Retired Judges Fight for Right to Double Dip

ALBANY, N.Y. (CN) – New York is cracking down on double-dipping — the practice by which state judges collect both pensions and salaries after they hit retirement age — but the Court of Appeals focused Tuesday on whether putting retirees to work is actually cost-effective.

Arguing for the retired judges challenging the scheme, attorney Robert Spolzino noted that the state faces a new cost in trying to avoid paying his clients a salary.

Every time the state takes a judge off a case because they start collecting a pension, he said, the state begins paying into the pension of a new judge earning the same salary.

Meanwhile retired judges are “not getting anything extra by what they’re doing,” said Spolzino, of the firm Wilson Elser Modkowitz Edelman & Dicker.

“They are being paid for work they’re doing going forward,” he added.

Lee Adlerstein, an attorney for New York’s Administrative Board of the Courts, countered this position. Some retired judges pull in more than $250,000 a year between their fill-in salaries and their retirement pensions, he noted.

One of the jurists presiding over this afternoon’s appeal emphasized that the case will have far-reaching effects.

“It is relatively common,” Judge Eugene Fahey said of double dipping, noting  that he himself has heard of a number of judges fit the bill.

“So the question is then,” Fahey added, “it’s not the legality of the action but the criteria [used to limit it].”

New York judges must retire at age 70, but a provision in 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.

According to data from the fiscally conservative Empire Center for Public Policy, more than 500 people in New York sought and received permission to collect public pensions between 2015 and May 2016 while working for state or local government positions.

“These waivers are supposed to be used as temporary solutions for the rare instances when a retiree is the only person available and qualified to do a job,” Empire Center Executive Director Tim Hoefer said in a statement.

Taxpayers “have a good reason to question why they’re paying someone twice,” he added.

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. When the state changed the rules in 2013, however, judges learned that they had to choose between staying on the bench of collecting pensions.

After the new policy went into effect, retired Judges Gerald Loehr, J. Emmett Murphy and William Miller filed suit. Case documents show that Loehr is entitled to a $66,000 annual pension, while Murphy and Miller receive a $91,300 and $89,000 yearly pension, respectively.

Their case hit the state’s highest court this afternoon after a three-judge panel in the Appellate Division found the new rules against double-dipping unconstitutional.

Court of Appeals Judge Jenny Rivera suggested today the rule might be overbroad.

“In this case, you just have a blanket rule that is ignoring the qualifications of the individual,” she said.

Rivera questioned Adlerstein why the state failed to define what was necessary in the board’s stated goal of “expediting the business of the court system.”

“Is there no line in the sand?” she asked. “Is it whatever the board says is necessary?”

Adlerstein argued that judges have no constitutional right to both a judge’s salary and a judge’s pension simultaneously.

Chief Judge Janet DiFiore did not appear to take part in this afternoon’s hearing with the other six judges on the Court of Appeals. How the  court will rule is still unclear. Some of the judges noted that the rule change costs the retired justices nothing: While retired judges serve on the bench, their pensions are merely suspended not revoked.

“No one is taking your pension away,” Judge Michael Garcia said.

Another key issue is whether judges have a right to be certificated. Spolzino said that there is no right to certification but that judges have a right to be considered for certification. “That is what this case is about,” he said.

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