December 30, 1981
Subject:
Retirement; Judges, Receipt of Benefits While Serving as Federal Judge.
Requested By:
E. T. Barnes, Director Retirement and Health Benefits Division Department of State Treasurer
Question:
Does G.S. § 135-72, which denys retirement benefits to members or retired former members of the Uniform Judicial Retirement System of North Carolina who are appointed to serve as a justice, judge or magistrate in the United States Courts, apply to judges retired from the Uniform Judicial Retirement System and serving as judges in the United States Courts prior to the October 9, 1981, effective date of G.S. § 135-72?
Conclusion:
No.
On October 9, 1981, the General Assembly ratified Chapter 978 of the 1981 Session Laws. Section 7 of that bill enacted G.S. § 135-72 as a new section in Article 4 of Chapter 135 governing the Uniform Judicial Retirement System of North Carolina. That section reads in its entirety as follows:
"§ 135-72. Coordination of benefits. –(a) Members who are appointed to serve as a justice, judge or magistrate in the United States Courts shall not be eligible for benefits under this Article while actively serving as a justice, judge or magistrate in the United States Courts.
(b) Should a retired former member be appointed to serve as justice, judge or magistrate in the United States Courts or be in receipt of a retirement allowance from service as a justice, judge or magistrate in the United States Courts, his retirement allowance provided under the provisions of this Article shall be reduced so that the sum of his retirement allowance and the salary or retirement allowance from service as a justice, judge or magistrate in the United States Courts does not exceed the salary for the office last held by the retired member in the General Court of Justice of North Carolina. Provided, however, that under no circumstances will the retired member’s retirement allowance be reduced below the amount of his annuity resulting from his accumulated contributions."
The question asked is whether G.S. § 135-72 should be applied to two former North Carolina judges retired from the Uniform Judicial Retirement System of North Carolina and currently serving as judges of the United States Courts. The Honorable Sam J. Ervin, III, was appointed as a Circuit Judge with the United States Court of Appeals for the Fourth Circuit, where he is now serving, and retired effective July 1, 1980, from the Uniform Judicial Retirement System. The Honorable Richard C. Erwin was appointed to a position as Judge with the United States District Court for the Middle District of North Carolina and retired from his position as Judge of the North Carolina Court of Appeals effective January 1, 1981. Both these individuals thus had retired from their positions as judges with the North Carolina judicial system and from the Uniform Judicial Retirement System and consequently were in receipt of benefits from the Uniform Judicial Retirement System well before the effective date of G.S. § 135-72.
The language of G.S. § 135-72(a) applies to Uniform Judicial Retirement System members "who are appointed" as federal judges.
Those persons are not eligible for benefits under the Uniform Judicial Retirement System as long as they are actively serving as federal justices, judges or magistrates. Construing the language literally, this language would not apply to a judge already in receipt of benefits from the Uniform Judicial Retirement System and serving as a federal judge since such judges could not be viewed as "members who are appointed" while G.S. § 135-72 was in effect. They had been appointed prior to that date. Similarly, G.S. § 135-72(b) Uniform Judicial Retirement System "should a retired former member be appointed to serve as a justice, judge or magistrate in the United States courts. . . ." Again, a judge already retired from the Uniform Judicial Retirement System and serving as a judge of the United States District Court or the United States Court of Appeals does not fall within the language of one who would "be appointed" during the effective period of G.S. § 135-72 since he would have already been appointed prior to any statute reducing his benefits upon such appointment. Thus, the literal language of both G.S. § 135-72(a) and G.S. § 135-72(b) does not apply to persons who had already been retired from the Uniform the Uniform Judicial Retirement System and begun serving as a justice, judge or magistrate in the United States courts prior to the effective date of G.S. § 135072.
"Ordinarily, a statute will be given prospective effect only, and will not be construed to have retroactive effect unless such intent is clearly expressed or arises by necessary implication from its terms" 12 Strong’s North Carolina Index 3d, Statutes, § 8 (1978). "The application of a statute is deemed "retroactive" or "restrospective" when its operative effect is to alter the legal consequences of conduct or transactions completed prior to its enactment." Gardner v. Gardner, 300 N.C. 715, 718, 268 S.E.2d 468 (1980). To apply G.S. § 135-72 to judges who had already retired and were receiving benefits from the Uniform Judicial Retirement System while also actively serving as judges in the United States courts prior to enactment would be to alter the settled rights and obligations of the Retirement System and the retirees. Consequently, G.S. § 135-72 should not be applied to retirees of the Uniform Judicial Retirement System serving as judges in the United States court at the time that G.S. § 135-72 went into effect.
Rufus L. Edmisten Attorney General
Norma S. Harrell Assistant Attorney General