Could Maryland reduce a retired state judge's pension when he was appointed to the federal bench and kept drawing a federal salary?

Plain-English summary

On behalf of Judge John R. Hargrove, who resigned from the Circuit Court for Baltimore City to accept appointment to the United States District Court for the District of Maryland, the Assistant State Court Administrator asked whether Article 73B, §56(c)(1) of Maryland's Judicial Pension Plan, which reduces a retired judge's pension if the judge later accepts compensation from public funds, applied to a retired state judge who joined the federal bench, and if so, whether the reduction was constitutional. The opinion concluded that the statute's plain language, covering employment paid from "municipal, county, State, or federal funds," unambiguously applied to a federal judgeship, and that in Judge Hargrove's case, his combined pension and federal salary would completely offset his state pension benefits. The opinion then distinguished this "set-off" provision from the statute the Court of Appeals had struck down in Attorney General v. Waldron, which flatly barred retired judges from practicing law for compensation at all. Because §56(c)(1) merely set a longstanding precondition for receiving full pension benefits, rather than prohibiting a judge from working, the opinion concluded it did not unconstitutionally restrict a judge's ability to pursue his profession, did not exceed the General Assembly's legislative authority, did not take away any vested property right (since the condition long predated Judge Hargrove's enrollment in the pension plan), and did not violate equal protection, since the "double dipping" policy the statute served applied rationally across categories of public retirees with legitimate distinctions between them.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland reduce a retired state judge's pension when he was appointed to the federal bench and kept drawing a federal salary?
According to this 1984 opinion, yes. The Attorney General concluded that Article 73B, §56(c)(1) applied to a retired Maryland judge who accepted a federal judgeship, and that the resulting offset, which in this case eliminated his state pension entirely while he received his federal salary, was constitutional as applied to him.

Wasn't a similar pension restriction struck down by the Maryland courts?
The opinion explained that the statute struck down in Attorney General v. Waldron flatly prohibited retired judges from practicing law for compensation at all, which the Court of Appeals found violated separation of powers and equal protection. Section 56(c)(1) was different: it merely set a financial precondition for receiving full pension benefits and did not prevent a retired judge from working in any capacity, including on the federal bench.

Did the judge have a vested right to his full pension that this law improperly took away?
The opinion concluded he did not, because the "double dipping" offset provision was originally enacted in 1941, roughly 30 years before the judge enrolled in the pension plan in 1971. Since he was presumed to know this condition existed when he joined the plan, applying it later could not be said to strip him of any previously vested benefit.

Background and statutory framework

Article 73B, §56(c)(1) reduced a retired judge's pension benefits by the amount that the pension plus new public-sector compensation exceeded the salary on which the pension was based. The opinion measured that provision against Attorney General v. Waldron and Chairman of Board v. Waldron, in which the Court of Appeals had invalidated a since-repealed provision flatly barring retired judges from practicing law, and against the deferential "rational basis" standard applied to pension classifications generally, drawing on parallel Maryland statutes reducing or terminating pensions for other categories of retired public employees who returned to public service, and on the history of the offset provision, first enacted in 1941 and revised into its current form in 1976.

Citations

Statutes:

• Article 73B, §56(c)(1) of the Maryland Code (offsets a retired judge's pension against later public-sector compensation)
• Article 73B, §56(d) of the Maryland Code (spousal survivor benefits)
• Article 73B, §§11(15)(b), 86(9)(b), 117(14)(b), and 145(13)(b) of the Maryland Code (termination of other State employee pensions for post-retirement public employment)
• Article 73B, §§11(20), 86(7a), 117(18), and 145(18) of the Maryland Code (pension reduction for workers' compensation benefits)
• Article 101, §33 of the Maryland Code (offset of workers' compensation benefits by pension amounts)
• Chapter 508, Laws of Maryland 1982 (repealed the law-practice ban struck down in Waldron II)
• Chapter 390, Laws of Maryland 1941 (original enactment of the pension offset provision)
• Chapter 501, Laws of Maryland 1976 (revised the offset provision to its current form)
• 28 U.S.C. §371(a) (federal judge resignation with full salary after age 70 and 10 years' service)
• 28 U.S.C. §371(b) (federal judge retirement from active service)
• 28 U.S.C. §372(a) (federal judge disability retirement)

