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 QCourt of ~PtaI£) of !be ~tate of .flew ~ork GERALD E. LOEHR, J. EMMETT MURPHY and WILLIAM MILLER, Plaintiffs-P etitioners-Respondents, - against- THE ADMINISTRATIVE BOARD OF THE COURTS OF THE STATE OF NEW YORK, Defendant-Respondent-Appellant. BRIEF OF APPELLANT ADMINISTRATIVE BOARD OF THE COURTS JOHN W. McCONNELL New York State Office of Court Administration 25 Beaver Street, 11 th Floor New York, New York 10004 Tel: (212) 428-2150 Fax: (212) 428-2155 Attorney for Defondant-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 Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. iii Preliminary Statement ............................................... 1 Procedural History .................................................. 4 Constitutional and Statutory Provisions at Issue ........................... 5 Question Presented for Review ........................................ 6 Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Promulgation of the Board's Policy Against Double-Dipping by Certificated Justices ....................................... 6 2. Commencement of This Action and Proceeding; Deferral of Application of Policy. . .................................... 9 3. The May 2014 Order of Supreme Court ......................... 10 4. The June 2015 Order of the Appellate Division . . . . . . . . . . . . . . . . . .. 11 Argument THE THIRD DEPARTMENT'S ORDER CONTRADICTS THE PRINCIPLES UNDERLYING THE CERTIFICATION PROCESS SET FORTH BY THIS COURT IN MARRO, MISAPPREHENDS THE RETIREMENT AND SOCIAL SECURITY LAW, AND SUBSTANTIALLY IMPEDES THE BOARD'S ABILITY TO FULFILL ITS CONSTITUTIONAL AND STATUTORY DUTY TO ASSESS THE NECESSITY OF RETIRED SUPREME COURT JUSTICES ............................. . . . . . . . . . . . . . . . . . . . .. 15 1. The Principles of Certification Articulated by this Court in Marro .... 15 2. The Third Department's Failure to Apply the Standards Articulated in Marro, and to View the Board's Policy with Substantial Deference, Was Error. ............................................... 21 3. The Appellate Division's Reliance Upon RSSL §212 to Preempt the Board's Policy is Unfounded and Inconsistent with Marro.. . ..... 23 4. The Third Department's Characterization of the Board's Directive as Creating a "Lesser Class" of Judicial Officer was Erroneous. . .... 26 5. The Third Department's Understanding of the "Category of Necessity" of Certificated Justices was Erroneous .............. 27 Conclusion ....................................................... 30 11 TABLE OF AUTHORITIES Cases Ahr v. City of New York, 243 A.D.2d 293 (pt Dept. 1997) ................. 25 Baker v. Regan, 68 N.Y.2d 335 (1986) .............................. 19, 24 Ballentine v. Koch, 89 N.Y.2d 51 (1996) ............................... 25 Cook v. City of Binghamton, 48 N.Y.2d 323 (1979) ....................... 25 Gorman v. City of New York, 280 A.D. 39 (1 st Dept.), affd 304 N.Y. 865 (1952) ..................................... 25 Hagler v. Paterson, 30 Misc. 3d 684 (Sup. Ct. Albany Co. 2010) ............. 19 Inc. Ville of Nisseguogue V. New York State Civil Servo Comm'n, 220 A.D.2d 53 (3Td Dept. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Loehr v. Administrative Board of the Courts of the State of New York, 130 A.D.3d 89 (3d Dept. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. passIm Marro V. Bartlett, 46 N. Y.2d 674 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . .. passIm McCullochv.Maryland, 17U.S.316(1819) ............................ 28 Schacht V. City of New York, 39 N.Y.2d 28 (1976) ....................... 25 Slavsky V. New York City Police Dep't, 967 F. Supp. 117 (S.D.N.Y. 1997) .............................................. 19 Constitution and Statutes N. Y. Const. Art. V, § 7 ............................................. 14 N. Y. Const. Art. VI, § 25 (b ) ..................................... passim 111 Civil Service Law § 150 ...................................................... 19 Judiciary Law § 115 .................................................. passim § 115( 1) ..................................................... 5 § 115(3) .............................................. 12,26,27 Retirement and Social Security Law § 101(c) ................................................. 20,25 §211 ...................................................... 19 § 212 ................................................... passim § 212( 1) .............................................. 11, 12, 23 IV STATE OF NEW YORK COURT OF APPEALS 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. Appellate Division Third Judicial Department Docket No. 519568 Albany County Index No. 6818-13 BRIEF OF APPELLANT ADMINISTRATIVE BOARD OF THE COURTS Preliminary Statement This is an appeal from an opinion and order of the Appellate Division, Third Department, dated and entered June 18, 201S, which, reversing a judgment of the Supreme Court, Albany County (Connolly, 1.), nullified on various grounds a policy of respondent Administrative Board of the Courts ("Board") barring the concurrent receipt of a full judicial salary and a judicial pension by justices certificated by the Board for future judicial service pursuant to Judiciary Law §IIS. Loehr v. Administrative Board of the Courts of the State of New York, 130 A.D.3d 89 (3d Dept. 20 IS). 