Harshbarger v. Gainer

S.E.2d 399 R. HARSHBARGER Sam GAINER, B. Auditor.

Glen

No. 19713.

Supreme Appeals Court

Jan. Circuit

Concurring Opinion of April

Stephens Gen., Tompkins, Atty.

Rоger Bruce W. Walker, Atty. Gen., Deputy Charles- Ray ton, for B. Gainer. Glen L. C. Rudolph diTrapano, Lonnie Sim- Jackson, Charleston, mons, diTrapano & Harshbarger. R. for Sam WILSON, Judge: Circuit requires case us determine This the controversial whether re Dostert1 Neely dissented. 324 S.E.2d 402 Re (1984), participate Miller did 657 eligibility require decision that judicially liberalized tert decision’s created retirement system, judges’ ments under the retirement system, eligible became to receive from the disapproved. should be The Circuit Court judges’ equal retirement fund an to amount County, upon of Kanawha based our hold salary justice he received as a 75% Gainer,2 ings Dostert, Oakley in v. long and. for so as he lives. Without Gainer3, DePond which allow credit for Harshbarger Justice only eight years has service, public military and concluded that of eight years credited service—the he ac- Harshbarger eligible Justice R. is Sam to tually served on this does Court—and pension judges’ receive a under the retire for qualify judicial pension. a Justice system. ment Harshbarger however, qualified could have We believe it is time to for a generous pension abandon Dostert much less under the and progeny Oakley its and DePond. employees system. retirement — For that reason we of reverse Order A background look the historical County Circuit Court Kanawha helpful Dostert case in under- grаnting Harshbarger, ap- Justice R. Sam standing our disap- reasons for now pellee, ordering appellant, a writ Glen B. proving it. The unique Dostert decision is Gainer, Auditor, pay pension a among reported opinions jurisdic- all in this ordering pay and appellant appellee’s tion in terms a truly procedural exotic attorneys’ court costs and fees. history. Judge Pierre F. Dostert of the Appellee, Harshbarger, Justicе Sam R. Thirty-First Judicial Circuit had con- was scholarly compassionate and member contempt, discipli- victed of criminal and of this until Court from 1976 1984. His nary proceedings pending were before the eight justice years of service as a and four Investigation Judge Judicial Commission. years military of service did not only party Dostert was the before the qualify pension judges’ him for a under the It impossible Court. determine the However, system.4 retirement because ratio decidendi decision holdings of Dostert and ascertaining question presented what was auditor, protest, state under certified to the to this Court to be answered. governor that Harshbarger Justice was eli- gible to receive retirement benefits brought The issue that to our judges’ system. retirement When the state Judge docket whether Dostert should auditor later cancelled the statement of be suspended pending disposition final eligibility, Harshbarger sought judicial disciplinary proceedings against writ of mandamus from Circuit Court Upon hearing “through him. administra- County compelling Kanawha the state (and tive channels” the Charleston Ga- begin paying judicial pen- auditor to him a zette) ill Dostert claimed sion. health, the Court ordered its administrative party director to intervene as a interest. per-

The Dostert and DePond decisions petitioned administrative director then include, mitted Justice as concerning for clarification law judges’ creditable service retirement judges’ and the system, years military four four- Milton, employees might years teen city attorney West upon $10,500.00, impact potential paying After Dostert’s dis- Harshbarger, ability in accordance with the Dos- retirement.6 W.Va.Code, Gainer, Act, seq. Oakley v. S.E.2d 5-10-1 et 175 W.Va. Retirement References in this decision to the [1988]. system” "judicial "judges' to a Gainer, S.E.2d DePond pension” Virginia are to the West Retirement System Judges for of Record. Courts Courts of ^[1987] The two retirement Virginia and the West Record, W.Va.Code, Retirement systems System Public 51-9-1 judges Employees are the et seq. Dostert, supra Id., at 407. n. negatively Virginians both suspen- West reacted never confronted