Cases:

• Attorney General v. Waldron, 289 Md. 683 (1981) (Waldron II; struck down a flat ban on retired judges practicing law for compensation)
• Chairman of Board v. Waldron, 285 Md. 175 (1979) (Waldron I; earlier procedural decision in the same litigation)
• Mauzy v. Hornbeck, 285 Md. 85, 93 (1979) (courts cannot create exceptions to a statute's plain meaning)
• Clark v. Tawes, 187 Md. 195, 199 (1946) (upholding conditions attached to receipt of a judicial pension)
• Mazor v. State Dep't of Correction, 279 Md. 355, 367-68 (1977) (legislature may set conditions on deferred compensation like pensions)
• Baker v. Baltimore County, 487 F.Supp. 461, 467 (D. Md. 1980) (pension rights vest only once all plan conditions are met)
• Saxton v. Board of Trustees, 266 Md. 690, 694 (1972) (same, on vesting of pension rights)
• Robinson v. New York State Employees' Retirement System, 46 N.Y.2d 749, 413 N.Y.S.2d 644 (1978) (cited on pension preconditions)
• State v. Lee, 24 So.2d 798, 802 (Fla. 1946) (cited on pension preconditions)
• Franklin v. Savannah, 34 S.E.2d 506 (Ga. 1945) (cited on pension preconditions)
• Maryland State Teachers Association v. Hughes, 594 F.Supp. 1353 (D. Md. 1984) (a later-enacted pension condition might still be constitutional)
• Railroad Retirement Board v. Fritz, 449 U.S. 166, 175-76 (1980) (rational basis standard for pension classifications; underinclusiveness does not invalidate a law)
• Department of Transportation v. Armacost, 299 Md. 392, 410-11 (1984) (same rational basis standard)
• Hornbeck v. Somerset Co. Board of Education, 295 Md. 597, 642 (1983) (same rational basis standard)
• Jackson Firefighters Ass'n Local 87 v. City of Jackson, 736 F.2d 209 (5th Cir. 1984) (states need not provide identical retirement benefits to all employees)
• Tsottles v. City of Baltimore, 55 Md. App. 58, 63 (1983) (pension offset against workers' compensation benefits)
• Hickey v. Pension Board, 106 A.2d 233, 234 (Pa. 1954) (double-dipping offset provisions are not uncommon in public pension plans)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

RETIREMENT SYSTEMS

Judicial Pension Plan-Constitutional Law-Equal Protection-Deprivation Of Property Rights-"Double-Dipping"-Statute Reducing Pension Benefits For Judicial Retirees Later Employed By State, Local, Or Federal Government Is Not Infirm As Applied To Retired State Judge Appointed To Federal Bench.

October 3, 1984

Mr. Ernest L. Bailey, Jr.
Assistant State Court Administrator

On behalf of Judge John R. Hargrove, you have asked whether the provisions of the State's Judicial Pension Plan ("the Plan") contained in Article 73B, §56(c)(1) of the Maryland Code apply to a retired State judge who accepts appointment to the federal bench. If §56(c)(1) does so apply, you further ask whether it is invalid on the grounds that it: (1) prevents a retired judge from pursuing his profession; (2) was beyond the authority of the General Assembly to enact; (3) deprives a retired judge of a vested property right; (4) deprives a retired judge of equal protection; or (5) restricts a retired judge's right to receive deferred compensation.1

For the reasons given below, it is our opinion that Article 73B, §56(c)(1) applies to a retired State judge who accepts appointment to the federal bench and that, as so applied, it is valid.

