October 21, 1980
Subject:
Courts; Judges; Retirement; Purchase of Military Service.
Requested By:
Honorable Harry E. Cannaday Superior Court Judge
Question:
May a member of the Uniform Judicial Retirement System, who has no previous service except under Article 6 or Article 8 of Chapter 7A, retire from service as a judge and subsequently purchase military service credit in 1984?
Conclusion:
No.
The question has been asked whether a member of the Uniform Judicial Retirement System, established by the Uniform Judicial Retirement Act of 1973 and codified as Article 4 of Chapter 135 of the General Statutes, may retire from service as a judge prior to 1984 and subsequently, in 1984, purchase credit for military service if the member has no previous service with another retirement system for which contributions were made to that other retirement system. The previous retirement benefits for Superior Court Judges and Appellate Court Judges were found in Articles 6 and 8 of Chapter 7A of the General Statutes and required no contributions by the member. The Uniform Judicial Retirement System is a contributory system. Although Article 4 of Chapter 135 does not include a provision for purchase of military service, it does provide that the provisions of Article 1 of Chapter 135 are applicable except as otherwise provided in Article
4. Article 1 is the Teachers’ and State Employees’ Retirement System. G.S. § 135-4(f)(6) permits the purchase of credit for military service as creditable service with the applicable Retirement System after ten years of membership service. For members of the Uniform Judicial Retirement System, "membership service" is defined in G.S. 135-54(12) as "service as judge rendered while a member of the Retirement System." Retirement System" is defined in G.S. § 135-54(18) as the "Uniform Judicial Retirement System of North Carolina, as established in this Article." The Article referred to is, of course, Article 4 of Chapter 135 of the General Statutes. Service rendered as a Superior Court or Appellate Judge or Justice is not service rendered while a member of the Uniform Judicial Retirement System except for service rendered after January 1, 1974, the effective date of the provisions of the Uniform Judicial Retirement Act of 1973. Therefore, membership service as a Superior or Appellate Court Judge or Justice dates only from January 1, 1974. In order to obtain ten years of membership service as a Superior or Appellate Court Judge or Justice, the Judge or Justice must continue in office through the end of 1983 or until the beginning of 1984. Once the Judge or Justice retires, no more membership service is accumulated. The definition of "membership service" requires the rendering of service as a Judge or Justice, and a retired Judge or Justice is not rendering service as a member of the Uniform Judicial Retirement System. This interpretation is reinforced by G.S. § 135-55(b) providing that the membership of any person in the Uniform Judicial Retirement System shall cease upon his retirement under the provisions of the Retirement System. Therefore, a Judge or Justice whose only previous service was as a Superior Court Judge or Justice whose only previous service was as a Superior Court Judge or Appellate Court Judge or Justice cannot purchase military service until January 1, 1984, at the earliest.
Rufus L. Edmisten Attorney General
Norma S. Harrell Assistant Attorney General