In Re Dostert

258 486, discretionary Accordingly, matter Jorn, at 91 was 400 U.S.

ed States (Harlan, J.). court. at 558 with the trial S.Ct. 514, at 835. 98 S.Ct.

Id. at above, the writ of For the reasons stated irrationally, Thus, court aets when the trial the rule to show prohibition is denied and response precipitately irresponsibly or cause is dissolved. mistrial, such motion for a prosecutor’s denied. Writ condoned, and not double action will accused jeopardy a retrial of the will bar

for the same offense. trial court say that this

We cannot granting the State’s

abused its discretion The record reveals

motion for a mistrial. impeach key lawyer

that Porter’s tried asking if by her she prosecution witness 324 S.E.2d 402 anything. The arrested for had ever been DOSTERT, Judge. In re Pierre E. improper,7 only not but was inquiry was ruling. No. 26-84. of the limine also in direct violation admonished, once, Defense counsel was Supreme Appeal Court twice, inquiring into the wit against but Virginia. arrests, prior and threatened with ness’ He then embarked contempt if he did so. 7, 1984. Nov. questioning that elicited the upon a line of Disqualification Statement on response. desired 8, 1984. Nov. not act It is clear that the court did 15, Dissenting Opinion Nov. 1984. incidents resulted precipitately: both discussion at the bench about lengthy jeopardy

conduct of counsel and double ordering a mistrial. The

ramifications of discharged until it

jury was not became not in-

apparent that defense counsel did the court’s order.8

tend abide circumstances, we must defer to the

these finding necessity,

trial court’s of manifest retrial. find no bar to Porter’s we also contends that the trial

Porter polled to deter jury

court should have preju there was actual

mine whether only no motion for a

dice. We note party.

poll jury was made either event, (1971), upon a wit S.E.2d 130 overruled on other no effort to discredit 184 7. “[I]n cross-examination, 497, proper McAboy, grounds, to ask W.Va. ness on State v. 160 236 for, (1977), allowing exception been indicted or otherwise him if he has S.E.2d 431 where charged an offense. Mere accusation the arrest would show bias or influence of the carry stigma. presumed no One is to be should party. against the other witness guilt proved. postu until his That innocent mere hollow form or late of the law is not conference, During the second bench the trial guaran phrase. It is one of the basic deceitful following response court made the comments in citizenship be treat tees of American and must prosecution’s to the call for order: 326, Price, ed 334-335, such.” State v. 113 W.Va. The Court: “How can I do that? I don’t know 167 S.E. 866 See also Pennix, (4th happen what will until it comes out. I can’t Cir. United States v. 1963); 313 F.2d 524 States, anticipate going (4th McOwen is to do. I what Mr. F.2d Simon v. United 123 80 Cir.), denied, explained my ruling to him what is. The cert. 314 U.S. 62 S.Ct. (1941); only way to correct it is to declare a mistrial. L.Ed. Am.Jur.2d Witnesses 587 Woods, (1976). But see I don't know what else to do." State v. L.

Rice, Douglas and Richard Hannis & Martinsvurg, for Dostert. Douglas, Charleston, Garten, for Judi- R. Charles Hearing Board. cial McGRAW, Justice: disciplinary extraordinary judicial This II(J) of the arises under Rule proceeding Handling of Procedure for the Rules of Justices, Judges Against Complaints (Supp.1984). The initiation Magistrates precipitat- proceeding was disciplinary contempt criminal conviction ed Thirty-first of the Judge Pierre E. Dostert April 1984. We ad- on Judicial Circuit presented by this disci- several issues dress First, Judge Dos- whether plinary action. suspended pending final dis- should be tert disciplinary proceed- of the position Second, ret- against him. whether two ing provisions contained service credit roactive our within separate violations two unconstitutional Third, prohibitions. constitutional whether filed complaint against Judge Dostert public employees members of the with Counsel for the Investigation Judicial are entitled to retroac- 10, 1984, May pursuant Commission on tive service credit on the same terms as- II(J)(1) Rule of the Rules of Procedure for System.. members Handling Complaints Against Jus- Finally, whether the constitutional stan- tices, Judges Magistrates (Supp.1984).1 judicial disability applies dard for in disci- completing investigation, After an the Judi- plinary disability proceedings in-' Investigation cial Commission determined volving judges who are members of the probable cause existed to file a com- public employees system. Prior plaint against with this Judge Court Dos- issues, to our discussion of these some 22, 1984, tert on June pursuant to Rule procedural background and factual II(J)(2) of the Rules of Procedure for the order. Handling Complaints Against Justices,