1 * * * This case addresses whether the Administrative Board of the Courts, exercising its power to certificate retired Justices of the Supreme Court for additional two-year terms of service pursuant to Art. VI, §25(b) of the State Constitution and Judiciary Law § 115, may decline to certificate judges who concurrently receive both their full judicial salary and a pension for prior judicial employment - a practice colloquially known as "double-dipping" - upon the Board's assessment that the services are not "necessary to expedite the business of the court." N.Y. Art. VI, §25(b). In October 2013, having determined that the practice of double-dipping by certificated justices brought adverse consequences to the court system that outweighed the benefits of their service, the Board announced a policy prospectively barring that practice, and requiring future certification candidates to defer receipt of judicial pensions while receiving their full-time salaries as certificated justices. Several candidates for certification commenced this action and proceeding to challenge the policy decision on various grounds; Supreme Court upheld it in its entirety on the authority of this Court's holding in Marro v. Bartlett, 46 N.Y.2d 674 (1979) (R.4-15);1 the Third Department reversed, I Numbers in parentheses preceded by "R" refer to pages in the record on appeal filed herewith. 2 deeming Marro inapplicable and finding that the policy violated the statutory rights of certification applicants (R 375-79). The Third Department's ruling was erroneous in numerous respects. The discretionary certification of Supreme Court justices by the Administrative Board - composed of the Chief Judge and the Presiding Justices of the four Departments of the Appellate Division -- is the exclusive means by which judges may serve beyond the 70-year age limitation set forth in the Constitution. The authority to appoint such justices in a manner facilitating the needs of the courts is a unique and profound public trust allotted to the Board. As this Court held in Marro more than three decades ago, the scope of this authority is exceedingly broad: the Board's discretion over certification decisions is "nearly unfettered;" certification applicants have no due process rights or property interest in the appointment; and certification decisions are largely beyond judicial review. See, 46 N. Y .2d at 682- 83. The Third Department's June 2015 Order ignored these principles, arrogated to itself the authority and policy judgment constitutionally assigned to the Board, and substantially misapprehended several statutory and constitutional provisions upon which it relied. To be sure, this case poses facts not present in Marro. Unlike that matter, here the Board publicly articulated a broad standard on double-dipping applicable 3 to all certification applicants, in order to provide affected candidates with notice and opportunity, if they so chose, to arrange for the suspension of receipt of their pensions. Yet those facts, arising from the Board's desire for transparency and fairness, do not alter the relevance of Marro to this matter, or diminish in any manner the Board's broad power in certificating justices "necessary to expedite the business" of the court. Because the Third Department erred on the law and wrongly substituted its own policy judgment for that of the Board, its opinion and order should be reversed, and the action and petition should be dismissed. Procedural History Plaintiff/petitioner Gerald E. Loehr commenced this hybrid declaratory judgment action and CPLR article 78 proceeding in Supreme Court, Westchester County, by summons and notice dated December 11,2013 (R 18). Following administrative transfer of venue to Albany County, Loehr - joined by plaintiffs/petitioners J. Emmett Murphy and William Miller - filed an amended verified complaint and petition in January 2013 (R 20-41). The Board answered and moved to dismiss on January 27, 2014 (R 91, 103). Following oral argument, Supreme Court, Albany County (Connolly, J.) granted the motion to dismiss in a decision/order/judgment (one paper) dated May 5, 2014, which was entered by the 4 Albany County Clerk on May 12,2014 ("May 2014 Order"; R 4). On appeal, the Third Department reversed, on the law, in an opinion and order dated and entered June 18, 2015. Loehr, 130 A.D.3d 39 ("June 2015 Order"; R 375-79). On August 12, 2015, the Loehr petitioners served upon the Board a copy of the Appellate Division order (with notice of entry) by overnight mail. The Board thereupon moved to this Court for leave to appeal. Following the denial of that motion on grounds that an appeal lay as of right (Matter of Loehr v. Admin. Bd. of the Courts of the State of New York, 26 N.Y.3d 1058 [2015]), the Board filed a notice of appeal on December 2,2015 (R 372). Constitutional and Statutory Provisions at Issue N.Y. Constitution Art. VI, §25(b) provides, in pertinent part: b. Each ... justice of the supreme court ... shall retire on the last day of December in the year in which he reaches the age of seventy. Each such former ... justice ... may thereafter perform the duties of a justice of the supreme court ... provided, however, that it shall be certificated in the manner provided by law that the services of such ... justice 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. judiciary Law § 115( 1) provides, in pertinent part: 1. Any justice of the supreme court, retired pursuant to subdivision b of section twenty-five of article six of the constitution may, upon his 5 application, be certified by the administrative board ... upon findings (a) that he has the mental and physical capacity to perform the duties of such office and (b) that his services are necessary to expedite the business of the supreme court. Question Presented for Review Having determined that the services of certificated justices who concurrently receive both a full judicial salary and a pension for past judicial service were not necessary for and had adverse effects upon court operations, did the Administrative Board of the Courts act within its constitutional and statutory power, and in a manner consistent with the principles articulated by this Court in Marro v. Bartlett, 46 N.Y.2d 674 (1979), in instituting a policy barring that practice as a condition for future certifications pursuant to Judiciary Law § 115? 