This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 37
In the Matter of Gerald E. Loehr
et al.,
            Respondents,
        v.
Administrative Board of the
Courts of the State of New York,
            Appellant.




          Lee Alan Adlerstein, for appellant.
          Robert A. Spolzino, for respondents.



PER CURIAM:
          Plaintiffs are three retired Supreme Court Justices
certified for further service on that bench.1    Prior to their
certification, the Chief Administrative Judge signed an
administrative notice declaring that the policy of the
Administrative Board of the Courts of the State of New York

1
  The New York Constitution refers to "certificated" judges (art
VI, § 25 [b]). Subsequent statutes refer to "certified" judges
(Judiciary Law § 115; Retirement and Social Security Law § 101
[c]). We follow those statutes’ usage without meaning to
distinguish the two terms.

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                                 - 2 -                       No. 37

henceforth would be that "no judge . . . 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."   Plaintiffs seek a declaration that
the policy is illegal and unconstitutional.   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.
                                  I.
          Justice Gerald Loehr served first as a Judge of the
Westchester County Court, and in 2012 was elected to a 14-year
term as a Supreme Court Justice, to commence on January 1, 2013.
On December 31, 2012, Justice Loehr retired, began receiving
retirement benefits, and simultaneously drew the salary to which
he was entitled as a Supreme Court Justice.   In anticipation of
turning 70 on May 19, 2013, Justice Loehr applied to the
Administrative Board for certification pursuant to Judiciary Law
§ 115.   Without that certification, he would have been prohibited
from serving as a Supreme Court Justice after December 31, 2013.
          Justice J. Emmett Murphy served as a full-time judge
from 1980 to 2011.   He became a Judge of the Westchester County
Court in 1991, and was elected to Supreme Court in 1996.    In


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2010, Justice Murphy was reelected as a Supreme Court Justice
with a term commencing on January 1, 2011.   On December 31, 2010,
Justice Murphy retired, and began receiving retirement benefits
thereafter.   Justice Murphy turned 70 on March 12, 2011, and in
that same month applied to the Administrative Board for his first
certificate pursuant to Judiciary Law § 115.   Without that
certification, he would have been prohibited from serving as a
Supreme Court Justice after December 31, 2011.   Because judges
may be certified only for a two-year term, Justice Murphy applied
to be recertified in 2013.
            Justice William Miller joined the Unified Court System
in 1983 when he was appointed, after service in the Kings County
District Attorney's office, to the Criminal Court of the City of
New York.   In 2012, he was elected to Supreme Court for a 14-year
term commencing January 1, 2013.   Prior to taking that office,
and on the advice of the pension director for the Office of Court
Administration, Justice Miller applied for and was granted
retirement benefits.   Because he would reach age 70 in 2013,
Justice Miller also applied to the Administrative Board to be
certified to perform the duties and draw the salary of a Supreme
Court Justice for the two years commencing January 1, 2014.
Without that certification, he would have been prohibited from
service as a Supreme Court Justice after December 31, 2013.
            While plaintiffs' applications were pending, the Board
released the administrative order at issue, giving notice that it


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would no longer certify applicants who would, on reappointment,
choose to receive both a retirement allowance for prior judicial
service and their salary as a certified justice.   The Board's
order was grounded in its belief that judges who simultaneously
drew both a full judicial salary and a full pension (colloquially
called "double-dipping") adversely affected both the public's
impression of the court system and the court system's
negotiations with the other branches over crucial budgetary and
personnel matters.   A subsequent memorandum from the Office of
the Chief Administrative Judge clarified that retired Justices
otherwise approved for certification would be certified only if
they deferred receipt of their New York State pensions until
their judicial service ended.
           Plaintiffs commenced this hybrid CPLR article 78
proceeding and declaratory judgment action seeking an order
declaring the Board's policy illegal and unconstitutional,
directing the Board to certify them, and awarding money damages,
plus attorney's fees and litigation expenses incidental to the
relief.2   Supreme Court dismissed the petition for failure to
state a claim and declared the Board's policy to be neither
illegal nor unconstitutional.   Plaintiffs appealed to the



2
  It is undisputed that plaintiffs would have been certified but
for the policy announced in the administrative order. With the
Board's agreement, they have continued to serve as Supreme Court
Justices and receive both their full salaries and pensions during
the pendency of this lawsuit.

