The Matter of Gerald E. Loehr v. Administrative Board of the Courts of the State of New York

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 37

In the Matter of Gerald E. Loehr

et al.,

Respondents,

v.

Administrative Board of the

Courts of the State of New York,

Appellant.

Lee Alan Adlerstein, for appellant.

Robert A. Spolzino, for respondents.

PER CURIAM:

Plaintiffs are three retired Supreme Court Justices

certified for further service on that bench.1 Prior to their

certification, 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

1

The New York Constitution refers to "certificated" judges (art

VI, § 25 [b]). Subsequent statutes refer to "certified" judges

(Judiciary Law § 115; Retirement and Social Security Law § 101

[c]). We follow those statutes’ usage without meaning to

distinguish the two terms.

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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." Plaintiffs seek a declaration that

the policy is illegal and unconstitutional. 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, we now reverse the Appellate Division and reinstate

the judgment of Supreme Court.

I.

Justice Gerald Loehr served first as a Judge of the

Westchester County Court, and in 2012 was elected to a 14-year

term as a Supreme Court Justice, to commence on January 1, 2013.

On December 31, 2012, Justice Loehr retired, began receiving

retirement benefits, and simultaneously drew the salary to which

he was entitled as a Supreme Court Justice. In anticipation of

turning 70 on May 19, 2013, Justice Loehr applied to the

Administrative Board for certification pursuant to Judiciary Law

§ 115. Without that certification, he would have been prohibited

from serving as a Supreme Court Justice after December 31, 2013.

Justice J. Emmett Murphy served as a full-time judge

from 1980 to 2011. He became a Judge of the Westchester County

Court in 1991, and was elected to Supreme Court in 1996. In

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2010, Justice Murphy was reelected as a Supreme Court Justice

with a term commencing on January 1, 2011. On December 31, 2010,

Justice Murphy retired, and began receiving retirement benefits

thereafter. Justice Murphy turned 70 on March 12, 2011, and in

that same month applied to the Administrative Board for his first

certificate pursuant to Judiciary Law § 115. Without that

certification, he would have been prohibited from serving as a

Supreme Court Justice after December 31, 2011. Because judges

may be certified only for a two-year term, Justice Murphy applied

to be recertified in 2013.

Justice William Miller joined the Unified Court System

in 1983 when he was appointed, after service in the Kings County

District Attorney's office, to the Criminal Court of the City of

New York. In 2012, he was elected to Supreme Court for a 14-year

term commencing January 1, 2013. Prior to taking that office,

and on the advice of the pension director for the Office of Court

Administration, Justice Miller applied for and was granted

retirement benefits. Because he would reach age 70 in 2013,

Justice Miller also applied to the Administrative Board to be

certified to perform the duties and draw the salary of a Supreme

Court Justice for the two years commencing January 1, 2014.

Without that certification, he would have been prohibited from

service as a Supreme Court Justice after December 31, 2013.

While plaintiffs' applications were pending, the Board

released the administrative order at issue, giving notice that it

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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. The Board's

order was grounded in its belief that judges who simultaneously

drew both a full judicial salary and a full pension (colloquially

called "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. A subsequent memorandum from the Office of

the Chief Administrative Judge clarified 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 commenced this hybrid CPLR article 78

proceeding and declaratory judgment action seeking an order

declaring the Board's policy illegal and unconstitutional,

directing the Board to certify them, and awarding money damages,

plus attorney's fees and litigation expenses incidental to the

relief.2 Supreme Court dismissed the petition for failure to

state a claim and declared the Board's policy to be neither

illegal nor unconstitutional. Plaintiffs appealed to the

2

It is undisputed that plaintiffs would have been certified but

for the policy announced in the administrative order. With the

Board's agreement, they have continued to serve as Supreme Court

Justices and receive both their full salaries and pensions during

the pendency of this lawsuit.

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Appellate Division, which reversed, granted the petition, and

declared that the Board's administrative order violated the New

York Constitution, the Judiciary Law, and the Retirement and

Social Security Law (130 AD3d 89 [3d Dept 2015]). The Board then

filed a notice of appeal as of right to this Court under CPLR

5601 (b) (1).

II.

We start with the basic proposition that New York's

public policy strongly disfavors the receipt of state pensions by

persons also receiving state salaries. Section 150 of the Civil

Service Law establishes New York's general public policy against

the simultaneous receipt of a state pension and a state salary:

"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 except reimbursement for traveling

expenses."

Indeed, as we explained in Baker v Regan, the

"Legislature has for [nearly] a . . . century evinced a strong

public policy in favor of the suspension of retirement benefits

of a person who after retiring accepts an office in the civil

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service of the State" (68 NY2d 335, 341 [1986]). Moreover, we

emphasized that "[a]lthough exceptions have been made to this

general proscription, it is clear that such exceptions were

enacted for limited purposes and were not meant to abrogate or

dilute the long-standing and overriding State policy to prohibit

the receipt of retirement benefits and salary at the same time"

(id.).

