In the Matter of Gerald E. Loehr et al., Respondents,v.Administrative Board of the Courts of the State of New York, Appellant.BriefN.Y.March 21, 2017To Be Argued By: Lee Alan Adlerstein Time Requested: 12 minutes (ltourt of appea~ of tbt i9tate of ~tbl !lork GERALD E. LOEHR. J. EMMETT MURPHY and WILLIAM MILLER, Plaintiffs-Petitioners-Respondents, -against- THE ADMINISTRATIVE BOARD OF THE COURTS OF THE STATE OF NEW YORK, Defendant-Respondent-Appellant. REPLY BRIEF OF APPELLANT ADMINISTRATIVE BOARD OF THE COURTS JOHN W. McCONNELL New York State Office of Court Administration 25 Beaver Street, 11 111 Floor New York, New York 10004 Tel: (212) 428-2150 Fax: (212) 428-2155 Allorney for Defendant-Respondent-Appellant Lee Alan Adlerstein John J. Sullivan Of Counsel Appellate Division - Third Department Docket No. 519568 Albany County Clerk's Index No. 6818-13 TABLE OF CONTENTS Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. Retirement and Social Security Law §212 creates no rights to employment, or to consideration of employment or appointment application without regard to double-dipping- especially appointments pursuant to Judiciary Law § 115. . . . . . . . . . . . . . . . . . . . . 2 2. Judiciary Law § 115(3) does not bar the certification policy .......... 4 3. Constraints upon double-dipping do not infringe upon Petitioners' constitutional right to receive a pension. . . . . . . . . . . . . . . . . 5 4. The Board's certification policy is neither arbitrary nor capricious, but was eminently appropriate and rationally tailored to address the Board's informed concerns over judicial double-dipping ............. 8 5. Petitioners' argument that the certification policy required advance approval by this Court is unpreserved and incorrect. . . . . . . . . 11 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 TABLE OF AUTHORITIES Cases Brown v. New York State Retirement System, 107 A.D.2d 103 (3d Dept.), app. denied, 66 N.Y.2d 601 (1985) ............................... 2 Connolly v. McCall, 254 F.3d 36 (2d Cir. 2001).......................... 2 Donner v. New York City Employees' Retirement System, 3 3 N. Y .2d 413 ( 197 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 Marro v. Bartlett, 46 N.Y.2d 674 (1979) ............................ passim Misicki v. Caradonna, 12 N.Y.3d 511 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Matter ofMorgenthau v. Cooke, 56 N.Y.2d 24 (1982) . . . . . . . . . . . . . . . . . . . 12 Constitution and Statutes N.Y. Const. Art. VI, §25(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 10, N.Y. Const. Art. VI, §28( c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Civil Service Law §150 ................................................... 2,3,4 Judiciary Law § 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim § 115( c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 § 115(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1' 4 § 2 11 ( 1 )(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 §212(2)(c) .................................................. 12 11 Retirement and Social Security Law §101 ......... 0 0 •• 0 •••••••••••••••••••••••••••• 0 ••••••••••••• 4 §211 . 0 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 0 • • • • • • • • • • • • • • • 2, 11 §212 ............................................... 1, 2, 3, 7, 11 111 Preliminary Statement This reply brief is submitted by appellant Administrative Board of the Courts to address errors and misapprehensions contained in the responding brief of plaintiffs-petitioners-respondents Loehr, Murphy, and Miller, dated May 17, 2016 ("Pet. Br."). In our main brief we set forth in detail the legal justification for the Board's October 2013 policy barring the concurrent receipt of a full judicial salary and a judicial pension by justices certificated by the Board for future judicial service: the broad discretion afforded to the Board in making certification decisions under N.Y. Const. Art. VI, §25(b) and Judiciary Law §115; this Court's holding in Marro v. Bartlett, 46 N.Y.2d 674 (1979); and the Board's determination that the services of certain "double-dipping" justices were not necessary to expedite the business of the court. Petitioners raise five principal points in response. They argue that the Board's certification policy (1) violates Retirement and Social Security Law §212 (Pet. Br. pp. 19-25); (2) violates Judiciary Law§ 115(3) by "establishing two classes of Supreme Court Justices with different benefits" (Pet. Br. p. 27-28); (3) unconstitutionally impairs petitioners' receipt of pension benefits (Pet. Br. pp. 28- 35); (4) applies an "irrelevant" criterion to assessment of the court system's need 1 for petitioners' services (Pet. Br. pp. 36-50); and (5) violates "the statutory and constitutional requirement of 'multistage; multi person review"' (Pet. Br. pp. 50- 60). We will address these arguments in tum. 