I Judges Magistrates (Supp.1984).2 The complaint charged Judge Dostert with vio- Following Judge Dostert’s criminal con- conviction, 1, 2A, lations tempt 3A(1), 3A(3), of Canons Di- Administrative Supreme rector of the Appeals 3B(1) Court of of the Judicial Code of Ethics.3 II(J)(1) CR-83-M-1, 1. Rule Virginia, Rules of Procedure upon appli- No. Justices, Handling Complaints Against Judges cation and motion for the Court to enter an Magistrates (Supp.1984), provides: cause, issuing Order a rule to show the Kana- Upon Judge County information and belief that a wha Circuit Court entered an Order charged Dostert, has been indicted or against otherwise Judge Pierre E. of the Circuit offense, engaged serious of, in some breach County, Virginia, Court of Jefferson or- with, performing or is not in accordance dering appear him to before the Court to Ethics, the Judicial Code of or has violated or why “show cause if he could he should perform, per- become unable to form, or refuses to adjudged guilty contempt not be of criminal legal obligations, his the Court Adminis- unlawfully, wilfully contemptuously and trator, designate, independent or his of the 9, 1982, February disobeying, ignoring, on Court, may immediately initiate and file a interfering causing Ray Boyd with and and complaint setting forth such information with unlawfully per- Wallace Gifft to surrender the Upon Counsel receipt for the Commission. of officer(s) Gary son of William Walker to the complaint, such Counsel for the Commission thereby causing of the State Florida of the investigation shall cause an immediate to be Ray Boyd same and Wallace Gifft to act in made of the facts and circumstances sur- given disobedience of the lawful Order Febru- rounding such incident. 9, 1982, ary Supreme Appeals the Court of II(J)(2) 2. Rule of the Rules of Procedure for the Virginia, stayed of West which order the exe- Justices, Handling Complaints Against Judges of cution of the final Order of Pierre E. Dostert Magistrates (Supp.1984), provides, perti- and in 9, 1982, February also of in the extradition part, nent that: proceeding styled State West of Notwithstanding any provision Walker, other of 81-F-59, Gary pending William No. contrary, these rules to the Counsel for the appeal, which final Order of Pierre E. Dostert authorized, hereby empow- Commission is ered, person Gary directed that the of William report Supreme and directed to to the officer(s) Walker be surrendered to the of the Court, obtained,- writing any in information why State of Florida and he should not be otherwise, complaint filed which imme- punished by a therefor determinate sentence diately sufficiently alleges and indicates or imprisonment of or fine or both.” integrity legal system that the of the has been 24, 1984, (2) April On the trial of the case placed question by any Judge by virtue of Dostert, State West v. Pierre E. of having charged his been indicted or otherwise Judge County, the Circuit Court of Virginia, of Jefferson offense, having engaged with a serious C-83-17-1, began West No. Ethics, some breach of the Judicial Code of County jury. Kanawha Circuit Court before a perform legal become unable to gations. his obli- (3) 27, 1984, April jury On the found the defendant, Dostert, guilty Pierre E. of crimi- complaint, In the charged counsel for the commission contempt nal in the Order to show allegations states that its of violations of the cause issued in the case of State West of Judicial Code of Dostert, Ethics are based on the follow- Judge v. Pierre E. the Cir- ing: County, Virginia, cuit Court of Jefferson 4, 1983, (1)On February styled No. in a case CR-83-M-1. Dostert, background contempt State West v. Pierre Further E. in the criminal Judge County, proceeding against Judge the Circuit Court Dostert is detailed in of Jefferson 1984, health, 26, poor agreeing refrain this Court entered an due to June On II(J)(2) order, pursuant to Rule the conducting duties until Handling of of Procedure the Rules Specifi- complaint. final resolution of the Justices, Judges Against Complaints Judge that he cally, Dostert stated was (Supp.1984),4 scheduling July Magistrates suffering “vaso-spastic Coronary Ar- 16, 1984, hearing complaint. on Addi the granted, tery Disease.” This motion was having come to the Court’s at tionally, hearing Sep- and the was rescheduled through channels5 administrative tention 5, 1984. tember public Judge through the record6 that 10, August 1984, Judge again Dostert On health, ill the Court or claimed Dostert hearing the scheduled moved continue Director of the the Administrative dered continuing problems. due to health In ad- Appeals, Court constitu Supreme dition, August 28, 1984, on the Administra- under charged officer article tional petitioned Director for clarification of Constitution tive 3 of the ju of the implicated Judge submission preparation with statutes budget, and whose duties include the dicial disciplinary proceeding. On Au- Dostert’s maintenance, administration, and certifica 1984, gust Judge Dostert’s motion to relating records to the re tion and, granted continue was because party to intervene as a tirement statutory duties, copies their interest. petition intervenor’s were ordered to be Governor,7 Auditor,8 transmitted to July Judge Dostert filed a On Treasurer,9 Attorney hearing to continue the scheduled motion Giardina, faithfully Walker v. 170 W.Va. laws be The Governor is State ex rel. executed.” charged appointment of S.E.2d 900 also with the certain public employees members of the II(J)(2) See West of the Procedure for the board. 5-10-5—7 4. Rule Rules of Justices, addition, Judges Vol.). Handling Complaints Against the Gov- (Supp.1984), perti- charged Magistrates provides, Legisla- ernor is with transmittal to part, report that: nent ture of annual on fiscal affairs and employees public transactions notification, Court, Upon Supreme such system prepared by of trustees the board exists, determining pro- upon shall that cause employees system. See Judge charges to the vide notice Code § 5-10-11 hearing right twenty in not less than Vol.). judicial Under the the retirement (20) days Supreme before the Court. After charged fixing Governor is with the amount of a hearing, may Supreme the Court sus- such given by per- bond to be the Treasurer for the Judge pay pend until the with or without the judi- of his as custodian of formance duties the disciplinary underlying proceeding before the Virginia cial retirement fund. See West Code Investigation Judicial Commission been (1981 Vol.). Further, Replacement the § 51-9-3 however, completed; provided, that the Chief charged making disability is Governor with de- Supreme that of the Court order a Justice upon application judges terminations written any Judge not hear further civil or criminal judicial of courts record under the retirement felony under indictment for a matters while system Virginia statute. West See Code application to or misdemeanor without (1981 Vol.). Replacement § 51-9-8 Commission, Investigation Judicial which Judge Supreme may petition event the hearing. a Court for statutory The Auditor member 8. of the employees system retirement board of 14, 1984, 5. On June the Administrative Director 5-10-5(a) Virginia See § trustees. West Code Supreme Appeals received of the Court of (1979 Vol.). Replacement judicial Under the Dostert, Judge accompanied letter from statute, system the Auditor is "the treating physician, from his which statement responsible fiscal officer for the records and he medical leave indicated that desired a fund, including budgetary administration problems. absence due to health authority matters incident vested in him respect department appropria- with VI, See, tions under article section 51 of the e.g., Guilty, Consti- 6. Dostert Found Admitted to 29, 1984, Gazette, Virginia." Virginia West tution of See West Hospital, April Charleston at Vol.). pg. col. 4. VII, pro- statutory The Treasurer member 7. West Constitution art. 9. is a of the public employees that the that vides Governor “shall take care board of record, General,10 they appears on the face of the article request that file with a VIII, positions their Constitution setting memoranda forth 8 of the West respect considered, provides, per- to the issues raised therein.11 with must be Judge voluntary Dostert’s part, Because of tinent that: exercising the agreement to refrain from appeals supreme court of is autho- [T]he office, powers of his the issues rized to ... retire ... ... who into the proceeding were bifurcated eligible under the for retirement West suspension disability matter and the retire- (or Virginia judges’ hearing A final was held ment matter. any successor or substituted disability matter regarding the who, ...) be- ... September on advancing years cause of and attendant not, physical incapacity, or mental should II opinion supreme of the court of II(J)(2) of the Rules of Under Rule appeals, continue to serve as a ... Handling Complaints Procedure for the Justices, Against Judges Magistrates noted, previously Judge As Dostert’s dete- the is (Supp.1984), we must first address riorating physical condition has resulted pending Judge suspension sue of Dostert’s compensation a claim for workers’ disabili- disposition underlying discipli final ty from the exercise of benefits recusal note, against nary proceeding him. We in- his duties. issues Judge voluntarily agreed Dostert has volving interpretation of our final to refrain from exercise until retirement statutes and West Con- complaint against of the him and resolution stitution art. 8 are raised. disability claim that he has filed a with Compensation Commission due to Workers’ IV continuing problems. In accord medical sys- There are different retirement two Judge voluntary agreement Dostert’s judiciary in which tems members exercising judicial pow to refrain from may participate: the West Retire- State, er of the the Chief Justice entered an Judges of System ment Courts 11, 1984, July relieving Judge on order Record, Virginia Code 51-9-1—16 West §§ of all duties until further Dostert and under the remains in effect. Ac notice. This order Employees Retire- Public conduct, cordingly, we will not as unneces Act, 5-10-1— suspension hearing pursuant sary, a (1979 Replacement Supp.1984). & Vol. II(J)(2) of the Rules of Procedure for Rule Against Under Handling Complaints Jus Vol.), 5-10-2(6) (1979 Replacement tices, (Supp.1984) § Judges Magistrates “Employee,” as used the West Vir term disposition disciplinary pending final Act, Employees Retirement ginia Public against Judge Dostert. complaint person regularly any “means who serves III compensation and whose as an officer ... part by politi payable any in whole or in judicial disciplinary proceeding is In a subdivision12_” in- This definition disability ill health or cal in which a claim of 5-10-5(b) Attorney response, Virginia the General filed a 11. In § See West Code trustees. (1979 Vol.). on behalf judicial memorandum on his own behalf and Replacement Under the Auditor, the State Treasurer and the State system, is "the custodi- of retirement the Treasurer through the Governor submitted a letter while the and of investment securities an of fund counsel, speak stating qualified Virginia that he is not system.” See West of the retirement challenged Vol.). constitutionality pro- of the as to the Code 51-9-3 § judicial system. visions of the retirement 5-10-9(d) (1979 Re- § 10.West Code that, Vol.) of term attorney 12. We note the broad definition the placement provides "The public “political contained in the legal subdivision" the advisor to the board of shall be system sys- employees See foot- retirement statute. public employees retirement trustees" of the note tem. infra. tem, of must the issue his Judge we examine Article VIII officers. eludes public the under currently eligibility disability member of for benefits both is Dostert under system participate retirement this employees systems option due to the provision. retirement contained within the system statute. public employ

