Cohen v. Goldstein

• Decision Date: 04 May 1984
• Docket Number: No. 561,561
• Citation: 58 Md.App. 699,474 A.2d 229
• Parties: Louis H. COHEN v. Louis L. GOLDSTEIN, et al. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 699

58 Md.App. 699

474 A.2d 229

Louis H. COHEN v. Louis L. GOLDSTEIN, et al.

No. 561 Sept. Term 1983.

Court of Special Appeals of Maryland.

May 4, 1984.

Joseph J. D'Erasmo, Rockville, for appellant.

Carol S. Sugar, Asst. Atty. Gen., with whom was Stephen H. Sachs, Atty. Gen., on the brief, for appellees.

Argued before WILNER, GARRITY and BLOOM, JJ.

WILNER, Judge.

The question presented by this appeal is whether a full-time master in chancery may earn credit in the judicial pension plan for continued employment as a master after his seventieth birthday. This question is of particular importance to appellant, Louis H. Cohen, for, if he is able to earn service credit in the plan for the six months between his seventieth birthday on January 14, 1982, and his actual retirement on July 14, 1982, he will be entitled not only to that six months but, by virtue of Md.Code Ann. art. 65, § 88, to an additional three years and eight months by reason of active military service during World War II.

Unfortunately for Mr. Cohen, we do not believe that he is entitled to earn credit in the plan beyond his seventieth birthday, and we shall therefore affirm the judgment of the Circuit Court for Montgomery County to that effect.

The Facts

The underlying facts are simple and largely undisputed. Appellant was appointed by the judges of the Circuit Court for Montgomery County as a full-time domestic relations master on June 27, 1972. He was then sixty years and five months of age.

At the time, as we shall see, full-time masters were eligible to join either the retirement system operated by the county in which they served or, with the county's consent, the State Employees' Retirement System (SERS). The record does not indicate whether appellant joined either the Montgomery County retirement plan or SERS. As of July 1, 1975, by act of the General Assembly, full-time masters were required to join the contributory pension plan for judges (Md.Code Ann. art. 73B, §§ 55-57), and appellant, consequently, became a member of that plan as of then. As permitted by the law (§ 57(o)), appellant purchased retroactive credit in the judicial pension plan for his three years of service from his appointment in June, 1972, to July 1, 1975.

No doubt aware that he would be some five months shy of ten years of creditable service in the plan upon reaching his seventieth birthday, and would thus be ineligible as of then for the military service credit available under art. 65, § 88, shortly before reaching seventy, appellant contacted an assistant attorney general to inquire as to whether he could continue to contribute and earn credit in the plan after his seventieth birthday. By virtue of a "grandfather" clause in an order of the Court of Appeals dated October 1, 1980, he assumed that he had the right to continue his employment as a master beyond age seventy. He was advised, however, that despite his apparent ability to continue serving as a master, once he reached age seventy he could no longer contribute to or earn service credit in the judicial pension plan.

Notwithstanding that advice, appellant, with the concurrence of the judges of the Circuit Court, continued in his employment until July 14, 1982, and, for reasons not entirely clear considering the advice given by the Attorney General, contributions to the plan continued to be deducted automatically from his paychecks. On April 1, 1982, he formally applied for three years, eight months, fourteen days of military service credit, claiming by virtue of actual service and accumulated unused sick leave the ten years of creditable service required by art. 65, § 88. This request was renewed upon his actual retirement, at which point he claimed an entitlement to fourteen years, two months of creditable service (ten years, nine days actual service, three years, eight months, fourteen days military service, and five months accumulated sick leave). The trustees of the pension system rejected that claim, and calculated his credit as of his seventieth birthday. That gave him nine years and seven months of creditable service.

Aggrieved, appellant filed an action in the Circuit Court for Montgomery County seeking a declaratory judgment that he was entitled to the fourteen years, two months of credit claimed by him. The court declared otherwise, however, and thus we have this appeal. The defendants below and appellees here are the appropriate officials of the judicial pension plan.