1. Retirement and Social Security Law §212 creates no rights to employment, or to consideration of employment or appointment application without regard to double-dipping- especially appointments pursuant to Judiciary Law §115. As noted in our main brief (pp. 22-24), petitioners' contention that RSSL §212 creates a legal right to employment constraining the Board's broad discretion in certification determinations (Pet. Br. pp. 19-21) is insupportable. As a general matter, RSSL §212, like section 211, relieves certain employees in limited fashion from a general statutory prohibition against double-dipping set forth in Civil Service Law § 150; see generally, Brown v. New York State Retirement System, 107 A.D.2d 103 (3d Dept.), app. denied, 66 N.Y.2d 601 (1985); Connolly v. McCall, 254 F .3d 36 (2d Cir. 2001 ); it does not give them claim to a discretionary appointment in the first instance. While petitioners go to great lengths to describe limits and exceptions to the statutory prohibition against double-dipping (Pet. Br. pp. 21-25), these arguments are largely beside the point. The fundamental statutory policy and public disapprobation against the practice remain well established (Main Br. pp. 18-20); the Board's exercise of discretion in issuing the certification policy was based on its conclusion that the services of judges 2 engaging in the practice were not necessary for court operations. Petitioners may disagree with this conclusion- but absent statutory or constitutional violation, Marro requires nothing more. Petitioners' claim that current law reflects a growing legislative acceptance of double-dipping and supports that practice by certificated justices (Pet. Br. pp. 22-25) ignores pertinent language to the contrary set forth in Civil Service Law § 150 ("Suspension of pension and annuity during public employment"): [ ... ]However, for purposes of this section the age seventy unlimited earnings provision of section two hundred twelve of the retirement and social security law will not pertain to any person, subsequent to his or her retirement from an elective public office, if such person accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired. This provision, enacted in 1995 (L. 1995, c. 211, § 1 ), sharply limits the earnings permissible under RSSL §212 to persons- including all Supreme Court certification applicants -who retire from an elective public office and subsequently return to that same office through election or appointment. 1 Contrary to petitioners' suggestion, the Legislature's current view of double- 1 Without delving into collateral issues of statutory interpretation, we note that "the age seventy unlimited earnings provision of section two hundred twelve of the retirement and social security law" was amended to apply to employees 65 and older in 2002. L. 2002, c. 474. For purposes of the current discussion, whether this portion of CSL § 150 applies to persons 65 and older or 70 and older is not a critical point. 3 dipping remains strikingly similar to that of the Board (albeit on a larger scale): the retirement from elective office with a pension, and immediate return to that identical office at full salary, is contrary to public policy and principles of sound governance. Even if this portion of CSL § 150 applies only to persons entering the pension system after 1995, it decisively rebuts petitioners' claim that a "nuanced" understanding of the law supports their position. Finally, petitioners' claim that a footnote in our main brief (p. 20 n.7) expressing disagreement with the Third Department's cursory interpretation of Retirement and Social Security Law § 1 01 constitutes a "new argument" warranting lengthy discussion (Pet. Br. pp. 25-27) is a meritless diversion. As we have noted consistently throughout this litigation, the Board's policy was not based on a belief that petitioners' conduct was illegal, but rather that the services of double-dipping certificated justices are unnecessary for court operations. 2. Judiciary Law § 115(3) does not bar the certification policy. Petitioner's discussion of Judiciary Law§ 115(c) (Pet. Br. pp. 27-28) fails to address the discussion of that provision in our main brief (pp. 25-26). Nor do petitioners explain meaningfully how that statute - designed to assure that, upon appointment, certificated justices have all judicial rights and powers available to 4 elected Supreme Court Justices- prevents the voluntary deferral of receipt of pension benefits prior to appointment. It merits no further reply. 