The V.I. Supreme Court issued an opinion Tuesday ruling V.I. Superior Court Judge Julio Brady cannot collect a pension for his service as lieutenant governor from 1986-1990, so long as he continues to receive his judge's salary from the government.
The dispute arose from some seeming ambiguity in V.I. law. One section written in the 1990s specifically mandates that a lieutenant governor's or governor's pension, which is funded separately from regular government pensions, must be suspended during any future government employment.
Another section enacted in 2001 says more broadly that nothing "contained in this chapter be construed to prevent a member of the judiciary from receiving, while serving in the Judiciary, an annuity for non-judicial service."
According to documents filed by Brady and by the V.I. Government, Brady received his special lieutenant governor's pension from 2003, shortly after it was created by the Legislature, until January 2007, when the Finance Department ordered the pension checks suspended while Brady remained on the bench. There was a roughly seven-month period during which Brady received the pension and his judge's paycheck. Brady has been fighting the decision ever since.
Superior Court Judge Edgar Ross issued an order in October 2011 finding Brady was not entitled to collect the lieutenant governor's pension while sitting as a Superior Court judge and Brady appealed a few days later.
Brady argued Ross erred in citing the law expressly stating lieutenant governors' pensions will be suspended, because the broader law allowing retired public employees in general to collect pensions while serving in the judiciary was enacted after the one banning the practice, and so should dictate the law.
Brady argued the Legislature is, by legal precedent, presumed by courts to know all its own past laws, and if it meant for the new law to not apply to the lieutenant governor, it would have said so explicitly.
Brady asserts in his court brief that "of the thousands of retired government workers receiving a pension in 2001 after (the law) was enacted, all could become (judges) and still receive that retirement except the plaintiff, Julio Brady, who is the only one who became a territorial judicial officer after his term of office ended as lieutenant governor in 1986."
In its response, the V.I Government argued the mandate to suspend lieutenant governors' pensions while they serve in another government position is not overturned or made null and void by the later law, because it makes no mention of those two offices, which are specifically mentioned in earlier law.
Citing past case law, the government argued that when the Legislature uses a specific reference in one section of law, but omits it in another, it is presumed to have done so intentionally, so the fact that the existing explicit requirement that the lieutenant governor's pension be suspended is not mentioned must be read to mean it remains in force.
The government also argues that the section of law Brady is relying on refers specifically to the section of law creating regular government employee pensions, and not the different section that sets up special pensions for the lieutenant governor and governor.
The court heard oral arguments in the case June 12, and Tuesday issued its opinion effectively upholding the government's position. The three-judge panel, consisting of Chief Justice Rhys Hodge, Associate Justice Maria Cabret and Designated Justice Thomas Moore, determined the two statutes do not conflict, and the law that expressly forbids pension payments to former governors and lieutenant governors while employed by the government does apply.
"Contrary to Judge Brady’s contention, (the section of law he cited) does not ‘create a right’ requiring that all judicial officers be permitted to receive vested non-judicial pensions while sitting on courts in this territory," the justices wrote. That law "merely clarifies that nothing contained in (the particular section of law) should be “construed to prevent a member of the Judiciary from receiving, while serving in the Judiciary, an annuity for non-judicial service.” But the law that prevents former governors and lieutenant governors from collecting pensions is in an entirely different section of the law – the one that sets up the separate pension system for those two offices. So there is no conflict between the two provisions.
"Judge Brady is not entitled to receive pension payments from the Elected Governors and Elected Lieutenant Governors Retirement Fund while serving as a Superior Court judge. Therefore, the Superior Court did not err in granting the government’s motion for summary judgment and dismissing Judge Brady’s complaint," the court concluded.