Arguments of Interest for March 21, 2017

The Court of Appeals’ March Session begins on March 21, 2017 with three cases on the argument docket (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) whether a reasonable inference of damages is sufficient to plead a fraud based claim, or whether the plaintiff must allege actual pecuniary damages; (2) whether a prevailing plaintiff in a suit against the State and its agencies under the Human Rights Law may recover attorneys’ fees under the Equal Access to Justice Act (EAJA), CPLR Article 86; and (3) whether retired Judges who are recertified to the bench may simultaneously receive their pensions while also receiving full salary from the Office of Court Administration.

Notable here, in Kimmel v State of New York (No. 36), the second argument on the docket concerning the right to attorneys’ fees under the EAJA, the Court is hearing argument on the case for a second time.  It was previously argued in the October Session, previewed here. In a rare move, the Court has held the case since argument (the vast majority of all cases are decided the next session of the Court after argument), and has requested that the parties come back to argue the case again.  It will be interesting to see if the Court’s dynamic has changed with Judge Wilson, a private commercial litigator, on the bench, compared to when Judge Pigott heard the case in October.  This case bears watching.

No. 37     Matter of Loehr v Administrative Board of the Courts of New York State

This case is one you don’t see every day. In Loehr, three New York Judges are suing their bosses, the Chief Judge and the four Presiding Justices of the Appellate Division, to challenge a court system policy that bars retired Judges who are receiving pension benefits from being recertified to the bench after their forced retirement at age 70.  Although the State Constitution mandates retirement at 70, the Judiciary Law allows Judges who would otherwise be forced off the bench to be recertified for two-year terms until age 76, and Retirement and Social Security Law § 212 states that “any retired person may continue as retired and, without loss, suspension or diminution of his or her retirement allowance, earn” a salary “in public service.”

The question the Court will address, then, is whether the Judges should be entitled to receive their pension benefits while recertified to the bench and receiving a salary from the court system, or should be required to defer those benefits until they leave the bench. The Administrative Board decided that the public impression of Judges “double-dipping” was bad policy, and harmed the court system’s ability to negotiate with the Executive and Legislative branches.

Supreme Court dismissed the Judges’ challenge to the rule, holding that the court system has almost unfettered discretion in deciding to recertify Judges to the bench following mandatory retirement, and to impose a condition of recertification that the Judges delay receipt of their pension benefits until they leave the bench. The Court held that the policy did not violate Retirement and Social Security Law § 212 because although the provision allows the retired person to receive pension benefits and return to work, nothing in the statute prohibited the court system from considering the receipt of pension benefits when making recertification determinations.

The Appellate Division, Third Department reversed, holding that Retirement and Social Security Law § 212 explicitly allowed the Judges to receive their pension benefits and still return to service, and the Judges cannot be required to waive that statutory right as a condition of recertification to the bench. Indeed, the Court held the court system’s unfettered discretion in making recertification determinations does not allow it to impose a condition on recertification unrelated to any of the statutory qualifications for recertification.  To hold otherwise, the Court held, would be to permit the court system to alter unilaterally the statutory scheme for recertification.

The Court’s decision in this case will have a great impact on Judges throughout New York, including potentially Judge Pigott who was recently recertified to the trial bench in Buffalo after his mandatory retirement from the Court of Appeals in December.

The Appellate Division, Third Department’s decision can be found here.

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