3. Constraints upon double-dipping do not infringe upon Petitioners' constitutional right to receive a pension. Petitioners' claim that the Board's certification policy infringes upon their constitutional right to receive a pension (Pet. Br. pp. 28-32) is likewise meritless. As we noted in our main brief (pp. 23-24), the right to receive a pension does not create an entitlement to continued employment, or reappointment to a public position. Compelled by constitutional age restrictions to retire from service, petitioners may choose to receive their pension undiminished. However, as this Court made clear in Marro, they have no property interest whatsoever in future employment through certification. For similar reasons, petitioners' reliance on Donner v. New York City Employees' Retirement System, 33 N.Y.2d 413 (1974), is misplaced (Pet. Br. pp. 29-31 ). Donner addressed a claim of the unilateral retirement benefit impairment made by a rehired New York City employee who, following his rehiring (without waiver of retirement rights), was denied reentry to the Retirement System under a change in the Administrative Code that occurred after his initial employment years before. As the Court observed in summary (33 N.Y.2d at 416, emphasis added): 5 Prior to the passage of the complained of amendment, Donner could have rejoined the Retirement System if he were rehired by the city. This opportunity to re-enter the Retirement System, while conditional upon being rehired by the city, was nevertheless a retirement benefit. The city was not obliged to re-employ Donner, but having done so, the conditional aspect of the benefit was satisfied and Donner had a right to be re-enrolled as a member [citation omitted]. This right is protected by the Constitution and cannot be taken from him by the city's unilateral action. Donner makes clear that retirement rights of former employees are "conditional" rights which cannot be unilaterally abrogated by an employer following reemployment; it makes equally clear that such rights do not create an obligation of re-employment in the first place. Nowhere does that case address the power of employers and employees to provide for the consensual waiver of those rights as a condition of employment. Nor does it address the issue of hiring or appointment criteria generally -- and certainly not the Board's uniquely broad powers of appointment under Judiciary Law§ 115.2 Petitioners' further arguments of constitutional violation (Pet. Br. pp. 32 et seq.) rely upon the mistaken premise, addressed in our main brief (p. 24), that pension benefits may not be temporarily deferred by agreement of the parties. The claim that such a deferral is not "voluntary" because it is compelled by the new 2 Needless to say, the Board's certification policy does not involve the underlying issue in Donner: the right of an employee to reenter the retirement system after withdrawal from service. 6 certification policy (Pet. Br. p. 32) is an exercise in semantics: petitioners are not compelled to seek certification; to do so is their choice. The claim that "to waive causes the termination of the justice's chambers staff' (id.) is misinformed: waiver has no effect on staff. The contention that RSSL §212 would be rendered meaningless if all employees seeking public employment were required to waive its provisions (id.) is fallacious: in fact, the Board's policy in this case has exceedingly narrow application; and appointments to the vast majority of public positions are governed by different statutes, rules, authorities, and considerations. Finally, petitioners' dissatisfaction with authority cited in our main brief (p. 24) in support of the principle that pension rights may be voluntarily waived (Pet. Br. pp. 32-33) simply misses the point: if those rights are constitutionally waiveable by union representatives during collective bargaining, they may likewise be voluntarily waived by individuals acting in their own interest. Whether or not such "benefits ... were outside the pension system at the time the benefits were created" (Pet. Br. p. 33) is a meaningless distinction: petitioners have supplied no authority to suggest that such waiver is constitutionally prohibited in either case. 7 4. The Board's certification policy is neither arbitrary nor capricious, but was eminently appropriate and rationally tailored to address the Board's informed concerns over judicial double-dipping. Petitioners' contention that the certification policy is arbitrary and capricious or ultra vires (Pet. Br. pp. 36-50) is equally misguided. Initially, we note that such a claim has no place in this proceeding: as Marro made clear, certification decisions lie within the nearly unfettered discretion of the Board, subject to examination only for statutory or constitutional violation. Since petitioners have raised no demonstrable claim that the policy violates constitution or statute, we respectfully submit that judicial review should end. In any event, the claims are meritless. As we noted in our main brief (pp. 27-28), petitioners' principal argument- that "the constitutional and statutory list of criteria [for certification] is exhaustive," and that the Board has no authority to consider the collective ill effects