Coffey v. New Hampshire Judicial Retirement Plan et al

Filing 29

///ORDER denying 20 Motion for Summary Judgment; granting 22 Motion for Summary Judgment. I grant the Plan's motion for summary judgment (Doc. No. 22) and deny Coffey's motion for summary judgment (Doc. No. 20). The clerk is directed to enter judgment accordingly and close the case. So Ordered by Judge Paul J. Barbadoro.(js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Patricia C. Coffey
v.

Case No. 18-cv-503-PB
Opinion No. 2019 DNH 126

N.H. Judicial Retirement
Plan et al.

MEMORANDUM AND ORDER
The New Hampshire Judicial Retirement Plan permits a judge
in active service to retire with a pension if she has at least
15 years of creditable service and is at least 60 years of age.
The issue this case presents is whether a former judge with
sufficient creditable service has a right to a pension even
though she resigned before she reached the minimum retirement
age.
Patricia Coffey served as a full-time New Hampshire
Superior Court judge for 16 years.
age of 54.

She resigned in 2008, at the

Several years after Coffey turned 60, she applied

for a pension.

The Plan’s Board of Trustees denied her request

because it determined that a judge must be in active service
when she attempts to claim a pension.
filed this action.

Coffey disagreed and

The matter is before me on cross-motions for

summary judgment.

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I. THE NEW HAMPSHIRE JUDICIAL RETIREMENT PLAN
The Judicial Retirement Plan (“Plan”) is codified as
Chapter 100-C of the New Hampshire Revised Statutes.

It is “a

defined benefit plan providing disability, death, and retirement
protection to [its] members and their families.”
Stat. Ann. § 100-C:2, I.

N.H. Rev.

The benefits available under the Plan

vary depending upon whether a judge leaves service by
retirement, by death, or “for reasons other than retirement or
death.”

See id. §§ 100-C:5, 100-C:6 (retirement), 100-C:7

(death), 100-C:8 (reasons other than retirement or death).
The Plan lays out three different paths to retirement.
First, § 100-C:5, I authorizes a judge to retire and claim a
“service retirement allowance” at designated ages with
sufficient creditable service.

Id. § 100-C:5, I.

The earliest

date at which a judge may retire and claim a service retirement
allowance is age 60. 1

Id.

Second, § 100-C:5, VII permits a

1

The allowance varies depending on a judge’s age when she
retires and her years of creditable service. A judge with at
least 15 years of creditable service may retire at 60 and
receive an annual allowance equal to 70% of the judge’s final
year’s salary. N.H. Rev. Stat. Ann. § 100-C:5, IV. One percent
is added for each additional year of creditable service, but the
total allowance may never exceed 75% of the judge’s final year’s
salary. Id. § 100-C:5, IV, V. If a judge waits until age 65 to
retire and has at least 10 years of creditable service, she is
entitled to a 75% annual allowance. Id. § 100-C:5, II. A judge
may also retire at 70 with at least 7 years of creditable
service and receive a 45% annual allowance. Id. § 100—C:5, III.
Each additional year of service for a judge who retires at age
70 entitles the judge to a 10% increase over the 45% level,
provided that the total allowance does not exceed 75% of the
judge’s final year’s salary. Id. § 100-C:5, III, V.
2

judge who is not eligible for a service retirement allowance to
retire at any time if she has at least five years of creditable
service.

Id. § 100-C:5, VII.

A judge who retires under this

provision is entitled only to have her contributions to the Plan
returned with interest.

Id.

Third, § 100-C:6 authorizes a

judge to retire on a “disability retirement allowance” at any
time and claim a 70% annual allowance if she becomes
“permanently and totally disabled.”

Id. § 100-C:6.

