Connolly v. Division of Public Employee Retirement Administration
Connolly v. Division of Public Employee Retirement Administration
Opinion of the Court
The question before us is whether a judge who, pursuant to the mandate of art. 98 of the Amendments to the Constitution of the Commonwealth, was retired in June, 1976, when he attained the age of seventy, is entitled to the benefits of a 1987 change in the judicial pension law. See St. 1987, c. 697, § 100, amending G. L. c. 32, § 65C, effective January 12, 1988, pursuant to an emergency preamble. We conclude that he is not. The case is here on a reser
Judge Connolly was appointed presiding justice of the Second District Court of Eastern Middlesex County in December, 1952. He became an associate justice of the Superior Court in October, 1970. In June, 1976, on attaining the age of seventy, he was retired as required by the Constitution of the Commonwealth. At that time the judge elected the spousal survivor option available under G. L. c. 32, § 65C, as then amended, by which he would receive a reduced pension and his wife, Mary, would receive two-thirds of that lesser amount for life, if she should survive him. His salary at retirement was approximately $36,000, and his annual pension was $19,000 based on his election of the spousal survivor option. Mary Connolly died in 1985. Judge Connolly served as a recall justice from June, 1979, to June, 1990.
When, in 1976, Judge Connolly made his election under G. L. c. 32, § 65 C, that section then provided, as it still does, that a judge’s election must be filed at the time of his retirement or within thirty days thereafter. Section 65C further provided that, as a result of Judge Connolly’s election, the actuarial equivalent of the value of his full pension was made available by providing him with a lesser pension for life with the right in his wife Mary to receive two-thirds of that lesser pension, if she should survive him.
The 1987 amendment to G. L. c. 32, § 65C, added a provision that, if after electing the spousal survivor option on retirement, a judge’s then spouse were to die first, the judge should receive “a full retirement allowance.”
Judge Connolly argues that, although he retired and made his election before the 1987 amendment became effective, he is entitled to the “pop-up.” His principal contention is that he is, within the words of § 65C, a judge “who is retired,” and hence he, who elected the surviving spouse option years before, automatically qualifies for the “pop-up.” This-argument fails because the reference to a judge “who is retired” is not to a judge who is in retirement but rather to a judge at that moment when he or she is retired by operation of the constitutional mandate. Section 65C itself refers to such a judge as one who “was retired,” not as one who retired. See G. L. c. 32, § 65C, fourth par. Other provisions in adjacent sections of G. L. c. 32 that use the word “retired” in reference to a judge make it clear that the reference is to a judge whose retirement was constitutionally forced. See G. L. c. 32, §§ 65A, first and third pars., 65B, first and second pars., 65D (c) (1) and (e) (1990 ed.). See also St. 1973, c. 1211, § 5. Each of these adjacent sections (§§ 65A, 65B, 65C, and 65D) appears in St. 1973, c. 1211, § 3, using the verb retired in a passive form. A word used in one part of a statute in a definite sense should be given the same meaning
The reduced pension payable to Judge Connolly when he made his election was calculated differently from the pension payable under § 65C with its new “pop-up.” The absence of any legislative instruction as to what to do about this discrepancy, if the 1987 amendment were to apply to a judge in the position of Judge Connolly, supports the view that the “pop-up” was not intended to be available except to any judge who should be retired or should retire after the effective date of the 1987 amendment or within thirty days prior thereto.
The judge relies on the fact that for two other “pop-up” provisions inserted by the 1987 act (see St. 1987, c. 697, § 42, amending G. L. c. 32, § 12 [2] [c], and § 99, amending G. L. c. 32, § 58B), but not for the § 65C “pop-up” inserted by § 100, the Legislature expressly provided in § 135 of the act that the “pop-up” benefits would be available only pursuant to “applications for such benefits . . . made on or after the effective date of this act.” St. 1987, c. 697, § 135.
Finally, we see no merit to the judge’s argument that, because he was serving on recall when the judicial “pop-up” provision was enacted, he is entitled to the benefit of the “pop-up.” While he was on recall, the judge’s pension was waived (see G. L. c. 32, § 90B [1990 ed.]; G. L. c. 211B, § 14 [c] [1990 ed.]), and he received a salary and benefits equal to those of a Superior Court judge (id.), except with respect to pension rights and obligations.
Our opinion should not be viewed as an endorsement of a pension system that leaves Judge Connolly after a long and distinguished judicial career with a pension ravaged by inflation. Summary judgment should be entered for the defendants declaring that the Honorable Paul K. Connolly is not entitled to the pension benefits provided in G. L. c. 32, § 65C, as amended by St. 1987, c. 697, § 100, but that he is entitled to the pension benefits that were available and were elected by him when he was retired by constitutional mandate.
So ordered.
“The first sentence of § 65C now reads as follows (with the words added by the 1987 amendment in italics and those added by St. 1992, c. 133, § 359 in brackets): “A chief justice, justice, associate justice, judge, associate judge, or special justice, hereinafter in this section called judge, who is retired or who resigns and who is entitled to a pension or retirement allowance for life under the provisions of section sixty-five A, sixty-five B [,] sixty-five D [,sixty-five F, or sixty-five I] may elect to receive, in lieu thereof, a pension or retirement allowance for life at a lesser annual rate with provision that upon his death, leaving as a survivor a surviving spouse who was his spouse at the time of his retirement or resignation, two-thirds
As an emergency law, the act was effective on its approval. See art. 48, The Referendum, II, as amended by art. 67, of the Amendments of the Constitution of the Commonwealth.
■•Section 65C does not refer to or provide for applications for benefits as § 135 does. Nor do G. L. c. 32, §§ 65A, 65B, and 65D (1990 ed.). Judges are retired or retire without having to make applications for benefits. By contrast, the early retirement provision for judges in St. 1992, c. 133, § 34, specifically requires a judge seeking early retirement to apply for a pension.
Revisions to G. L. c. 21 IB, § 14 (c), and G. L. c. 32, § 65G (c), made by St. 1992, c. 133, § 552, changed this arrangement in a way that is not important to our analysis.
This case does not present any claim of right based on G. L. c. 32, § 65D>/2 (1990 ed.).
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