Booth v. Sims

456 S.E.2d 167 Totten,

Stanley BOOTH, D. W. William R. L. Martin Gordon

Charles Petitioners, individually,

Clark, Secretary SIMS, L. the Executive

James as Virginia Consoli

of the State West Board, Public Retirement Loretta

dated Haney, Elder, A.

K. David A. David Lautar, Jr.,

Wyant, Toney H. James

Morton, Poundstone, S.S. Elizabeth Sat

terfield, Wilson, all Members F. as Janet Virginia Pub

of the West Consolidated Polan, Board, as

lic Retirement Chuck Virginia Consoli

Chairman of the West Board, Retirement

dated Public Glen

Gainer, III, Chairman of Vice Virginia Public Re

West Consolidated Board, and

tirement Governor Gaston

Caperton Treasurer Larrie and State

Bailey, Ex Officio both as Members Virginia Public

the West Consolidated Board, Respondents.

Retirement

No. 22464.

Supreme Appeals Court Virginia.

West 12, 1994.

Submitted Oct. Dec.

Decided Dissenting Opinion

Concurring and 20, 1994.

of Justice Miller Dec. 24, 1995.

Filed As Modified March

326 Garvin, Sorsaia, Turley, A. Sorsaia &

Mark Winfield, petitioners. Gen., Atty. Nunley,

Robert M. Sr. Asst. Charleston, respondents.

NEELY, Chief Justice: proceeding presents the This mandamus question certain 1994 amendments whether plan safety pension im- to our State’s art. pair obligations of contract under Ill, Virginia § 4 of the West Constitution. granted rule to show to set the We cause unambiguous law in clear and terms concern- ing of thousands West Virginia public employees given who have government service and now their lives health, rely and secu- for their future welfare rity upon promises made to them legis- through their fellow citizens the elected below, given legiti- For reasons lature. government expectations mate of servants after those servants cannot be confounded part of the partially performed their bargain people, to their detri- with the relied ment, options. other career and foreclosed Accordingly, we find the to the extent that safety amendments unconstitu- public petition- opinion, in this we award tional ers of mandamus. a writ I.

THE FACTS years, past seventy-five the West For the Safety Virginia [“Divi- of Public Division employed of state has hundreds sion”] charged with troopers. troopers are These life, of liberty property protecting the and citizens, judicial takes and this Court popularly re- Safety” Division's members are Previously, was and the "Division of Public 1. police” troopers.” Safety,” or "state “Department ferred to as "state Public of known physically matching per- notice that law enforcement is a sion made of 12 contributions demanding dangerous occupation. and Rule [1990]. cent. W.Va.Code 15-2-26 After retirement, W.Va.Rules Evidence. meeting eligibility3 for a state of trooper expect could then to receive an annu- In began the Division its mission equal of percent al to 5.5 his or her twenty-five men with one hundred and who earnings troop- cumulative lifetime as a state adapted had I uniforms from the War World $6,000, greater4. er or whichever was infantryman Today, uniform. Division 15-2-27(c)(l) (2) In [1988]. Code and employs over five hundred men and women words, $500,000 if trooper in had earned charged who are with law enforcement duties salary payments trooper total as a over twen- organization. paramilitary what remains a ty-five years service, his or her legislature pension plan established a $27,500 per be year would for the rest of his trooper for the Division’s members addition, beginning or her life. plan required originally troopers to all eligible all also allowed retired percent amounting make contributions age fifty-six who had members reached provided their and it salaries was percent over to collect an 3.75 additional Division match would these contributions an annuity their awards as annual percent equal payment.2 with an adjustment. W.Va.Code 15-2-27a [1988]. By pension system required all pay troopers percent state plan’s of their sala- Before the amended the system, ries into the retirement Divi- had arisen concern concern- 4. Under 3. W.Va.Code reached Public retired before ty-five W.Va.Code served that: service credit eight of this years shall have years of this (excluding military years of service as a member of the division der section (3) Being der the ber of the division of petition writing (2) Miscellaneous (including lodged years sions of section (1) vice as ber of the military member has (b) (a) collection of member of Has or shall Has or shall have The retirement board shall retire The retirement board shall years article); Employees twenty years and has or shall have W.Va.Code would fifty. Beginning retirement board his or her a member of the service credit provisions 5— service as a completed twenty years under the military completed twenty-five years [division] 16—13(e),part 15-2-27 reaching age fifty, payment twenty-eight article). both the member not granted fees Insurance pension. as a secretary 15-2-27(2), twenty-eight division attained the begin also funded the service credit service credit of section longer ^[1994] age member of the division granted attained the of Division and was retirement, under section public safety public safety completed twenty-five the of the West of in of this [division], including Act, The statute until of the consolidated (excluding military but governs eligibility fifty years completed if a member had 1988, however, under retire twenty-eight conceivably less of this article. age the member of granted granted article); age and: than twen- system. service any any voluntary when the who has Virginia provides fifty-five twenty- twenty has or of of ser- of the provi- mem- mem- fifty un- un- al- or of benefit.” involves ers, either immediate or may applied thousand acted W.Va.Code to use "[b]eginning ceive collect Retirement Board 16-13(e). states that: earlier. W.Va.Code order to increase their quirement. lowed credit The eligibility service shall not be On additional service credited in excess thereof. retirement computation days constituting additional credited service in annual and sick the first applied, service credit for accrued annual leave in the two dred coverage In the alternative to is reserved for our discussion in section V. the January his employee’s constitutionality retiring his greater monthly eighty-eight, in existing provisions satisfy nine After this accrued sick and annual on the determining day accumulated annual and sick leave in through for retirement This not preceding system. 25, 1994, hundred pensions, troopers of such benefits under 15-2-27(c)(2), contract the fifteenth before retirement benefits with such voted to allow state July, basis of leave, premium of [W.Va.Code deferred commencement of decision, 5— twenty-five each the extension 16—13(e) However, of this subsections, one thousand nine hun- eligibility participating employee’s ninety-four, benefits under Code 5- used under the the Consolidated Public but also to draw them age fifty, toward an increase in rights one criteria, two allowed sick in the payment day which states that enactment, ^[1992] day days year meeting to such credited leave age as well as to 5-16-13] of on and after but in no event days troopers of accrued retire with service re- retirement insurance any July currently provided petition- trooper fifty to re- initial as it one en- as

331 (effective September 15 solvency percent 2 ing pen- percent the the future Division’s 15-2-27(c)(2) 1994). 15-2-26, system. According to a 1987 actuarial sion W.Va.Code study, sys- into existing the contributions the 15-2-27a [1994].7 and pen- future tem not sufficient to meet were amendments, the On the effective dates of payments, periodic and the increases sion police all officers petitioners were state the necessary the additional benefits without fifty twenty age of who had over under the employees levels from the and contribution Thus, al- years’ with the Division.8 service $11,400,000 the created an fund defi- Division so, the though compels no law them do Although plan’s cit. the contribution levels and collect their petitioners retire now percent had the 18 to 20 remained at each of respective pensions on the date that 1980s, salary during the 1987 the 1970s fifty.9 age W.Va.Code them reaches the suggested required the actuarial review 15-2-27(c)(2) 1994]. [1988 have been between contributions should salary percent existing the level. and 30 September Rather than retire before 1990, By liability the fund the unfunded rights protect order to dollars, million and the actu- totalled over 88 annuity, however, petitioners the greater prepared the report arial Division esti- enjoin respondents’ implemen- sought the in a mated the fund would be deficit a declara- tation of the amendments and filed by 2005. tory Circuit Court of judgment action the Following twenty-four retirement of the County July peti- on 7 1994. Kanawha troopers year during state the calendar challenged constitutionality of tioners legislature responded to concerns the contracts clauses of amendments under about the fund’s actuarial soundness There- the State and federal Constitutions. pension plan in 1994.6 amended after, petitioners brought original this man- (1) newly wrought changes at issue here: Sep- and on 16 action this Court damus monthly payroll from increased deduction dismissed the circuit court tember troopers’ percent from 6 to 7.5 state salaries declaratory judgment action. petitioners’ July percent raised these effective 1994 and proceeding In mandamus now before percent July to 9 effective contributions Court, petitioners claim the 1995; (2) troopers’ prohibited state use unconstitutionally impair amendments annual and sick accumulated but unused they entitled which were vested years of service leave as credit toward legislation. reply, the new before determining eligibility for retirement petitioners have no (effective (3) respondents assert 1994); July reduced (cost the amendments are annuity rights and that safety vested annual retirement adjustment guarantee fu- an annual 3.75 reasonable because living) from pro- legislature also certain According The 1994 amended the Consolidated Public Retire- 7. year ending Report pension plan for the that estab- ment Board’s Annual visions of the Division's 30, 1994, fifty troopers a total of June for members. See n. lished new benefits during year here, from the Division fiscal retired Although at issue these other infra. Thirty-six oc- of these retirements 1993-94. analysis provisions the consti- do influence our during period between Jan- six-month curred issue, and, tutionality con- of the Amendments uary June 1994 and sequently, we reserve our discussion of them for section V. also new retirement 6. The enacted Virginia The West State Police known as into petitioners had also contributed the 8. ["Act"], 15-2A-1 to Act W.Va.Code Retirement 15-2A-19, predecessor Division’s fund. to cover all future which is intended petitioners claim troopers of Division. The the interpreted apply "all” to to the Act could be Alternatively, may petitioners the contend 9. and, enactment, the troopers in before the respective leave apply their accrued annual also a consequently, would create that this enactment a to allow their collection of and sick leave time For the rea- of benefits. more severe reduction age fifty. n. pension See the discussion in before however, below, does given we find the Act sons 4. troop- pension eligibility any govern for not the Division’s er was a member of who of March 1994. amendments 12 fund before the 332 safety pension solvency

ture of the on the face of in order to claimers the bonds application escape fund. Constitution’s of our against prohibition of state debt. creation These disclaimers stated that II. creating neither a of the State in was debt