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Appellate Division, which reversed, granted the petition, and
declared that the Board's administrative order violated the New
York Constitution, the Judiciary Law, and the Retirement and
Social Security Law (130 AD3d 89 [3d Dept 2015]).   The Board then
filed a notice of appeal as of right to this Court under CPLR
5601 (b) (1).
                               II.
          We start with the basic proposition that New York's
public policy strongly disfavors the receipt of state pensions by
persons also receiving state salaries.   Section 150 of the Civil
Service Law establishes New York's general public policy against
the simultaneous receipt of a state pension and a state salary:
          "Except as otherwise provided by sections one
          hundred one, two hundred eleven, and two
          hundred twelve of the retirement and social
          security law . . . if any person subsequent
          to his or her retirement from the civil
          service of the state . . . shall accept any
          office, position or employment in the civil
          service of the state . . . to which any
          salary or emolument is attached . . . any
          pension or annuity awarded or allotted to him
          or her upon retirement, and payable by the
          state . . . or out of any fund established by
          or pursuant to law, shall be suspended during
          such service or employment and while such
          person is receiving any salary or emolument
          therefor except reimbursement for traveling
          expenses."
          Indeed, as we explained in Baker v Regan, the
"Legislature has for [nearly] a . . . 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


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service of the State" (68 NY2d 335, 341 [1986]).    Moreover, we
emphasized that "[a]lthough 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"
(id.).
            That "overriding state policy" is repeatedly restated
in the Retirement and Social Security Law.    Section 101 (a)
provides:
            "If a retired member, receiving a retirement
            allowance for other than physical disability,
            returns to active public service, except as
            otherwise provided in this section or section
            two hundred eleven or two hundred twelve of
            this chapter, and is eligible for membership
            in the retirement system, he thereupon shall
            become a member and his retirement allowance
            shall cease."
            Section 101 (b) further provides, as to temporary state
employees: "The payment of any retirement allowance . . . on
account of retirement for other than physical disability shall be
suspended as provided herein, during the time that the
beneficiary thereof is in receipt of other compensation paid from
direct or indirect state or municipal taxes."
            Section 101 (c) expresses that same public policy
specifically as regards certified Supreme Court Justices,
stating:
            "In the event that a judge or justice shall


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          . . . [h]ave retired and is receiving a
          retirement allowance from this retirement
          system, or another retirement system of which
          he [or she] was a member, and . . . [b]e
          certified for service as a justice of the
          supreme court pursuant to section one hundred
          fourteen or one hundred fifteen of the
          judiciary law, his [or her] retirement
          allowance shall cease" (emphasis supplied).3
          Section 211 of the Retirement and Social Security Law
expresses the same general prohibition, but provides exemptions
allowing retirees to collect their full pensions and at least a
partial salary in two basic situations: (a) when the retiree's
total income, including her retirement allowance and salary, is
not more than $500 above the greater of (1) her annual unadjusted
retirement allowance or (2) the salary on which her retirement
allowance is based or her final salary, whichever is greater; or
(b) the position in which she is employed is not a position in
the service of a former employer.4    Section 211 (3) also provides


3
  The parties briefly discuss section 101 (c), which by its terms
"shall be controlling notwithstanding any other provision of this
chapter." However, no party has asked us to determine whether
section 101 (c) and/or section 211 take precedence over section
212, and absent any developed argument regarding the
interpretation and reconciliation of those sections, we consider
section 101 (c) only as part of the legislative expression of the
public policy of the State concerning simultaneous receipt of
state retirement benefits and a state salary.
4
  By way of example, section 211's first exemption would cover a
person who retired from a high-paying position and is
subsequently reemployed in a lower-paying position by the same
employer, allowing such a person to earn a combination of pension
and (lower-paying) salary up to a maximum of the salary paid to
persons in the employee's former (higher-paying) position. Its
second exemption covers retirees who are subsequently employed by
a new employer (e.g., a retired police detective who is