The Court judge-cre- vehemently to the Judge ‍‌​​‌‌​​​​​​​‌‌​‌​​‌‌‌​​​​‌​‌​​‌​​‌‌​​‌​​​‌‌‌​​‌​‍Dostert voluntar- issue because sion its Whatever the- system. ated retirement conducting his from agreed to refrain ily underpinnings, the Dostert decision oretical of the the conclusion until judicial duties by judiciary to seen as an effort the en- proceedings and the Court disciplinary disgrun- A its own self-interest. advance judicial of relieving him all an order tered amending legislature tled also reacted Thus, for but further notice. duties until system in In judicial the retirement 1987. involvement of its own ordered the Court legislative prefacing of a statement intent director, the case would administrative amendments, system the retirement W.Va. eminently in an undramatic ended have Code, [1987], ac- 51-9-lb the Court was fashion.7 leg- usurping authority of of the cused alchemy, the By legal a of Court sort of policy determine the islature to authority8 to its constitutional combined judicial compensation. this State and to set eligible for a who are judges retire disabled agreement are in with the We substantial ill- Judge with Dostert’s judicial pension opinion regard. legislature’s in this last miraculously transmuted ness claim impair or legislature cannot diminish disciplinary pedestrian a began what rights property contractually vested proceeding juridical into a tour-de-force retire- retired and members of the active of the consti- culminating in a consideration system judges.12 But when the ment sys- judges' retirement tutionality оf the and en- Court exceeds its structural limits tem. lawmaking, masquer- gages self-serving noted, Judge Dostert’s previously As ading adjudication, as constitutional physical has re- deteriorating condition legislature right responsibility has the compensa- in a claim for workers’ sulted judi- protect the fiscal soundness of to disability benefits and recusal tion W.Va.Code, system. cial retirement judicial duties. There- exercise of his 51-9-lb [1987]. fore, involving interpretаtion issues holdings choosing to discard the statutes and judicial retirement are progeny, its we sensitive Dostert and 8 Virginia VIII Constitution art. West § decisis, and wé are to the doctrine of stare are raised.9 warning of Mr. Cardozo’s aware concluded its consideration Court that, precedent When must be the “[a]dherence as those issues “es- exception litigants it referred to what if rule rather than establishing his sential to Dostert’s admin- faith the evenhanded are have judicial eligibility for under the justice benefits in the courts.”13 But istration of 10 systems,” said, a public employee discussing retirement Cardozo also when expanded “I substantially lavishly precedent, think that when altered adherence emerged. rule, duly Jus- has after it been tested Brotherton, stinging experience, dissent has found to be inconsist- in a tice justice or with the DePond, challenges ration- ent the sense with relentlеss with welfare, there should be less hesi- social ality reasoning of the Dostert the flawed full in frank avow and abandon- re- tation analysis will not be opinion and his ment.” peated here.11 J., (Brotherton, supra dissent- n. 3 participate did not 7. In fact ing), 177 W.Va. at Virginia System Retirement West of the of Record but was member Courts system. employees Id. Gainer, Wagoner v. 12. See S.E.2d VIII, Va.Const., 8.§ IV. article Cardozo, Judicial Pro- The Nature 13. B. Dostert, supra n. W.Va. cess, at 409. Id., at 150. 14. Id. S.E.2d at expansion We declare that the lavish source “judicial limitations power” Dos- to “cases and controversies.”17 tert, rights this Court invaded “justiciable that were The controversy” requirement by the reserved Constitution the State Virginia in West is usually found in cases legislature. West so arising the declaratory judgment under act holding, we rely following long- on the (even though declaratory judgment act standing and deeply principles rooted of does not dispute mandate actual or con- adjudication. constitutional troversy), dispute but actual or contro- versy applies rule to all Virginia judi- QUESTION

JUSTICIABLE cial proceedings. Dostert, course, of was majority The declaratory judgment Dostert should not not even a action.18 have “constitutionality” considered the of was, The issue in simply, wheth- judicial the because the Judge er suspended Dostert shоuld be judicial nature of the pending disposition final judicial of the dis- “justiciable controversy” not a in the ciplinary proceedings against him. case the In before Court. Mainella v. by resolved that agreeing issue Board Trustees Policemen’s Pension of of refrain conducting judicial from duties until or City Fairmont, Fund 126 Relief of the judicial final resolution of discipli- 183, 185-86, 486, W.Va. S.E.2d 27 487-88 nary proceedings.19 Clearly, justiciable no (1943), we said: controversy involving еxisted at that time are pur- Courts not constituted for the right Dostert’s to receive retirement pose making advisory decrees or re- benefits.20 solving disputes. academic plead- The