If a judge dies while in office or after becoming eligible
either for a service retirement allowance or a disability
retirement allowance, § 100-C:7 authorizes the judge’s spouse
(while unmarried) or her minor children (if the judge leaves no
spouse) to receive an annual payment of ½ of the judge’s salary.
Id. § 100-C:7.
Finally, § 100-C:8 provides that a judge who “ceases to be
a judge for reasons other than retirement or death” is entitled
only to repayment of the judge’s contributions to the Plan.
§ 100-C:8, I.

Id.

Once contributions are refunded, the judge’s

rights under the Plan are terminated.
II.

Id.

STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”

Fed. R. Civ. P.

56(a); Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
2016).

In this context, a “material fact” is one that has the
3

“potential to affect the outcome of the suit.”

Cherkaoui v.

City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (internal
quotation marks omitted).

A “genuine dispute” exists if a jury

could resolve the disputed fact in the nonmovant’s favor.

Ellis

v. Fidelity Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018).
On cross-motions for summary judgment, the standard of
review is applied to each motion separately.

See Am. Home

Assurance Co. v. AGM Marine Contractors, Inc., 467 F.3d 810, 812
(1st Cir. 2006); see also Mandel v. Boston Phoenix, Inc., 456
F.3d 198, 205 (1st Cir. 2006) (“The presence of cross-motions
for summary judgment neither dilutes nor distorts this standard
of review.”).

Thus, I must “determine whether either of the

parties deserves judgment as a matter of law on facts that are
not disputed.”

Adria Int’l Grp., Inc. v. Ferré Dev., Inc., 241

F.3d 103, 107 (1st Cir. 2001).
The parties agree that no material facts are in dispute and
that I may resolve the case on the record submitted.
III. ANALYSIS
Coffey bases her claim to a service retirement allowance on
§ 100-C:5, I, which provides in pertinent part that:
Any member who has at least 15 years of creditable
service and is at least 60 years of age . . . may
retire on a service retirement allowance . . . upon
written application to the board setting forth on what
date, not less than 30 days nor more than 90 days
subsequent to the filing of the application, the
member desires to be retired. During such period of
notification, the member may have separated from
service.
4

N.H. Rev. Stat. Ann. § 100-C:5, I.

She argues that this

provision grants a current or former judge a vested right to a
service retirement allowance at age 60 if she has sufficient
creditable service.

She then claims that she is entitled to an

allowance even though she resigned years before she reached the
minimum retirement age because she has more than 15 years of
judicial service and is now more than 60 years old.

As I

explain below, Coffey’s argument fails because § 100-C:5, I
plainly provides that a judge must be eligible to “retire” to
claim a retirement allowance.

Because Coffey resigned before

she was eligible to retire, she is not entitled to an allowance.
When interpreting a statute, New Hampshire courts “first
look to the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary
meaning.”

Petition of Carrier, 165 N.H. 719, 721 (2013).

If

the statute is clear and unambiguous, the court will not look
beyond its language to determine legislative intent.
of Seabrook, 163 N.H. 635, 644 (2012).

In re Town

The court must interpret

the text “within the context of the statute as a whole” and
“construe all parts of a statute together to effectuate its
overall purpose and avoid an absurd or unjust result.”

White v.

Auger, 171 N.H. 660, 666 (2019) (internal quotation marks
omitted).

“The legislature is not presumed to waste words or

enact redundant provisions and whenever possible, every word of

5

a statute should be given effect.”

Garand v. Town of Exeter,

159 N.H. 136, 141 (2009) (internal quotation marks omitted).
Here, the Plan’s plain language dooms Coffey’s claim.
Section 100-C:5, I authorizes a judge to “retire” on a service
retirement allowance.

N.H. Rev. Stat. Ann. § 100-C:5, I.

The

Plan defines “retirement” as “withdrawal from active service
with a retirement allowance granted under the provisions of this
chapter.”

Id. § 100-C:1, XIV.

Given this straightforward

definition, the only plausible way to read § 100-C:5, I is that
it requires a judge to be in active service when she elects to
retire and claim a service retirement allowance.