Participation in the mandatory for system all retirement is ees the definition of included within individuals V See West Virginia Code “Employee.”13 discharge In full of his constitutional 5-10-17(a) (Supp.1984). West Vir Under § as the Article VIII officer duties 5-10-17(b) (Supp.1984), how ginia Code § maintenance, the charged with administra- ever, membership [public em “The tion, judicial salary and certification of system shall in ployees] retirement records, Di- retirement the Administrative elected any person ... clude who [has Courts, intervenor, rector of seeks judges’ retirement a member of ... be] concerning resolution several issues14 Virginia Code system ....” Under West pub- system and the retirement Vol), “[A]ny 51-9-5 § employees system lic retirement which im- eligible for shall ... re

judge ... become upon Judge potential pact Dostert’s disabil- by paying into the benefits tirement retirement; disability ity upon retirement judges’ retirement fund all contributions he circumstances; upon in similar admin- pay required to ... to would have been system retirement istration per at four gether with interest thereon public retirement employees sys- and the ...,” though judge may such cent even general. addressing here tem We are initially participate elected to only issues can framed those as a employees system. After public of law we believe are matter and which election, par exempt this Judge establishing essential Dostert’s public ticipation employees retire eligibility for under the benefits system ment under Code West employee systems. public or 5-10-17(b) al (Supp.1984). § First, the record an issue of currently frames though Judge a mem Dostert constitutionality sys- Code public employees West ber made, however, judges, participating exceptions the widows of there is to the for 13. Certain language corresponding mandatory of survivors’ benefits contained in no mention 5-10-17(a) example, (Supp.1984). participating judges. For widowers Sec- § Code for the 5-10-17(b) ond, (Supp.1984) Director mentions that Administrative judges sixty-five years provides although that: who are over only eight years age in order need serve membership of the retirement only qualify need for retirement benefits and any person is a shall not include of, member years qualify disability serve six in order to for by, been the state teachers’ or has retired under West 51-9-6a benefits sys- judges' retirement tem, Vol.), (1981 Replacement judges who are under department the retirement years sixty-five years age must serve sixteen safety, any municipal qualify retirement benefits under in order either, both, policemen or fire- (1981 Replace- men; Virginia department and the West ten must serve order to security, by employment the commissioner of Virgi- qualify disability under West benefits department, may elect whether its em- such Vol.). (1981 Replacement nia Code 51-9-8 Fi- accept coverage ployees will under article Director, nally, the Administrative course covered the authorization or be under petition, compares and contrasts distinc- separate enactment.... employees public between the tions 5-10-2(6) Virginia abo West Code See system and the which (1979 5-10-17(c) Replacement Supp. Vol. & rights equal protection he contends violate the 1984). participating judges. Because these issues directly the resolution of are not related to raises several 14. The Administrative Director case, immediate we defer these determinations regard retire- other issues with to relating another time. issues The other be addressed. ment First, which will not protec- Judge equal Dostert’s under that entitlement the Administrative Director notes al- (1981 developed concepts if though Virginia be further he tion should West Code 51-9-6b Re- § Vol.) provides upon placement chooses remand. for survivors' benefits (1981 Vol.), Replacement 51-9-6 pointment trust, which public § any under this or grants military judges government service credit to other who ... and the violation of military during any serve in the provisions their term of these shall vacate his Second, office. office.” prohibition record frames an This against issue dual officeholding preserves constitutionality Virginia separation West powers promotes (1981 Replacement Vol.), independent Code 51-9-6 § judiciary by insulating judicial grants officers governmental which retroactive ser- from the nonjudicial orders of other offi- vice credit judges who have served as employers. cers or Due to applica- its clear Third, prosecuting attorneys. the record bility service,16 military military be- question equal raises a applicabil- about ing part of the executive branch of ity of retroactive service credit under the government, judge it mandates that a who system judicial mem- enters military “shall vacate his bers of the employees office.” providing Rather than that a system. Finally, the challenges record judge who enters military active service constitutionality of Virginia West must judicial office, surrender his or her (1979 Replacement Vol.), 51-10-25 which § however, West 51-9-6 § disability deals with determinations under (1981 contemplates that public employees judges positions, retain their accruing re- applies participating members of the tirement benefits as an element of judiciary in the context of disability retire- compensation accompany posi- those proceedings. ment tions, despite entering military active ser- vice. We therefore hold that language VI (1981 West Code 51-9-6 Re- § The first two issues leg- framed concern placement Vol.), “any portion of the term grants islative of service credit under West any judge of office of record,” of a court of Code 51-9-6 specially which is so drawn17as to mandate Vol.).15 grants The section military service dual officeholding, is unconstitutional un- judges credit to who serve in military der VIII, Constitution art. during their terms of grants office and 7.§ governmental judges service credit to Constitution art. prosecuting were former attorneys. Both VI, provides “in no case special shall a special grants these of service credit passed, act be where a law would clearly explicit violate prohi- constitutional proper.” As this Sylla Court stated in bitions. bus Point 1 of Taxpayers State ex rel. Constitution art. Protective Raleigh County Association of provides, judge Hanks, “No ... shall ... v. 157 W.Va. 201 S.E.2d 304 office, accept (1973), hold other any ap- VI, “A purpose basic of Article Sec- Replace- 15.West required by section four of this [§ 51-9-4] Vol.) provides, pertinent part, article, and, that: military reason of such service determining eligibility for the benefits salary: not deducted from his Provided fur- section, provided by any portion ther, that if a of a court of record has any judge term of office of of a court of period served for a of not less than ten full elapsed record which shall have while such years payments and has made into the leaves, duty (including was on active provided retirement fund as in this article for furloughs, going and time consumed to his during judge, each month which he served as place duty returning place to his following section, the effective date of this discharge residence after or release from ac- any portion of time which he had served as duty) tive in the armed forces of the United prosecuting attorney any county in this States shall be considered as served: Provided qualify State shall of service. further, any judge duty who enters active in the armed forces of the United States dur- Elmore, 232, 239-41, 16. See 180 Tenn. Frazier ing his term of office and after the effective 173 S.W.2d 565-66 during, date [June of this article 1949] shall service, year military or within one after such pay fourteen, treasury page into the state all contributions 17. See discussion infra. legislation found in West Virginia against special of West tion 39 of Constitution VI, consistency in 39. uniformity Constitution art. preserve § is of this State.” statutory enactments Erwin, 3, Syl. pt. Atchinson v. also See VII (1983). 8, 302 S.E.2d 78 172 W.Va. Virginia Code 51-9-16 § attorney prosecuting credit Through the Vol.)19 (1981 severability Replacement 51-9-6 of West Code provision judicial retirement section contained in the Vol.), special (1981 created Replacement provides that: system statute which 29, 1972, 1972 W.Va. Acts ch. see act clause, section, subsection, phrase, any If appears singled out one Legislature have any is for requirement or of this article public employee for retroac- special class of unconstitutional, held such reason to be credit governmental service benefit. tive validity decision shall not affect any relationship fail to see between We legislature remaining portions. The power and the prosecutorial exercise hereby declares that it would judicial power supports which exercise of section, article, passed this and each sub- Sylla- In grant of credit.18 this exclusive section, sentence, phrase clause or Taxpayers Point of State ex rel. bus thereof, requirement irrespective of the Raleigh County Protective Association of sections, any that one or more sub- fact that, Hanks, stated “A supra, this Court v. sections, clauses) require- phrases or operates uni- when it statute ments be declared unconstitutional. persons things of a class formly on all provision parallels This natural, reason- such classification is 2-2-10(cc) (1979 Vol.), Replacement gov- purpose sought appropriate to the able and construction, statutory erning general 5, Syl. pt. accomplished.” also to be See provides that: Erwin, 9, supra; Syl. pt. v. Atchinson section, provisions every article Heck’s, Gates, Inc. v. [T]he ex rel. State chapter or of this Code ... shall be sev- (1965); 421, 141 Syl. pt. S.E.2d 369 any any provision if erable so Hunting Plymale City ex rel. State section, chapter is held to such article or ton, 147 W.Va. 131 S.E.2d 160 void, the remain- be unconstitutional Conversely, legislative classification section, ing provisions of such article or specialty predicates that it drawn with such valid, chapter shall remain unless the governmental service credit retroactive provisions are so system upon service court finds the valid essentially inseparably connected attorney any county” prosecuting “as with, upon, the uncon- pro- dependent and so squarely the constitutional falls within provision that legislation. We stitutional or void against special hibition legislature presume cannot language in West court therefore hold that remaining enacted the valid would have 51-9-6 Code § Vol.), provisions without the unconstitutional prosecuting attorney coun- “as one, or unless the court finds the ty,” prohibition or void violates the constitutional Vol.). fact, eighty attorneys per- prosecuting 18. while former credit, defenders, public granted prosecuting attorneys At- are torneys former cent of this State's General, magistrates, are ex- or even part-time officers. prosecut- cluded. We further note that not all ing attorneys public servants. are full-time Although this section of the retire- Only attorneys prosecuting in class I and II see ment statute was rewritten counties must devote full time to their provisions W.Va.Acts ch. its have remained employment. of outside duties to the exclusion original virtually unchanged since the enact- (Supp.1984). See West 7-7-4 retirement statute in 1949. According figures prepared by the State Tax that, Originally, provided pro- this section “The year, only for the 1983 tax eleven Commissioner declared to be severa- visions of this article are fifty-five qualify as class I or out of our counties any provision provisions ble and if hereof Commissioner, Study II counties. See State Tax unconstitutional, such hold- shall be held to be Property they Valuations As Relate to Levies validity ings shall not affect the of the remain- Support Laid Schools in West (1984); ing provisions.” 1949 W.Va.Acts ch. 34. see also West