I
Background

Judge John R. Hargrove began his judicial service as a judge of the People's Court of Baltimore City. He was appointed to the Municipal Court of Baltimore City in 1968 and served on that court (and its successor, the District Court of Baltimore City) until his appointment to the Supreme Bench of Baltimore City in 1974.2 Judge Hargrove resigned from the Circuit Court for Baltimore City on February 17, 1984, to accept appointment to the United States District Court for the District of Maryland.

Judge Hargrove enrolled in the Judicial Pension Plan in 1971, when he became a District Court judge; he remained in the Plan until his resignation from the Circuit Court. At the time of Judge Hargrove's resignation, he met the Plan's age and service requirements for full benefits; hence, he would not be eligible to draw a full pension from the Plan if it did not include the limitation stated in §56(c)(1).

Under that section, if a retired judge "accept[s] employment in which all or part of the compensation for the employment comes from municipal, county, State, or federal funds", his or her Plan benefits are to be reduced by the amount by which the Plan's benefits plus the salary from the new public employment exceeds the compensation on which the former judge's retirement allowance is based. In Judge Hargrove's case, the required reduction would completely offset his Plan benefits. Hence, if §56(c)(1) applies to him, Judge Hargrove is not presently entitled to receive any retirement allowance under the Plan.3

II
Application of §56(c)(1) to Federal Judges

You first ask whether §56(c)(1) was intended to apply to federal judges, pointing out that they are appointed for life and that the application of §56(c)(1) might thus preclude a federal judge from ever receiving benefits from the Plan.4 However, §56(c)(1) expressly applies to any "employment in which all or part of the compensation ... comes from municipal, county, State, or federal funds".

Although, as you have indicated, a federal judgeship may differ in certain respects from other types of public employment, federal judges, for example, are appointed by the President, with the advice and consent of the Senate, for life terms, nothing in the language of §56(c)(1) indicates that the General Assembly intended to except service on the federal bench from the purview of that provision. There is no ambiguity whatever in the wording of §56(c)(1), and we cannot, under the guise of statutory construction, create exceptions to the statute's plain meaning. Mauzy v. Hornbeck, 285 Md. 85, 93 (1979); Clark v. Tawes, 187 Md. 195, 199 (1946).

In sum, the language of §56(c)(1) unambiguously applies to any form of public employment, including federal judgeships. We are not at liberty to construe that provision so that Judge Hargrove may draw both full Plan benefits and his federal salary.

III
Validity of §56(c)(1)

Given our conclusion that §56(c)(1) applies to Judge Hargrove, your next question is whether that statute is invalid under the holding of Attorney General v. Waldron, 289 Md. 683 (1981) (Waldron II).5 Because the statute examined in that case differed so significantly from §56(c)(1), we believe the decision in Waldron II is not directly pertinent.

In Waldron II, the Court of Appeals held unconstitutional a statute that prohibited retired State judges who received judicial pensions from practicing law for compensation. The Court found that the statute violated the doctrine of separation of powers, by effectively revoking the licenses of certain members of the bar, and denied equal protection to those retired judges to whom it applied, by prohibiting them from practicing their profession. 289 Md. at 703, 727. In contrast, §56(c)(1) merely sets the level of Plan benefits retired judges will receive under certain circumstances; it neither regulates the practice of law nor prohibits any retired judge from pursuing his or her chosen profession. Thus, even in light of Waldron II, §56(c)(1) is not invalid on any of the grounds you have indicated.

A. Pursuit of Profession

First, you suggest that the statute might be invalid because it "prohibits a person . . . from pursuing his avocation or profession".

However, §56(c)(1) does not contain any such prohibition. It merely controls an aspect of the compensation of State judges, not their right to practice a vocation. And, far from restricting the right of retired State judges to accept any type of employment or pursue any profession, including service on the federal bench, §56(c)(1) explicitly recognizes their right to accept public employment after retirement: "[A] retired judge eligible for benefits under this subtitle may accept employment in which all or part of the compensation for the employment comes from municipal, county, State, or federal funds...".

