Court of Appeals OKs ban on ‘double dipping’

The New York State Court of Appeals has decided that a policy that prohibits double dipping by state Supreme Court justices is legal and constitutional.

Three state Supreme Court justices challenged the policy that wouldn’t let them stay on the bench after they turn 70 if they collected their salary without postponing their state pension.

Justices Gerald E. Loehr, J. Emmett Murphy and William Miller filed the suit to challenge the policy adopted in 2013 by the Administrative Board of the Courts, which includes New York’s chief judge and the four presiding justices of the Appellate Divisions.

The policy bars retired state Supreme Court justices who receive judicial pension benefits from being certified to continue serving as justices beyond age 70. Under the state Constitution the mandatory retirement age is 70, but the Constitution and Judiciary Law permit Supreme Court justices to seek certification from the Administrative Board to serve until age 76 if they are found to have “the mental and physical capacity to perform the duties.”

Granting certification to justices who would receive a full salary and a judicial pension “conveys an impression to the public that the court system is insensitive to and neglectful of the State’s current fiscal distress,” according to court documents.

In a June 2015 decision, acting state Supreme Court Justice Gerald Connolly, in Albany, dismissed the suit.

The Appellate Division, Third Department, reversed Connolly’s decision, finding the Board’s policy unconstitutional and illegal.

The Third Department was reversed by the Court of Appeals in the decision released Thursday.

“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,” the Court of Appeals wrote.

The state Constitution allows Court of Appeals or Supreme Court judges to work past 70 if their services “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.”

The chief judge and the four presiding justices of the Appellate Division have the power to decide whether those two criteria are met and whether to certify judges to continue to serve past 70.

“The issue presented is whether the Board’s policy is rationally related to whether certification is ‘necessary to expedite the business of the court.’ We hold that it is,” the court said in the decision.

“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.”

The panel included judges Jenny Rivera, Leslie Stein, Eugene M. Fahey, Michael Garcia and Rowan Wilson. Chief Judge Janet DiFiore was not involved in the decision.