of appointment of certificated justices in considering whether their services are "necessary" for court operations - is simply incompatible with this Court's holding in Marro. Indeed, it turns that case on its head, substituting a narrow concept of necessity for the broad Board discretion which this Court held to arise from N.Y. Const. Art. VI, §25(b) and Jud. L. §115. Certification is an exercise of judgment, not a mechanical or ministerial act. A "very nearly unfettered discretion" in making certification decisions presupposes a 8 broad authority to assess whether and how the applicant will serve the court, and to measure the consequences of each appointment from the Board's informed perspective of institutional need. That perspective, stemming from the Board's broad administrative experience, includes but is not limited to the narrow question of whether the applicant would provide services useful to the court in the immediate future. It encompasses a range of other considerations - for example, whether the services are affordable, whether the appointment might have adverse institutional consequences outweighing its immediate benefits, whether the court system's long-term interests are served by the size and scope of the certificated judicial workforce, and similar considerations. Petitioners' argument that this discretion applies exclusively to consideration of the specific facts of an individual applicant (Pet. Br. pp. 45-49) is unsupported and illogical. Nothing in Marro suggests that the Board's discretion is confined to such particularized details- and at bottom, all individual certification decisions are necessarily rooted in larger perpectives of court need. Moreover, while this Court held in Marro that promulgation of criteria relevant to broader considerations was neither constitutionally nor statutorily required (46 N.Y.2d at 217), it did not prohibit the future issuance of such criteria.3 3 Of course, we recognize that the uniform application of a criterion of necessity distinguishes this case from the facts considered in Marro. Should the Court wish to provide further 9 Petitioners' remaining arguments on this subject constitute an effort to substitute their policy judgment for the Board's. For example, their claim that the policy was "a knee-jerk reaction to political posturing by the executive branch concerning Proposition 6" (Pet. Br. p. 42) is, at best, misguided personal opinion; at worst it is a self-serving aspersion upon the legitimate concerns over double- dipping expressed by the leadership of two independent branches of government. The Chief Administrative Judge has made clear that the concerns about the consequences of judicial double-dipping rested on policy considerations well beyond any single factor (R. 1 06-1 07); and at petitioners' written request, the Board reconsidered and adhered to the policy in early December 20 13, long after the Proposition had ceased to be an issue (R. 109).4 Finally, the claim that the Board acted arbitrarily because the court system employs other persons receiving a pension (Pet. Br. p. 43) is erroneous. Inasmuch as certification determinations pursuant to Art. VI, §25(b) and Judiciary Law § 115 constitute the singular (and highly public) exercise by the Board of the power of procedural guidance to the Board in the exercise of its certification authority in such circumstance, this case presents a welcome opportunity. 4 In focusing on one aspect of Proposition Six irrelevant to certification (Pet. Br. pp. 6, 42), petitioners have conveniently ignored another with certification issues at its core. Passage of the Proposition would have permitted extension ofthe service of certificated justices from 76 to 80 years of age, and could have rapidly added more than forty certificated judges (or two-thirds of its total current certificated deployment) to the Court's judicial ranks. 10 appointment to judicial office, those appointments are hardly comparable to- and are certainly rationally distinguishable from- decisions involving other court system employees.5 5. Petitioners' argument that the certification policy required advance approval by this Court is unpreserved and incorrect. Petitioners' final argument -- that the Board's policy required advance approval by this Court (Pet. Br. pp. 50-60) fails for two reasons and was understandably not addressed by the Appellate Division. First, this claim was an appellate afterthought, neither raised in the amended petition nor argued in Supreme Court, and was consequently unaddressed in the record. Such belated 5 Petitioners have claimed that "there are over 2,600 active state employees receiving both a salary and retirement benefits" under§§ RSSL 211 and 212 (Pet. Br. p. 25), and have placed in the record a lengthy exhibit (R. 161-324), downloaded from the internet, purportedly listing these employees. The vast majority of