Courts; Judges; Crediting of Purchased Military Service Time

Subject:

Requested By: Bert M. Montague, Director Administrative Office of the Courts

Question: Does military time for which credit has been purchased in the Uniform Judicial Retirement System count towards the fifteen years of creditable service required under G.S. § 7A-52 for service as an emergency judge?

Conclusion: Yes.

Under G.S. § 7A-52(a) a retired district of superior court judge who has not reached mandatory retirement age, but who has retired under the Uniform Judicial Retirement Act after completing fifteen years of creditable service, may apply to become an emergency judge of the court from which he retired. G.S. § 7A-53 provides for the application to be made to the Governor. If the Governor is satisfied that the retired judge qualifies under G.S. § 7A-52(a) to serve as an emergency judge, he must issue a commission as an emergency judge to the retired judge. An emergency judge, commissioned by the Governor, may be assigned to hold court in the court from which he retired by the Chief Justice of the Supreme Court. G.S. § 7A-52(a).

The question has been asked as to what service constitutes creditable service for the purpose of having completed fifteen years of creditable service in order to be eligible for appointment for which credit was purchased in the Uniform Judicial Retirement System be counted towards the fifteen years of creditable service? Since the requirement of fifteen years of creditable service is for judges who have retired under the Uniform Judicial Retirement Act, and since creditable service is a term peculiar to retirement systems, the provisions of the Uniform Judicial Retirement Act must be examined to answer this question.

The Uniform Judicial Retirement Act was enacted in 1973 and is codified as Article 4 of the Chapter 135 of the General Statutes. G.S. § 135-53(6) defines "creditable service" as the total of a member’s prior service and his membership service. "Membership service" is defined in G.S. § 153-53(12) as "service as a judge rendered while a member of the Retirement System." "Prior service" is defined in G.S. § 135-53(14) to be "service rendered by a member, prior to his membership in the Retirement System, for which credit is allowable under G.S. § 136-106 (now

G.S. § 135-56)." None of these provisions appears to include military service time. However, creditable service has been expanded. For example, certain additional service was defined as creditable service in G.S. § 135-56.1. Moreover, the definition of "creditable service" in Article 1 does not clearly include military time either.

Military time is not purchased pursuant to any express provision in Article 4 of Chapter 135. G.S. 135-52 makes the provisions of Article 1 of Chapter 135 applicable to the Judicial Retirement System except as otherwise provided and then lists G.S. §§ 135-5(h), 135-5(n), 135-9, 135-10, 135-12, and 135-17 as among the provisions in Article 1 applicable to the judicial retirement system. Pursuant to the language of G.S. § 135-52, members of the Uniform Judicial Retirement System have been allowed to purchase credit for military service under the provisions of G.S. § 135-4(f)(6), the military purchase provision for members of the Teachers’ and State Employees’ Retirement System. G.S. § 135-4(f)(6) specifically provides for the purchase of "service credit."

The military service purchase provision of G.S. § 135-4(f)(6) was enacted in 1974 at the Second Session of the 1973 General Assembly, after the enactment of the Uniform Judicial Retirement Act. Although the definition of "creditable service" in Article 4 of Chapter 135 does not expressly include purchased military time, one would not expect it to do so since the military purchase provisions relevant for members of the Uniform Judicial Retirement System did not exist at the time the definition of "creditable service" was enacted. However, reading the statute as a whole, such credit can only be considered creditable service. By its very definition, creditable service must include all service for which service credit may be received, and this includes the purchased military time. Therefore, it appears that the purchased military service time is and must be creditable service within the Uniform Judicial Retirement System.

The apparent purpose of requiring a retired judge to have fifteen years of creditable service in order to serve as an emergency judge is to ensure that the emergency judge have ample experience in a judicial capacity. Military service time may be totally irrelevant to judicial or even legal matters. Nevertheless, it can only be considered creditable service in the Uniform Judicial Retirement System. It is contradiction in terms to say that a judge can receive servicd credits for military service time and yet to say that it would not be creditable service. Therefore, military service time which has been purchased within the Uniform Judicial Retirement System by a member of that System is, and must be, creditable service within the meaning of G.S. § 7A52, which was adopted in its present form in 1977, after the enactment of the provision for purchasing military service.

By definition, creditable service for purposes of G.S. § 7A-52 includes all service credits or time for which a retired judge has credit for retirement purposes within the Uniform Judicial Retirement System. Consequently, a retired judge who has less than fifteen years’ service as a judge, but who has purchased enough military time so that his military time and his service as a judge together add up to fifteen years, is eligible for appointment and assignment as an emergency judge.

Rufus L. Edmisten Attorney General

Norma S. Harrell Assistant Attorney General