1. Promulgation of the Board's Policy Against Double-Dipping by Certificated Justices In mid-October 2013, following notice that the Governor had publicly admonished the court system's practice of certificating judges who had retired from the bench and received both pension and full judicial salary, the Administrative Board decided to discontinue that practice. The rationale behind 6 that decision, as reflected in the Board's discussions and later reported by Chief Administrative Judge A. Gail Prudenti, was its conclusion that (R 106-07): a. The grant of certification to judges who retire and receive a pension in addition to their full salary conveys an impression to the public that the court system is insensitive to the State's current fiscal condition. b. The grant of certification to "double-dipping'" judges creates difficulties for court administrators and advocates in negotiating effectively with the Legislature and the Executive Branch on issues of crucial importance to the Judicial Branch - including the court system budget, legislative initiatives, creation of new ju~geships, judicial salary initiatives, judicial constitutional referenda and others. c. In the absence of a prohibition of the practice, the new publicity on the issue of "double-dipping" might induce more judges to adopt the practice at the time of certification. d. Under these circumstances judges who engage in "double-dipping" following certification were not "necessary to expedite the business of the court" or necessary for the operation of Supreme Court. The Board tailored its policy in two respects. Because its target was exclusively judicial double-dipping, it directed that the certification prohibition be limited to those who retired from judicial office, commenced receipt of a pension, and then assumed further judicial office at full salary. In this manner, the policy would not discourage application to the bench in the first instance by other retirees (R 107). Moreover, to assure that the policy would not impose an outright bar to certification for past conduct, the Board directed that affected applicants could seek 7 certification upon a promise that, were certification granted, they would thereafter suspend receipt of their pensions, in a manner acceptable to the New York State Retirement System, while serving in certificated status (R 107). Judge Prudenti signed an administrative order (AO/240/13) effectuating this new policy prospectively on October 16,2013, that provided as follows (R 111): Pursuant to the authority vested in me, and with the advice and consent of the Administrative Board of the Courts, I hereby give notice that, effective immediately, it shall be the policy of the Administrative Board 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. Several certification candidates thereafter applied to the Board for reconsideration of this policy (R 108-09). The Board reconsidered, and adhered to, the policy determination on two occasions in late November and early December 2013 (R 64; R 108-109).2 2 Among the arguments considered by the Board in early December was petitioner Loehr's claim that the policy should not be applied to judges whose pensions reflected both judicial and non- judicial service (R 109). The Board rejected this argument, concluding that such differing treatment would invite arbitrary distinctions in the application of the policy and would undercut its purpose: the discouragement of judicial double-dipping by judges intending to seek certification by the Board (R 109). 8 2. Commencement of This Action and Proceeding; Deferral of Application of Policy In December 2013, Justice Gerald Loehr, a candidate for certification for a two-year term commencing in January 2014,3 initiated an action and proceeding seeking to nullify the Board's policy (R 18-19). Justices J. Emmett Murphy and William Miller, also certification candidates,4 joined Loehr in filing an amended petition/complaint in January 2014 (R 20-41). Each of these petitioners was impacted by the Board's policy. Each had served substantial terms of judicial office; following their election to a new judicial term, each had "retired" from judicial service in the waning days of their expiring term. Each had, within a day or two of such retirement, commenced a new judicial term and the collection of 3 Following various positions in public service, petitioner Gerald Loehr was elected to the County Court in 2004 and to Supreme Court in 2012. On December 31, 2012, the day before the commencement of his Supreme Court term, Loehr retired as a County Court Judge; in January 2013, he commenced receipt of both his full salary as a Supreme Court Justice and a pension amounting to approximately $66,000 annually, including credit for his service as a County Court judge (R 45 ). 4 After a number of years of service in various civil service positions, petitioner J. Emmett Murphy was appointed as a City Court judge in Yonkers in 1980, and thereafter was elected and served as a City and County Court Judge, and a Supreme Court Justice (R 53). In November 2010, at the age of 69, petitioner Murphy was re-elected to Supreme Court (R 54). On December 30, 2010,just two days before commencing his new term, he retired; in January 2011, he began receiving pension payments amounting to $91,309 annually, together with his judicial salary (R 57). Following 13 years in the Kings County District Attorney's office, petitioner William Miller commenced service as a judge in the Criminal Court of the City of New York in 1983. In November, 2012, at the age of69, he was elected a Supreme Court Justice (R 69). On December 31, 2012, petitioner Miller retired from the Criminal Court; one day later he commenced receipt of an annual pension of $89,000, together with his full judicial salary (R 75). 