If a retired North Carolina district or superior court judge bought back his military service time within the Uniform Judicial Retirement System, does that purchased military service count toward the 15 years of creditable service required to be commissioned as an emergency judge?
Plain-English summary
NC's Administrative Office of the Courts had a recruitment problem in 1981: emergency judges. The state used emergency judges (retired judges commissioned by the Governor and assigned by the Chief Justice) to fill gaps in the court calendar. G.S. § 7A-52 set the eligibility bar at 15 years of creditable service after retirement under the Uniform Judicial Retirement Act. AOC Director Bert Montague asked AG Edmisten whether purchased military service time counted toward that 15 years.
Assistant AG Norma Harrell, for AG Edmisten, said yes. The reasoning had to thread three statutes:
- § 7A-52 used the term "creditable service" without defining it for emergency-judge purposes. The term is a retirement-system concept, so the answer had to come from retirement statutes.
- The Uniform Judicial Retirement Act (Article 4 of Chapter 135) defined creditable service narrowly: prior service plus membership service. Neither expressly included military time.
- But § 135-52 made certain provisions of Article 1 (the Teachers' and State Employees' Retirement System) applicable to the judicial system. One of those provisions, § 135-4(f)(6), enacted in 1974 (after the Uniform Judicial Retirement Act's 1973 enactment), allowed members to purchase "service credit" for military time.
The AG read the three statutes together. The definition of creditable service in Article 4 did not expressly include purchased military time because the military-purchase mechanism did not exist when the Article 4 definition was written. After 1974, when the purchase mechanism became available to judicial-system members through the § 135-52 cross-reference, the purchased time had to count somewhere. The AG saw only one place it could count: as creditable service. It would be a contradiction in terms, the AG said, to allow a judge to receive "service credit" for purchased military time and then deny that the purchased credit was "creditable service."
The AG acknowledged the policy mismatch. The 15-year requirement for emergency judges existed to ensure substantial judicial experience. Military service is generally unrelated to judicial work. But the statutory text and structure pointed to one answer regardless of the underlying policy: purchased military time was creditable service.
Result: a retired judge with, say, 12 years on the bench plus 3 years of purchased military service could meet the 15-year creditable service requirement and apply to the Governor for an emergency-judge commission.
Currency note
This opinion was issued in 1981. 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. The judicial retirement statutes have been amended many times since 1981 to address contribution rates, benefit calculations, and military-purchase mechanics. The emergency-judge eligibility statute has also been amended. Anyone evaluating a current eligibility question must read the current §§ 7A-52 and 135-52 et seq. and any AOC procedural guidance.
Background and statutory framework
NC has two parallel public retirement systems that matter here. The Teachers' and State Employees' Retirement System (TSERS), governed by Article 1 of Chapter 135, is the larger umbrella system for most state employees. The Uniform Judicial Retirement System, created by Article 4 of Chapter 135 in 1973, is a separate system for judges. The two systems share substantial machinery; § 135-52 specifies which Article 1 provisions apply to the judicial system.
The military-service purchase provision at § 135-4(f)(6) was enacted in 1974 as a TSERS provision. It allows members to convert prior military service into retirement-system credit by paying a calculated buy-in amount. The purpose is to recognize military service in retirement calculations without making the state directly fund that service. The cross-reference at § 135-52 brought that mechanism into the judicial system effective 1974.
The puzzle the AG had to solve was that § 135-53(6)'s definition of "creditable service" in Article 4 (the judicial system) did not explicitly mention purchased military time. The omission was a drafting artifact, not a legislative choice: the Article 4 definition predated the Article 1 military-purchase provision and the § 135-52 cross-reference that made it applicable to judges. Reading the statutes together (the conventional in pari materia move) produced the only sensible answer: time purchased under a mechanism the legislature made available to judges had to count as creditable service for judges.
The AG also noted the parallel inclusion of "additional service" at § 135-56.1, which the General Assembly had expressly defined as creditable service. That treatment showed the legislature's pattern: when it extended a service-credit mechanism, it generally treated the credit as creditable service. Purchased military time, though added through a cross-reference rather than a direct Article 4 amendment, fit the same pattern.
Common questions
Did this opinion mean judges could retire earlier?
Not exactly. The opinion addressed eligibility for emergency-judge status, not retirement timing. The Uniform Judicial Retirement Act has its own rules for when a judge can retire and at what benefit level. The opinion's effect was at the post-retirement stage: a retired judge with less bench time than the 15-year emergency-judge threshold could now qualify by counting purchased military time.
How is military service purchased in the retirement system?
The judge (member) pays an amount calculated to bring his retirement account up to the level it would be at if the military service had been actual employment. The calculation depends on the member's current salary, the years of military service being purchased, and the actuarial assumptions of the system. The mechanics are governed by the rules of the Retirement Systems Division.
What about other purchased service types?
The AG's opinion was specifically about military time, but the reasoning would extend to other purchase categories that became available through the § 135-52 cross-reference. The general principle is: if the system allows you to buy service credit, the resulting credit counts as creditable service for all statutory purposes that turn on creditable service.
Did this opinion bind the Governor?