THE CONSTITUTIONALITY X, 4, creating § of art. an obli- violation nor OF PENSIONS gation appropriate money liquidate to to analyzing previous After bonds. our cases Although we never doubted the con- issue, on the as well as the reasons for our past stitutionality plans, our deci- debt, prohibition against state’s state-created why sions have not elaborated on the reasons ultimately this Court concluded the State pensions legitimate are debts of the State. responsibilities shirk could not its to fund the However, given the current financial condi- it had its initial bonds once undertaken finan- fund, tion of the Division’s as well 763, 764, cial commitment. at 189 W.Va. impact legisla- here on our decision future 435, We, therefore, S.E.2d forbade itself, tion that affect the this fund of similar in the issuance bonds future. Court must first address the circumstances pensions any under which sort are consti- Winkler, note, however, we did that in provide complete tutional if are to state- certain instances the State could issue bonds ment on our law here. themselves, proceeds, when the bond were to Const., X, provides § art. W.Va. “No to projects bridges, be used build as toll State, except debt shall be contracted buddings generated money or liqui- that to revenue, to meet deficits in casual to obligation. bond date the 189 W.Va. at 756- State, previous liability redeem a (discussing S.E.2d at 428-430 fund- insurrection, suppress repel or invasion de- arrangements ing not that do violate our war; pay- fend the time of but limitations). constitutional debt In these in- any liability ment of than that stances, special fund from the derives ser- State, ordinary expenses of the shall be itself, and, reason, lenders, vice for this equally period distributed over a of at least taxpayers, are only potential losers if the Const., also, twenty years.” See art. project generate anticipated does not re- X, § (prohibiting granting the State from turns. municipalities becoming credit to and from any company an owner or stockholder in long ago This Court concluded association). today Because debt leads di- systems our do not involve the cre rectly tomorrow, to cuts in services our con- ation of an unconstitutional debt. State ex provisions against stitutional state debt “are Sims, rel. Board Governors v. 133 W.Va. designed generation politi- prevent one (1949). 55 S.E.2d Al helping cians from their friends whilst leav- though Sims did not discuss the rationale ing generation taxpayers next foot issue10, reasoning its given behind on this Building the bill.” Au- Winkler School decision Winkler should now be 748, 769, thority, 189 W.Va. 434 S.E.2d pension systems clear that are constitutional (1993) J., (Neely, concurring). special for the same reasons that revenue explored decision pledge Winkler the consti- bonds are constitutional: The for the tutionality school of certain revenue bonds fund actuarially derives from the liquidated general employees that were to be from the sound contributions of the and the Division; is, approving revenue of the state. Before expected fund bonds, placed generate money various elis- its own to meet its eventual brought faculty Sims arose from mandamus action its revenue that was derived from by versity Virginia the Board of Governors of West Uni public money. Because Sims concerned the is- compel pay the state its auditor to authority sue of the Board’s to create a pensions by provided teachers as the certain for program, opinion require thorough the did not a Board. This Court denied the writ because constitutionality of the discussion of legislature concluded the never authorized the plans. separate program a Board to create retirement totaling between money expected curred unfunded liabilities obligations. to Because million. precedent and away as condition to fund put $56 $80 be a pensions legitimate system, are debts of the original Dadisman arose from an manda- Const, W.Va. Consequently, the art. state. by proceeding brought mus a retired 51B(3)(d) VI, pre- § to requires the Governor legis- employee against executive and various pare yearly payment budget a that allows for charged administering officials with lative constitutionally debt pensions of as created of had PERS. found the PERS officials We the State.11 contractual, statutory and breached their by failing appro- petitioner to trust duties passage of the Until the amendments priate money maintain the actu- sufficient case, legislature in this the had not issue granted a of and we arial soundness PERS of sufficiently the contributions the increased requiring proper funding system. of writ the troopers and the State’s the Division meet debt, according to and a eventual In an to maintain the actuarial effort study, the 1994 actuarial unfunded accrued pension system of the Division’s soundness liability troopers’ for the retirement here, the amend- the enacted $166,668,239. totals This is not the first now greater require ments contributions from Dadisman happened. In Thus, time that this has in employees employer. and the the Moore, 384 S.E.2d 816 W.Va. addressing the mandamus action now before (1989), us, this Court confronted the financial the we must consider whether actuarial themselves, amendments, problems Employees of are the Public Retire- constitutional [“PERS”], which, System designed because to insure the fund’s sol- ment of measures vency. underfunding legislature, had in- from the Const, section, VI, spending § officer at the our State's the shall

11. W.Va. art. controls B, part budget procedures. legis- Under Subsection copy the same time transmit a thereof to section, budget shall embrace an “[e]ach of the joint gov- lative and on auditor the committee appropriations, in estimate of the such itemized designee. its If a ernment and finance or governor and as the shall determine form detail spending spending officer of unit fails to (a) by prescribed be For the or as law: legislative copy such to the auditor transmit governor legislature as the certified to the beginning year, the or before the of the fiscal (b) provided; for the execu manner hereinafter legislative notify secretary, the auditor shall (c) judiciary depart department; the tive for failure, such and auditor and treasurer of ment, law, gover by provided the as certified to appropriated thereafter no funds auditor; (d) by payment discharge and nor the for expend- spending unit shall be encumbered or principal any debt the and interest the of State created spending thereof has trans- ed until the officer Constitution, conformity the legislative copy auditor. mitted such to the (e) thereof; pursuance laws for and all enacted legislative deter- In event the auditor the payable the salaries the State under Con the State; reports (f) or mines from certified from and of the for such other stitution laws making any spending Constitution and unit is not purposes as are set forth sources that [Emphasis pursuance made in thereof.” employee in laws payments and for bene- all transfers added]. purpose, appropriated for fits from funds budget finance notify secretary section of the State’s divi- legislative shall auditor agency as for the Governor sion acts staff administration, auditor treasurer powers and under W.Va. of his duties exercise thereafter no funds such determination and Const, See, VI, § W.Va.Code 5A-2-1 art. spending appropriated to such unit shall 5A-2-12(5) According § to W.Va.Code [1991]. [1990]; expended salary or for encumbered spending of the unit compensation head days after end of each Within fifteen legislative shall determine until auditor every year, fiscal the head month being payments or transfers are that such legislative certify to spending au- unit shall timely basis. made on payments obligations and ditor the status of Debt enacted "The spending amounts bene- unit Act," Management 12-6A- W.Va.Code12-6A-1 to to, obligations fits, including, but not limited ["DMA”], currently supplements the which security withholding payments social division in State’s creation finance matching, public employees employer insur- seq.. requires § DMA Code et 5A-2-1 premiums public employees retirement ance act of Investments to director of the state Board systems. [Emphasis and teachers retirement legislature on all debt mat- as a liaison with the added]. ters, including, to debt issued but not limited expendi- spending an officer submits When spending units. required by and its secretary ture schedule to 334 police department

III. in the [had] who been department twenty years service of such for PAST CASES NEEDING department and who a member such [was] of CLARIFICATION age fifty years.” when he [reached] of 373, 135 expressly [Empha This never at 265 Court has determined W.Va. S.E.2d at employee, resigned whether an who otherwise added]. satisfies sis Because the officer requirements pension for a but fifty, is still from service before he became he did service, may statute, active state lose entitlements requirements not meet the formally applies and, before he or she for retire- consequently, right he had no vested Instead, ment having benefits. often consid- 375, pension. at 148 W.Va. 135 S.E.2d at pension vesting ered the issue of in the con- addition, pled guilty 266. In had Officer Fox employees text of retired who did not meet twenty-four felonies he committed while eligibility pensions, we have decided some policeman, pension he was a and we held the incomplete difficult cases that made law in implicitly required statute also honorable this area. service to entitle an to retirement 3, Syl.Pt. benefits. Fox. police