9 substantial pensions as well as their full judicial salaries. Under the Board's new policy, each would have been required to make arrangements with the New York State Retirement System to suspend receipt of their pensions as a condition of future certification by the Board. The amended complaint and petition sought, inter alia, a judicial declaration that the certification policy was arbitrary and capricious, imposed a certification requirement beyond those set forth in the Constitution and Judiciary Law, violated Retirement and Social Security Law §212, and deprived petitioners of vested pension rights (R 31-39). By stipulation of the parties, the Board agreed to waive application of the certification policy until the action and proceeding was finally resolved (R 363). In consequence, Loehr, Murphy, Miller, and several other justices affected by the policy were certificated by the Board in December 2013.5 3. The May 2014 Order of Supreme Court Upon the Board's motion, Supreme Court dismissed the matter in its entirety in May 2014 (R 4-15). Carefully reviewing the constitutional and statutory 5 The waiver was conditioned upon the agreement of each affected judge, by written stipulation, to abide promptly by the final determination of this legal action. The Board continued this practice for certification candidates in 2014 and 2015. 10 language addressing certification, and relying upon Marro, the court found that the Board's policy was neither illegal, unconstitutional, nor ultra vires (R 8-9); that it did not affect petitioners' right to membership in a retirement system or impaired their right to receive benefits (R 9-11); that it imposed a permissible condition to certification, a status "to which petitioners have no right" (R 11); that it raised no Contracts Clause concerns (R 11-12); that Marro placed the policy beyond judicial review as arbitrary and capricious (R 12-13); and that, in any event, the explanation provided by Chief Administrative Judge Prudenti sufficed to preclude a finding that the policy was irrational, arbitrary, or capricious (R 13-14). 4. The June 2015 Order of the Appellate Division The Appellate Division reversed. Its June 2015 Order commenced with a finding that Retirement and Social Security Law §212(1) provided State employees with a "legal right to the continued receipt of employment benefits" following retirement, and that the Board had no power to condition certification upon the waiver of this "statutory right" (130 A.D.3d at 91-92 [citations omitted]; R 376): As is pertinent here, Retirement and Social Security Law §212(1) generally provides that, subject to certain earnings limitations, "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 11 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]." 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 respondents here - to require employees to bargain away their legal right to the continued receipt of retirement benefits is unpersuasive. It held further that the Board's policy improperly relegated a certificated judgeship to "a lesser class of employment" than other Supreme Court justices, and violated a statutory precept that, upon certification, a "retired justice" 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'" (citing Jud. L. 115[3]; N.Y. Const., art. VI, §25[b]) (130 A.D.3d at 92; R 378). Critically, the Appellate Division found that the Board lacked authority to impose standards or conditions of certification beyond those expressly set forth in the Constitution or the Judiciary Law - and that Marro was not relevant to the consideration of broad Board certification directives (130 A.D.3d at 93; R 378): 12 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. [Ftnt omitted.] 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. Finally, the Third Department concluded that the Board could not rationally consider double-dipping in measuring the "necessity" of judicial service by a certification applicant (130 A.D.3d at 93; R 379): 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 N.Y. Const., art. VI, §2S[b]; Matter of Marro v. Bartlett, 46 N.Y.2d at 678, 416 N.Y.S.2d 212, 389 N.E.2d 808). 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 N.Y.2d at 680, 416 N.Y.S.2d 212, 389 N.E.2d 808). 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. 13 In sum, the court concluded that the policy violated RSSL §212, Judiciary Law § 115, and N.Y. Constitution Article V, § 7.6 This appeal followed (R 372). 6 Notwithstanding this latter finding, the Third Department did not expressly address article V, §7 in its opinion. 