Court of Appeals Says Recertified Judges May be Barred from Receiving Pension While Still on the Bench

Under the New York Constitution, judges cannot continue to sit on the bench beyond the end of the year that they turn 70 years old unless they are recertified for an additional 2 year term.  Recertification can happen three times, with judges forced to step off the bench entirely at 76.  The determination whether to recertify a judge lies in the “nearly unfettered discretion” of the Administrative Board of the Courts of the State of New York (Matter of Marro v Bartlett, 46 NY2d 674, 681-682 [1979]), which considers two factors: whether the judge is “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 a Supreme Court justice (NY Const, art VI, § 25 [b]).

In Matter of Loehr v Administrative Bd. of Courts of State of N.Y. (No. 37) previewed here, three retired New York Judges sued the Administrative Board to challenge the Board’s new policy that bars retired Judges who are receiving pension benefits from being recertified to the bench. Particularly, the policy states: “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 Judges argued that the new policy violated the Constitution and section 212 of the Retirement and Social Security Law, which provides that civil servants may simultaneously receive pension benefits and receive a new position in public service with a salary.

The Court of Appeals, in a per curiam opinion, rejected the Judges’ claims.  The Court, examining the statutory scheme in the RSSL, held that the overwhelming public policy of New York is to discourage receipt of pension benefits while receiving a salary for public service.  The Court noted numerous examples in the RSSL requiring the diminshment of a retirement allowance if the civil servant finds a new state position after retirement, including one where the retirement allowances received by recertified Judges cease upon recertification to the bench (see e.g. RSSL § 101[c]).

In light of this clear state policy, and the significant discretion vested in the Administrative Board, the Court held that the new policy requiring recertified judges to defer receipt of their pensions until they leave the bench was reasonably related to the Administrative Board’s inquiry whether certification is necessary to expedite the business of the court.  As the Court noted, the Administrative Board’s certification inquiry is more than a mere mechanistic one. It is a flexible analysis that allows consideration of monetary and non-monetary considerations alike, including whether allowing judicial “double-dipping” for recertified judges impairs the courts’ public prestige. The Adminstrative Board rationally concluded that it did, the Court held.

The Court also rejected the three Judges’ reliance on section 212 of the RSSL. Because that section merely provides that public servants may receive pension benefits and a salary simultaneously, but does not in any way require that judges be offered recertification to the bench, the Administrative Board’s new policy did not run afoul of section 212.  The Court, therefore, reversed the Appellate Division, Third Department’s order, and declared the policy to be a valid exercise of the Administrative Board’s discretion.

The Court of Appeals’ opinion can be found here.

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