ings The present and evidence must judi- a claim Dostert created the right of legal by cial party asserted one retirement constitutional issue or- dering denied jurisdiction other before its own administrative director to may Through a suit be intervеne in taken. the case. the use of information outside of the record before Washington, 1793, Since President Court, majority forged a constitu- sought legal and was refused advice doing so, tional issue. paved the court Supreme Justices the United States way advisory opinion on an issue Court, courts—state and federal —have contingent that was at a mere possi- most continuously they maintained that will not bility.21 present controversy There was no give “advisory opinions.”15 And is also it present necessity nor requiring the con- well that “[Ijitigants settled may challenge struction of the retirement stat- constitutionality only statute inso- ute.22 far as it affects them.”16 Ill Art. of the recognize We Constitution in cases which are United is sometimes primarily States cited concerned with a declaration of Barton, Meltzer, 15. arising judicial proceedings, See P. D. P. Mishkin & D. and the ‘other Shapiro. Hart & appellate jurisdiction’ may Wechsler’s The Federal Courts be authorized (3rd 1988) System cases,’ and the Federal ed. 67-72. must ‘civil relate to and criminal is, begun judicial proceedings some in an infe- Rhodes, 100, 104, Fleming 16. v. U.S. 331 67 S.Ct. rior tribunal. Such effect 1142, 1140, (1947). 91 L.Ed. 1368 original]. [Emphasis our decisions. Brilmayer, Jurisprudence Article III: Dostert, 1, 264-265, supra n. 174 W.Va. 324 Perspectives Controversy” on or the "Case Re- S.E.2d at 408. quirement, (1979). 93 Harv.L.Rev. 297 Commission, Hodges v. Public Service Id. 834, 835, (1931) (quot- W.Va. 159 S.E. ing 22, 29-30, Fuel v. United Gas Co. Public Service Com- Farley Graney, W.Va. mission, 571, 578, 80 S.E. 119 S.E.2d (1914)). constitution, James, By appel- plain terms of the 22. See Club St. Woman's Albans 698, 707-08, jurisdiction late limited controversies W.Va. prerogative to issue in the Dostert case. raise rights, we retain unnecessary it reach the But where was even on our own initiative. related issues issue, no a “sense of self-re- a case. .We had constitutional not such Dostert was exercised clearly initia- should have been any issues on our own straint” right to raise opinion advisory on this Court.27 offer our tive or to hypothetical upon a law would be what the no there was real of facts because state CONSIDERATIONS: INSTITUTIONAL tangential issues case which

issue in the SEPARATION OF POWERS might reasonably relate. Finally, we conclude that the Dostert intruding majority had no business into an CONSIDERATIONS; INSTITUTIONAL legislative to the area committed branch AVOIDING CONSTITUTIONAL government. ‍‌​​‌‌​​​​​​​‌‌​‌​​‌‌‌​​​​‌​‌​​‌​​‌‌​​‌​​​‌‌‌​​‌​‍“judge it’s Whether called ADJUDICATION “judicial legislation,” made law” pow- mаjority had no constitutional majority should have avoid- The Dostert judges’ er retirement stat- to rewrite constitutionality the issue of ed It a constitutional law ute. is fundamental if system. Even one judicial retirement power legislate belongs to the to conclude that the somehow could W.Va.Const, legislature. art. VI constitutional, § technically it issues were gave ap- legislature rise to The is the trustee of the clearly indiscrete to can no more impropriety the Court state’s resources. Courts pearances legisla- trusteeship they assume that than could interfere the functions of with legislative impolicy a (cid:127)correct thereon.28 in area where the Court had ture interest.23 pecuniary governmental powers separation The Dostert, dissenting through tripartite powers a in Neely, in said allocation to objection the deci- bоth our state and federal constitutional that his most militant “ recognized clearly systems is ‘one of the chief “... can be stated and suc- sion system written cinctly: judex propria in merits’ of the American Nemo debet esse ”24 (no ought judge to a constitutions and ... essential to the man be [it causa is] cause).25 working ‘that the fundamental rule successful his own It a any persons power intrusted with one of adjudication that constitu- of constitutional permitted these branches shall be questions are avoided unless abso- tional upon powers confided to the necessary.26 Knowing of its own encroach lutely others, shall the law of its knowing importance but each self-interest and creation be limited the exercise of the “appearance justice,” good powers appropriate department to its sense and own should have used ”29 question. no other.’ avoided constitutional we now strike de- It is for these reasons that prudence balancing the Institutional — against fatal blow to the sirability intervention political system written the Court Dostert and devastating institutional past mis- of our enough for the DePond. As effacers cost—should have been takes, finger a nor claim judicial pension point neither we Court to have avoided the 320, 303, Lovett, Lavoie, States v. 328 U.S. 66 S.Ct. 475 U.S. ed 23. Seе Aetna Ins. Co. v. Life 1073, 1081, (1946) (Frankfurter, 1580, 1587-88, 825-26, 90 L.Ed. 1252 S.Ct. 89 L.Ed.2d J., concurring.) 1, 79, Butler, J., Dostert, dissenting), 297 U.S. supra (Neely, 27. See United States n. 312, 325, (Stone, J., (1936) 80 L.Ed. 477 S.Ct. dissenting.) 1990). (6th Dictionary, ed. Law 25. Black’s Hodges, supra n. Frankfurter admonished: “[T]he 26. As Justice S.E. principle of constitutional most fundamental Thompson, (quoting 103 U.S. ques- Id. Kilbourn adjudication is not to face constitutional 190-1, (1880)). them, 26 L.Ed. 377 possible.” Unit- if at all tions but to avoid curring DePond, Neely opinion agree dissented in credit. Justice we that it callous and dissented in would be unconscionable to re- Brotherton quire Judge Steptoe, sitting Kingdon Mrs. DePond and Mrs. Court on and Circuit pay during back the benefits Ex- received special panel Oakley, dissented. relatively period. short judges, and one or two oth- cept for these ers, in candy more like children we acted Regrettably, argument the same reliance responsible than officials. store apply Harshbarger. does not to Justice accept planned to judges Most new appellee The patently contends that it is benefits, needed,30 if retirements liberal process deny unfair and a denial of due quiet and most remained while the him his when benefits the widows of other the decision. and the media condemned Judges “in an identical situation” are re- ceiving pension payments. But it is obvi- chapter in regret history. We this ous that the situations are not identical. pеople of West have been good judiciary. Judges very to their earn The difference Harsh- between Justice greater is six times an income that than the barger’s situation and that of the widows average wage income of the earner in West that Justice was a member Virginia. Judges qualify judi- who for the the Dostert Court while Mrs. DePond and paid seventy-five cial retirement are Kingdon bystanders Mrs. were innocent percent judicial salаry. of their Justices happened who to benefit the Court’s year have twelve terms and need to Harshbarger, partici- decision. Justice as a only every eight run for years. reelection pant in the Court’s decision that made him decision “a was violation of eligible pension for a for which he was not reposed by people the trust in us of the qualified, had in otherwise a direct stake State of West This case [Dos- the outcome of the case. Justice Harshbar- place jurisprudence has no tert] ger place any rely cannot faith in or on a our State or our nation.”31 Those words pension by that was created his own act. Brotherton, dissenting Justice his contrary We are satisfied that it would be DePond, opinion in are now set forth as permit to established law to Justice Harsh- of this conclusions Court. barger judicial pension to receive a at this time. Miller, concurring opinion

