Cohen v. Goldstein

BLOOM, Judge,

dissenting.

I must respectfully dissent from the conclusion reached by the panel majority.

The majority concludes that the legislature did not intend, when it added masters to the judicial pension plan, to provide them with greater benefits than those enjoyed by judges. With that conclusion I wholeheartedly agree. But the conclusion that the legislature did not intend that result does not warrant a conclusion that it specifically intended the opposite or some other result. It seems obvious to me that the legislature, when it added masters to the judicial pension system in 1975, simply did not consider the possibility that a master could continue to serve in that capacity after age seventy.

That possibility certainly existed, despite the majority’s suggestions to the contrary. As of the legislative session of 1975, there was nothing (except, possibly, local rules or ordinances over which the legislature had no control) that would prevent a master from continuing to work after attaining age seventy. Masters were not subject to the constitutional provision that judges must retire at age seventy; the Court of Appeals had not adopted Rule 596 b 3 to provide that “[n]o person may serve as a Standing Master upon reaching the age of 70 years.” The majority refers to § ll(l)(b) of art. 73B as a mandatory retirement provision for members of the State Employees Retirement System but ignores two facts that make such reference meaningless to this case:

(1) Not all masters were members of SERS. As the majority pointed out, membership in SERS was not mandatory; a master might opt to remain in a local pension system.

(2) Upon the effective date of the statute bringing masters into the judicial pension system, those masters who had been members of SERS and thus subject to art. 73B, § ll(l)(b) were removed from that system and that statutory provision.

The majority refers to the failure of the legislature to enact SB 68 in 1980 and SB 70 in 1981 as indicative of legislative intent. It would certainly appear that the members of the General Assembly during the legislative sessions of 1980 and 1981 had no intention of tinkering with the military credit law (art. 65, § 88) for the specific benefit of Mr. Cohen. What other legislative intent can be inferred from the failure to enact those bills is problematical. The motives that prompt the various members of a legislature to embark upon a particular course of action may be varied and conflicting. See 2A Sutherland, Statutes and Statutory Construction, § 48.17 (Sands 3d ed. rev. 1973). In any event, we are concerned with the intent of those legislators who constituted the General Assembly of 1975, not those who were members of the General Assembly during the 1980 and 1981 sessions.

The majority cites State v. Petrushansky, 183 Md. 67, 36 A.2d 533 (1944), as authority for the proposition that in construing legislation, “real intent must prevail over literal intent.” I cannot quarrel with that. Certainly, a statute should not be construed in a manner “repugnant to common sense,” id. at 72, 36 A.2d 533, or in such a manner as would lead to an absurd result. But what if each of two possible constructions of a statute would be contrary to the apparent intent of the legislature? I suggest that in such event we should so construe the statute as to do least violence to the essential intent of the entire legislative scheme of which the specific statute is a part.

As of July 1, 1975, the effective date of the statute bringing masters into the judicial pension system, it was entirely possible for a master to continue serving as such beyond age seventy. If such a master reached the age of seventy and did not cease working, there were two possibilities: (1) He could continue to contribute to the judicial pension fund until he acquired the maximum benefits after sixteen years of service (including any military credits to which he might be entitled under art. 65, § 88) or (2) it could be deemed that his service terminated, i.e., that he was retired, for purposes of the judicial pension plan, at age seventy even if he continued working until age eighty. The majority says we must choose the second alternative because the first one was not intended by the legislature. But it is clear that when a person is retired for purposes of the judicial pension fund, he becomes entitled to receive his pension. Art. 73B, § 56. What then would happen to our hypothetical master under alternative No. 2? He would receive both his salary as an active master and his pension as a retired master at the same time. That result, I suggest, would be much more contrary to the entire scheme and purpose of the judicial pension plan than would merely permitting a master to continue to pay into the plan if he kept working beyond age seventy.

For that reason, I would reverse the judgment and remand for the entry of a decree declaring that Mr. Cohen is entitled to retirement benefits based on ten years and nine days of employment service plus three years, eight months and fourteen days of military service.