That "overriding state policy" is repeatedly restated

in the Retirement and Social Security Law. Section 101 (a)

provides:

"If a retired member, receiving a retirement

allowance for other than physical disability,

returns to active public service, except as

otherwise provided in this section or section

two hundred eleven or two hundred twelve of

this chapter, and is eligible for membership

in the retirement system, he thereupon shall

become a member and his retirement allowance

shall cease."

Section 101 (b) further provides, as to temporary state

employees: "The payment of any retirement allowance . . . on

account of retirement for other than physical disability shall be

suspended as provided herein, during the time that the

beneficiary thereof is in receipt of other compensation paid from

direct or indirect state or municipal taxes."

Section 101 (c) expresses that same public policy

specifically as regards certified Supreme Court Justices,

stating:

"In the event that a judge or justice shall

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. . . [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).3

Section 211 of the Retirement and Social Security Law

expresses the same general prohibition, but provides exemptions

allowing retirees to collect their full pensions and at least a

partial salary in two basic situations: (a) when the retiree's

total income, including her retirement allowance and salary, is

not more than $500 above the greater of (1) her annual unadjusted

retirement allowance or (2) the salary on which her retirement

allowance is based or her final salary, whichever is greater; or

(b) the position in which she is employed is not a position in

the service of a former employer.4 Section 211 (3) also provides

3

The parties briefly discuss section 101 (c), which by its terms

"shall be controlling notwithstanding any other provision of this

chapter." However, no party has asked us to determine whether

section 101 (c) and/or section 211 take precedence over section

212, and absent any developed argument regarding the

interpretation and reconciliation of those sections, we consider

section 101 (c) only as part of the legislative expression of the

public policy of the State concerning simultaneous receipt of

state retirement benefits and a state salary.

4

By way of example, section 211's first exemption would cover a

person who retired from a high-paying position and is

subsequently reemployed in a lower-paying position by the same

employer, allowing such a person to earn a combination of pension

and (lower-paying) salary up to a maximum of the salary paid to

persons in the employee's former (higher-paying) position. Its

second exemption covers retirees who are subsequently employed by

a new employer (e.g., a retired police detective who is

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a catch-all in case its limits are violated: "If a retired person

employed under this section earns in such employment in any

calendar year an amount in excess of the maximum earnings allowed

under subdivision one of this section, his [or her] retirement

allowance and supplemental retirement payments shall be suspended

until the total amount so suspended equals the amount of such

excess."

III.

Keeping in mind New York's general public policy

concerning the simultaneous receipt of a state pension and a

state salary, we consider the action of the Board.

The New York Constitution requires various judges,

including Supreme Court Justices and Court of Appeals Judges to

"retire on the last day of December in the year in which he or

she reaches the age of seventy" (NY Const, art VI, § 25 [b]).

The sole exception to that mandate is that a retired Court of

Appeals Judge or Supreme Court Justice may, for no more than six

years thereafter, perform the duties of a Supreme Court Justice

if certified "in the manner provided by law that 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" (id.). The

legislature has vested the Board -- composed of the Chief Judge

and the four Presiding Justices of the Appellate Division -- with

subsequently hired as a school security officer).

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the power to determine whether those two criteria are met and, if

so, whether to certify former Justices for service (Judiciary Law

§ 115). Under the Judiciary Law, "[a] retired justice so

certified shall for all purposes, including powers, duties,

salary, status and rights, be a justice of the supreme Court"

(Judiciary Law § 115 [3]).

The Board enjoys "the very broadest authority for the

exercise of responsible judgment" and "very nearly unfettered

discretion in determining whether to grant applications of former

Judges for certification" (Matter of Marro v Bartlett, 46 NY2d

674, 681-682 [1979]). Provided 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 (id. at 679).

In the case before us, we are asked to determine

whether the Board exercised its discretion within the framework

provided by the Constitution. As in Marro (id. at 680), the

mental and physical abilities of the Justices are not at issue.

Rather, the issue presented is whether the Board's policy is

rationally related to whether certification is "necessary to

expedite the business of the court."5 We hold that it is.

5

Because the Board argues, and we agree, that its decision was

an appropriate application of the two constitutional

requirements, we do not decide here whether those requirements

establish sufficient conditions for certification or only a

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Whether the services of a particular Justice are

"necessary to expedite the business of the court" encompasses

much more than a mechanical inquiry into the size of the courts'

docket divided by the number of Justices. Viewed in isolation,

the services of an additional mentally and physically able

Justice will always expedite the business of the courts. Were

the inquiry merely mechanical, the Board would need no broad,

largely unreviewable discretion. But the impact of any

certification, as the Constitution's use of the word "necessary"

implies, must be determined with the costs -- including non-

monetary costs -- of that certification in mind. The

Constitution and the Judiciary Law entrusted this determination

to "the integrity and collective wisdom of a carefully selected,

high level certifying authority endowed with peculiar experience

and expertise" (Marro, 46 NY2d at 682), rather than to

functionaries responsible for the court's docket or budget, for

precisely that reason.