Because Coffey

resigned before she became eligible to retire on a service
retirement allowance, she has no right to an allowance. 2
All the textual evidence supports this view.

First, § 100-

C:5, I expressly provides that a judge may separate from service
during the 30-to-90-day period between the date that a judge
submits her application for retirement and the date that her
retirement becomes effective.

Id. § 100-C:5, I.

2

If Coffey’s

Coffey does not argue that she retired when she resigned
from the judiciary at age 54, nor could she. Coffey was not
eligible to retire on a service retirement allowance at that
point because she was too young. See N.H. Rev. Stat. Ann.
§ 100-C:5, I. While she might have retired pursuant to § 100C:5, VII because she had more than five years of creditable
service, that provision does her no good because it would have
entitled her only to a return of her contributions to the Plan
with interest. See id. § 100-C:5, VII. Thus, her current claim
hinges on her contention that she did not retire until she
applied for a service retirement allowance years after she
resigned.
6

reading of § 100-C:5, I were correct, this provision would be
utterly superfluous because a judge could separate from service
at any point before reaching retirement age and still claim a
service retirement allowance.

The New Hampshire Supreme Court

has made it quite clear that courts should not generally presume
that the legislature intended to use such superfluous statutory
language.

See Merrill v. Great Bay Disposal Serv., Inc., 125

N.H. 540, 543 (1984).
Second, Coffey’s interpretation results in an absurd
reading of § 100-C:6, which governs disability retirement
benefits.

That section permits a disabled judge to “retire” on

a disability allowance at any time.
C:6.

N.H. Rev. Stat. Ann. § 100-

If, as Coffey argues, a judge need not be in active

service to retire, a judge could resign after a brief period of
service and years later claim a disability pension if she
becomes unable to perform judicial duties.

Consider a judge who

resigned after serving for one day, went into private practice,
and ten years later became unable to perform judicial duties but
was otherwise capable of practicing law.

Under Coffey’s

reading, that former judge would be entitled to a disability
retirement allowance because she did not have to be in active
service when she became disabled.

This absurd result is avoided

if the Plan is read to require that a judge be in active service
when she elects to retire.

Cf. White, 171 N.H. at 666 (statutes

should be construed to avoid absurd results).
7

Third, Coffey’s interpretation leaves the Plan as a whole
incoherent.

Section 100-C:8 makes it clear that a judge who

“ceases to be a judge for reasons other than retirement or
death” is not entitled to a retirement allowance.

Yet under

Coffey’s reading of § 100-C:5, I, a judge is entitled to a
retirement allowance at age 60 if she has sufficient creditable
service even if she resigned years before she was eligible to
retire.

This reading leaves § 100-C:5, I in direct conflict

with § 100-C:8, a conflict that disappears if a judge must be in
active service when she elects to retire.

Coffey’s argument

thus makes no sense when § 100-C:5, I is construed within the
context of the Plan as a whole.

Cf. Franciosa v. Hidden Pond

Farm, Inc., 171 N.H. 350, 355 (2018) (“We construe all parts of
a statute together to effectuate its overall purpose and avoid
an absurd or unjust result.”)
Finally, a comparison of the Judicial Retirement Plan with
the State’s public employee retirement plan extinguishes any
lingering doubt about the viability of Coffey’s argument.

The

public employee retirement plan provides “vested deferred
retirement benefits” for certain state employees, public school
teachers, police officers, and firefighters (collectively,
“public employees”).
A:1, X.

See N.H. Rev. Stat. Ann. §§ 100-A:10, 100-

Eligible public employees who complete 10 years of

service and cease to be employees “for reasons other than
retirement or death” are “deemed in vested status and . . . may
8

collect a vested deferred retirement allowance” after they reach
the minimum retirement age.

Id. § 100-A:10.

This allows a

public employee to separate from service after working for 10
years and later apply for a deferred retirement allowance.

