New York County Lawyers Association Applauds Assembly Bill 9143

The New York County Lawyers Association (NYCLA) applauds the introduction of Assembly Bill 9143, which would amend the Retirement and Social Security Law to ameliorate the effects of the “Death Gamble.” As NYCLA reported in 2015 (when its Board adopted a resolution urging amendments to that law), the “Death Gamble” refers to the anomaly in Section 60 of that law under which, if a judge who is eligible to retire elects to remain in office and then dies while in office, his or her beneficiaries receive a substantially more modest death benefit than they would have received if the judge had retired before his or her death. (The “gamble” is that every day an eligible judge serves instead of retiring, that judge is taking the risk that he or she may die before retirement – with the result that a surviving spouse and/or other beneficiaries will receive a reduced benefit). Prior to legislation enacted in 2000, the Death Gamble also applied to police officers, firefighters, and teachers; in 2000, however, the law was amended to permit the beneficiaries of those state employees to elect to receive either a monthly allowance or a lump sum equal to the amount the decedent would have been entitled to receive if the decedent had retired on the day before his or her death. Judges, however, were not covered by this amendment.

As we pointed out in our 2015 report (which garnered the support of numerous other bar associations throughout the State and was ultimately adopted by the New York State Bar Association), the impact of the Death Gamble is particularly acute for judges, many of whom rise to that calling later in life. As well, it may undermine the incentive for judges eligible for certification to remain on the bench, even as the system continues to have a dire need for their continued service (a need that NYCLA’s Supreme Court Committee and Appellate Courts Committee underscored in a 2020 joint statement). But of at least equal importance, leaving judges in this position is simply inconsistent with the high value we must place on our  judiciary – whose strength and independence are crucial to the rule of law.

Assembly Bill 9143 would reaffirm that value by providing that when a judge or justice who would have been entitled to a retirement benefit dies while in office, his or her beneficiaries may elect to receive (in lieu of the death benefit that is currently their only option) a lump sum equal to “the pension reserve that would have been established had the [individual] retired on the date of his or her death.” While this still would not give the beneficiaries of judges an option to choose a monthly allowance (as NYCLA’s 2015 report advocated), it represents a tremendous improvement.

NYCLA strongly supports this legislation and urges its passage. At the same time, we also urge the Legislature to consider going even further and giving judges the same benefits that the 2000 legislation gave to police officers, firefighters, and teachers. As NYCLA has emphasized in supporting the most recent increase in pay for the state’s judiciary, it is more important than ever to support and defend our judges in deeds as well as in words. Removing the Death Gamble entirely would be one way to do just that.          

About the New York County Lawyers Association

The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.

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