Here, the Board concluded that the net effect of

certifying pensioners – taking into account their potential

future contributions as certified Justices – would be detrimental

to the creation of new judgeships and thereby hamper rather than

expedite the business of the courts. The Board also calculated

that the cost of certifying pensioners included not only the

necessary floor above which the Board may choose to add

additional requirements.

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narrow matter of annual pay, but also the impact of "double-

dipping" on the courts' public prestige and other private

negotiations. On that appropriate basis, it decided that the

services of plaintiffs and other retired Justices, as well as

retired Judges of the Court of Appeals, who would not agree to

defer their pensions would, on balance, detrimentally impact the

court system and were not necessary to expedite its business.

The facts here differ from those in Marro insofar as

the Board chose to announce a prospective rule rather than issue,

as plaintiffs concede it could have, inscrutable applicant-by-

applicant determinations. However, we see no reason to curtail

the Board's power because it opted to reveal and explain its

rationale in the interest of providing those aspiring to

certification with the opportunity to make an informed choice.

Marro excused the Board from promulgating its certification

criteria (id. at 681), but did not bar or discourage it from

doing so.

IV.

The Board's determination that certifying retired

Supreme Court Justices would not expedite the business of the

courts did not violate any statutes or promote an

unconstitutional purpose. Plaintiffs' reliance on section 212 in

support of their claim that the Board has exceeded its authority

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is misplaced.6

Section 212 provides:

any retired person may continue as retired

and, without loss, suspension or diminution

of his or her retirement allowance, earn in a

position or positions in public service in

any calendar year an amount not exceeding the

amount set forth in the table in subdivision

two of this section . . . However, 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."

Plaintiffs interpret section 212 to allow all

pensioners over the age of 65 –- including certified Justices –-

the option of receiving an undiminished pension alongside a full

salary. Even under that interpretation, the Board did not act in

contravention of that section.

As an initial matter, our holding in Marro is clear

that a former Justice has no right to be certified at all.

Because the certification process inaugurates a new designation

to judicial office after a complete break from service (rather

than permitting a Justice to continue in a position from which he

was retired by constitutional mandate), Justices have no right to

certification upon which the Board's determination could impinge

(id. at 682). That is, former Justices have no right to new

employment via certification and, therefore, they have no right

6

We express no view on the Appellate Division's footnoted

statement that "section 101 has been effectively superceded by

Retirement and Social Security Law § 212." That issue was not

raised by the parties either here or in the Appellate Division.

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to receive the salary associated with that position and

simultaneously draw a retirement allowance. Plaintiffs' decision

to opt into section 212 of the Retirement and Social Security Law

-- which applies to retirees of all ages throughout New York

State and was not intended to disturb a constitutional scheme

narrowly tailored to retired Justices between the ages of 70 and

76 -- did nothing to upset that holding or to create a new

entitlement.

Section 212 is one of the limited exceptions discussed

in Baker. That exception, which the legislature enacted to

benefit "low income pensioners" (Bill Jacket, L 1964, ch 803),

provides retired persons the option of drawing, and their

prospective public employers the option of providing, a limited

amount of earnings in excess of the already-provided pension.

"May," however, is a "term of enablement but not of entitlement"

(Marro, 46 NY2d at 680). The choice of verb and the elective

nature of the section 212 scheme defeat plaintiffs' suggestion

that RSSL § 212 reduces the Board's broad discretion to act in

the best interest of the courts and instead requires it to

certify otherwise-qualified former Justices who opt into that

section's provisions.

Plaintiffs' remaining arguments, that the Board's

policy violates Judiciary Law § 115 (3) by creating two classes

of Justices and impairs plaintiffs' pension benefits in violation

of article V, § 7 of the New York Constitution, fail. Because

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former Justices have no right to certification or to receive a

pension alongside a full salary and are, under the Board's

policy, able to choose to continue as a retired Justice with a

full pension or, if they prefer, to suspend their pension and

seek certification, the Board's order runs afoul of neither

Judiciary Law § 115 (3) nor article V, § 7.7 Plaintiffs' final

argument, that the order constitutes an administrative policy for

general application and so could not have been issued by the

Chief Administrative Judge absent prior approval of this Court

under article VI, § 28 (c) of our Constitution and Judiciary Law

§ 211 (a) (1) was not preserved for our review.

Accordingly, the order of the Appellate Division should

be reversed, without costs, and the judgment of Supreme Court

reinstated.

* * * * * * * * * * * * * * * * *

Order reversed, without costs, and judgment of Supreme Court,

Albany County, reinstated. Opinion Per Curiam. Judges Rivera,

Stein, Fahey, Garcia and Wilson concur. Chief Judge DiFiore took

no part.

Decided May 4, 2017

7

Donner v New York City Employees' Retirement Sys. (33 NY2d 413

[1974]), on which plaintiffs rely, is inapposite. Here, unlike

in Donner, there is a constitutional bar to employment after age

70, after which the Constitution and Judiciary Law § 115 vest the

Board with extremely broad discretion to evaluate the expedition

of the courts' business in deciding whether to certify judges.

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