Judge Challenges Board's Rule on Double-Dipping

, New York Law Journal

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ALBANY - Faced with a lawsuit challenging its authority to deny post-retirement job extensions to judges drawing both salaries and pensions, state court officials have agreed to not interfere with a Westchester County judge's bid to remain on the bench while his case is pending.

In an agreement dated Dec. 20, attorneys for the Office of Court Administration and Supreme Court Justice Gerald Loehr (See Profile) stipulated that the judge's request for an extension would not be affected by the fact that he is currently drawing the full salary of a Supreme Court justice, $167,000, as well as a $66,576-a-year pension from his prior service as an assistant district attorney, administrative hearing officer and Westchester County judge.

The Administrative Board of the Courts announced in October that it would not approve term extensions for 'double dipping" Supreme Court justices unless the applicant agreed to defer his or her pension benefits.

But the new rule affects only a handful of judges who have reached the mandatory retirement age of 70 and need OCA approval to continue in office. It does not affect several other double-dipping Supreme Court justices who have yet to age out and whose continued service is not subject to OCA approval.

Loehr, who turned 70 in May, applied for certification to remain on the bench for another two years. But after he was informed by the court system that approval is contingent on foregoing his pension, Loehr brought a suit against the Administrative Board, a policymaking body comprised of Chief Judge Jonathan Lippman (See Profile) and the presiding justices of the four Appellate Division departments.

In his lawsuit, Loehr alleges the Administrative Board's policy is illegal and unconstitutional. In sum, he argues that the Administrative Board has no right to add conditions to certification that are not already included in the law.

Loehr's attorney, Robert Spolzino, a former justice of the Appellate Division, Second Department who is now with Wilson, Elser, Moskowitz, Edelman & Dicker, argues that the Judiciary Law and state Constitution establishes only two criteria for certification, the mental and physical fitness of the applicant and the court system's needs. Supreme Court justices who meet those qualifications can be certified to remain on the bench for up to three additional two-year terms, but need OCA approval before each extension.

"Nothing in Judiciary Law §115 requires that a retired justice not be receiving retirement benefits for judicial service in the Unified Court System in order to be certificated," Spolzino contends in Loehr v. Administrative Board of the Courts, 6818-13. "The Administrative Board has no authority to amend Judiciary Law §115, or to add to the terms it has established for certification."

In a stipulation, OCA agreed to consider Loehr's application for certification without reference to the new policy. Loehr agreed that if he ultimately loses the lawsuit he will either resign from any extended position or defer pension benefits while serving in a certificated capacity.

"This is a reasonable compromise while this matter is being resolved by the courts," said David Bookstaver, spokesman for the Office of Court Administration.

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