Number 16 October 6, 1970

Number 16 October 6, 1970 The Honorable Francis W. Sargent Governor of the Commonwealth of Massachusetts State House Boston, Massachusetts 02133 Dear Governor Sargent: You have requested my opinion on several questions relating to the pension to be paid to the widow of the late Leo P. Doherty, who from March 20, 1935 until his death on September 18, 1964 was a Special Jus- tice of the Municipal Court of the City of Boston. Your questions arise because of the enactment of St. 1969, c. 552 which conferred pension rights on the widows of certain special justices. P.D. 12 Prior to considering your questions, a brief review of the pertinent statutory provisions relating to the instant case is in order. General Laws c. 32, § 65C, which governs pensions for, inter alia, special jus- tices and their widows, provides in pertinent part: "A chief justice, justice, associate justice, judge, associate judge or special justice, hereinafter in this section called judge, who is retired or who resigns and who is entitled to a pension for life under the provisions of section sixty-five A or sixty-five B, may elect to receive, in lieu thereof, a pension for life at a lesser annual rate with the provision that upon his death, leaving as a survivor a widow who was his spouse at the time of his retirement or resignation, two thirds of such pension for life at a lesser annual rate shall be paid to such widow. Such lesser annual rate shall be determined so that the value, on the date of such retirement or resignation, of the prospective payments to such judge and to such widow shall be the actuarial equivalent of the value of the pension for life to which such judge is entitled under the provisions of section sixty-five A or sixty-five B. Such election shall be in writing on a prescribed form and filed with the appropriate retiring authority at the time of retirement or resignation or within thirty days thereafter. The computation of said actuarial equivalent shall be subject to supervision and verification in accordance with the provisions of section twenty-one by the actuary appointed by the commissioner of insurance. 'Tf a judge, who would be entitled, upon resigning, to a pension for life under section sixty-five A or sixty-five B, dies before resigning, his widow shall receive a pension for life of two thirds of such pension for life at a lesser annual rate to which such judge would have been entitled had he, as of the date of death, resigned and had such pension for life at a les- ser annual rate been computed under the first paragraph." The above-quoted version of G. L. c. 32, § 65C was inserted by St. 1968, c. 699 to broaden the class of widows covered by the section to include widows of special justices. Because the amendment was of pros- pective application only, the General Court later enacted St. 1969, c. 552 which provides, in pertinent part: 'Tf a special justice who would be entitled upon resigning to a pension for life under section sixty-five B of chapter thirty-two of the general laws dies before resigning and before the effective date of section sixty-five C of said chapter thirty-two, added by chapter six hundred and ninety-nine of the acts of nineteen hundred and sixty-eight, his widow shall receive a pension for life of two thirds of such pension for life at a lesser annual rate to which such special justice would have been entitled had he resigned on the effective date of said section sixty-five C of said chapter thirty-two, and had P.D. 12 59 such pension for life at a lesser annual rate been computed under the first paragraph of said section sixty-five C." Thus it appears that until the enactment of St. 1968, c. 699, a special justice who retired could not elect to receive a pension at a lesser annual rate with the provision that his widow would receive at his death a pen- sion of two-thirds of such lesser annual rate. After the effective date of St. 1968, c. 699, special justices were entitled to make such an election, and, by virtue of the enactment of St. 1969, c. 552, provision was made for widows of certain special justices who had died before resigning and before the effective date of St. 1968, c. 699. Inasmuch as the Honorable Leo P. Doherty died on September 18, 1964 and had not resigned as of the date of his death, his widow has been accorded pension rights by St. 1969, c. 552. Accordingly, you request my opinion on the following questions: "1. Does the annual pension to which Mrs. Doherty is en- titled under St. 1969, c. 552, commence on or immediately after the date of Judge Doherty's death, or on or immediately after the effective date of St. 1968, c. 699, or on the effective date of St. 1969, c. 552? "2. If your