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a catch-all in case its limits are violated: "If a retired person
employed under this section earns in such employment in any
calendar year an amount in excess of the maximum earnings allowed
under subdivision one of this section, his [or her] retirement
allowance and supplemental retirement payments shall be suspended
until the total amount so suspended equals the amount of such
excess."
                               III.
           Keeping in mind New York's general public policy
concerning the simultaneous receipt of a state pension and a
state salary, we consider the action of the Board.
           The New York Constitution requires various judges,
including Supreme Court Justices and Court of Appeals Judges to
"retire on the last day of December in the year in which he or
she reaches the age of seventy" (NY Const, art VI, § 25 [b]).
The sole exception to that mandate is that a retired Court of
Appeals Judge or Supreme Court Justice may, for no more than six
years thereafter, perform the duties of a Supreme Court Justice
if certified "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" (id.).     The
legislature has vested the Board -- composed of the Chief Judge
and the four Presiding Justices of the Appellate Division -- with


subsequently hired as a school security officer).

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the power to determine whether those two criteria are met and, if
so, whether to certify former Justices for service (Judiciary Law
§ 115).   Under the Judiciary Law, "[a] retired justice so
certified shall for all purposes, including powers, duties,
salary, status and rights, be a justice of the supreme Court"
(Judiciary Law § 115 [3]).
           The Board enjoys "the very broadest authority for the
exercise of responsible judgment" and "very nearly unfettered
discretion in determining whether to grant applications of former
Judges for certification" (Matter of Marro v Bartlett, 46 NY2d
674, 681-682 [1979]).   Provided it complies with the two criteria
set forth in the Constitution, and absent proof that its
determination violates statutory prescriptions or promotes a
constitutionally impermissible purpose, the Board's authority is
not subject to judicial review (id. at 679).
           In the case before us, we are asked to determine
whether the Board exercised its discretion within the framework
provided by the Constitution.   As in Marro (id. at 680), the
mental and physical abilities of the Justices are not at issue.
Rather, the issue presented is whether the Board's policy is
rationally related to whether certification is "necessary to
expedite the business of the court."5   We hold that it is.


5
  Because the Board argues, and we agree, that its decision was
an appropriate application of the two constitutional
requirements, we do not decide here whether those requirements
establish sufficient conditions for certification or only a

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          Whether the services of a particular Justice are
"necessary to expedite the business of the court" encompasses
much more than a mechanical inquiry into the size of the courts'
docket divided by the number of Justices.   Viewed in isolation,
the services of an additional mentally and physically able
Justice will always expedite the business of the courts.   Were
the inquiry merely mechanical, the Board would need no broad,
largely unreviewable discretion.   But the impact of any
certification, as the Constitution's use of the word "necessary"
implies, must be determined with the costs -- including non-
monetary costs -- of that certification in mind.   The
Constitution and the Judiciary Law entrusted this determination
to "the integrity and collective wisdom of a carefully selected,
high level certifying authority endowed with peculiar experience
and expertise" (Marro, 46 NY2d at 682), rather than to
functionaries responsible for the court's docket or budget, for
precisely that reason.
          Here, the Board concluded that the net effect of
certifying pensioners – taking into account their potential
future contributions as certified Justices – would be detrimental
to the creation of new judgeships and thereby hamper rather than
expedite the business of the courts.   The Board also calculated
that the cost of certifying pensioners included not only the



necessary floor above which the Board may choose to add
additional requirements.