In

the alternative, those public employees may seek a return of
their contributions to the retirement plan.

See id.

By

contrast, § 100-C:5, which was enacted after § 100-A:10, has no
similar language that allows a judge who separates from service
after attaining the requisite years of service to later claim a
vested right to a retirement allowance.

The fact the

legislature expressly granted certain public employees a vested
right to claim retirement benefits without granting a similar
right to judges sends a strong signal that judges were not
granted vested rights to retirement benefits if they resign
before they become eligible to retire.

Cf. State Emps. Ass’n of

N.H. v. N.H. Div. of Pers., 158 N.H. 338, 345 (2009) (“[W]here
the legislature uses different language in related statutes, we
assume that the legislature intended something different.”)
(internal quotation marks omitted).
Coffey attempts to salvage her claim by invoking § 100-C:2,
which provides that the Plan “is intended for all time to meet
the requirements of a qualified pension trust within the meaning
of section 401(a) and to qualify as a governmental plan within
the meaning of section 414(d) of the United States Internal
Revenue Code of 1986, as amended.”
9

N.H. Rev. Stat. Ann. § 100-

C:2, I.

According to Coffey, her reading of § 100-C:5, I is

required to ensure that the Plan retains its favorable tax
status under the Internal Revenue Code (“IRC”).

The problem

with this argument is that it is based on the incorrect premise
that the Plan’s tax status is endangered if it is construed in
accordance with its plain language.
To be a qualified pension trust under IRC § 401(a), a
governmental plan must satisfy the vesting requirements of
§ 411.

See 26 U.S.C. § 401(a)(7).

Section 411(e) provides that

a governmental plan complies with § 411 if it satisfies the
vesting requirements established by the versions of § 401(a)(4)
and § 401(a)(7) that were in effect on September 1, 1974, before
ERISA was enacted.

See id. § 411(e)(2).

At that time,

§ 401(a)(4) provided that contributions and benefits under a
qualified plan could not discriminate in favor of employees who
are officers, shareholders, supervisors, or highly compensated
employees.

See id. § 401(a)(4) (as of Sept. 1, 1974).

Section

401(a)(7) also then specified that a qualified plan must
provide[] that, upon its termination or upon complete
discontinuance of contributions under the plan, the
rights of all employees to benefits accrued to the
date of such termination or discontinuance, to the
extent then funded, or the amounts credited to the
employees’ accounts are nonforfeitable.
Id. § 401(a)(7) (as of Sept. 1, 1974).

Neither provision,

however, required vesting for employees who were terminated
or left service before they became eligible to retire.

10

The regulations that implemented the pre-ERISA version of
§ 401 doom any possible argument that § 401(a)(7) required
vesting for employees who leave service before reaching the
minimum retirement age.

Those regulations specify that

§ 401(a)(7) applies only “upon the termination of the plan or
upon the complete discontinuance of contributions under the
plan” and protects only “nonforfeitable rights of an employee.”
See 26 C.F.R. § 1.401-6(a) (as of Sept. 1, 1974).

The

regulations further specifically recognize termination of
employment prior to retirement as a contingency that renders an
employee’s rights forfeitable:
[I]f, under the terms of a pension plan, an employee
will lose the right to any annuity purchased from, or
to be provided by, contributions made by the employer
if his services should be terminated before
retirement, his beneficial interest in such
contributions is forfeitable.
Id. § 1.402(b)-1(a)(2)(ii) (as of Sept. 1, 1974).
Taken together, pre-ERISA § 401(a)(4) and § 401(a)(7)
preclude a governmental plan from (1) vesting benefits in a
manner that discriminates in favor of certain groups of
employees, or (2) divesting employees of nonforfeitable benefits
accrued as of the date of termination of, or discontinuation of
contributions to, the plan.

This is all that § 411 requires.

The Judicial Retirement Plan satisfies these pre-ERISA
vesting requirements even though a judge must remain in active
service until she reaches retirement age and applies for

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retirement.