We announced when a officer pension collect a under our law State ex 1976, codified Fox’s com- rel. Fox v. Board Trustees Policemen’s requirement mon law of honorable service Pension, 148 W.Va. S.E.2d receipt pension benefits at W.Va.Code (1964): eventually 5-10A-1 to 5-10A-10. We were right to a for a member of a constitutionality asked to decide the of these municipal department police depart- fire or rights enactments as affected the of a upon ment is based and created ... long-term public employee who had been (1959)] [W.Va.Code statute 8-6-20 felony convicted of a for actions taken while right accrues or vests such mem- County Virginia Sheriff of Marion in West only statutory ber when all the conditions Employees System Public Retirement v. performed requirements are and all its are Dodd, (1990). 183 W.Va. 396 S.E.2d 725 complied with and satisfied. It is then and Fox, Unlike Officer Sheriff Dodd con- had right pen- then that a vested to such pension system tributed12 to the for over sion accrues. twenty-five years at the time the (citing enactments, S.E.2d at 264 made the above and he did not Bachrach, Frye felony State ex rel. year Ohio commit his until his thirtieth (1964)). Nevertheless, employment. 195 N.E.2d 803 upon the sher- benefits, application iffs for retirement police right Fox concerned a officer’s pension. board denied his City after his service ended with the resigned, Bluefield. When the officer he argued The sheriff he should receive at continuously twenty-five had served over prorated portion least a of his for the years city, yet but he had not at- services he rendered until he violated the age fifty. tained the After he reached law. He also asserted the 1976 enactments however, fifty, immediately ap- the officer unconstitutionally impaired his plied pension, for a and the board rights employment under his contract. This application. appeal, denied his On we af- Court, however, found the enactments did firmed board’s denial of benefits. impair the sheriffs contract because the interpreta- implicit result Fox rested on our condition of honorable service at all [1959], and, therefore, tion of 8-6-20 for- W.Va.Code which times was never satisfied his merly governed eligibility an officer’s for a fully contract never pension. statute, language Given the of that vested. 183 atW.Va. 396 S.E.2d at 732. pension only misconduct, we found allowed “a for a Given his we held the sheriff had municipal department member of a fire pension. forfeited his entire Technically, participation Sheriff Dodd had received thir- it under PERS for his before the noncontributing years prior, implementation teen service cred- in 1961. legislation im- Consequently, found the of we the explored Fox Dodd issue Both and obligations of vesting employees paired in the context the contract. 167 W.Va. pension for eligibility did not meet benefits. at 646. who at S.E.2d However, Gainer, Wagoner v. 167 W.Va. Dodd, Wagoner our decision seem- Until (1981), pension examined 279 S.E.2d 636 em- ingly analysis controlled our vesting applied employees as to who were fact, pension rights. In before we ployees’ eligible receiving and benefits. were held in Dadis- opinion, the Dodd issued Wagoner, passed In the had man, supra, and active PERS that “retired pension the bene- amendments that reduced contractually vested plan participants have justices supreme and fits of retired court rights pension property by created the stat- judges. the enactment circuit court Before ute, rights are property and such enforceable Wagoner, at all of the amendments issue impaired the and cannot be or diminished eligible justices judges could col- retired and Syl. [Emphasis State.” Pt. Dadisman equal percent to 75 lect retirement added]. judicial salary highest of their office of the Dadisman, earlier, supra, found As noted pensions up as were and their went raises legislative branches had the executive and But, judges. given justices to active actuarially fund to make the PERS failed this legislature repealed the “escalator many years. In course sound over the aggrieved judges provision,” and the retired duties mem- analyzing PERS trustees’ to the challenged legislation as an unconstitu- the fund, the of the we concluded that bers impairment under tional of contract the state pension failure fund the PERS trustees’ to Alter circuit and federal Constitutions. the impaired system improperly the state’s obli- judges granted of mandamus court the a writ participating plan to gations of contract the allowing payments them under the earlier members. provision,” “escalator the auditor appealed. treasurer (and suggest petitioners Dadisman contractually Wagoner) vested establish dispute Wagoner, parties did the participants for property interests all pension; appellees the could receive contributory program. Unfortunate- pension instead, in the dispute centered extent argument ly, petitioners’ does not reflect changes could make because, holdings previous on this issue our pensioners’ plans. This Court to the retired reveal, our cases below will discussion jurisdictions how other treated discussed unnecessarily merged eligibility pension rights, lengthy pension and after a examina- vesting. pro- most pension Our recent subject, of the we concluded: tion vesting, Mullett v. nouncement on Legislative modifications Board, City Huntington Pension Police reasonable, and for plan must be the test (1991), serves 413 S.E.2d 186 W.Va. reasonableness is whether alteration example. as an keep scheme serves omit- [citations sound flexible case deceptively similar Mullett Thus, rights beside that the ted.] the fact us because it considered whether now before detri- plan retired members cannot be an em- legislature could amend active13 all, mentally keep at alterations to altered pension plan without unconstitution- ployee’s stable be direct- the trust should first fund ally impairing obligations contract. solvency. at threats to the trust ed fund’s began employment with Mullett his Officer 154, 279 at [Em- 645. 167 W.Va. S.E.2d Department Police Huntington phasis added]. April remained a full-time During provisions,” April his retirement removing until

By the “escalator benefits, an period, qualify legislature plainly benefits to subtracted twenty years’ right. least service officer needed at appellees had a contract which affecting plan. Although appeal, amendments his the time his retired Mullett was active at time Officer under former 8-6-20 [1967] W.Va.Code Until such time as Mr. Mullett was enti- (“1968 statute”).14 pursuant applicable tled On the date of Officer statute to benefits, hire, apply his were Mullett’s the 1968 statute also conceiv- clearly [Emphasis not vested. ably day added]. allowed an officer with at least one military apply early pen- service to for an 494, (citing, 186 W.Va. at 413 S.E.2d at 149 1986, however, legislature sion.15 In Fox, 373, 264; 148 W.Va. at 135 S.E.2d at amended the 1968 statute to limit the mili- Wagoner, accord at 279 W.Va. tary provision by requiring service a “one contributory pension S.E.2d at 641 [“in year interruption employment or more” plan, pensioners’ rights vest when all the apply early before an officer could for an entitling conditions them thereto have been 8-22-25(c) pension. W.Va.Code and 8-22-27 fulfilled.”]) [1985], Although respondents agree that the petitioners now, may apply pensions for July In Mullett Officer enlisted they may they age which collect when reach Guard, National and his enlistment entailed fifty, they argue holding in Mullett limits camps various weekend drills and summer vesting plan to retired —and not active— police department. until he retired from the contention, support In members. of this Although he admitted his National Guard Syllabus points direct us and 3 of interrupt police service did not his duties for Mullett, where we stated: year, a continuous Officer Mullett believed municipal police When a officer retires guard duty his him early pension allowed an contributing and ceases to be a member to applied when he for one in 1990. pension plan, rights pursuant his to such pension board twice denied Officer plan pension are vested and the contract application early pension.16 Mullett’s for an fully becomes executed rather than execu- court, however, granted The circuit Officer tory. early pension Mullett his because believed During period the time when a Wagoner compelled case application merely executory respect contract is of the 1968 statute in effect at the time of the particular individual due to the fact officer’s hire. active, participating that is still an he/she member, Legislature may amend the board, appeal by On we dis- plan provided any amendments sur- apply cussed whether the officer could vive a test of reasonableness. provisions of the allegedly 1968 statute that respondents language claim this above early him pension. entitled to an After con- , clearly precludes any vested interest facts, sidering the we decided he could not petitioners. now, upon We careful legislation held the applied to his reflection, disagree. “any case because there vesting was not rights on Mullett’s] must We concede here that Mullett was [Officer behalf year the ... made, [that made the one of those cases where a hard case least, ].” amendments at incomplete 413 at law. Officer Mullett was [Emphasis result, S.E.2d at 148.17 arguing utterly added]. We not- namely an absurd ed: reason his weekend warrior status Although gives brevity Mullett 1968 as the clarity, date of the 16. For the sake both we issue, legislative history actually statute at procedural have not detailed Mullett’s exact his- hire, reveals that at the time of the officer's statute had last been amended in 1967. Howev- toiy. er, consistent, to be we will refer to the statute as amendments, 17. At the time of the 1985 Mr. the "1968 statute.” completed only years Mullett had of service. required The retirement statute then in effect argued required 15. The officer the 1968 statute twenty years' least service before an officer be- day interruption military a one service. eligible apply pension. came for a See W.Va. Although this Court did not need to resolve the [1968], issue, Code 8-6-20 expressed we doubt about this contention. Mullett, 186 W.Va. at 413 S.E.2d at 149 n. military ing,” under which to the same but rather the conditions he was entitled right public employees property have a person tour as a who had served standard detrimentally pension system duty regular, to have in a full-time armed force. protected under the Obviously, altered that is contract never intended simply clauses because of substantial detrimental re- a result and in Mullett we found existing system. liance on the repair language it more convenient of Fox to decide the case than to discuss cases, then, there are two legislative intent in the face of inartful (1) employee’s issues of contract: an distinct Now, however, draftsmanship. are right contract to collect a after statu (1) squarely confronted with a case where: met; tory eligibility requirements have been (2) employees employment accepted (2) employee’s legitimate expecta (3) Virginia compensation a with West under nature, tions, in that also contractual plan part where a substantial entire government detrimentally not alter the will compensation paid was be deferred spent pension employee scheme once the has (4) through pension a the conditions for the system in sufficient time to have substan vesting unambiguous of which were clear and tially relied his or her detriment. (5) (unlike Mullett) there no inartful was employee first issue involves whether the has draftsmanship leading wholly irrational government remained in service for such a beyond any expectation so result reasonable length of time that he or she can collect that it amounted to a clerical error. Conse- benefits; the second issue involves the em quently, anything in to the extent that Mul- government ployee’s promised reliance on (which lett or Fox was also a hard case on years government service benefits after facts, given felony Officer Fox’s convic- age. Pension but before actual retirement tions) case, both is inconsistent with this eligibility expectations and reasonable about Mullett and Fox axe overruled. system’s entirely continued benefits are separate issues.