Justice in his DePond, expressed Harshbarger concern over the re- We note that Justice is a troactivity problems judges’ system caused of the retirement when Court member retirement, changes prior the direction of the law.32 ‍‌​​‌‌​​​​​​​‌‌​‌​​‌‌‌​​​​‌​‌​​‌​​‌‌​​‌​​​‌‌‌​​‌​‍In re- and to his could have concerns, sponse employees note that elected to enroll in the to those we W.Va.Code, W.Va.Codе, [1987], requires system. 51-9-3 retirement See 5-10- state auditor to refund with interest all ^[1985] (defining requirements public employees payments by judges membership made for credited ser- in the retire- system). under the decision. In addi- ment Because of the confusion vice decision, tion, surrounding DePond and the Dostert this widows inequitable finds that it would be not Kingdon qualify now for annuities under Court W.Va.Code, Harshbarger There is a to allow Justice to transfer 51-9-6b [1987]. membership judges’ his from the retire- gap the time the two widows between system public employees to the retire- receiving annuity pursuant to ment started system. ment We hold that the transfer of rules and the start of the annu- membership judges’ from the legislature in Af- ity created public employees argu- system factors to the considering ter the reliance special limited- to the circum- system Miller in his con- ment advanced Justice C.J., (Miller, DePond, concurring), supra n. 3 filed The West Judicial Association support an amicus curiae brief in DePond S.E.2d at 401. Mrs. DePond. J., DePond, (Brotherton, supra n. 3 dissent- ing), Harshbarger’s participation in must be exercised Justice of this case and stances opinion. his case and thirty days philosophically of this Dostert makes within Gainer, from factually Oakley different foregoing, with the In accordance (1985) and 175 W.Va. S.E.2d 846 of the Court Kanawha judgment Circuit Gainer, DePond v. reversed, judgment is en- County is and (1986) S.E.2d 358 distinction —a appellant in this Court. How- tered appreciate. Oakley majority fails to and ever, extraordinary confu- because DePond, Arthur R. the widows from the caused Dostert time sion Kingdon re- and Frank J. it today, further case was filed until they thought lied on what the law ordered, adjudged and decreed that not- involve- particular time and had no law, withstanding provision any other ment Thus in the Dostert decision. per- aрpellee shall be distinguishing factor between from the retire- resign mitted to Harshbarger and the is reliance. widows and, thirty from days ment within 217-18, DePond, supra, 177 W.Va. at case, entry join in this the order (Miller, J., 403-04 concur- 351 S.E.2d at employees under ring). conditions, and receive such ben- terms and efits, future, past as would have failing its to base decision on Justice join applicable sys- had said he elected participation, Harshbarger’s timely in a аt the conclusion of tem fashion doctrine of as if abandons the stare decisis his term 1984. precedent adherence to has little value in system jurisprudence. our However the in this Judgment Reversed. entered firmly principle of stare decisis is rooted in Court. jurisprudence. Although principle “the MILLER, WORKMAN, McHUGH exception,” admits of we stare decisis JJ., deeming disqualified, did themselves long required that have “deviation its participate in thе consideration application should not absent some occur decision of this case. urgent compelling Dailey reason.” 1029, 1023, Corp., 157 Bechtel W.Va. CAPLAN, (retired), was recalled C.J. (1974). 169, Adkins v. St. See service, to active and STEPHENS and Charleston, W.Va., Hospital Francis WILSON, Judges, sat by Circuit 705, 718, 154, 143 S.E.2d W.Va. designation. (1965). STEPHENS, concurring: Judge, Circuit precedent particular adherence to Although agree I all the do not with interest, ly important property in areas of reasons, majority’s I concur the result to judicial such as entitlement Harshbarger should not Justice because recognized This Court the need benefits. participation Dos his In re benefit concerning prop certainty for reliance and 258, tert, 174 W.Va. 324 S.E.2d 402 interests, erty when we said: “Predictabili judicial pension’s eli- liberalized the ty is at the heart the doctrine stare thereby making gibility requirements, Jus- decisis, regardless we think of of what pension Harshbarger eligible for a for tice case, of this we must be true to merits I qualify. he not otherwise which could interpretation prior law in reasonable majority that agree with the “Justice certainty property the area of where above in, place any cannot faith preeminent compelling all else is the pension by his rely on a that was created Mor policy City served.” be Hock 661, suрra Majority opinion act.” own 856, 853, 162 W.Va. 253 S.E.2d gantown, plainly, 403 S.E.2d at 404. Stated more 386, (1979); v. N Signaigo see also & ought judge own “no man to be in his Co., W Ry. 301 S.E.2d 402, 403. cause.” Id. at 403 S.E.2d at 181-82 Harshbarger’s partic- for But Oakley persuaded The widows I other- ipation, would have along participate who not others did with wise. Dostert, pension on the that relied benefits majority’s made available. The judiciary, except