The Dispute

Appellant's argument is simple and direct. There is nothing in the law, says he, that required him to retire at age seventy. He is not subject to the constitutional provision (Md. Constitution, art. IV, § 3) requiring judges to retire at age seventy, because for constitutional purposes he is not a judge. Although the pension law (art. 73B, § 55(m)) defines "termination of service" for pension purposes, it does not of itself require a member to retire at any particular time, and certainly not at age seventy. And, he notes, while the Court of Appeals, by order of October 1, 1980, directed that masters retire at age seventy, that order exempted persons then serving as masters, and therefore did not apply to him. The only limitation on his right to continue contributions to the judicial pension plan is expressed in § 57 of art. 73B, namely, that a member shall contribute for sixteen years but not thereafter. The sum and substance of his argument, then, is that he was entitled to continue making contributions, and thus to earn additional credit in the plan until he either ceased active service as a master or made contributions for sixteen years.

Appellees' response, which was accepted by the Circuit Court, is that the obligation of a master to retire at age seventy is at least implicit in the law--that the General Assembly never intended when it placed masters in the judicial pension plan for masters to have greater rights therein than judges. Consistent with that approach, appellees view the provision in § 57(b)(1) of art. 73B that a judge shall contribute to the fund "until he has served as a judge for 16 years" and "shall make no contributions thereafter" not as an entitlement to contribute for up to sixteen years, even after reaching seventy, but rather as a cut-off of contributions when the sixteen years is attained prior to reaching seventy.

We believe that response to be a correct one; but to understand why it is correct, we need to examine in some detail the legislative history of the three statutes--the judicial pension law, the "military credit" law, and the law placing masters in the judicial pension--that are involved here.

Discussion

Masters in chancery, such as appellant, were and still are appointed by the judges of the respective circuit courts. (Md.Code Ann. Cts. & Jud.Pr. art., § 2-501; Md.Rule 596.) They are not, and never have been, State employees. They are not paid by the State, and other than their formerly optional ability to join SERS and their current inclusion in the judicial pension plan, they receive no direct benefits from the State. They are "at will" appointees of the circuit court and receive their compensation from either the fees they are permitted to charge or through the local government budget.

Prior to 1969, judges of the circuit and appellate courts belonged to a non-contributory retirement plan. After "the termination of active service" and upon reaching the age of sixty, such a judge was entitled to an annual retirement benefit equal to a fixed sum ($750 for circuit court judges, $800 for Court of Special Appeals judges, $850 for Court of Appeals judges) times the number of years, up to sixteen, of active service as a judge.

In 1969, the Legislature adopted a new, contributory judicial pension plan which all judges appointed after June 30, 1969 had to join. Judges then in office could elect to join the new plan or to remain in the old one. The new plan required each judge to contribute an amount equal to six percent of his annual compensation, apparently for as long as he remained in active service as a judge. There was no provision in the 1969 enactment authorizing the cessation of contributions after sixteen, or any other number of, years. Upon "termination of active service" and upon reaching age sixty, the judge was entitled to receive "an amount equal to sixty per centum of his maximum salary or one-sixteenth ( 1/16) of that amount for each year of service if he served for less than sixteen years." See 1969 Md.Laws, ch. 612, adding § 49I to Md.Code Ann. art. 26 (1966 Repl.Vol. and 1968 Suppl.).

The ink was hardly dry on this new plan before the Legislature began tinkering with it. In 1970, among other things, it corrected the open-endedness of the required contributions to the plan by providing that "[i]n no event shall any judge make the contributions provided for by this subsection [i.e., § 49(i)(4) ] for more than sixteen years." 1970 Md.Laws, ch. 459. In 1971, it provided for cost-of-living adjustments to benefits under all of the State retirement systems, including the judicial pension plan. 1971 Md.Laws, ch. 424. In 1972, it permitted judges otherwise eligible, upon retirement, to draw benefits from both the judicial and the State employees' retirement systems. 1972 Md.Laws, ch. 382. In 1973, it exempted retired judges who were seventy years or older and who drew pensions of $3,500 or less from the ban on practicing law while receiving the pension. ¹

Finally, in 1974, in response to a recommendation included in the February 1974 Interim Report of the Commission on Judicial Reform, the Legislature rewrote the judicial pension law. It kept in existence the pre-1969 non-contributory plan and permitted those judges who were members of it to remain so at their option, but the thrust of the new law was to improve the contributory plan sufficiently to encourage judges in the old plan to switch to the new one. See Interim Report, pp. 30-37. To that...