This perhaps subtle, but important, distinction is one that the Court of Appeals itself drew in Waldron. The statute struck down in Waldron II, former §56(c), provided that "[a] judge who retires and accepts the pension provided by this subtitle may not, thereafter, engage in the practice of law for compensation". The Court of Appeals characterized the statute's basic infirmity in these words: "The statute does not establish a precondition for receipt of the pension; rather, it flatly prohibits this group of state pensioners from engaging in their profession for pay." Waldron II, 289 Md. at 716. Section 56(c)(1), however, does just the opposite: it does "establish a precondition for receipt of [a] pension", and it does not "flatly prohibit [any] group of pensioners from engaging in their profession for pay".6

For these reasons, therefore, we cannot conclude that §56(c)(1) is invalid on the basis that it somehow "prohibits" a retired judge from pursuing his or her profession.

B. Authority of General Assembly

Second, you ask whether §56(c)(1) may be invalid because "the Waldron case prohibits the state from legislative matters beyond its jurisdiction, that is, the practice of law in another court".

As you indicate, in Chairman of Board v. Waldron, 285 Md. 175 (1979) (Waldron I), the Court of Appeals noted that "the General Assembly of Maryland has no power to regulate whom our sister jurisdictions may authorize to engage in the practice of law within their borders". 285 Md. at 184. However, §56(c)(1) does not purport to regulate the practice of law in any court; it simply establishes preconditions for receipt of a full State judicial pension. It is unquestionably within Maryland's legislative authority and discretion to provide pension benefits for Maryland judges and, in doing so, to set the conditions for the receipt of those benefits.

In Waldron II, the Court of Appeals pointed out that it was "not here faced with a statute which ... conditions the receipt of a judicial pension on specified requisites; of course, [such] an enactment . . . would not pose the Article 8 separation of powers problem presented by this case". 289 Md. at 688 n. 4. See also Mazor v. State Dep't of Correction, 279 Md. 355, 367-68 (1977); Clark v. Tawes, 187 Md. 195, 200-01 (1946) (upholding conditions attached to receipt of judicial pension).

Thus, we cannot conclude that, in enacting §56(c)(1), the General Assembly in any way overstepped the bounds of its legislative authority.

C. Deprivation of Property Right

Third, you question whether §56(c)(1) unlawfully deprives Judge Hargrove of a vested property right, an issue not presented in either Waldron decision.

The statute at issue in that case prohibited a former judge from practicing law for compensation while receiving a State pension, and, as the Court of Appeals noted, the statute "in no way purport[ed] to restrict, limit or otherwise control" the pension itself. Waldron I, 285 Md. at 180, quoted in Waldron II, 289 Md. at 716. In contrast, §56(c)(1) clearly establishes a condition Judge Hargrove must meet to be eligible for full Plan benefits, that is, "[t]he annual retirement allowance receivable by the former judge plus the annual compensation for [a post-retirement, public] position may not exceed in amount the compensation upon which the retirement allowance is based".7

A retired judge's right to full benefits from the Plan becomes absolute or vested only when he or she has met all the Plan's conditions for those benefits. See Baker v. Baltimore County, 487 F.Supp. 461, 467 (D. Md. 1980); Saxton v. Board of Trustees, 266 Md. 690, 694 (1972). But so long as Judge Hargrove holds another position compensated in whole or in part from public funds, he does not meet all the conditions for full benefits. Thus, §56(c)(1) does not withdraw any benefits previously granted unconditionally to the judge; rather, it establishes a precondition for their receipt that, at present, precludes him from entitlement to any benefits. See Robinson v. New York State Employees' Retirement System, 46 N.Y.2d 749, 413 N.Y.S.2d 644 (1978); State v. Lee, 24 So.2d 798, 802 (Fla. 1946); Franklin v. Savannah, 34 S.E.2d 506 (Ga. 1945).