269 278, provisions, standing 40, (1976). remaining valid 228 283-84 There- S.E.2d alone, incapable and are incomplete are fore, Virgi- invalidating rather than in being of executed accordance the nia Code § intent_ added). legislative (Emphasis entirety, scope we will limit of our its the statutory provisions are These codifications portion holding to that which statute statutory basic constitutional construc- of constitutionally guid- is are defective. We law. See 16 Am.Jur.2d severability tion Legislature’s ed the instruction that we see (1979); Law 265-66 Constitutional “presume legislature should would Heston, v. 6, also State Syl. pt. 137 W.Va. remaining provisions have enacted the valid 375, (1952). also They 71 S.E.2d 481 void without the unconstitutional or one[s]” theory of of reflective a restraint provi- in enacting these two credit service decisionmaking area of constitutional sions.20 has formed the basis of our which doctrine remedy, least intrusive as approach of articulated As we is Bailey See decisions of Court. various sue of in order to ascer 12, Truby, 174 W.Va. 8 at 302 v. 321 S.E.2d presumed tain the intent service of these 306, (1984); 2 Anderson’s slip op. at at provisions, organic credit our review of Paving, 640, Hayes, Inc. v. 170 295 W.Va. V, law is in order. Article 1 of the West v. 805, (1982); Don S. Co. 807 S.E.2d that, provides “The Constitution Roach, 605, 491, 168 285 496 W.Va. S.E.2d legislative, depart executive and D.A.P., ex rel. S.M.B. (1981); State v. 168 distinct, separate ments shall be so 455, 912, (1981); 284 S.E.2d 916 W.Va. powers prop that neither shall exercise the City Martinsburg, Mauck v. 167 W.Va. erly belonging to either of others ....” 332, v. 216, (1981); Weaver 280 S.E.2d 220 powers, legislative, This division execu Shaffer, 170 W.Va. 107, 244, 290 S.E.2d tive, separate into judicial, distinct v. Civil Service (1980); 249-51 Waite Com- departments government, with no de mission, 161 154, 164, 241 W.Va. S.E.2d another, partment exercising power (1977); ex rel. v. State Whitman 170-71 person powers exercising and with no Fox, 633, 642-43, 160 W.Va. 236 S.E.2d department, of more than one is a funda 565, (1977); ex rel. Harris v. 571 State that mental constitutional mandate each de Calendine, 172, 176-80, 233 160 W.Va. partment, pow in the exercise lawful 318, (1977); of its rel. State ex S.E.2d 322-24 Alsop v. 829, ers, independent McCartney, 159 W.Va. 839- shall of the other.21 In it, any way Several and if there is 20. rules of construction related to ascer- defeat reasonable taining noteworthy constitutional, presumed legislation intent are we to construe will applicability their circumstances involved to the City it. State so construe ex rel. Charleston v. First, Sylla- 877, this case. as this Court stated in (1973); Coghill, W.Va. 113 156 207 S.E.2d Jacob, bus 612 Point 10 of Slack v. 8 W.Va. 22, Graney, Farley S.E.2d v. 146 W.Va. 119 833 (1875), presume in- "Courts will not fraudulent (1961).” part finally, “When a of an corrupt purposes part tent on the invalid, but reflects the act remainder Legislature, contrary.” See but will assume the itself, legislative complete and is intent then 59, 71, Hix, also W.Va. Wilson v. 136 65 S.E.2d 5, Syl. upheld.” pt. will be Pric the remainder 717, Second, (1951). Sylla- 725 as was stated in DeVan, 509, 114 W.Va. 172 S.E. 711 ard v. Hardesty bus Point 4 of rel v. Aracoma- State ex 7, (1934); Syl. pt. also v. Tri-State see Meisel 4523, Logan Foreign Wars No. Veterans Chief 6, Sixo, Authority, supra; Syl. pt. Airport State v. Inc., 645, States, the United 147 W.Va. 129 243, 24, (1915); Syl. pt. S.E. 77 W.Va. 87 267 (1913), always presumed S.E.2d 921 "It 546, (1908); King, 64 W.Va. 468 State v. 63 S.E. legislature meaningless enact a will not 6, Court, Syl. pt. County ex rel. Dillon v. 60 State City Huntington, useless also v. statute.” See 339, (1906), aff'd, W.Va. 55 S.E. 382 208 U.S. 577, Commission, 568, 64 State Water 135 W.Va. 275, 192, 3, (1908); Syl. pt. 52 L.Ed. 28 S.Ct. 450 225, Third, (1951). S.E.2d 230 in Harbert State, (1872). Eckhart v. 5 W.Va. 515 54, 177, Court, 70, County 39 S.E.2d 129 W.Va. stated, (1946),- pre- "It 188 this Court will be Manchin, ex rel. Barker v. 167 W.Va. State Legislature sumed that the intended to enact (1981), recog- 622 this Court valid, 279 S.E.2d effective, permanent See statute.” that, provision nized “This constitutional Airport Authority, also Meisel v. Tri-State Fourth, prohibits department 528, 546, one of our state W.Va. 64 S.E.2d government exercising powers recently Rutledge, as we stated in Thomas v. (1981), merely suggestion, part it is "Our others is not 280 S.E.2d and, such, policy uphold legislative law of is to intent rather than the fundamental our State 270 7, goal required fundamental

