New York Judges Win Back Right to ‘Double Dip’

ALBANY, N.Y. (CN) - The governing body for New York courts trampled state law by barring retired judges from filling in on the bench while collecting pensions, an appeals court ruled.

Though New York judges must retire at age 70, a provision of state judicial law allows retirees of the Supreme Court system to fill in as needed until age 76. In most states, a supreme court represents the highest tribunal, but the name is used in New York to designate trial courts for each of the 62 counties.

Retired justices who want to continue must seek recertification every two years from New York's Administrative Board of the Courts, which evaluates for mental and physical fitness.

Two years ago, though, justices learned they had to choose between continuing to work and receiving their pensions.

The court-oversight board made compliance with new policy against so-called double dipping a requirement for certification to the bench.

Gerald Loehr, who retired from the Westchester County Supreme Court, and two fellow retired justices in turn brought a challenge to the policy's legality.

Though the Albany County Supreme Court sided with the board, a four-judge panel with the Appellate Division's Third Department reversed Thursday, finding the policy violated state judiciary law, retirement and social security law, and the state constitution.

"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," Justice Christine Clark wrote for the unanimous panel.

Clark noted that, when statutory language is clear, "the court should construe it so as to give effect to the plain meaning of the words used."

For the retirement and social security law in question, the statute "explicitly allows New York public employees - including justices of the Supreme Court - to retire in place and continue to work while collecting their state pensions," Clark wrote.

A report last fall from the Empire Center for Public Policy, a fiscally conservative think tank in Albany, indicated that since 1998 state workers had submitted thousands of so-called Section 211 waivers - named after the law's applicable section - to "double dip," meaning they could retire and begin collecting their pensions despite returning to work for a state or local agency.

The court-oversight board failed to sway the appeals court Thursday that the law allows it to require that workers "bargain away" their pension rights.

Clark called that argument "irreconcilable with the legislative goal" of the section, namely to make it "easier for pensioners to supplement their income."

The policy also created two classes of retired justices - those who can receive their earned benefits and those who should receive them but "are not allowed to," according to the ruling.

Clark rejected the notion that the statute that entrusts the court-oversight board with fitness-certification powers likewise empowers it "to make a certificated judgeship a lesser class of employment than a noncertificated judgeship."

Certification is based on fitness and necessity, and the state's high court defines the latter term as "a need for additional judicial manpower and [an] individual applicant [who] can meet this need at least in part," according to the ruling.

"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," Clark wwrote.

Justices William McCarthy, John Egan Jr. and Eugene Devine concurred.

The Albany Times Union identified the other two plaintiffs in the appeal as J. Emmett Murphy, a retired justice of the Westchester County Supreme Court, and William Miller, formerly of Kings County (Brooklyn) Supreme Court.

The newspaper said the court-oversight board declined to comment on the decision but a spokesman indicated it was likely the case would wind up at the state's high court, the Court of Appeals.

County supreme courts hear only civil matters throughout New York, except in New York City's five boroughs, where they hear criminal cases as well.

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