If §56(c)(1) had been enacted after Judge Hargrove had enrolled in the Plan, the question of whether it unconstitutionally deprived him of a vested right would be a closer one. And, even then, the statute might well be considered constitutional. See Maryland State Teachers Association v. Hughes, 594 F.Supp. 1353 (D. Md. 1984). But §56(c)(1) does not even present such a close question. It is not some recent amendment to the Plan setting new conditions for Judge Hargrove's receipt of full benefits. To the contrary: these restrictions were originally enacted in 1941 [Chapter 390, Laws of Maryland 1941], some 30 years before Judge Hargrove first enrolled in the Plan.

Indeed, when Judge Hargrove enrolled in the Plan in 1971, a retired judge could receive no benefits from the Plan while receiving a salary from public employment, no matter how small that salary might be. In 1976, after Judge Hargrove's enrollment, that harsher provision was changed to the present set-off provision "for the purpose of permitting a retired judge to accept salaried employment or office without loss of retirement benefits, subject to certain limitations and conditions". Chapter 501, Laws of Maryland 1976.

The judge must be presumed to have known, at the outset of his State service, that one of the conditions for his receipt of full Plan benefits was that he not accept public employment after his retirement. And, therefore, the application now of that long-standing condition can in no way be said to divest the judge of any benefit to which he had, at any time previously, any vested or other right of expectation.

D. Equal Protection

Fourth, you inquire whether §56(c)(1) violates constitutional guarantees of equal protection.

To be sure, in Waldron II, the Court of Appeals held a statutory prohibition against retired State judges' engaging in the practice of law for compensation to be invalid on equal protection grounds. 289 Md. at 727. However, we do not believe that that decision in any way calls into question the validity of §56(c)(1).

Because the statute at issue in Waldron II substantially affected "vital personal interests" by preventing judges from practicing their profession, the Court declined to "reach out and speculate as to the existence of possible justifications for the challenged enactment". 289 Md. at 717. Rather, the Court evaluated the statute's reasonableness in light of "those statutory purposes which are readily discernible or a legitimate purpose that, presumably, motivated an impartial Legislature". 289 Md. at 722.8 In contrast, pension statutes, including §56(c)(1), need only have a rational basis and will not be set aside if any state of facts reasonably may be conceived to sustain the classification. Railroad Retirement Board v. Fritz, 449 U.S. 166, 175-76 (1980); Department of Transportation v. Armacost, 299 Md. 392, 410-11 (1984); Hornbeck v. Somerset Co. Board of Education, 295 Md. 597, 642 (1983). In our view, §56(c)(1) clearly meets this test.

By reducing State pensions to retired judges who subsequently accept other public employment, the statute serves the General Assembly's policy of minimizing "double dipping" from public funds, even when the funds are derived from different levels of government. Waldron II, 289 Md. at 723 n. 21. Significantly, that policy is not uniquely applied to only one class of retiees. Rather, it is a policy similarly reflected in other statutes, applicable to other State retirees, that act to terminate State pension benefits to retirees who subsequently accept permanent positions "with the State, local school system, library, community college or a participating municipal corporation". Article 73B, §§11(15)(b), 86(9)(b), 117(14)(b), and 145(13)(b).9

It is true that Article 73B does distinguish between retired State judges who accept public employment after retirement and other retirees whose situations arguably are similar: (1) State judges who are employed in the private, rather than the public, sector after their retirement; (2) State judges who were employed at another level of government before, rather than after, entering the State judicial service; and (3) other State employees who accept federal employment after retirement. However, we believe that there are rational bases for statutorily distinguishing each of these three groups from those judges who are affected by §56(c)(1).