furtherance of this same of other elected offi- judicial independence, of our constitution cer. There is a fundamental constitutional maturity attracting retaining profes- mandates a of combination interest professional qualification judges, integ- sional talent order to maintain the through IV, VIII, 4 rity independent judiciary.22 article and article of an strictly closely it must be construed and fol- of the business court is transacted than on Daugh- Quelch lowed." See also Slate ex rel. salary you pay judges. you amount of If 422, 233, (1983); erty, 172 W.Va. 306 S.E.2d 235 abilities, get competent into that court men of 329, Kopp, State ex rel. Steele v. 172 W.Va. 305 men of industrious and business habits in 285, (1983); S.E.2d Building 293-94 State ex rel. State profession; go their men who will thus on 79, 83, Bailey, Commission v. 151 W.Va. cases, saving and do business and decide (1966); S.E.2d State ex rel. 452 Rich- community large hardly to the can be cal- at Court, 885, 890-91, County ardson v. If, hand, you get culated. on the other ... (1953); Huber, 78 S.E.2d 573-74 State v. office, gentlemen go ... there for the 198, 209-11, 129 W.Va. 40 S.E.2d 18-19 it, pay the honor of or the take a of it—who 512, 524-25, (1946); Fisher, Sims v. 125 W.Va. they small sum—much less than could earn in 25 S.E.2d profession their business of the court —the adequate judicial compensation 22. The issues of delayed, upon will be the decisions not relied insuring judicial independence per- sir, why, appeals may ... the court of cost meated constitutional debate in this State since you great you deal more than can calculate. framing During of our first constitution. Proceedings 2 Debates and the First Constitu- of the debates of the first West constitu- tional Convention West at 879-80. of convention, adequate judicial tional compensation the issue of Similarly, Delegate James H. Brown of Kana- pro- in order to attract and retain County wha stated: independent judiciary fessional talent to an was [Wjhich grade you desire [do] to have the hotly Proceedings contested. See 2 Debates and Lawyers earning services who are of[?] no the First Constitutional Convention West of of offer, salary you more than the or who are (1861-63). Virginia 871-951 less, earning ready accept; will be but are Many delegates expressed concern that in the you these the men Is want? it better to save a adequate compensation absence of for members salary few dollars in the and take the risk of judiciary, only professional inferior talent bench, incompetent an or to invest a few Delegate would be attracted to serve. Daniel get dollars more and the best the market stated, County Lamb of Ohio run the "[W]e affords? reducing you risk of salaries so low that cannot Proceedings 2 Debates and the First Constitu- any except pettifog- fill the office with ging a set of tional Convention West at 890. See lawyers disgrace that would be a to the (Remarks by Delegate abo Id. at 916 E.B. Hall position and in whose decisions and rectitude County). of Marion community would have no confidence." 2 view, Delegate expressed Brown also shared Proceedings Debates and the First Constitu- by many colleagues, qualitative of his that the tional Convention West at 874. Sim- ilarly, Delegate aspect County compensation E.B. Hall of Marion ar- debate was gued: fundamentally very related to the foundations you your public cheap, you If make offices government: of our get cheap will men to fill Can we them.... law, they For are not to make the but declare expect qualified to find men for the law; and their declaration is the final work, requiring legal learning, experi- much it; done, declaration of that when it is ence, tact, capacity, business no means certainly justice should be so done as to do integrity pitiful compen- undoubted the—for parties give in the trial but satisfaction to disposed sation this Convention seems to offer people; people because whenever the _ we, framing them Can this funda- tribunals, supreme dissatisfied with their then governed mental law for a state afford to be they regard lose at once their and esteem for petty rage cheapness expense at the the laws of the land and for the tribunals that of all other considerations. them; deliver and to strike at that is to strike Proceedings 2 Debates and the First Constitu- foundation, republic at the because in a when- tional Convention West at 914. people regard ever the lose their for the laws delegates emphasized adequate ju- Other that country, govern- and tribunals of the then the compensation dicial was an investment in the exist; very long they ment cannot are then branch, quality of our and that an insuf- tending rapidly anarchy towards either ficient investment could indeed cost more in the monarchy. long example, Delegate run. For Peter G. Van Proceedings 2 Debates and the First Constitu- County Winkle of Wood stated: tional now, Convention West at 872. Sim- say expense So I of this court of stated, ilarly, Delegate County Hall of Marion appeals does not consist in the salaries of the "Every directly man has an interest more or less and clerk. What an that institution of courts, good people depend society, kind is to cost a will in our because the order far more purity your rights, your every on the and business tact with dependent which the interest are fulfilling integral part As a means of this fundamental an ment. As com- interest, pensation packages, constitutional the West sys- Constitution, perform in art. 8 constitution- important tems role in the at- par- alizes retirement and professional classifies traction and retention of talent ticipants certain might who obtain irrevocable otherwise remain in the lucra- rights judicial system. practice in the retirement By providing tive of law.23 a sta- Gainer, Wagoner See v. 139, income, 167 source of ble retirement (1981). There systems 279 S.E.2d 636 are several facilitate of recall retired important public interests that support judges to serve temporary assignments.24 recognition of systems constitutional retire- promote Judicial retirement also justice State, 142, 149, your very Sylvestre on the administration of ... See also 298 Minn. 154, dependent 658, 663, reputations puri- (1973); lives and on the 214 N.W.2d 666 Walker v. ty efficiency Council, 98, Montgomery of that County and tribunal.” 2 Debates 244 Md. 101- 102, 181, Proceedings and the First Constitutional Con- 223 A.2d 183 of 916; Virginia Traditionally, legislatures vention West at see also Id at have not found it of agree important politically all it is expedient 939: “We for the inter- to establish levels of cur- country indepen- compensation ests of the we should have an rent concomitant with the level (Remarks intelligent judiciary.” professionalism dent and of of desired of members of the Rather, Delegate Soper Tyler County). judiciary. they Abraham D. of separate have created Finally, although systems provide couched in retirement retirement which language, greater there was some discussion of the need level of benefits than other more provide judicial compensation public employment systems a level of suffi- in which members judges permit provision judiciary might participate cient to to make of the otherwise age. example, Delegate adequate appropriate their old For compen- Van Win- lieu of or current reason, judicial sys- kle stated: sation. For this here, question particularly not how much a man tem benefits are critical in at- ought question. professional can live on—that not be the traction