State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 18, 2015 519568 

________________________________

In the Matter of GERALD E. 

LOEHR et al.,

Appellants,

v

OPINION AND ORDER

ADMINISTRATIVE BOARD OF THE 

COURTS OF THE STATE OF NEW

YORK,

Respondent.

________________________________

Calendar Date: February 11, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains

(Robert A. Spolzino of counsel), for appellants.

John W. McConnell, Office of Court Administration, New York

City (John J. Sullivan, Albany, of counsel), for respondent. 

__________

Clark, J.

Appeal from an order and judgment of the Supreme Court

(Connolly, J.), entered May 12, 2014 in Albany County, which, in

a combined proceeding pursuant to CPLR article 78 and action for

declaratory judgment, granted respondent's motion to dismiss the

amended petition/complaint.

Petitioners are justices of the Supreme Court, each having

earned a substantial record of public service prior to election

to that office. Upon reaching the age of 70, and in accordance

with NY Constitution, article VI, § 25 (b) and Judiciary Law

§ 115, petitioners applied to be certificated to continue their
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services on the Supreme Court bench. In October 2013, conforming

to an administrative order signed by the Chief Administrative

Judge, respondent adopted a new policy that "no judge henceforth

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." 

Presently, and at issue here, petitioners are eligible to receive

pension benefits based, at least in part, on prior judicial

service within the Unified Court System. In December 2013,

petitioners were informed of their need to comply with the new

policy and that approval for certification would therefore be

conditioned on such compliance. Petitioners thereafter commenced

this hybrid CPLR article 78 proceeding and action for declaratory

judgment seeking, among other things, a declaration that

respondent's policy that certificated justices not receive such

pension benefits during their employment was illegal, a ruling

annulling each approval of petitioners' recertification

contingent upon suspension of such pensions during their

employment and a declaration that each petitioner is certificated

not subject to such policy. After answering, respondent moved to

dismiss the amended petition for failure to state a cause of

action. Supreme Court granted respondent's motion, declared the

policy to be neither illegal nor unconstitutional, and dismissed

petitioners' amended petition. Petitioners now appeal. We

reverse and declare that respondent's policy violates Retirement

and Social Security Law § 212, Judiciary Law § 115 (3) and NY

Constitution, article V, § 7.

 

It is well settled that, because "the text of a statute is

the best evidence of legislative intent" (Matter of Retired Pub.

Empls. Assn., Inc. v Cuomo, 123 AD3d 92, 94 [2014]), "where the

statutory language is clear and unambiguous, the court should

construe it so as to give effect to the plain meaning of the

words used" (Commonwealth of N. Mariana Is. v Canadian Imperial

Bank of Commerce, 21 NY3d 55, 60, [2013] [internal quotation

marks, brackets and citation omitted]; see Patrolmen's Benevolent

Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208

[1976]; Bender v Jamaica Hosp., 40 NY2d 560, 561 [1976]). As is

pertinent here, Retirement and Social Security Law § 212 (1)

generally provides that, subject to certain earnings limitations,
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"any retired person may continue as retired and, without loss,

suspension or diminution of his or her retirement allowance, earn

[an amount not greater than statutorily prescribed] in a position

or positions in public service." That same provision provides

that "there shall be no earning limitations under the provisions

of [Retirement and Social Security Law § 212] on or after the

calendar year in which any retired person attains age [65]"

(Retirement and Social Security Law § 212 [1]; see Retirement and

Social Security Law § 210 [a], [e]).

Considering this statutory framework, as a matter of law,

the statute preempts respondent's ability to implement a policy

such as the one at issue here. The language of Retirement and

Social Security Law § 212 explicitly allows New York public

employees – including justices of the Supreme Court – to retire

in place and continue to work while collecting their state

pension. Respondent's argument that section 212 (1) implicitly

permits state employers – and respondent here – to require

employees to bargain away their legal right to the continued

receipt of retirement benefits is unpersuasive. On the contrary,

the plain language of section 212 (1) grants this right to public

employees without mention of employers or an employer's

discretion to condition recertification upon suspension of a

statutory right1 (compare Retirement and Social Security Law

§ 211 [2] [a]). 