The opinion was advisory, not binding. But it gave the Governor and his legal counsel a clear AG reading that a particular retired judge's application should be evaluated using the aggregated bench-plus-military service total. As a practical matter, the Governor would honor the AG's reading absent strong reason to depart.
Source
- Landing page: https://ncdoj.gov/opinions/courts-judges-crediting-of-purchased-military-service-time/
Citations
- N.C. Gen. Stat. § 7A-52
- N.C. Gen. Stat. § 7A-53
- N.C. Gen. Stat. § 135-52
- N.C. Gen. Stat. § 135-53
- N.C. Gen. Stat. § 135-4(f)(6)
- N.C. Gen. Stat. § 135-56
- N.C. Gen. Stat. § 135-56.1
Original opinion text
Requested By: Bert M. Montague, Director Administrative Office of the Courts
Question: Does military time for which credit has been purchased in the Uniform Judicial Retirement System count towards the fifteen years of creditable service required under G.S. § 7A-52 for service as an emergency judge?
Conclusion: Yes.
Under G.S. § 7A-52(a) a retired district of superior court judge who has not reached mandatory retirement age, but who has retired under the Uniform Judicial Retirement Act after completing fifteen years of creditable service, may apply to become an emergency judge of the court from which he retired. G.S. § 7A-53 provides for the application to be made to the Governor. If the Governor is satisfied that the retired judge qualifies under G.S. § 7A-52(a) to serve as an emergency judge, he must issue a commission as an emergency judge to the retired judge. An emergency judge, commissioned by the Governor, may be assigned to hold court in the court from which he retired by the Chief Justice of the Supreme Court. G.S. § 7A-52(a).
The question has been asked as to what service constitutes creditable service for the purpose of having completed fifteen years of creditable service in order to be eligible for appointment for which credit was purchased in the Uniform Judicial Retirement System be counted towards the fifteen years of creditable service? Since the requirement of fifteen years of creditable service is for judges who have retired under the Uniform Judicial Retirement Act, and since creditable service is a term peculiar to retirement systems, the provisions of the Uniform Judicial Retirement Act must be examined to answer this question.
The Uniform Judicial Retirement Act was enacted in 1973 and is codified as Article 4 of the Chapter 135 of the General Statutes. G.S. § 135-53(6) defines "creditable service" as the total of a member's prior service and his membership service. "Membership service" is defined in G.S. § 153-53(12) as "service as a judge rendered while a member of the Retirement System." "Prior service" is defined in G.S. § 135-53(14) to be "service rendered by a member, prior to his membership in the Retirement System, for which credit is allowable under G.S. § 136-106 (now
G.S. § 135-56)." None of these provisions appears to include military service time. However, creditable service has been expanded. For example, certain additional service was defined as creditable service in G.S. § 135-56.1. Moreover, the definition of "creditable service" in Article 1 does not clearly include military time either.
Military time is not purchased pursuant to any express provision in Article 4 of Chapter 135. G.S. 135-52 makes the provisions of Article 1 of Chapter 135 applicable to the Judicial Retirement System except as otherwise provided and then lists G.S. §§ 135-5(h), 135-5(n), 135-9, 135-10, 135-12, and 135-17 as among the provisions in Article 1 applicable to the judicial retirement system. Pursuant to the language of G.S. § 135-52, members of the Uniform Judicial Retirement System have been allowed to purchase credit for military service under the provisions of G.S. § 135-4(f)(6), the military purchase provision for members of the Teachers' and State Employees' Retirement System. G.S. § 135-4(f)(6) specifically provides for the purchase of "service credit."
The military service purchase provision of G.S. § 135-4(f)(6) was enacted in 1974 at the Second Session of the 1973 General Assembly, after the enactment of the Uniform Judicial Retirement Act. Although the definition of "creditable service" in Article 4 of Chapter 135 does not expressly include purchased military time, one would not expect it to do so since the military purchase provisions relevant for members of the Uniform Judicial Retirement System did not exist at the time the definition of "creditable service" was enacted. However, reading the statute as a whole, such credit can only be considered creditable service. By its very definition, creditable service must include all service for which service credit may be received, and this includes the purchased military time. Therefore, it appears that the purchased military service time is and must be creditable service within the Uniform Judicial Retirement System.
The apparent purpose of requiring a retired judge to have fifteen years of creditable service in order to serve as an emergency judge is to ensure that the emergency judge have ample experience in a judicial capacity. Military service time may be totally irrelevant to judicial or even legal matters. Nevertheless, it can only be considered creditable service in the Uniform Judicial Retirement System. It is contradiction in terms to say that a judge can receive servicd credits for military service time and yet to say that it would not be creditable service. Therefore, military service time which has been purchased within the Uniform Judicial Retirement System by a member of that System is, and must be, creditable service within the meaning of G.S. § 7A52, which was adopted in its present form in 1977, after the enactment of the provision for purchasing military service.
By definition, creditable service for purposes of G.S. § 7A-52 includes all service credits or time for which a retired judge has credit for retirement purposes within the Uniform Judicial Retirement System. Consequently, a retired judge who has less than fifteen years' service as a judge, but who has purchased enough military time so that his military time and his service as a judge together add up to fifteen years, is eligible for appointment and assignment as an emergency judge.
Rufus L. Edmisten
Attorney General
Norma S. Harrell
Assistant Attorney General