and retention of talent to Everybody acquainted judiciary. in this world that I am little, laying up with looks to to make some VIII, 8, Virginia 24. West Constitution article § provision days either for his old or for his provides: business, family.... going A man into if he justice judge may, per- A retired or with his not, industry economy does with due and approval supreme mission and with the something year, saved at the end of a appeals, jus- court of be recalled the chief very little inducement to continue in business. supreme appeals tice of the court of for tem- willing just If he is a man who is to live porary assignment justice supreme as a himself, hand to mouth rather than exert he is appeals, court of of an intermediate important not a man calculated to conduct an court, court, appellate magis- a circuit aor business or to sit on the bench. You trate court. energy industry want a man of more provision permitting In the absence of a com- disposition than that amounts to. service, pensation receipt for such of retire- Proceedings 2 Debates and the First Constitu- only ment benefits would be the inducement or tional Convention West at 881. Sim- accept incentive for a retired such an ilarly, Delegate Joseph Pomeroy S. of Hancock assignment. regard, In this County argued, "Every honestly who man lives (1981 Vol.) Replacement provides § 51-9-10 land, uprightly in this I don't care what his that, "Any judge receiving retired is, profession ought to make more than a liv- provisions benefits under the serve hereof shall ing ought lay by something day, for a wet — special judge circuit court ... without for the work.” 2 time he is unable to Debates charge compensation ... but shall be al- Proceedings the First Constitutional Con- paid traveling expenses lowed and and other vention West at 926. _” expenses lodging actual and meals Maryland Supreme 23. As the Court stated in added). (Emphasis Tawes, 195, 200, 463, Clark v. A.2d 187 Md. jurisdictions recognize A number of other (1946): interrelationship availability between the for re- provision adequate part call are a of inducement which [Pensions] give up greater provisions competent persons leads benefits inclusion of recall private employment emoluments of for lesser within their statutes. See, 12-18-7(b), -(10)(e) (h), e.g., compensation by usually State. This is Ala.Code §§ — -61, (1977); applicable peculiarly stated and -88 Ark.Stat.Ann. 22-910 § to be pri- (Supp.1983); generally § who are able to make more in Ariz.Rev.Stat.Ann. 38-803 bench, (1974); (1983); practice they vate than can on the Del.Code Ann. tit. § thereby give up (Supp.1984); all Idaho Code Kan.Stat. § chance of further 1-2005 (1981); salary increase in their estates for a fixed Ann. 20-2616 Me.Rev.Stat.Ann. tit. § (1979 they age. Supp.1983); which reach a certain 6-A and 6-B & Mass. ends when military ser- insuring grants fi retirement credit independence by future other by fostering in three of this State’s security.25 vice are found nancial professional and retention of See systems. the attraction integrity of to maintain the talent order independent judiciary, creation employees); (public system by Legis judicial retirement Vol.) (de- 15-2-28(b) vindicates both West Con lature partment public safety); West anticipates art. stitution (teachers).26 (Supp.1984) 18-7A-17 Code § of such a and West the creation military credit Obviously, grant of service V, 1, which Virginia Constitution art. those who have as an inducement serves indepen the maintenance of an mandates into service. such service to enter interrelationship be judiciary. dent judi- applies equally to the This rationale constitutionalization tween the military in ciary. Persons who served separation retirement and the fundamental during periods compulsory service were Syl See powers doctrine is manifest. postpone profes- necessarily required State, 142, 149, 214 vestre v. 298 Minn. aspirations to their le- sional deference 658, (1973). N.W.2d 663 gally patriotic mandated duties. Further- constitu- light In of these fundamental more, legal profession entering the those considerations, must examine the tional we interrupted military service their edu- after provisions to de- respective service credit pursuits particularly disad- cational were legislative and the effect of termine intent provision Virgi- vantaged given the West severability section of the statute. VIII, that, nia art. 7 “No Constitution § may justice ... military person ... be elected ... respect to the service With practice unless he has been admitted to law provision, credit we note that 32, (West during their Continuance in 65E and G not be diminished §§ Gen.Laws Ann. ch. (1983); Supp.1984); Ann. 19-5-103 Our own state constitution reflects this § Mont.Code Office.” 7A-39.3, -52, -53, -54, indepen- and -57 §§ N.C.Gen.Stat. concern with the need for (1981 Supp.1983); Although N.D.Cent.Code 27-17-03 § & dence. our state constitution does not tenure, (Supp. (Supp.1983); R.I.Gen.Laws 8-3-8-9 provide stitution, §§ as does the federal con- for life 1983); (Supp.1983); provide S.C.Code Ann. 9-8-120 § does for extended terms of fact, 5-l-106(f) VIII, (Supp.1984). Wyo.Stat. In § Constitution art. office. See states, Virginia, Furthermore, make the few receipt such as Consti- 2 and 5. §§ contingent, that, "Justices, retirement benefits in cer- provides § tution art. 7 circumstances, availability upon of re- magistrates tain judges and shall receive the salaries See, e.g., recall. Conn.Gen.Stat. tired increased fixed law ... which be but (West 50j Supp.1984); Tenn.Code § Ann. during their shall not be diminished office, term of 51— (Supp.1983); Va.Code § Ann. 8-36-806 they expenses provid- shall receive (Supp.1984); § W.Va.Code 51-178 § prohibition against any ed law.” This dimi- Vol.). (1981 Replacement judicial compensation nution in extends to re- 3, Syl. pts. Wagon- See 1 and tirement benefits. overemphasize historical It is difficult to 25. 139, Gainer, er v. (1981). 167 W.Va. 279 S.E.2d 636 judi- achieving independent importance purse ciary. Lacking power of either sword, inherently judiciary both struc- the turally Furthermore, important functionally dependent it is to note that on the other many systems government. in other For a brief dis- two branches of general grants prior military experience the ma- states contain cussion of the colonial See, 12-18-5(b) e.g., nipulation judiciary, § service credit. Ala.Code of the see United States v. 471, (West 200, 217-221, Will, (Supp.1984); Fla.Stat.Ann. 121.111 § 101 S.Ct. 482- 449 U.S. 83, 392, 1982); (West (1980). Mich.Comp.Laws Ann. § As the result 38.813b 66 L.Ed.2d 407-09 (Supp. Supp.1984); experience, § United Miss.Code Ann. 25-11-117 of this the framers of the 24(d), 1983); N.Y.Retire. & Soc.Sec.Law States Constitution were sensitive to the needs 30, 29, 29-a, 24(e), (McKinney truly independent judiciary. and 31 1971 & At the federal of level, Supp.1983); judicial independence primarily Ohio Rev.Code Ann. 145.30.1 § insured III, 1984); (Pur- (Page through Constitution, 71 Pa.Cons.Stat.Ann. 5304 article 1 of the United States 9-8-50(3) Supp.1984); provides, pertinent part, S.C.Code Ann. § which don (Supp.1983); Judges, supreme art. of the and infe- Tex.Rev.Civ.Stat.Ann. 43.103 that “The both courts, (Vernon during good Supp.1983); Utah Code Ann. rior Behaviour, shall hold their Offices shall, Times, (Supp.1983); receive 49-7a-41 Wis.Stat.Ann. at stated Services, 40.02(15)(c) (West Compensation, Supp.1983). shall for their which