Even if it were ambiguous as to whether the statute grants

such rights to employees or employers, which it is not,

respondent's position remains unsupported by the relevant

legislative history. Specifically, respondent's contention that

employers are allowed to require suspension of pension rights is

irreconcilable with the legislative goal in amending the statute

to make it "easier for pensioners to supplement their income" 

(Senate Introducer Mem in Support, Bill Jacket, L 1964, ch 803). 

Thus, the history of Retirement and Social Security Law § 212

1 Employer discretion was previously included in Retirement

and Social Security Law § 101. However, section 101 has been

effectively superceded by Retirement and Social Security Law

§ 212.
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supports the conclusion that the Legislature intended to give

such a right to public employees, not subject to diminishment

based on an employer's interests. Therefore, considering the

plain language of the statute and its legislative history,

Retirement and Social Security Law § 212 was intended to give

certain pension rights to public employees, and those rights are

not subject to their employer's preferences. 

Furthermore, respondent's policy runs afoul of the statute

inasmuch as it treats certificated justices of the Supreme Court

differently and has effectively created two classes of justices – 

those who can receive either private retirement benefits or

solely nonjudicial public service retirement benefits and those

who are eligible for judicial public service retirement benefits

but are not allowed to receive them. While Judiciary Law § 115

provides respondent with its power in regard to certification, it

does not empower respondent to make a certificated judgeship a

lesser class of employment than a noncertificated judgeship. As

prescribed by statute, a certificated judge is "a justice of the

[S]upreme [C]ourt in the district in which he [or she] resides"

for purposes that include "salary" and "rights" (Judiciary Law

§ 115 [3]; see NY Const, art VI, § 25 [b]).

Respondent relies on Matter of Marro v Bartlett (46 NY2d

674 [1979]) to support its contention that it maintains broad

discretion when making a certification eligibility decision. 

However, Marro is easily distinguishable from the instant case

inasmuch as it pertains to an individual determination regarding

one particular judge's certification and does not deal with a

statewide policy directive. While we can agree that Marro allows

for unfettered discretion in respondent's individual

certification decisions, it does not authorize respondent to

change the requirements for certification.2 Simply put,

respondent's act of adding a condition of recertification that is

not included in the NY Constitution, the Judiciary Law or the

Retirement and Social Security Law cannot be sustained. 

2 Notably, petitioners were qualified for recertification

but for the newly established policy restricting their right to

take their pensions. 
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Lastly, this Court cannot discern a rational argument for

the proposition that a Supreme Court justice's pension-taking

falls under the category of necessity when determining a

justice's eligibility for certification (see NY Const, art VI,

§ 25 [b]; Matter of Marro v Bartlett, 46 NY2d at 678). 

Specifically, the Court of Appeals has explained that

certification is based upon necessity and physical and mental

fitness and defines necessity as "a need for additional judicial

manpower and [an] individual applicant [who] can meet this need

at least in part" (Matter of Marro v Bartlett, 46 NY2d at 680). 

Respondent's reasoning that so-called "double-dipping" within the

court system created a problem with the public and the other

branches of government does not equate to either of the prongs in

the two-prong test for necessity. 

Accordingly, we reverse the order and judgment of the

Supreme Court and hereby declare that respondent's policy is

illegal and contrary to law. In light of the foregoing,

petitioners' remaining arguments have been rendered academic and

we, therefore, decline to address them. 

McCarthy, J.P., Egan Jr. and Devine, JJ., concur.

ORDERED that the order and judgment is reversed, on the

law, without costs, motion denied, amended petition granted, and

it is declared that respondent's policy that certificated

justices of the Supreme Court not receive pension benefits during

such employment violates NY Constitution, article V, § 7,

Judiciary Law § 115 (3) and Retirement and Social Security Law

§ 212.

ENTER:

Robert D. Mayberger

Clerk of the Court