Justices defend judge blocked from collecting retirement benefits

CARSON CITY — Several Supreme Court justices made spirited defenses Wednesday on behalf of a Clark County district judge who has been blocked from collecting retirement benefits that he earned earlier in his career.

Justice James Hardesty chastised a Public Employees Retirement System lawyer who said District Judge Douglas Smith wanted to “double dip” in 2009 by serving as a judge and also collecting his retirement.

“There is nothing sinister about it,” Hardesty said.

Smith would have been entitled to collect both his judge’s salary and his retirement if he had correctly filled out his retirement paperwork, Hardesty said.

Despite his and other justices’ comments supporting Smith, the Supreme Court made no decision Wednesday on whether Smith can collect a full $160,000-a-year district judge salary and retirement benefits. Legal briefs filed in the case do not list his expected retirement pension figure.

Before being elected a district judge, Smith had worked 23 years as a public defender, prosecutor and justice of the peace and was a participant in the state retirement system.

During the Wednesday hearing, retirement system lawyer Chris Wicker said state law prevents Smith from receiving his retirement pension without a break in service. He retired as a justice of the peace on Jan. 4, 2009, and the following day became a district judge, Wicker said.

Justices of the peace receive retirement benefits through the state retirement system. District judges receive benefits through the Judicial Retirement System, a separate program operated by the Public Employees Retirement System.

After beginning work as a district judge, Smith submitted a letter to the Public Employees Retirement System announcing his retirement from that system and enrolling in the Judicial Retirement System.

But Charles Gardner, Smith’s lawyer, said the judge retired from his justice of the peace job on Dec. 31, 2008. His Clark County payroll advisers put down Jan. 4, 2009, as his retirement date so he could continue to receive health care benefits during the few days before he became a district judge.

“It was a fiction,” Gardner said. “I cannot explain why Clark County did this.”

Hardesty said that laws give the Public Employees Retirement System the power to make changes to correct errors or inequities.

Justice Mark Gibbons added that Smith “hurt himself by retiring from PERS.”

Because he retired before he was 60, Smith would be deducted 4 percent in benefits for each year of early retirement. He could have stayed in the Public Employees Retirement System instead of joining the Judicial Retirement System and in the end earned more in retirement benefits, Gibbons added.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.