Number 12. July 25, 1967

Number 12. July 25, 1967. Honorable Anthony P. DeFalco, Commissioner of Administration Dear Commissioner DeFalco: — You have asked my opinion on whether the Honorable Frank J. Murray, a Justice of the Superior Court until his resignation on April 21,1 967 upon his induction into his present office of Judge of the United States District Court for Massachusetts, is enti- tled to continue in force his group life and health insurance issued through 54 P.D. 12 the Group Insurance Commission. You state that Judge Murray is not sev- enty years of age and you correctly point out that notwithstanding his con- tinuous service as a Justice of the Superior Court since 1 946, he is not eligi- ble for a pension under G. L. c. 32, § 65A. You then ask whether he might nevertheless be treated as a "Deferred Retiree" under G. L. c. 32A, § 10 and thereby remain eligible to continue his insurance in force. After careful consideration of the matter, I am of the opinion that your question must be answered in the negative. Judge Murray's insurance was apparently issued under the provisions of G. L. c. 32A. In order for an in- sured person, on the termination of his service for the Commonwealth to continue in force his insurance issued under that chapter, he must have ei- ther (!) retired or (2) be an employee "who has a right to retire but whose retirement is deferred as provided in section ten of chapter thirty-two. . . ." G. L. c. 32A, § 10. It is my opinion that Judge Murray meets neither of these requirements. The first requirement is not satisfied, since the termination of Judge Mur- ray's service as a Justice of the Superior Court resulted from his resignation, not his retirement. The second requirement is not satisfied for two reasons. First, at the time of his resignation Judge Murray did not have a "right to retire" (a term which I regard as meaning the right to receive a pension or other payment upon termination of service) since as a member of the judici- ary his right to a pension was conditioned on his continuation in service un- til he reached the age of seventy. G. L. c. 32, § 65 A. A judicial pension is a noncontributory benefit and thus carries with it no right to any payment if a judge should leave the bench before he has attained the age of seventy even though he may have satisfied the requirement in G. L. c. 32, § 65A that he shall have also served for at least ten years. Second, the condition relative to deferment of retirement as provided in G. L. c. 32, § 10 is not satisfied since the right to defer receipt of a retire- ment allowance is conferred only on a "member." That term in c. 32 is de- fined, however, in section 1 of that chapter as: " 'Member', any employee included in the state employees' re- tirement system, in the teachers' retirement system or in any county, city or town contributory retirement system established under the provisions of sections one to twenty-eight inclusive, or under corresponding provisions of earlier laws, and if the context so requires, any member of any contributory retirement system established under the provisions of any special law." (Emphasis supplied.) Not only is a Justice of the Superior Court not included in any of these enumerated retirement systems, he is not regarded as an "employee," since he does not come within the definition of that term in G. L. c. 32, § 1 . That section defines an "employee," for the purposes of §§ 1-28 of c. 32, in the case of "persons whose regular compensation is paid by the commonwealth" (as is that of a Justice of the Superior Court) as: "... any person, whether employed or appointed for a stated term or otherwise, who is engaged in duties which require that his time be devoted to the service of either such governmental unit in each year during the ordinary working hours of regular and per- manent employees, and who is regularly and permanently em- P.D. 12 55 ployed in such service, including employees of the general court, state officials, constitutional officers, members of the general court or other persons elected by popular vote, but excluding members of the judiciary. . . ." (Emphasis supplied.) Thus Judge Murray does not meet the second element of the conditions for qualification as a "Deferred Retiree." I therefore conclude that Judge Murray is not entitled to continue in force his group life and health insurance issued through the Group Insur- ance Commission. Very truly yours, Elliot L. Richardson, Attorney General