IV. eligibility By meeting certain re OUR HOLDING TODAY quirements, public employee acquires a a considering constitution When payment pension plan. For right to under a ality legislative amendments to any employee yet eligible payment, for plans, employee’s eligibility a an expectancy; public if em this is a mere does not determine whether he or she has age ployee does not meet the and service Instead, rights. the determi vested contract benefits, requirements partic or her his employee’s of an vested contract nation pension plan does not allow ipation in a state employee rights has concerns whether partic receipt pension. of a But this same system years of service in the sufficient employee’s reliance ipation does create an can be considered to have relied he or she Consequently, interest in benefits. substantially to his or her detriment on the membership pension sys employee’s a an existing pension benefits and contribution seeking his or her forbearance tem and must, however, stress that schedules. We prevents employment other holding applicable here does not alter obligations impairing the from eligi controlling employee’s statutes a state employee performed has a contract once public bility pension, for a itself. Until part her end of the substantial of his or age meets the relevant and service substantially relied to his or bargain and has pension, requirements for collection of a he her detriment. pension, and noth may not receive a or she govern Although participation in a existing proce ing opinion alters the ment and forbearance reimbursing pension contributions dure for employ seeking employment create an employee’s plan upon public volun into the right under ee’s contract tary involuntary separation from state Constitution, Ill, partic § 4 of our concerned with art. employment. What we are rights to ipation not create contract concept of “vest- does today not the technical See, Halpin government employment. protects. make v. Nebraska must contracts We clear, therefore, System, contin Patrolmen’s Retirement entitlement 897-898, 910, 892, government employment to be Neb. 320 N.W.2d 913-914 ued continues (1982) statutes, (citing cases); Topeka, applicable Singer v. controlled civil service (1980).18 pro Although regulations, process equal the due Kan. 607 P.2d 467 clauses, cases, agree holdings the first and oth with of these we tection amendment See, for our rules employment-related er Adkins must elaborate the reasons law. (1992); Miller, possible misunderstanding. avoid 187 W.Va. S.E.2d Commission, 160 Snyder v. Civil Serv. Injuries dangerous. Law enforcement is Finkel, (1977); Branti v. 238 S.E.2d occupation. life are in the and loss of inherent 100 S.Ct. 63 L.Ed.2d 574 445 U.S. protect public In order to as well as (1980); Burns, 347, 96 Elrod v. 427 U.S. themselves, therefore, enforcement offi- law (1976). 2673, 49 L.Ed.2d 547 S.Ct. necessarily cers must have certain character- wise, ruled. ments to a to the extent that Dodd law when inconsistent with all lished law because forfeiture pension that an explicit part during his or her service Other other nevertheless forfeit if misconduct is in advance and If (at later. employee’s jurisdictions similar an of the entire least since we consider government pension plan; employee engages of the Thus, cases) requirement misconduct entire not at opinion, they insofar as Dodd have reached similar pension, 1976) no has been legislative service, bargain. issue, longer has, other cases are it is still of honorable results to collect been misconduct Dodd he or she state the made an are over amend Other estab holds thus, good (and retirement board: regulations promulgated by the cadet selec- ed for such tion pass such ty years good er resilient and ties associated recruit not less State applicant state 7(e) istics. requirements board; physical ^[1985] troopers. moral understands They young than of for mental regulations provided, character; age, twenty-one must appointment examination as persons Until as examination and shall be of sound great ...”19 this, may youth. agile, strong, promulgated shall for nor more than the State seeks to be stamina —all part, shall required W.Va.Code 15-2- constitution employment provided be Because the that be a required meet to flexible, provid- “[e]ach person for in quali- thir- pass oth- as to considering constitutionality the legislature results When when structures pension plans troopers’ pension system of to amendments because state allow for jurisdictions judges age fifty, in these also conclude retirement before compensation encourages forego in a the deferred embodied suitable candidates to oth employment today for opportunities entitlement creates a reliance inter- er real employee practical est In in the state that the law benefits tomorrow.20 contrary age duty acknowledges thirty military This Court au- over the with active See, Annot., thority on this Vested exists issue. experience applying positions who were for Pension, Right of Pensioner to 52 A.L.R.2d 437. pilots helicopter the Division. Moreover, although jurisdictions most have language eliminated this and W.Va. considering adopted approaches contract when 15-2-7(c) only requires Code now a minimum public employee pensions, amendments age twenty-one trooper. a state to become agree always public do on the time when a not acquires rights property in a contract AmJur.2d, Property,” a 1964 article 20.In "The New Profes- See, pension. 60A Pensions and Re- postulated sor Charles A. that the Reich wealth Funds, (discussing public § 1620 tirement when depends upon more and more Americans "vest”). employees’ rights in a We think Reich, government. relationship to "The New any further discussion these concerns unnec- (1964). Property,” Although 73 Yale L.Rev. and, here, essarily reason, for this confuses decision ownership property in earlier times was ap- we choose not to discuss the other power govern- thought person, to confer on a proaches public employee be- power regula- ment now assumes over the rejects entirety. cause this Court them in their it, essence, property tion of controls 15-2-7(c) formerly modifi- W.Va.Code allowed wealth. As Professor Reich wrote: age persons requirement limit cation of its tantamount to permit otherwise would be terms, in the To promise results State’s subdivisions) (or who, allowing its many troopers, al- the State recruitment pur- employee might have Cap- steal a car an they may the rank of though not attain required to twenty he or she not been tain21, complete chased had may nevertheless wage fund to be diverted to part of the substantial retire- allow years’ service and receive funding. The difference between employment payments. The ment State’s then, car in whether the only pension and the lies troopers, for state not enjoy today or employee may the benefit troopers, results in a smooth recruitment Thus, when a compensation system must wait until tomorrow. but also resembles the public employee has devoted substantial ser- of the armed forces United States. that translates into substan- join early, complete vice to the state Employees the ranks reliance, pro- must during productive tial detrimental their most their service any just compensation ex- system. By pro- vide years, and then leave the pectancy clearly entices it eliminates. viding pensions, the State government’s troopers to in the em- remain blush, may, ap- Today’s at first decision ploy, and it is the enticement that is at legislatures and executives pear harsh on employees’ constitutionally protected heart of required to em- who are administer right after substantial reliance contract pay ployee pension funds and their benefits. detrimentally pension plan their own however, legisla- that both problem, altered. past in the made then tures and executives in the future promises to be fulfilled (or current political subdivi If the State its It is a legislatures and executives. sions) salary until a promise to defer problem government that to- (or local) recurrent em person’s retirement from State curry con- day’s officials favor with elected pay those ployment, promises and then to by promising that must be stituents benefits salary in the form of a deferred by elected officials. delivered tomorrow’s (or political subdivi pension, the State its sions) expectancy cannot eliminate this with troop Unfortunately, the state employee has just compensation once an