answer to Question 1 is that Mrs. Doherty is entitled to a pension commencing on the effective date of either of the statutes referred to therein, what is the effective date of that statute? "3. Is the annual pension to which Mrs. Doherty is entitled under St. 1969, c. 552, to be computed on the basis of the full annual pension which would have been payable to Judge Doherty had he resigned on the date of his death, or on the basis of the full annual pension which would have been pay- able to him had he resigned on the effective date of St. 1968, c. 699?'' I will consider your questions seriatim. I. It is my opinion that the annual pension to which Mrs. Doherty is entitled under St. 1969, c. 552, commences on the effective date of St. 1968, c. 699. While Mrs. Doherty's right to receive a pension came about by virtue of the enactment of St. 1969, c. 552, the latter statute provided that she became entitled to a pension "of two-thirds of such pension for life at a lesser annual rate to which such special justice would have been entitled had he resigned on the effective date of said section sixty-five C of said chapter thirty-two ..." I am not unmindful of the general rule that a statute is to be construed as having a prospective operation only, unless an intent that it operate retroactively is clearly indicated. See, e.g., Martin L. Hall Co. v. Commonwealth, 215 Mass. 326 and Wynn v. Board of Assessors of Boston, 281 Mass. 245. However, the insertion of the provision in St. 1969, c. 552 that the pension to the widow is computed as if the special justice had resigned on the effective date of St. 1968, c. 699 evidences a legislative intent, in my opinion, that the pension be paid as of the effec- tive date of St. 1968, c. 699. 60 P.D. 12 II. With respect to your second question, it is my opinion that the ef- fective date of St. 1968, c. 699 was October 17, 1968, ninety days follow- ing approval of the Act. Acts of the Legislature ordinarily take effect ninety days following approval by the Governor, unless they are laws which may not be the subject of a referendum petition. Article 48 of the Articles of Amendment to the Constitution, The Referendum, Pt. 1. Among those laws which may not be made the subject of a referendum petition are laws relating to the "compensation of judges." St. 1968, c. 699 is not such a law. Without deciding whether a law relating to the pensions of judges is a law relating to the "compensation of judges," it is sufficient to note that St. 1968, c. 699 relates not to the pensions of judges but to the pensions of widows of special justices. III. With respect to your third question, it is my opinion that the an- nual pension to which Mrs. Doherty is entitled under St. 1969, c. 552 is to be computed on the basis of the full annual pension which would have been payable to Judge Doherty had he resigned on the effective date of St. 1968, c. 699. Your question arises because St. 1967, c. 888 altered the method of computation of pensions for special justices. However, St. 1969, c. 552 makes no reference to the date of death in computing the pension; the Act expressly refers to a pension computed on the basis of a pension "at a lesser annual rate to which such special justice would have been entitled had he resigned on the effective date of [St. 1968, c. 699]." If Judge Doherty had resigned as of the effective date of St. 1968, c. 699, his pension would have been computed on the basis of G. L. c. 32, § 65B (as amended by St. 1967. c. 888) and § 65C. In enacting St. 1969, c. 552, the General Court indulged in the fiction of disregarding the date of death of the special justice involved and treating each situa- tion as a resignation as of the effective date of St. 1968, c. 699. Thus, Mrs. Doherty's pension is to be computed on the basis of two-thirds of the lesser annual rate to which Judge Doherty would have been entitled had he resigned on the effective date of St. 1968, c. 699. In turn, the lesser annual rate is to be determined by computing the full annual pen- sion which would have been payable to the Judge had he resigned on said effective date. To employ the fiction of a later death for one pur- pose and not for the other would be inconsistent, and such an intent on the part of the General Court is not to be presumed. In conclusion, then, it is my opinion that Mrs. Doherty's pension rights commenced on the effective date of St. 1968, c. 699, which was ninety days following approval of that Act, and that her annual pension is to be computed on the basis of the full annual pension which would have been payable to Judge Doherty had he resigned on the effective date of St. 1968, c. 699. Very truly yours, ROBERT H. QUINN Attorney General P.D. 12 61