273 election, prior purpose determining eligibility for dis- to his at least ten ability retirement benefits.29 judge be elected ... person may no ... practice admitted to unless he has been ... respect prosecuting at With to the years prior to at five law for least torney provision, apply credit we service Haught ex rel. v. election.” See State law, severability statutes and case 27, Donnahoe, 321 S.E.2d 677 174 W.Va. provi military the case of the service credit military (1984). Granting prior service sion, pre order accommodate the judiciary partici- credit members legislative Nar sumed intent. Peters v. pating 760, ick, 165 270 S.E.2d W.Va. pool for the the inducement enhances (1980), applied this Court the least intrusive professionals may talent which and, remedy problem approach a similar service, and serves the drawn denying intend rather than benefits interest of constitutional at- fundamental class, coverage ed included under its those retaining professional talent in tracting and Syl. “aggrieved by exclusion.”30 See also integrity of an to maintain inde- order Alsop McCartney, rel. pt. State ex Severing the pendent judiciary. unconsti- Sim S.E.2d “any portion term phrase tutional ilarly, applied this Court the doctrine of of a of record office of court “neutral extension” in Adkins v. McEldow elapsed while such shall have 231, 233 ney, 280 S.E.2d 167 determining eligibility “In on” leaves was (1981), permit illegitimate to to children by provided this section ... for the benefits father their inherit from both their and duty forces of ... armed active Heckler, v. 460 mother. See also Jones as States shall be considered served United 1077, 1763, 103 S.Ct. 76 L.Ed.2d 339 U.S. _” scope Accordingly, we limit the of (4th (1983); Heckler, F.2d v. 712 924 Jones holding in conformance with sever- our Cir.1983). military of a As the case pre- case and the ability statutes and law provision, granting govern service credit legislature, and intent hold sumed of mental credit enhances the induce service service, military equivalent,27 pool that its ment of talent compulsory may serv during period professionals be drawn rendered ice,31 service,28 the fundamental constitu military “shall be considered as and serves attracting and maintain Virginia Code tional interest served” under West (1981 Vol.), ing professional talent in order maintain 51-9-6 § See, (1982). because of under- e.g., U.S.C.App. 4560) Where a statute defective § 50 27. two remedial alterna- inclusion there exist compulsory military period service in 28. The nullity may declare it a tives: a court either 16, September July question runs 1940 to the that its benefits extend order 1, Training and Service Act 1973. See Selective benefit, legislature intended to class that the 885; 1940, 720, Military ch. Stat. Selective 54 coverage or it extend the statute by Act, 625, (1948); 62 Stat. 604 Univer- Service ch. aggrieved who are exclusion. include those Act, 144, Training Military ch. Service sal Oklahoma, 316 U.S. 535 [62 Cf. Skinner (1951). Military Selective Service 65 Stat. 75 1110, (1942); S.Ct. 86 L.Ed. Iowa-Des 1655] 90-40, 1967, 100. No. 81 Stat. Act of Pub.L. Bennett, U.S. 239 National Bank v. 284 Moines general government’s authori- induction federal ty expired 133, 76 265] S.Ct. L.Ed. [52 1, U.S.C.App. July 1973. See 50 467(c) (1982). § grant jurisdictions retro- note that other 31.We judi- governmental credit in service their active other retirement In two of our State’s three 29. See, e.g., Ala. statutes. cial retirement Legislature systems, has limited we that the note 12-18-8(a), -8.1, -55(c), (1977 and -110 Code §§ years. military five grant service credit to (West Supp.1984); § Cal.Gov’t Code 75030.5 & (1979 Replace- § Code 5-10-5 See West (West 1976); 51-50a § Conn.Gen.Stat.Ann. 15-2-28(b) Vol.); § ment West Code (West Supp.1984); § Fla.Stat.Ann. 121.081 Vol.). (1979 the Ad- 88-51, -58, 1982); -60 §§ Hawaii Rev.Stat. guided should ministrative Director be 108‘/2, 18-112(a)-(f) (1976); §§ ch. Ill.Ann.Stat. military legislative policy prior ser- (Bobbs- Ky.Rev.Stat.Ann. (Supp.1984); § 21.375 years. credit limited to five vice Supp.1984); § La.Rev.Stat.Ann. 13:17 Merrill (West Supp.1984); & Mass.Gen.Laws Ann. quoted language from Jus- 1983 This in Peters was (West Mich.Comp.Laws Supp.1984); ch. 4§ v. United Harlan’s concurrence in Welsh tice ,813b .810, (West 1792, 1807-08, 38.802(f), 333, 361, Supp. States, §§ Ann. 90 S.Ct. 398 U.S. -9.2, -9.6, 43:6A-9, -9.1, 1984); (1970), he stated: N.J.Stat.Ann. L.Ed.2d where