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narrow matter of annual pay, but also the impact of "double-
dipping" on the courts' public prestige and other private
negotiations.    On that appropriate basis, it decided that the
services of plaintiffs and other retired Justices, as well as
retired Judges of the Court of Appeals, who would not agree to
defer their pensions would, on balance, detrimentally impact the
court system and were not necessary to expedite its business.
            The facts here differ from those in Marro insofar as
the Board chose to announce a prospective rule rather than issue,
as plaintiffs concede it could have, inscrutable applicant-by-
applicant determinations.    However, we see no reason to curtail
the Board's power because it opted to reveal and explain its
rationale in the interest of providing those aspiring to
certification with the opportunity to make an informed choice.
Marro excused the Board from promulgating its certification
criteria (id. at 681), but did not bar or discourage it from
doing so.
                                IV.
            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.    Plaintiffs' reliance on section 212 in
support of their claim that the Board has exceeded its authority




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                               - 12 -                        No. 37

is misplaced.6
          Section 212 provides:
          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."
          Plaintiffs interpret section 212 to allow all
pensioners over the age of 65 –- including certified Justices –-
the option of receiving an undiminished pension alongside a full
salary.   Even under that interpretation, the Board did not act in
contravention of that section.
          As an initial matter, our holding in Marro is clear
that a former Justice has no right to be certified at all.
Because the certification process inaugurates a new designation
to judicial office after a complete break from service (rather
than permitting a Justice to continue in a position from which he
was retired by constitutional mandate), Justices have no right to
certification upon which the Board's determination could impinge
(id. at 682).    That is, former Justices have no right to new
employment via certification and, therefore, they have no right


6
  We express no view on the Appellate Division's footnoted
statement that "section 101 has been effectively superceded by
Retirement and Social Security Law § 212." That issue was not
raised by the parties either here or in the Appellate Division.

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to receive the salary associated with that position and
simultaneously draw a retirement allowance.    Plaintiffs' decision
to opt into section 212 of the Retirement and Social Security Law
-- which applies to retirees of all ages throughout New York
State and was not intended to disturb a constitutional scheme
narrowly tailored to retired Justices between the ages of 70 and
76 -- did nothing to upset that holding or to create a new
entitlement.
            Section 212 is one of the limited exceptions discussed
in Baker.   That exception, which the legislature enacted to
benefit "low income pensioners" (Bill Jacket, L 1964, ch 803),
provides retired persons the option of drawing, and their
prospective public employers the option of providing, a limited
amount of earnings in excess of the already-provided pension.
"May," however, is a "term of enablement but not of entitlement"
(Marro, 46 NY2d at 680).   The choice of verb and the elective
nature of the section 212 scheme defeat plaintiffs' suggestion
that RSSL § 212 reduces the Board's broad discretion to act in
the best interest of the courts and instead requires it to
certify otherwise-qualified former Justices who opt into that
section's provisions.
            Plaintiffs' remaining arguments, that the Board's
policy violates Judiciary Law § 115 (3) by creating two classes
of Justices and impairs plaintiffs' pension benefits in violation
of article V, § 7 of the New York Constitution, fail.    Because


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former Justices have no right to certification or to receive a
pension alongside a full salary and are, under the Board's
policy, able to choose to continue as a retired Justice with a
full pension or, if they prefer, to suspend their pension and
seek certification, the Board's order runs afoul of neither
Judiciary Law § 115 (3) nor article V, § 7.7           Plaintiffs' final
argument, that the order constitutes an administrative policy for
general application and so could not have been issued by the
Chief Administrative Judge absent prior approval of this Court
under article VI, § 28 (c) of our Constitution and Judiciary Law
§ 211 (a) (1) was not preserved for our review.
            Accordingly, the order of the Appellate Division should
be reversed, without costs, and the judgment of Supreme Court
reinstated.
*   *   *     *   *   *   *   *     *      *   *   *     *   *   *   *     *
Order reversed, without costs, and judgment of Supreme Court,
Albany County, reinstated. Opinion Per Curiam.    Judges Rivera,
Stein, Fahey, Garcia and Wilson concur. Chief Judge DiFiore took
no part.

Decided May 4, 2017




7
  Donner v New York City Employees' Retirement Sys. (33 NY2d 413
[1974]), on which plaintiffs rely, is inapposite. Here, unlike
in Donner, there is a constitutional bar to employment after age
70, after which the Constitution and Judiciary Law § 115 vest the
Board with extremely broad discretion to evaluate the expedition
of the courts' business in deciding whether to certify judges.

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