14 ARGUMENT THE THIRD DEPARTMENT'S ORDER CONTRADICTS THE PRINCIPLES UNDERLYING THE CERTIFICATION PROCESS SET FORTH BY THIS COURT IN MARRO, MISAPPREHENDS THE RETIREMENT AND SOCIAL SECURITY LAW, AND SUBSTANTIALLY IMPEDES THE BOARD'S ABILITY TO FULFILL ITS CONSTITUTIONAL AND STATUTORY DUTY TO ASSESS THE NECESSITY OF RETIRED SUPREME COURT JUSTICES The Third Department's Order is flawed in several respects. It ignores the broad principles of certification set forth by this Court in Marro, making no effort to apply them to the facts of this case. It misapprehends the scope and import of RSSL §212, transforming a limited permissive exception to the State's policy against double-dipping into a restrictive mandate upon authorities making discretionary initiatory appointments to public office. It incorrectly applies Jud. L. §11S(3) to certification applicants. Most importantly, it imposes upon the Board an exceedingly narrow definition of "necessity" in certification decisions, in sharp dissonance with this Court's holding in Marro. We will address these errors in tum. 1. The Principles of Certification Articulated by this Court in Marro Assessment of the Board's authority to certificate Supreme Court justices must commence with this Court's detailed consideration of the subject in Marro v. 15 Bartlett. In that matter, addressing a claim that a certification applicant had been denied due process by the Board, the Court first examined the nature of the interest ofa retired Supreme Court justice in a certificated term (46 N.Y.2d at 680): Our consideration starts with analysis of the applicable constitutional provisions. First comes the mandate that each Justice of the Supreme Court shall retire on the last day of December in the year in which he reaches the age of 70. At that time his entitlement to serve as a Justice terminates irrespective of other considerations, and he becomes a "former justice". Absent some further constitutional authorization he would be ineligible to serve as a Judge. Such further authorization, however, is found in the provision - "Each such former * * * justice * * * may thereafter perform the duties of a justice of the supreme court * * * provided, however, that it shall be certified", etc. From this language flowed a critical conclusion (id.): We interpret the verb, "may", as a term of enablement but not of entitlement. Rather than connoting some form of continuation of prior judicial service, the Constitution recognizes a complete break - termination of the previous judicial status, and the inauguration by the required certification of a new judicial designation. This "new judicial designation," the Court noted, was to be made by the Board, in its discretion, in the absence of further detailed instruction by Constitution or statute (46 N.Y.2d at 681 [emphasis added]): 16 For all material purposes, section 115 of the Judiciary Law conforms to the substantive constitutional provisions .... As contemplated by the Constitution it is the statute which prescribes the procedure by which the required certification shall be made. The only prescription made by the Legislature is very simple - that the certification shall be "by the administrative board"; no further particulars are specified and no procedures are detailed. In this circumstance, inasmuch as the function of certification is that of an initiatory action, rather than that of determining a continuing entitlement, due process requirements are virtually nonexistent. In this constitutional and statutory appointment structure, the Administrative Board was vested with "the very broadest authority" to exercise of the power of appointment (46 N. Y.2d at 681): This is an instance in which assurance as to results must depend on the confidence reposed in the individuals making the determinations and their collective probity and wisdom rather than on any predetermination specification of the standards they are to apply or the procedural steps they must follow. We therefore conclude that the Administrative Board of the Judicial Conference had very nearly unfettered discretion in determining whether to grant applications of former Judges for certification, a discretion which was not subject to judicial review in the absence of claims of substance that there had been violation of statutory proscription or promotion of a constitutionally impermissible purpose, unrelated to the certification process. 17 These fundamental principles - that certification is a new appointment to office, rather than a continuation of service; that certification candidates have no due process rights in application, or property interest in the position (46 N.Y.2d at 682); that the Chief Judge and the Presiding Justices of the Appellate Division, acting upon their "collective probity and wisdom," are vested with "very nearly unfettered discretion" in making certification determinations; and that such decisions may be reviewed only for statutory violation or promotion of a constitutionally impermissible purpose - have guided the Board's certification decisions for more than three decades. Reviewed under these standards, the certification policy set forth in AD/240/13 is eminently proper. The prohibition of judicial double-dipping by certificated justices emerged from the considered judgment of the Board on an issue of substantial importance to the Judicial Branch: that the certification of a judge already drawing a pension from prior judicial service conveyed an appearance of fiscal insensitivity and neglect, created difficulties in negotiating with the Executive and the Legislature on issues vital to the Judiciary (including the DCS budget, creation of new judgeships, legislative initiatives, and other matters), and was thereby harmful to the court and the public it serves. 