The last group, State employees other than judges, are in retirement systems that differ significantly from the Judicial Pension Plan, the Judicial Plan being, on the whole, far more generous in its terms, conditions, and benefits than are the other retirement systems. And, although other retired State employees' pensions are not offset if they accept federal employment, their pensions, unlike judges' pensions, nonetheless terminate entirely if they accept post-retirement employment with any one of the specified State or local entities, no matter how small the salary. Certainly, the State is not required to provide identical retirement benefits to all its employees. Clark v. Tawes, 187 Md. 195, 200 (1946). See also Mazor v. State Dep't of Correction, 279 Md. 355, 369 (1977). Cf. Jackson Firefighters Ass'n Local 87 v. City of Jackson, 736 F.2d 209 (5th Cir. 1984). And the General Assembly could rationally have concluded that the differences between the "double dipping" provisions applicable to State judges and those applicable to other State employees are appropriate to the two groups' different situations, given especially the substantial differences in their underlying benefits.

Similarly, we believe, there is a clearly rational basis for distinguishing between State judges who retire to enter other public employment and those who retire to enter private employment. As pointed out, the purpose of §56(c)(1) is to prevent "double dipping" from public funds. A former judge who is receiving a State pension but no other form of publicly funded compensation is, of course, receiving only a "single dip" of public funds, even if the former judge is also receiving a privately paid salary.

As for the remaining group, those judges who were in other public positions before entering the State judiciary, the General Assembly could rationally have concluded that the need to attract able government employees to the State bench outweighed its concern for "double dipping". A statute that would prevent State judges from receiving a full State judicial pension in addition to any pension payable on account of prior service with another level of government would tend to discourage government employees from leaving their jobs for the bench. For this reason, the General Assembly might well have regarded the exemption of those judges from the operation of §56(c)(1) as an appropriate inducement to entering the State's judicial service.

In sum, we cannot conclude that §56(c)(1) violates equal protection, for its distinction between State judges who accept public employment after retirement and other classes of State judges or nonjudicial public employees is rationally related to its purpose of minimizing "double dipping" from public funds.10

E. Pension as Form of Deferred Compensation

Finally, you note that a judge's pension is a form of deferred compensation. We certainly do not argue with that characterization. However, we can find no constitutional or other legal impediment to the General Assembly's determining the conditions under which that compensation will be paid. See Mazor v. State Dep't of Correction, 279 Md. at 367-68. Provisions similar to §56(c)(1) are apparently not uncommon in other public pension plans. See, e.g., Application of Rachmv, 240 N.Y.S. 2d 680, 682 (Sup. Ct. 1963); Hickey v. Pension Board, 106 A.2d 233, 234 (Pa. 1954); State v. Lee, 24 So.2d 798, 802 (Fla. 1946). Franklin v. Savannah, 34 S.E.2d 506, 507 (Ga. 1945). See also Cal. Gov't Code, §75080 (West); N.Y. Retire. & Soc. Sec. Law, §§101, 211, 212 (McKinney). Yet we have not found any case holding such a provision invalid as applied to a plan participant enrolled after the provision took effect.

IV
Conclusion

In summary, it is our opinion that §56(c)(1) unambiguously applies to Judge Hargrove and that it is constitutional as so applied. Consequently, so long as Judge Hargrove is paid his federal salary, he may not be paid full benefits from this State's Judicial Pension Plan. Rather, because he does not meet all the Plan's conditions for receipt of full benefits, the retirement allowance payable to him must be offset in accordance with the Plan's terms.

Stephen H. Sachs, Attorney General

Nancy Knisley
Assistant Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: A suit challenging the conclusion reached in this Opinion is pending in the Court of Appeals. Hargrove v. Board of Trustees, cert. granted 304 Md. 438 (1985).

1 Several of these issues drive from the decision of the Maryland Court of Appeals in Attorney General v. Waldron, 289 Md. 683 (1981) (Waldron II), holding invalid under the Maryland Constitution former §56(c), which prohibited retired State judges from practicing law for compensation while receiving judicial pensions. In Chairman of Board v. Waldron, 285 Md. 175 (1979) (Waldron I), the Court of Appeals had declined to decide the challenge to that statute's validity, holding that the plaintiff had failed to join necessary parties. The General Assembly has since repealed former §56(c) by Chapter 508, Laws of Maryland 1982.