out secretaries, ers, personnel, school service substantially his or her detriment. relied to private savings No is more relied instead. [TJoday our wealth takes the more and more form on, property.... thought as tangible goods. and more status than or often form of 738-739, [Emphasis add- 73 Yale L. Rev. at ed], profession occupation is a or An individual’s also, Singer, Joseph Reli- William "The others, See example. many job a prime a with To Property,” L.Rev. ance Interest principal particular employer form of Stanford is the (1988). job frequently profession or a is far wealth. A account, house or bank more valuable than a [1994], a state Under W.Va.Code 15-2-5 bought, and a new a new house can be completes amount of ser- trooper a certain who created, job profession once a or bank account to receive re- Division is entitled vice with the gov- jobless, For the their status is secure. Corporal up without to the rank of classification persons may ernmentally assisted or insured longevity promotion. requirement of a To the main source of subsistence.... be the Trooper requirements than are as follows: —less individual, forms, profes- such as a these new eight Trooper years years; to Senior three —three income, sion, job right are the or to receive years years; Trooper to four- First Class—nine society, and his various statuses basis of years. Corporal years; than fourteen teen —more meaningful and may be the most therefore however, officer, may progress to a rank No possesses. wealth he distinctive Corporal higher under the reclassification than any promotion of an officer system, other and superinten- by appointment of the must result largess personal government is more No form of 15-2-4. dent. W.Va.Code age pension. No than an old or individual form who, recipient, $22,308 clearly is more earned Currently, third-year Trooper earns a $27,960 employer, to the together high- contributes Corporal with his and the per year, earns a years during his Security troopers Colonel career Lieutenant Social est rank of fund $60,- obviously $42,360. a earns employment. is more The rank of Colonel No earns form commanding property; officer private reserved for the compulsory 000 and is substitute for See, might W.Va. employer appointed the Governor. wage who is earner and tax on the higher higher pay [1991]. 15-2-2 readily gone and to have way program, it must find a teachers, workers, pension maintenance em- lishes highway persons attorneys pay pensions, and at least to those ployees, prosecuting assistant to substantially are ordinary state and local workers have relied. who expect politicians who their sophisticated not course, say that this is not to Of therefore, When, them. government to he to systems may changes not be made governor today’s today’s legislature and regard employees who have to new promises, those workers make those workers yet yet joined system and have not who organize Uves promises their believe Changes can be to their detriment. relied government that their expectation in the employees with so few regard made with to honorably. employer treat them will be said to years of that cannot service circumstances, the rules cannot be these substantially relied to their detriment. substantially changed employees have after drawing regard must be Line this latter cynosure, to their detriment. relied basis, ten case-by-case but after Const, made on a Ill, then, art. employee’s of an years of detrimental reliance state service right § is not the 4 contract to a Thus, provision presumed. our constitutional government’s contri- employee’s or even the obligations against impairment of the State’s fund; rather, govern- is the bution Const, Ill, contract, § means art. W.Va Heretofore, pay. in Dad- promise ment’s keep only government must its isman, legis- emphasized the supra, we have Ill, § promises; art. 4 does not mean pension systems obligation to fund lature’s government must make imply that the even We are not ad- on a sound actuarial basis. Furthermore, place. promises in the first ministrators, however, and we can artic- government wishes the extent governor the law is. It is for the ulate what im wage increases between apportion legislature to enforce the law. and the future existing payments to workers mediate cash are lawful pensions Because systems, it improved funding State, any proper remedy for debt of the may state or local has a do so: No action pay is a mandamus failure (as increase, right wage the case and auditor. Al against the state treasurer us) help the State ask workers before funding though the actuarial by contributing make funds solvent may interesting issue for program be an money given by the funds new to them to the lawyers, nothing lay persons who it means to purpose.22 State for this troopers, for this as secretaries work State earlier, Wagoner, the As we noted under janitors expertise is not in the and whose “detrimentally alter” legislature cannot Upon attaining eligibility, ex law. workers However, in rights Mul- of vested retirees. pensions, and their con pect to collect their lett, Wagoner rule “does not we stated the upon not condition these benefits tracts do automatically apply af- [that] to amendments system. actuarial soundness of the Conse rights employees.” fect the of non-retired funding any pension program quently, the If at 413 S.E.2d at 149. an legislature’s problem the state is the W.Va. —not legislature employee qualify pension did not for a employees-’ once the estab- active —and $15,000 fund; however, 000) pension the example, W.Va.Code 51-2-13 to the 22. For under money given judges [1994], offsets the extra recently new to the legislature raised the salaries the $3,300 $65,000 $80,000 actually results in over an burden and judges to of circuit court from $11,000 gain judges. 1995; time, to the January at the same the effective judges’ required legislature also increased the terms, [1994], 9—4(b) By its own W.Va.Code51— percent pension from 6 contributions to the fund fact, legislature reveals that the followed 51-9-4(a) percent [1994]. under W.Va.Code to 9 explained. reads: rule we have now section judges’ Although legislature increased Legislature any finds that increase in sala- ”[t]he plan by required pension contributions to the directly ry judges affects of courts of record gave percent, nevertheless system the actuarial soundness of the retirement and, therefore, enough money judges to meet the judges more than courts of record an amendment, each required percentage contribution. Before the extra increase in the contributions $3,900 (6 $65,000) percent judge paid to about members of that retirement is the same of subject fund; January purposes determining single after 1 each for the $80,- $7,200 (9 object percent pay of this bill.” judge about must trust solvent plan, keep alterations to fund legislature amended the when the the infusion of additional formerly applied the rule”: must be directed to “California (“While See, money. Syl.Pt. Wagoner pen- employee’s [sic] An vested contractual right to make reasonable Legislature has the prior retire- rights may modified sion fund, judicial pension alterations keeping pension purpose ment for the impair the benefit level alterations cannot adjustments in accord permit flexible statutorily-created there are extant where changing the same conditions and at provi- inequities special unfunded benefit sys- integrity of the time maintain the tem_ equal application of the sions that affect the modifications must be rea- Such integrity cost of the sonable, or the financial the courts to deter- law and it is for fund.”) upon facts of each case what mine permissible change. To be constitutes a “Detrimentally alter” means reasonable, of em- sustained as alterations existing legislature cannot reduce the bene ployees’ pension rights must bear some things cover (including such as medical fits theory relation to the of a material pension plan the contri age) of the or raise operation, and system and its successful giving the suf bution level without changes pension plan in a which result money higher pay ficient contribut disadvantages employees should be ac- seek to re ions.23 Should advantages. companied by comparable new plan, advantages of a duce certain 495, 413 at 150. [Cita- at S.E.2d place in their equal must offer other omitted]. tions Thus, just until an em compensation. as Mullett, pension, key ployee eligible becomes to draw a According to “the determined on an Wagoner and the his or her benefits can be concern raised both basis, until such time as the disadvantage ... or detri actuarial rule” “California effectively strong group employee’s reliance is so ment to the active members as a rath options, the preclude all other er than on an individual basis.” 186W.Va. property employ buy employee’s out the contract 150. Because all 413 S.E.2d at however, rights. point, the worker fund At some