18 Consequently, the Board concluded, the services of judges unwilling to depart from this practice were not "necessary" to the operations of the court. This view - a product of the Board's lengthy experience in guiding the court system - is amply informed by precedent. The State's general public policy against double-dipping is longstanding and well-established. As this Court noted in Baker v. Regan, 68 N.Y.2d 335, 341 (1986): Our Legislature has for over a half century evinced a strong public policy in favor of the suspension of retirement benefits of a person who after retiring accepts an office in the civil service of the State (citations omitted). Although exceptions have been made to this general proscription, it is clear that such exceptions were enacted for limited purposes and were not meant to abrogate or dilute the long-standing and overriding State policy to prohibit the receipt of retirement benefits and salary at the same time which could constitute an abuse of the public fisc. See also, Hagler v. Paterson, 30 Misc.3d 684, 688 (Sup. Ct. Albany Co. 2010) (same); Inc. Ville ofNissequogue v. New York State Civil Servo Comm'n, 220 A.D.2d 53, 54 (3rd Dept. 1996) (general rule against "double-dipping" under Civ. Servo L. §150; exceptions permitted pursuant to RSSL §211); Civ. Servo L. §150 (RSSL §212 does not pertain to persons accepting appointment to "same elective public office" from which her or she retired [eff. July 26, 1995]); Slavsky v. New York City Police Dep't, 967 F.Supp. 117,120 (S.D.N.Y. 1997) (city charter 19 provision reflected legitimate public purpose of preventing double-dipping). Generally speaking, this policy reflects a long-established popular distaste for the treatment of government pensions not as post-retirement security, but as pre- retirement wealth, at taxpayer expense.7 In applying this public policy to certification decisions, the Board appropriately employed its judgment and unique experience in matters of judicial governance - the quintessential exercise of its "collective probity and wisdom." The weighing of such considerations in certification determinations is not merely the Board's right; it is its fundamental duty. Finally, the certification policy does not affect the rights of applicants to membership in the retirement system, or impair their right to receive pension benefits. Certification candidates who are judicial double-dippers are and remain entitled to membership in the system and receipt of their benefits undiminished. At the time of their constitutionally-mandated retirement at age 70, they may choose to pursue certification - a status to which they have no right (Marro, 46 N. Y.2d at 7 See also, RSSL §101(c) (pensions of justices certificated pursuant to Jud. L. §115 "shall cease" upon certification, and such judges shall rejoin the retirement system "notwithstanding any other provision" of the Retirement and Social Security Law). We disagree with the Third Department's unsubstantiated observation that section 101 "has been effectively superceded by Retirement and Social Security Law § 212." 130 A.D.3d at 92, nl. However, because the policy against double-dipping was implemented pursuant to the Board's constitutional and statutory authority, this Court need not decide whether Retirement and Social Security Law § 101 (c) or Civil Service Law § 150 mandates the suspension of applicants' pensions as a condition of certification as a matter of law. 20 682) - or to continue the receipt of their pension. But they have no just claim to both. 2. The Third Department's Failure to Apply the Standards Articulated in Marro, and to View the Board's Policy with Substantial Deference, Was Error In dismissing the relevance of Marro to this matter simply because that case "pertain[ed] to an individual determination regarding one particular judge's certification and does not deal with a statewide policy directive" (130 A.D.3d at 92), the Third Department erred. To be sure, the facts of Marro focused upon the application of a single candidate; likewise, the Court remarked in its opinion that the weighing of "personal if not private considerations" of applicants was a task appropriately assigned to the Board. 46 N.Y.2d at 682. Yet Marro's principal findings - the "nearly unfettered" discretionary power of the Board as appointing authority; the "virtually nonexistent" due process expectations and property rights of certification applicants; the importance of the Board's exercise of its collective probity and wisdom - arose from the Court's analysis of the fundamental constitutional and statutory framework for certification, and did not rely upon the particular facts of that or any case. These general principles are essential to any analysis of certification practice; they cannot be responsibly ignored in reviewing 21 the Board's conduct in this matter.8 Moreover, the suggestion implicit in the Third Department's ruling - that factors which might be privately applied in individual cases under Marro cannot be published by the Board to guide future certification applicants - is difficult to apprehend. Here the Board deliberately chose to exercise its broad certification authority by announcing and uniformly applying its policy, and by giving candidates the opportunity to seek certification notwithstanding past double-dipping, because it believed that such transparency and correction was in the best interests of the court system. The suggestion that this practice rendered Marro irrelevant is myopic and erroneous. 8 Significantly, this Court in Marro found that its holding precluded the need to review the Board's internal "broad guidelines" for processing certification applications: "These involve internal procedures of the Administrative Board beyond the reach of judicial scrutiny." 46 N.Y.2d at 682, n2. 