chastisement mentioned, righteous few it a ‍‌​​‌‌​​​​​​​‌‌​‌​​‌‌‌​​​​‌​‌​​‌​​‌‌​​‌​​​‌‌‌​​‌​‍lack failing courage to strike a fatal blow

against system, the Dostert recognize again judiciary’s

fails principle

awareness of stare decisis.

Although majority attempts to show judicial on based serious

error, judiciary most the members of the any

were error unaware and relied on its progeny Oakley and De- — This Court in Dailey, supra Pond.

W.Va. at 207 S.E.2d at “If said: play any

the doctrine stare decisis is to ... we cannot a deci- role overrule recently any

sion so rendered without evi- changing

dence of conditions or serious

judicial error.” Oakley supra 122, 331 S.E.2d at 854. certainty

Because the need for with interests,

respect property including en- benefits,

titlement to

majority should have overruled Dos-

tert, Oakley and DePond. The

could have reached its decision on based Harshbarger’s ‍‌​​‌‌​​​​​​​‌‌​‌​​‌‌‌​​​​‌​‌​​‌​​‌‌​​‌​​​‌‌‌​​‌​‍participation and did uncertainty

not need to introduce for those rely precedent.

who on relied Whomsoever they perceived

on what be at law to time, given judg- utilized their mature so,

ment to do and stare is at least decisis

one doctrine assists one in that re-

liance.

403 S.E.2d 406 R. MILLER

Charles POWER COMPANY.

MONONGAHELA

No. 19640.

Supreme Appeals Court of 7, 1991.

Feb.

Rehearing April Denied

Case Details

Case Name: Harshbarger v. Gainer

Court Name: West Virginia Supreme Court

Date Published: Apr 4, 1991

Citation: 403 S.E.2d 399

Docket Number: 19713

Court Abbreviation: W. Va.