ees who contribute to public employment rely substantially has chosen to remain to their detriment and who part his or her life for such a substantial specific contribution and benefits sched longer purchase the can no legitimate expectations that the State ule have immediate constitutionally pro employee’s pension acquiescence without that rise to the level of employee. point in an em rights, At what property we overrule tected contract longer equitable for ployee’s career it is no for deter Mullett’s test of reasonableness buy employee’s con constitutionality legislative the State to back mining the basis with system. By tract on a sound actuarial allow amendments forbidding confounding principles the out the ing legislature to dimmish bene the can be decided fits, employ impairment of contracts test frustrates the the Mullett legislature and case-by-case basis the anticipated pensions that on a on the ees’ reliance course, may the expect upon qual the courts. Of they legitimately receive rights. augment pension property age always through years of service and ifying partici legislature cannot reduce a Wagoner But the therefore find the benefits. We property rights pating employee’s pension hold that applies to the case here we rule system the unless plan mem once it establishes pension rights of all current changes acquiesces in the to the employee substantially relied cannot be have bers who employee has so all, any pension plan or unless the and that detrimentally altered at cost, State not thereafter raise no then the cannot This does not mean that 23. coverage working disproportionately em- modify State medical benefits the cost of medical technology cost of ployees working and the applicable since medical State em- raises to cost However, constantly changing. care are any way medical if the state change ployees the benefits in that or employees implies that promises or working employ- apply State not as well to does they receive the same medical at retirement will ees. employees or at modest benefits as active $1,008 given all state pay raise included a or she has years that he few inquiry into the Because our employees. detrimentally promised relied Rot amendments concerns constitutionality of the benefits. under petitioners receive the benefits the Division contributes plan, much how V. analysis influence our to the fund cannot AT THE AMENDMENTS ISSUE reason, accept we do here. For this us of the state Turning to the case before do, argument. howev- respondents’ first We clearly petitioners have troopers, we hold the changes er, legislature’s other 1994 find the property rights that cannot be withdrawn advantages equal troopers offer state explained have be- under the rules that we they expected than the ones greater value employees petitioners are all state cause the plan. Consequently, we former under the into the fund and sub- who have contributed initial amendment constitutional. find the in invest- stantially relied to their detriment working ing half of their lives with more than legislature may increase a considering constitu- the State. When salary employee’s contribution public Wagon- tionality under of the amendments corresponding raise pension plan gives if it here, therefore, test as have refined er's salary that offsets the or other benefits petitioners we must determine whether sys to the employee’s increased contribution any advantages equal or new are offered Ill, 4,§ under art. To be constitutional tem. plan’s to the old benefits. greater value salary or other benefits must the additional employee’s cover extra requires all state at least initial amendment Here, system. peti to the to 9 contribution troopers their contributions to increase required to contribute an addi July tioners are pay by 1 1995 without percent of their July percent their salaries tional 3 any corollary increase in the retirement however, 1995; re petitioners have also According respondents, itself.24 to the award $1,008 salary, raise in as well as are ceived a increased contributions (1) that we discussed footnote must other benefits because the Division constitutional Therefore, petitioners we find the the fund and 24. greater make contributions into in (2) that offset their changes25 been extended benefits legislature enacted other pension plan.26, to the troopers, creased contribution benefitting the state one which Under 24. has or shall W.Va.Code ity pal 4 order of W.Va.Code W.Va.Code miscellaneous percent fund of such member ers after two or she could ates about following also increase member of percent leaving and retirement amount "[a]ny member who shall be a sum member, fourteen particular, the 1994 by July contributions years, interest on all schedule: the Division 15-2-37 15-2-37(a) 15-2-37 have served two full equal of [the demand the return of all superintendent its contributions percent payments. percent moneys be entitled to receive Amendment, if a Division] ^[1977] trooper fund ...” In paid formerly provided, thirteen into the fund. [1994] now by July deducted from the additional revenue after two aggregate The fund into said shall, and 15-2-27a Legislature were after such the Division percent by previous according years or at 1996 and fifteen years discharged, death, discharged by usually gener- the allows of the his or her from said to receive request However, contribu- amended member more disabil- words, [1988]. princi- troop- salary from must part, July he of 26.We think tributions bers of troopers may corrected crease Code 15-2-27a [1994] restriction, and, than 8 tired state adjustment until fund were not allowed to order tributions to the troopers annuities deferred ten tions into Before this [1994] also allows Under former living adjustment. years’ this is a de minimis employment either to withdraw their con- to receive an percent are and other benefits extended to the state age fifty-six annuity when payable as a result of disabilities. of certain service aware, amendment, troopers the fund. complete twenty years' not the of their as noted W.Va.Code15-2-27a fund with interest or receive a reaching age sixty-five. totally legislature troopers or more and who terminate or older high ranking annuity, who were course, completely aggregate salary offset the increased con- above, problem W.Va.Code who have statute had reach collect the at its next session. that the all retired mem- receive the receiving eliminated this that should be troopers. age sixty-two. exception for 15-2-37(c) [1988], service in completed salary from required annuity W.Va. more cost We re- in- (W.Va.Code troopers find had leave. We the state the next amendment sick Under 15-2-27(c)(2) [1994]), troopers statutory can no legal right state even before the no accrued, annual longer apply credit but unused this their ac- in case to amendment early leave towards collection crued, leave and sick payment unused leave but to allow age According to fifty. Court, before age fifty. This before respondents, despite language the of W.Va. therefore, impair holds the did not 5-6-13(e), practice of it was not the Code hold that part this of the contract and we Safety Public Retirement either the old 15-2-27(c)(2) merely because W.Va.Code Retirement Board or the Consolidated Public law, existing it is change clarified but did not troopers to Board to allow state [“Board”] constitutional. days and sick leave at retirement use annual amendment, The 15- last W.Va.Code twenty-five years in reach order to service [1994], petitioners’ retire 2-27a reduces the thereby begin receiving pensions before living adjustment from 3.75 ment cost of Instead, becoming fifty. policy de- after the percent percent.28 respondents do to 2 The (discussed 4), Board in footnote cision of the otherwise; instead, argue given the 1994 not only practice the was allowed between safety pen valuation of the actuarial January and 12 March 199427. respondents system, argue that this sion the practice of respondents also contend the solvency preserves amendment the future counting pay- leave to sick allow increased They petition also the the fund. assert that 1988, and, begin not until conse- ments did fiduciary remaining duty ers have a quently, petitioners enjoy no less advan- beneficiaries of fund under Dadisman. years tage respect than did six disagree. We ago. that “initial” before fits before precludes troopers money by initial al earlier, stood the clear concern a state credited simply entitles does Code unused annual and sick thereof.” only Having first sentence not as additional 5-16-13(e) [1992], eligibility for retirement reaching age fifty. sick leave benefit as its service shall not be used allow using examined the Apparently, the Board misunder- reaching age fifty. serves to last line a retiree use of the payments. his or her employee’s eligibility for a regarding the use of annu- service credited troopers from allow clarify we makes to collect additional language leave; word receiving find the accumulated, It is clear larger, to receive bene- clear: “such “initial” that criteria, it meaning of of W.Va. provision provision does and not meeting benefits excess to us but but fer, is the least here; petitioners tion, intrusive ry spelled out PERS living adjustment. shifting of the state’s own burden. Conse duty to maintain extent that it quently, an obligation a close duty upon unconstitutional this Court however, Trustees have plan. we remedy, Syl. pt. intrusive question Contrary find reduces system is protect its Cf. has W.Va.Code contributing members of a contract but Syl.Pt. believe impairment of the state’s See, statute.) Requiring whether the never remedy to respondents’ terms of the the future S.E.2d doctrine an petitioners’ imposed that on balance highest Dadisman Weaver Shaf unconstitutional 15-2-27a only appropriate of the least solvency doctrine of (1982). a fiducia fiduciary trust, sugges cost-of- ^[1994] (The It in probably comports legislative best with our construction of W.Va.Code

Given However, 5-16-13(e) light litigation, [1992], of this Board erro tent. we think the may amend to remove troop this section policy regarding its neously adopted accrued, gave in that it the last session but unused annual use of ers’ age upon living adjustment practice See n. 24. In The Board discontinued the discussion, passage on 12 March of the Amendment at issue we are above concerned constitutionality 1994. of the Amendment as it involves cost-of-living adjustment. of the the reduction earlier, allows this also As noted Amendment 28. troopers to annual cost-of- collect the all state thirty if, indeed, morality, promised of new what was legislature it was the intention who years ago inexora- the core of life for those legislature to tie those benefits forms the cost-of-living upon in- their elected lead- bly to the reduction of the once a time believed Furthermore, percent. from 3.75 to 2 crease ers. ment. adjustment for all state legislature may reduce the cost of yet substantially relied troopers to their who have detri- living ing 15-2-27(c)(2) (the Because we find W.Va.Code use of annual increased contribution ^[1994] and sick leave to allow (the provision provision) and 15-2-26 eliminat- ^[1994]

ted Having read the actuarial studies submit- by respondents, this Court acknowledges earlier deny petitioners relief with benefits) ^[1994] constitutional, we regard to these regarding safety pension system. legitimacy the future solvency respondents’ Nevertheless, concern our two W.Va.Code ducing petitioners’ provisions. 15-2~27a However, cost-of-living ^[1994] to the extent that (the provision re- adjustment) holding here still allows impairs obligations of contract under purchase pension rights em- of some active III, 4,§ grant a Const. Article we writ Furthermore, legislature may ployees. ordering respondents to for- of mandamus completely pension benefits as amend implementing part in of the amend- bear may someday in persons involve who here, respon- ment at and we order the issue public safety employment into a enter previous percent dents to reinstate the 3.75 future short, contract with the state.29 adjustment annuity petitioners to which the legislature simply holds the cannot Court were entitled before pension rights employ- of state mess with granted Writ as moulded. part ees who have invested a substantial working Virginia. lives with West their J., BROTHERTON, participate. did not spoken have at such reason MILLER, sitting by Retired Justice subject length government pensions on the assignment, part, temporary concurs and government’s increasingly is that courts are part. dissents preeminent memory. institutional American volatile, society increasingly has become MILLER, Justice, dissenting Retired twenty years our failures in the last social concurring:1 popular dissatisfaction that have led 1994.) (Filed Dec. changes pendulum-like into translates why majority I cannot understand fails personnel polls. is de- elected This major pension our cases that have follow mocracy certainly nothing to be decried. unanimously past fif- been decided over courts, (federal), But with their life tenure years. They represent majority teen (West long Virginia), or Mis- elected terms teaching To their view elsewhere. abandon systems (many plan retention souri concepts for the nebulous contained states) deliberately designed provide are majority opinion nothing does but confuse continuity memory. unnecessary litiga- law and invite people of thousands of little Scores tion. organized government pen- around lives sions, democracy government recognized in a the contractual nature of and while We public employee pension rights life in our earlier opportunity has an for a new and new Gainer, Wagoner every years, people four these little case of 167 W.Va. direction (1981). There, thirty promised Legisla- do not. While what was S.E.2d judicial years ago may of much ture had amended the act so not be concern receiving change gov- prevent judges the mix of as to retired from modernists elected to services, taxes, salary cut or instantiate a 75% of the received an active ernment And, fact, September did this. See n. 6. Thomas B. Miller was recalled for the physical incapacity 1994 term because of the Order entered 1. Pursuant to an Administrative Brotherton, Chief Justice W.T. Jr. 13, 1994, September retired Justice this Court on

345 Supreme in ample, Leg- Court precluded a the California judge. This retired amendment Eu, a v. 54 judge obtaining pension benefit of the State from islature of California of 1309, 1331, 528, 492, given judge. an held P.2d 286 pay raise active We Cal.3d 816 283, (1991), state- Cal.Rptr. amendment was unconstitutional and made this that the 305 principles syllabus points 1 and set these ment:

3: ample support for their Petitioners find Sys- Virginia Retirement West confirming position in California cases contractually Judges tem vest- creates and state contract clauses both the federal rights and property ed for retired active rights public pension of protect the vested members, and participating plan these unreasonable employees from officers im- are and cannot be rights enforceable (Citations omitted). impairment. by paired or diminished the State. also, Judges’ v. Retirement See Thurston Legislature right has 3. While (1994); Plan, 49, Ariz. 876 P.2d 545 179 judi- alterations to the make reasonable City Mayor Davis v. Alderman of of fund, alterations cannot cial 707, Annapolis, Md.App. 635 A.2d 36 98 are impair the benefit level where there 354, (1994); Regan, v. 82 N.Y.2d McDermott statutorily-created inequities and extant (1993); 890, 624 N.E.2d 985 604 N.Y.S.2d special provisions that unfunded benefit 1, Oregon, Hughes 314 838 v. State Or. of equal or application affect the of law (1992); Pennsylvania Ass’n P.2d 1018 integrity pen- the financial cost University College and Faculties v. State sion fund. Education, 505 System Higher Pa. expanded principles We these (1984); 369, v. Washington 962 Bowles 479 A.2d Moore, 779, 181 384 v. W.Va. Dadisman Systems, 121 ept. D Retirement (1988). There, a member S.E.2d 816 retired (1993). 440 52 847 P.2d Wash.2d System Employees Public Retirement The basis for Dadisman’s contractual (PERS) against brought a writ of mandamus holding pension is a form of was that a charged with the Governor and other officials right analogous to a con- property which ac- operating claimed that their PERS. He claim, sylla- summarized tractual we contrary the PERS statutes tions were bus: integrity of jeopardizing the fiscal were includes not ‘property 15. “A interest’ Dadisman, reemphasized the fund. In notions of real and the traditional employees public employ- a point personal property, but also extends to rights, as have contractual ee those to which an individual generally has held elsewhere: been legitimate a claim of be deemed have jurisdictions, the modem trend In other existing rules or under- entitlement under majority public employ a view is that Syl v. Ser- standings.” Pt. Waite Civil public statute ee’s under Commission, 241 vice rights. Pen 60A Am.Jur.2d are contract (1977). S.E.2d 164 § 1620 and Retirement Funds sions par- plan 16. Retired and active PERS (1988); see, City v. e.g., Hanson Idaho proper- ticipants contractually vested (1968); Falls, 446 P.2d Idaho statute, ty rights created Re v. Patrolmen’s Halpin Nebraska State rights are property enforceable and such 892, 320 System, 211 Neb. tirement impaired or diminished and cannot (1982); City Tope Singer v. N.W.2d 910 the State. (1980) (and ka, P.2d 467 227 Kan. therein); State Teachers’ Re cited cases where recognize Dadisman that We did Giessel, 5, 106 12 Wis.2d Board

tirement ie., vested, pension was not (1960). N.W.2d eligibility had not reached all Legislature might amend requirements, This at 827. same Id. 384 S.E.2d system. syllabus point of Dadis- nature of principle as to the contractual Moore, general out supra, we set in man pension right has been reaffirmed an amendment when which allowed jurisdictions. For ex- standard later cases from 346 (1) three ple, conditions were met: stating when the “... that courts have been will- (2)

public it; requires interest ing the amend- ... ... pension [to allow] amendments (3) reasonable; ment non-retired, must be plans affecting reason- participating em- ableness is determined ployees whether if the amendments are reasonable.” keeps system amendment 151, sound and flex- 167 W.Va. at 279 S.E.2d at 644. In Mullett, ible: quoted Campbell from v. Michi- gan Board, Judges Retirement 378 Mich. recognizes While the law that states re- 169, (1966): 143 N.W.2d 755 tain power modify by some reserve stat- existing Campbell explained ute pension contractual court in terms of relation- ships contract law the effect of requires, when the retirement on the interest so appellant judges: such modifications must be “When so retired reasonable and necessary and ceased important public system, to serve to be members of the pur- poses. Legislative their completely contract was pen- modifications to a executed and plan reasonable, rights sion must thereunder be and the became vested.” test 143 at vesting reasonableness is N.W.2d 757. Based on the whether the altera- judges’ pension rights, tion to the contractual keep scheme serves to those not, thereafter, system rights “could sound and flexible. be diminished impaired by legislative change of the The Dadisman standard had been discussed judges retirement statute.” Gainer, Wagoner earlier in supra, 167 493, 186 W.Va. at 413 154, S.E.2d at 148. W.Va. at 279 S.E.2d at 645: This same juris- distinction exists in Legislative pension modifications to a legislative dictions between plan reasonable, alteration which must be and the test for pension affects a vested and one which is not reasonableness is whether the alteration to completely vested pension because the has keep scheme serves to eligibility not met all of system requirements sound and flexible. Brazelton [v. pension plan. Supreme The California Employees Kansas Public Retirement Court Allen v. System, 443, Board 227 Kan. Administration 607 P.2d 510 (1980)]; Employees’ Public System, Retirement Employees’ 34 [Public Retirement 114, 120, 534, 538, Cal.3d 665 P.2d County, 718, Board 192 Cal. v.] Washoe [96 Nev. Rptr. (1993), (1980)] expressed this matter P.2d 972 [v. Betts Board of as follows: Administration Employees’ Public Re- System, tirement 21 Cal.3d A against 582 P.2d constitutional bar the destruc- (1978) Cal.Rptr. tion of ]. vested contractual however, rights, absolutely pro- does not Much this same standard of reasonableness hibit respect their modification. With syllabus point was drawn into 3 of Mullett v. employees, active any we have held that City Huntington Board, Police Pension pension rights modification of vested must (1991), 186 W.Va. 413 S.E.2d 143 where reasonable, must bear a material rela- that, we indicated employees to those theory tion to the operation and successful pensions vested, whose had not become and, system, resulting when “Legislature may plan provided amend the disadvantage employees, must be ac- any amendments survive a test of rea- companied by comparable advantages. new Vesting sonableness”. was used in the sense employees, As to retired scope of con- employees that the eligibility had not met the tinuing governmental power may be more standards for retirement. Both Mullett and restricted, being the retiree entitled to the however, recognized, Gainer that where the fulfillment of the contract already which he vested, actually was legislative then performed has without detrimental modifi- amendments could reduce the (Citations omitted). cation. benefits. Gainer stated “[i]t is also clear any pension system Similarly, alterations to the Supreme the Florida Court in can affect the of active mem- Florida Department Association v. Sheriffs Administration, ...” (Fla. bers. 1033,1036 279 S.E.2d at 408 So.2d Gainer, princi- 1981), we summarized this summary made this of its law: decisions, unduly will not bur- ness of the foregoing Although, employees’ rights. den the this Court has stated that em- alter retirement benefits active can Wagoner While both and Gainer referred expressly has held ployees, the Court also of impairment contract to the constitutional that, voluntary mandatory in or a whether pension questions, in principle discussing the participating a member reaches plan, once they attempt any discussion did not detailed status, the retirement the benefits under thorough a We made more of this doctrine. of of the act in effect at the time the terms analysis Metropolitan in v. Insur- Shell Life employee’s retirement vest. contrac- 16, S.E.2d 183 Company, ance 181 380 relationship may tual not thereafter be (1989), key where we reiterated this element adversely by subse- affected or altered impairment of doctrine of contracts the (Citations statutory quent enactments. syllabus point 4: omitted). determining In whether a Contract also, Burlington Fighters’ See Fire Associa- occurred, three-step a violation has Clause 293, Burlington, 149 643 686 tion v. Vt. A.2d inquiry is is The initial test utilized. (1988). substantially im- whether the statute has rights paired parties. the of the contractual emerges law is essen- What from ease shown, the impairment If a is substantial of tially a for modification a two-tier test to step of the test is determine second public employees’ pension plan. The first significant legiti- whether there is a protected public and most tier includes those legislation. public purpose behind the mate employees either retired or have who have legitimate public Finally, purpose if is a eligibility for retirement. met the standards demonstrated, the court must determine individuals, any legislative As to those rights adjustment of whether the which reduces their retirement amendment contracting parties is of responsibilities rights or is unconstitutional because is of upon conditions and based reasonable impairment it clause violates the of contract pur- appropriate public a character of the federal and our state constitu- both legislation’ adoption.3 pose justifying the tion.2 syllabus of apparent It the fourth is public employ- In the tier are those second analogous syllabus point 17 of Shell is system in a ees who are retirement but Dadisman, been earlier out. which has set eligibility actually met the standards to not the standard of when Dadisman established possess con- They property still a retire. legislative public pension amendments system. pensions tract interest constitutionally permissible. system be However, Legislature may amend- make Caperton, 186 rel. v. State ex Dadisman ments the retirement but (1991), 627, 413 S.E.2d 684 we relied following must meet stan- W.Va. amendments an syllabus point of Shell to sustain It be dard: must shown that substantial (the Employees to PERS Public need for the amendment interest dictates the eliminated, Moreover, System) which Retirement the amendments amendments. purposes, be- accounting the distinction most be reasonable the sense that must of PERS and flexibility tween the State division and fiscal sound- promote will obligation impairing prohibition against impairment of a contract are of 2. The federal prior applicable 10 of the is found in Article Section to a statute enacted contracts Constitution, "No Syllabus which states: making United States contract.” Point of a pass any impairing ... Miller, shall .... Law Corp. part, 167 W.Va. Devon III, Obligation Sec- ...” In Article of Contracts (1981), cert. denied U.S. S.E.2d Constitution, Virginia similar 4 of the West tion (1982). 71 L.Ed.2d 855 102 S.Ct. impairing the provision "No ... law is found: language Although the of the Contract contract, passed.” obligation shall be of absolute, facially prohibition must its Clause police power accommodated to the inherent Syllabus points state: 2 and of Shell safeguard of the vital interests of the State of the Constitution 2. "The clauses people. its of West United States and Constitution Virginia passage a law which forbid contract, pairment non-state It was that the would division.4 claimed have had a accounting Instead, removal of this distinction would rational basis to achieve its result. impair liquidity component of the sanctity it has created the illusion accounting PERS. found that rights We and in end found that the change changed had not the basic structure by legislative could be altered amend- been PERS and concluded that there had ments. impairment rights. no substantial of contract Indeed, existing law, under our I majority mentions impairment petitioners believe that the four this case Virginia contract clause West Consti- greater protection are entitled of their However, opinion. tution in it its neither pension rights majority than the extends. any attempt cites makes Shell nor discuss respondents dispute The do not that the four surrounding impair- of the law the doctrine petitioners twenty years have at of least pointed ment of As in contract. we out Department, actual service with but less Shell, syllabus point 1 of impairment of twenty-five years. than are not informed We patterned contract is doctrine after the fed- W.Va.Code, ages. 15-2-27(b), of their Under doctrine, 1, eral is contained in Article which service, trooper twenty years a State with of Section 10 of the United States Constitution.5 twenty-five, but than can less retire. The Moreover, pointed point syllabus out in only proviso under this is that section Shell, 3 of was which based on United States individual does not a receive check cases, Supreme is Court this doctrine not an However, age fifty.7 until he reaches I be- legislative absolute bar to modification of a law, lieve that under our old these contract.6 It forbids a substantial modifica- sufficiently individuals were vested and that majority completely tion. The any avoids protected against any were adverse analysis of although this doctrine it states Thus, pension. change to their this amend- constitutionality this doctrine controls the of ment which increased their contribution to legislative amendments in case. 1, July fund from on 6% 7%% 1994, 1995, 1, paradox majority’s July The and 9% as of ultimate in the would be an opinion that, hortatory impairment after unconstitutional of their endless dis- contract. inviolability employee pen- fully cussions of the of Even to those members were not who rights, vested, sion majority proceeds I then would deem that a 50% in increase find of constitutional two the three amend- change contribution levels is a substantial in ments made to State Police Pension the contribution levels. This would violate petitioners’ Fund which reduced the benefits. the standard of reasonableness set out in Dadisman, If majority existing syllabus point had followed our 17 of The Penn- applied sylvania Supreme Court, cases, law and our doctrine of im- in two has 6. For 7. The 4. Under 27(b), are: political in PERS. covers not ber of the lodged tion. Syllabus point tion § gation of a similar States sion The syllabus applicable provisions prohibiting we have construing retirement W.Va.Code, subdivision Supreme provision Clause only division point contract,” generally State 1 of 1 of the our state secretary any Court’s board shall contained in 3 of Shell see note 5-10-2 and which Shell, employees, "law public safety United States Constitu- interpretation accepted elects to constitutional supra, impairing W.Va.Code, the consolidated retire Const, 5-10-16, Article but also states: the United participate any who has the obli- art. I, of the supra. provi- mem- PERS 15—2— Sec- any Ill, years member of as a twenty years such member shall commence on the date he ments of the amount of retirement award to age retired under section petition writing a member of the shall have service credit eight of this When a member has or shall have served (3) Being she ^[*] fifty years, payment monthly retirement board his or her attains the before in completed twenty years under the or ^[*] article). he or she shall have attained the granted any longer division age ^[*] the division but less than age retirement, under section ^[*] fifty years. of (excluding provisions of fifty years ^[*] of service as and and twenty-five voluntary ^[*] shall be military twenty- of this install- has or syllabus point suggests that “... increases found that much more modest may buy employee’s out the contract State were an unconstitu- employee contributions on rights.”12 This can be done property Pennsyl- See impairment of tional contract. employee has unilateral basis unless v. School Dis- Federation Teachers vania interest reached some level of reliance Philadelphia, 506 Pa. trict of 484 A.2d However, syllabus pension. concludes (1984), Pennsylvania and Association of be on a case- that this “can determined University College State Faculties by-case basis Education, System Higher 505 Pa. such a courts.” It is obvious me that (1984). 479 A.2d if the State right, nebulous exercised majority, apparent defiance its basis, incur an immediate unilateral would 19,8 syllabus point using what I consider violating im- challenge as constitutional ruse, a clever finds that because the case-by- pairment of contract clause. public employees Legislature gave all obviously entangle determinations would case $1,008.00 pay some minor increase made litigation. I do the courts endless fund,9 adjustments trooper pension syl- proposed believe that scheme gain to the has extended a sufficient render point anything for those labus 20 does “who constitutionally per- increase contributions troopers, work for this State as secretaries missible. expertise is janitors not the whose vein, majority’s I the In this same find law”, majority the is so solicitous. I of whom fraught syllabus point 22 be the to suggest it confound and confuse these would abuse,10 Legisla- potential for as it allows the incurring people in their needless and result virtually every pay by annul raise ture to legal expenses. diverting employees pension it into the fund regard concern exists'with to This same employee’s percent of con- increasing the syllabus point “... majority’s the where