First, since all members of the Plan are judges,

the Plan is not susceptible to discriminatory vesting in
violation of § 401(a)(4).

Second, the Plan has not terminated

or discontinued contributions, and thus neither event that
triggers § 401(a)(7) has occurred.

Cf. Debell v. Bd. of Trs.,

Pub. Emps.’ Ret. Sys. (PERS), 815 A.2d 997, 1001 (N.J. App. Div.
2003) (holding that the vesting requirement under pre-ERISA
§ 401(a)(7) “assures that all employees with accrued benefits
would be vested according to the schedule contained in the
statute if the plan were terminated, not as petitioner argues
when an employee-member of the plan is terminated”).

In any

event, the Plan’s provision that a judge loses the right to a
retirement allowance if she separates from service before
becoming eligible to retire does not run afoul of § 401(a)(7)’s
vesting requirements.

The operative regulations expressly

provide that this type of forfeiture is not prohibited by
§ 401(a)(7).
1974).

See 26 C.F.R. 1.402(b)-1(a)(2)(ii) (as of Sept. 1,

The Plan thus satisfies the vesting requirements of the

IRC and qualifies for tax benefits as a governmental plan even
though it does not entitle a judge to retirement benefits if she
separates from service before she reaches the minimum retirement
age.
Coffey’s only response is to claim that more recent IRS
guidance concerning the vesting requirements of § 401(a)(7)
indicates that a governmental plan must provide for vesting of
12

benefits once the service time requirement is met.

She is

mistaken.
The April 2012 IRS memorandum Coffey relies on sets forth
procedures for reviewing vesting provisions of governmental
plans that apply for a determination letter from the agency.
See Doc. No. 20-2.

It identifies three “safe harbor vesting

schedules” that are “deemed to satisfy the pre-ERISA vesting
rules,” including a schedule that provides for full vesting
after 15 years of creditable service.

See id. at 3.

Although Coffey correctly notes that the Plan does not fall
within any of the safe harbors if it is construed to require a
judge to be in active service when she applies for retirement,
she misreads the memorandum to suggest that a plan is ineligible
for favorable tax treatment unless it is covered by one of the
safe harbors.

In fact, the memorandum merely specifies that a

plan that does not qualify under a safe harbor must be referred
to specific individuals within the agency “for further analysis
and resolution.”

Id. at 4.

Such plan may receive a favorable

determination letter upon further review.

See id.

Simply put,

the IRS memorandum does not identify the minimum vesting
requirements a plan must satisfy.

Rather, the safe harbors are

a procedural shortcut the agency uses to identify plans that
easily satisfy the pre-ERISA vesting requirements.
Because the Internal Revenue Code does not require a
governmental plan to grant vested retirement rights to an
13

employee who leaves active service before reaching retirement
age, the Plan’s favorable tax status is not threatened if it is
construed in accordance with its plain meaning.

The Plan’s

failure to qualify under one of the safe harbors has no effect
on this conclusion.
IV.

CONCLUSION

In summary, § 100-C:5, I unambiguously requires a judge to
remain on the bench until she satisfies both the age and years
of service requirement in order to qualify for a service
retirement allowance.

Because Coffey resigned from service

prior to reaching retirement age, she is not entitled to retire
under the Plan.
Since each of Coffey’s claims rests on her incorrect
interpretation of § 100-C:5, I, the Plan is entitled to judgment
as a matter of law on all claims.

Accordingly, I grant the

Plan’s motion for summary judgment (Doc. No. 22) and deny
Coffey’s motion for summary judgment (Doc. No. 20).

The clerk

is directed to enter judgment accordingly and close the case.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
August 14, 2019
cc:

Caroline M. Fiore, Esq.
Stephen D. Rosenberg, Esq.
Russell F. Hilliard, Esq.
Scott H. Harris, Esq.
Benjamin B. Folsom, Esq.
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