22 3. The Appellate Division's Reliance Upon RSSL §212 to Preempt the Board's Policy is Unfounded and Inconsistent with Marro. In a similar vein, the Court's reading of the Retirement and Social Security Law to create a "legal right to the continued receipt of employment benefits" that "preempt [ ed]" the Board from considering the double-dipping status of applicants during the certification process (R 377) is deeply flawed. The provision relied upon - Retirement and Social Security Law § 212( 1 ) -- provides in pertinent part as follows: Notwithstanding the provisions of section one hundred one, two hundred eleven or four hundred one of this chapter or of section five hundred three of the education law, or the provisions of any local law or charter, any retired person may continue as retired and, without loss, suspension or diminution of his or her retirement allowance, earn in a position or positions in public service in any calendar year an amount not exceeding the amount set forth in the table in subdivision two of this section .... However, there shall be no earning limitations under the provisions of this section on or after the calendar year in which any retired person attains age sixty-five .... Section 212 constitutes a limited exception to the general prohibition against double-dipping in State service, and permits the hiring of retirees aged 65 and over without pension diminution. Yet by its plain terms this provision does not create a right or entitlement to a discretionary appointment to a public position in the first instance. Nor does it limit the criteria which an appointing authority, exercising 23 discretion and evaluating institutional needs, may apply in the making of such initiatory appointments. RSSL §212 may permit the Board to certificate double- dipping judges: but the statute does not compel it to do so, or bar the exercise of its informed judgment to conclude that such appointments are not necessary for court operations. As Baker made clear, double-dipping, even where legal, is prone to negative connotations of abuse of the public fisc. 68 N.Y.2d at 341. The Third Department's conclusion that the Board is "preempted" from consideration of these connotations in making a discretionary appointment - that it cannot act upon its informed opinion that appointment of double-dippers negatively impact the court system in a manner outweighing the benefits of their service - misapprehends the power and duty of the Board under Marro. (Indeed, we believe it misunderstands the power of any appointing authority vested with discretion.) At bottom, the Third Department's fundamental error is its failure to appreciate Marro's holding that certification applicants have no property interest in the new, unawarded judicial position. 46 N.Y.2d at 682. Having no entitlement to the position itself, they likewise have no unwaivable right - constitutional, statutory, contractual, or otherwise - to the concurrent receipt of a pension and full salary predicated upon such appointment, where the appointing authority believes such receipt to be institutionally damaging. It is a commonplace that the 24 constitutional prohibition against impairment of pension benefits does not create a right to remain in public employment. See Cook v. City of Binghamton, 48 N.Y.2d 323, 332 (1979), citing Gorman v. City of New York, 280 App. Div. 39,45 (1st Dept.), affd, 304 N.Y. 865 (1952). It is also a well-established principle that pension rights may be voluntarily waived as a condition of service or employment. See, Schacht v. City of New York, 39 N.Y.2d 28 (1976) (union may waive pension rights of members in contractual agreement); Ballentine v. Koch, 89 N. Y .2d 51, 58 (1996) (same); AHR v. City of New York, 243 A.D.2d 293 (1st Dept. 1997) (same ). Consequently, as a matter of law and in the exercise of its discretion, the Board had the power both to eschew certification of double-dipping justices and to offer such justices the option of accepting certification by suspending receipt of such pensions.9 Applicants may either accept their constitutionally-compelled retirement and continue to receive their pension without interruption, or comply with the Board's directive and accept a new position: they have no right, statutory or otherwise, to do both. 9 This option was consistent with provisions of the Retirement and Social Security Law addressing the suspension of pensions of certificated justices. Cf. RSSL § 1 0 1 (c).! 25 4. The Third Department's Characterization of the Board's Directive as Creating a "Lesser Class" of Judicial Officer was Erroneous The Third Department's erroneous reading of Marro is further reflected in its finding that the policy "runs afoul of the statute inasmuch as it treats certificated justices differently and has effectively created two classes of justices ... " (130 A.D.3d 92; R 378). While its reasoning on this subject is not explicit, the Court appears to be making two distinct points. First, it suggests that the certification policy improperly distinguishes between two classes of certificated justices ("those who can receive either private retirement benefits or solely non-judicial public service benefits and those who are eligible for public service benefits but are not allowed to receive them"). Second, it concludes that the policy "make [ s] a certificated judgeship a lesser class of employment than a noncertificated judgeship" following appointment, in violation of Jud. L. § 115(3) (id.). Both conclusions are mistaken. Contrary to the Third Department's suggestion, the fact that the policy exclusively impacts judicial double-dippers is not an arbitrary or invidious result: it is a desirable and appropriate outcome. The Board's certification policy was narrowly directed at judicial double-dippers precisely because the Board believed that judges who retired from judicial service and returned to the bench several days later, performing identical services while earning substantially greater 26 compensation, posed a particularly egregious institutional problem for the court system (R 106-07). The policy was tailored to target that particular problem, in