tributions to the fund.11 acquiesces change to the employee the the plan employee the has so syllabus points are or unless

There are other which he or she has example, years For few in the equally troublesome to me. analysis majority’s syllabus quarrel majority’s point 11. I have no with the 8. 19 states: The judges’ pay of the increase and increased pen- pension rights of current all a increase contributions. There was substantial substantially plan re- members who have sion beyond the amount for the increased con- taken detrimentally detriment cannot lied funding appropriate legislative an tributions with all, keep any alterations to altered at $1,008.00 pay general pay in- in the bill. The fund solvent must be directed to the infu- trust finding, trooper if had no such a crease money. "Detrimentally al- sion additional $30,000.00 really year, a or more there is earns legislature cannot reduce the ter” means pay no increase. (including existing things as med- benefits coverage) pension plan of the or raise the ical Syllabus point 20 states: 12. giving employee level contribution without eligible to draw Until becomes higher an money pay the contribu- sufficient pension, deter- his or her benefits can be a legislature seek to reduce tion. Should basis, and until such mined on an actuarial plan, advantages of a it must certain employee’s as reliance interest so time equal place just in their as com- offer benefits strong effectively preclude op- all other pensation. tions, may buy employee’s the State out point, rights. how- property At some contract ever, majority’s note 24. See pub- the worker has chosen to remain part employment a substantial lic for such point Syllabus 22 states: longer can no his or her life that public rights em- employee’s pension increase with- purchase the pension plan salary employee. ployee’s acquiescence contribution At what out the salary longer corresponding gives employee’s raise in or it is point career no if an public buy employ- equitable em- back the that offsets for the State [sic] system. on a actuarial basis ployee’s increased contributions ee’s contract sound Ill, forbidding confounding principles § Art. without valid under W.Va.Const. To be impairment salary at least can be determined other benefits must contracts additional case-by-case only on basis public employee's extra contribution cover the system. and the courts. detrimentally promised relied benefits.”13 great Who will be the vizier employees? will make this decision for opinion majority’s

What the has done is to

create a vast Gordian knot in our law

which will our confound officials and If courts. ever there was a reason for decisis,14

the doctrine of stare case is a

shining example application. for its Not

has majority existing confounded our law, process but in the has enabled greater flexibility State to obtain to alter

employee pension rights. stated,

For the I part reasons dissent in part.15

and concur in

456 S.E.2d HADORN,

Elena Plaintiff

below, Appellant,

v. SHEA,

William Leader National Insur- Company,

ance Farm Insurance

Company, below, Appellees. Defendants 22217.

No.

Supreme Appeals Court Virginia.

West

Submitted 1995. Jan.

Decided Feb. 14. The S.E.2d Town some The doctrine of when principle tent should be ployee system ised or she has not sion sion simply change Syllabus point Although jurisdiction length doctrine of stare decisis was discussed at property rights property rights, has so few reduce a unless the Chesapeake, that law fixed, law is declared in In re benefits. (1947): detrimentally authorized to construe definite, legislature may augment 21 states: participating employee's pen- stare employee acquiesces years 130 W.Va. which Proposal once it establishes the plan decisis in the men are or unless the em- known, court of relied on rests 527, 536, Incorporate upon governed compe- it, that he cannot in the prom- that, pen- 15.My only ployees to enhance a W.Va.Code, 15-2-27, holding See and sick 331 S.E.2d applied. other substantial overrule such and lead to changed by competent authority. error, [W]e are of the declaration, also, strength Insurance ^[*] leave Oakley is itself (Emphasis concurrence with the application litigation ^[*] retiree’s provision decisions absence opinion court Act, W.Va.Code, evidence Gainer, ^[*] was (1985). added.) ... decisions, credited would under the Public Em- have been that, improper. the doctrine should be the accrued vacation 175 W.Va. ^[*] palpable where create confusion the law ^[*] service under majority and where to acquired 5-16-13(e), property mistake or 115, 123, ^[*] is its until

Case Details

Case Name: Booth v. Sims

Court Name: West Virginia Supreme Court

Date Published: Mar 24, 1995

Citation: 456 S.E.2d 167

Docket Number: 22464

Court Abbreviation: W. Va.