ALBANY – The state’s highest court will decide whether judges who are “certificated” to stay on the bench past age 70 should continue to receive state pensions for past judicial work—even as they draw a full salary as state Supreme Court justices.

The question before the Court of Appeals on March 21 has split two lower courts, with Acting Albany Supreme Court Justice Gerald Connolly ruling against the practice known as “double-dipping” and an Appellate Division, Third Department, ruling that the justices could collect pensions and salaries simultaneously (NYLJ, June 19, 2015).

In addition to the lead plaintiff, Rockland and Westchester county Supreme Court Justice Gerald Loehr, Westchester County Supreme Court Justice J. Emmett Murphy and Brooklyn Supreme Court Justice William Miller are also plaintiffs in Matter of Loehr v. Administrative Board of the Courts of the State of New York, 37.

Loehr and Miller were certificated in 2014, and Murphy was certificated in 2012. All three are entitled to hefty judicial pensions in addition to their $193,000-a-year salaries as Supreme Court justices.

According to court papers: Loehr is entitled to a $66,000 annual pension, Murphy to $91,309 and Miller to $89,000.

Attorney Robert Spolzino, a partner at Wilson Elser Moskowitz Edelman & Dicker in White Plains representing the plaintiffs, argues that what the septuagenarian judges seek has been mischaracterized in the press and by the public.

“‘Double-dipping’ is a misnomer,” Spolzino wrote in his brief. “A retired justice would be ‘double-dipping’ if he or she were being paid twice for the same work. But that is not what happens when a justice who is receiving retirement benefits is certificated.”

Each of the plaintiff justices are receiving benefits for services rendered, Spolzino wrote.

“What the administrative board’s new policy does, and should not be permitted to do, is to arbitrarily demonize a handful of retired justices and effectively prohibit them from receiving hard-earned retirement benefits, to which they are legally and constitutionally entitled, for the impermissible purpose of political appeasement,” said Spolzino, who is himself a former Supreme Court and Appellate Division, Second Department, justice.

The Office of Court Administration, in defense of the administrative board’s action, say that withholding judicial pensions for judges who remain on the bench is “eminently proper” under the state constitution, state statutes and court precedents, particularly Marro v. Bartlett, 46 NY2d 674 (1979).

“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,” the OCA’s brief said. “They have no right, statutory or otherwise, to do both.”

The courts acknowledged that the administrative board adopted its policy after Gov. Andrew Cuomo publicly criticized the courts for allowing judges to stay on the bench through certification while collecting judicial pensions.

Not responding to the governor’s criticism in the way the board did must be seen in the judiciary’s place as a co-equal branch of government, one which needs to have the executive and Legislature acquiesce in the courts’ funding and public policy initiatives, the OCA contended.

“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,” the OCA wrote.

Lee Alan Adlerstein, deputy Office of Court Administration counsel, will argue for the administrative board of the courts on March 21.

The administrative board of the courts is named as the defendant because the board, composed of the chief judge and the presiding justices of the four departments of the Appellate Division, adopted the salary restrictions on certificated justices in October 2013. Specifically, the administrative board said it would not approve any justices for certification unless they agreed not to accept their pensions if they continued with their Supreme Court jobs.

All judges must step down at the end of the year in which they turn 76, after a maximum of three, two-year terms of certification.

Those justices serving past 70 must pass medical approvals that they are capable physically and mentally of pulling their weight on the bench compared with their younger colleagues. A point of emphasis by new Chief Judge Janet DiFiore was that the judges past age 70 approved for extended terms beginning this year had been sufficiently productive in handling the workload of a full-time justice (NYLJ, Dec. 2).