a manner that would not discourage other public and private retirees from seeking judicial office in the first instance. The decision to address that problem in this manner was eminently rational and within the Board's discretion. Similarly, the Third Department's finding that the certification policy violates Jud. L. § 115(3) conflates fundamentally distinct employment categories. Following appointment, certificated justices enjoy the same powers of judicial office, earn an identical salary, and possess identical rights of judicial office and rights of employment (other than those they have chosen to .waive) as all other Supreme Court justices. Yet as this Court made clear in Marro, they have no such rights as applicants for certification prior to appointment - and it is to certification applicants alone that the Board's policy applies. Simply stated, nothing in Judiciary Law § 115(3) addresses this pre-appointment period, or restricts the Board's ability to apply rational criteria as a condition of certification. 5. The Third Department's Understanding of the "Category of Necessity" of Certificated Justices was Erroneous. Finally, the June 2015 Order erroneously imposed upon the Board a narrow and restrictive test for certification assessment. Ironically, it did so by quoting a 27 phrase from Marro: that certification involved "a two-pronged determination - that there is a need for additional judicial manpower and [an] individual applicant [who] can meet this need at least in part" (130 A.D.3d at 93; R 379; quoting 46 N. Y.2d at 680). This Court employed this phrase in Marro as the starting point to highlight the slight detail contained in constitution and statute on certification matters - and as an indication of the correspondingly broad discretion left to the Board ("the very broadest authority for the exercise of responsible judgment") in fulfilling its appointment duties (46 N. Y .2d at 680-81). In contrast, the Third Department has employed it to reach precisely the opposite conclusion: that the Board's determination of whether services of an otherwise competent judicial officer are "necessary" is limited to general consideration of whether additional judicial services are needed in the court system, and may not include assessment of any other factor or broader concern of the Board relating to court operations. In curtailing the constitutional and statutory meaning of "necessary" in this fashion, the Third Department has turned Marro on its head: it has converted broad discretion into tight constraint, and eviscerated the Board's ability to exclude applicants based on an experienced and nuanced assessment of the needs of the court system. Cf., McCulloch v. Maryland, 17 U.S. 316,353-55 (1819) (Marshall, C.J.) (broadly construing use oftenn "necessary" in federal Constitution). 28 * * * In sum, the Appellate Division Order encroaches substantially on the scope of discretion of the Administrative Board in certification decisions. It undermines the Board's ability to formulate and publicly articulate appointment policies that reflect broad consideration of the needs of the court as a whole, and instead imposes a simplistic conception of court necessity. It presents an ill-conceived interpretation ofRSSL §212, creating from whole cloth a right that would bar consideration of double-dipping by those vested with authority to make discretionary public appointments. It applies a flawed and conclusory "class of employment" analysis of certificated justices. It arrogates to itself the policy judgment vested with the Board by constitution and statute. Most critically, it does this in disregard of, and in contradiction to, unequivocal principles clearly articulated by this Court in Marro more than three decades ago. For each of these reasons, we respectfully submit that the June 2015 Order should be reversed, and the action and proceeding should be dismissed. 29 CONCLUSION The June 20 IS Order of the Third Department should be reversed, and the action and proceeding should be dismi ssed. Dated: New York, New York March 2, 2016 Lee Alan Adlerstein John J. Sullivan Of Counsel JOHN W. McCONNELL Counsel Office of Court Administration 25 Beaver Street - 11 th Floor New York, New York 10004 Attorney for Defendant/Respondent- Appellant //74 ~ By: _~_ ___ -,--------,---:.,--------:-___ _ Lee Alan Adlerstein Deputy Counsel 30 STATE OF NEW YORK COURT OF APPEALS GERALD E. LOEHR, J. EMMETT MURPHY and WILLIAM MILLER, P lai nti ffs- Peti ti 0 ners-Responden ts, - against - THE ADMINISTRATIVE BOARD OF THE COURTS OF THE STATE OF NEW YORK, Defendant-Respondent-Appellant. STATE OF NEW YORK COUNTY OF NEW YORK Appellate Division Third Judicia l Department Docket No. 5 19568 Albany County Index No. 68 18-13 AFFIDAVIT OF SERVICE LEE ALAN ADLERSTElN, being duly sworn deposes and says that deponent is over the age of 18 years, is not a party to thi s appeal , and that on March 2, 2016, deponent served three copies of the Brief of Appe llant and Record on Appeal with a copy of thi s Affidavit of Service, by dispatching said papers via Federal Express, an overnight delivery service, by depositing the papers enclosed in a properly addressed wrapper into the custody of the Federal Express for overnight delivery, prior to the latest time designated by it for overn ight delivery. The wrapper was addressed as follows: Robert A. Spolzino, Esq. Wilson Elser Moskowitz Edelman & Dicker LLP 1133 Westchester Avenue Sworn to before me this 2"d day of March, 20 16 White Plains, New York 10604 ~ d~ HAYDEEMARRERO N P bl ' NOTARY PUBLIC. Stote of New York olary U IC NO.D1MA5D57882 Qualified in BrOlp~ Coun!y' x= Commission Expires x-l-aal Lee Alan Adlerstein