2 The Municipal Court of Baltimore City became the District Court for Baltimore City in 1971, pursuant to Chapter 789, Laws of Maryland 1969. The City's Supreme Bench became the Circuit Court for Baltimore City in 1983, pursuant to Chapter 523, Laws of Maryland 1980.

3 Judge Hargrove's Plan benefits ($42,000) plus his federal salary ($76,000) exceed the compensation on which his Plan benefits are based ($63,300) by $55,200, $13,000 more than his current Plan benefits.

4 Even though there is no mandatory retirement age for federal judges, a federal judge who has reached the age of 70 and has served at least 10 years may resign and continue to receive a full salary. 28 U.S.C. §371(a). Alternatively, a federal judge may retain his or her office but retire from regular active service upon reaching age 70, if the judge has served at least 10 years, or upon reaching age 65, if the judge has served at least 15 years. 28 U.S.C. §371(b). A judge who becomes permanently disabled may retire on full salary if he or she has served 10 years, on half salary if he or she has served less than 10 years. 28 U.S.C. §372(a).

It is thus true that, if Judge Hargrove continued to receive his full federal salary throughout his lifetime, he might never be paid any benefits from the State Plan. However, it is equally true that he might be eligible for at least a partial Plan benefit if he voluntarily resigns or retires before serving on the federal bench for 10 years. In addition, should Judge Hargrove's wife survive him, she would be eligible for spouse's benefits from the Plan under Article 73B, §56(d).

5 See note 1 above.

6 In support of its characterization of former §56(c), the Court cited to its earlier decision in Waldron I. Significantly, in the cited portion of Waldron I, the Court of Appeals went out of its way to distinguish the language, import, and effect of the infirm statute, former §56(c), from that of its predecessor, former §55(e). The predecessor statute provided, in relevant part, that a retired judge "who decides to engage in the practice of law may notify the Governor and Comptroller of such fact, and on the indicated date of his engaging in the practice of law his benefits under this section shall cease and no longer be paid". According to the Court, §55(e), quite unlike former §56(c), "did" merely "seek to precondition [a retired judge's] obtention of his pension" and did not "plainly prohibit[] a retired judge . . . from engaging in the practice of law for compensation". Waldron I, 285 Md. at 180-81 and n. 6.

In our view, the provisions of present §56(c)(1) are clearly akin to those of former §55(e). That is, unlike the statute struck down in Waldron II, §56(c)(1) merely "establish[es] a precondition for receipt of the pension" and does not "flatly prohibi[t]" retired judges "from engaging in their profession".

7 See also note 6 above and accompanying text.

8 At the same time, the Court noted that the statute neither infringed "rights recognized as 'fundamental' nor classifie[d] along lines determined to be 'suspect'". 289 Md. at 717. Consequently, it did not subject the statute to strict judicial scrutiny, under which the statute could have been justified only by a showing that it was necessary to promote a compelling governmental interest. See 289 Md. at 705-06.

9 That policy also finds expression in statutes under which the State pension of an employee who retired because of a disability is reduced by the amount of any workers' compensation benefits payable to the employee. Article 73B, §§11(20), 86(7a), 117(18), and 145(18). And, apparently for the same reason, workers' compensation benefits are offset by the amount of an employee's pension from any publicly funded retirement system, even if the workers' compensation and the retirement benefits are not traceable to the same governmental entity. Article 101, §33; Tsottles v. City of Baltimore, 55 Md. App. 58, 63 (1983).

10 In addition, under the "rational basis" test, underinclusiveness does not render unconstitutional an otherwise valid law. See Railroad Retirement Board v. Fritz, 449 U.S. 166, 175 (1980); Department of Transportation v. Armacost, 299 Md. 392, 413 (1984).