persons described in the list have no connection with the Unified Court System. Without conceding the accuracy of this list, or the relevance of factual claims based upon its contents, we note that it includes: petitioners and several other certificated judges (7); numerous employees with appointments lying outside the control of the Office of Court Administration or the Board -- including independently elected or appointed judges ( 18), personal judicial appointees (3) and appointees of other entities (Commissioners of Jurors [2]; members of the Board of Law Examiners [2]); employees in support positions such as court officers (15) and clerk/analysts (2); and part-time positions (3). Most non-judicial positions described in the list involve pensions or salaries which, alone or in combination, are dwarfed by the pensions and salaries of judges affected by the certification policy. Moreover, the vast majority of those retirements and appointments set forth on the list occurred long before the budgetary crisis faced by the courts in and after 2011 -- and all occurred prior to the implementation of the Board's policy. In sum, these appointments provide no basis for a principled comparison with the Board's exercise of its certification powers pursuant to Judiciary Law § 115. On the contrary, this list provides ample evidence that the Board's prospective certification policy was well-founded and rational: the extraordinary total annual income of judges covered by the policy - especially in contrast to other court employees, or to other judges who have eschewed the practice - and the recent trend of increased judicial double-dipping. See, ~' R210-211. II factual claims cannot be raised on appeal. Misicki v. Caradonna, 12 N.Y.3d 511, 519 (2009). Petitioners' assertion that the Board "does not deny that it did not follow the procedural requirements of Article VI, § 28( c)" (Pet. Br. pp. 58-59) is spurious: it is not the duty of the Board to deny factual claims first raised on appeal - especially claims that relate to highly sensitive matters of court administration and inter-court communications. Moreover, the claim ignores the fundamental point of Marro: the power to appoint certificated judges is exceptional, carved out at its inception from other constitutional judicial duties, and allotted through a separate statutory directive to the exclusive care of the Administrative Board. Neither constitution nor statute subjects the exercise of this extraordinary delegation to the prior review and approval by this Court. Petitioners' contrary reliance on Matter ofMorgenthau v. Cooke, 56 N.Y.2d 24 (1982) is misplaced. In Morgenthau, this Court addressed a general administrative determination relating to the temporary assignment of judges- a topic of statewide administrative policy described in Judiciary Law §§212(2)(c) and 211(1)(a) as subject to Article VI,§ 28(c). 56 N.Y.2d at 34. No similar requirement governs or limits the Board's exercise of discretion under Judiciary 12 Law §115. In sum, this Court's advance approval ofthe policy was not constitutionally required. 6 * * * To recapitulate: in light of Marro, decisions addressing whether a particular judge's services are "necessary" or may "expedite the business of the court" are matters exclusively within the competence of the Board, and are not subject to judicial review unless contrary to law or constitutional mandate. In this case, the Board's certification policy is contrary to neither. Rather, it is eminently rational and well-considered, and reflects appropriate concerns over double-dipping and the public fisc, the public reputation of the courts, issues of court governance, and budgetary matters of profound importance to the Unified Court System. Petitioners -- who may choose to be bound by the policy if they wish, or to retire (with undiminished pension benefits) if they do not-- have no cognizable property interest in or claim to certification, and have provided no just cause for reconsideration of the Board's proper exercise of discretion under Judiciary Law § 115. 6 As noted in our main brief (p. 1 0), the parties stipulated at the commencement of this litigation that the application of the Board's certification policy would be stayed until such time as the matter was fully resolved in the courts (R. 363-365)- a courtesy subsequently extended by the Board to all certification applications. 13 CONCLUSION The June 2015 Order of the Third Department should be reversed, and the action and petition should be dismissed. Dated: New York, New York June 1, 2016 Lee Alan Adlerstein John J. Sullivan Of Counsel 14 Respectfully submitted, JOHN W. McCONNELL Counsel Office of Court Administration 25 Beaver Street - 11th Floor New York, New York 10004 (212) 428-2150 Attorney for Defendant-Respondent- Appellant Administrative Board of the Courts By:~k~ Lee Alan Adlefs cifl Deputy Counsel