the integrity independent judiciary. of an percent ... six salary fund his total ... ” Furthermore, Severing phrase judge the unconstitutional .... when a “as claims period during credit for a prosecuting attorney any which he was not county” leaves contributing member re- “if a of a court of record has served pay tirement he must “into the ... period for a of not less than ten full fund all contributions he would have been any portion ... time which he had required pay fund, together into the with in32 qualify served ... this State shall interest thereon percent....”34 at four years of Accordingly, service.” we limit (1981 West Code 51-9-5 Re- scope holding of our in conformance placement Vol.); see also severability statutes, law, case (1981 Replacement Vol.). 51-9-6 presumed and the intent Legislature, provisions These legislative reflect a clear and hold that any service to this State or intent that all judi- credited service in the political its subdivisions33 qualify “shall cial retirement correspond must years of service” under West contributions made to the fund (1981 Replacement Vol.). 51-9-6 claiming such credit.35 Replacement Vol.) requires that, VIII “[ejvery person who ... shall serve aas From when the re pay court of record ... shall into the created, tirement see was -10, -11, (Supp.1984); and -14.2 N.M.Stat.Ann. provision of mental health for the of commu- (1983); §§ 10-13-6—9 nity services, N.Y.Retire. & Soc. health or mental retardation 2(11), Supp. Sec.Law §§ and 42 & state, supported part by which is coun- 1983); (1982); N.D.Cent.Code § 54-52-02.6 ty municipal funds. 145.20, .29, .29.3, Ohio Rev.Code Ann. §§ 5-10-2(4) (1979 Replace- Code § 1984); (Page and .201 71 Pa.Cons.Stat.Ann. Vol.). (Purdon Supp.1984); § 5304 S.C.Code Ann. 9-8-50(1) 1983); (Supp. § S.D. Codified Laws strikingly grant 34. This is different from the (1980); 3, §§ 3-12-83—84 Vt.Stat.Ann. tit. military service credit contained in this State’s 458(a) 1983); (Supp. §§ and 477 Wash.Rev.Code systems, other retirement where such credit is (Supp.1984); 40.02(16)— Ann. Wis.Stat.Ann. §§ given military as a bonus for service. See West (17) (Supp.1983). Virginia (1979 Replacement Code § 5-10-15 Vol.) (public employees); Virginia West Code 32. “In” connotes service to the State of West (1979 Vol.) Replacement (department § 15-2-28 Virginia any political or of its subdivisions. public safety); Virginia West Code The Administrative Director should view the (Supp.1984) (teachers). 18-7A-17 § "political word “in” to mean subdivision" as public employees sys- defined in the retirement claiming 35. Because retroactive service credit Virginia tem statute. See West Code period during judicial involves a time which a 5-10-2(4) (1979 Vol.). Replacement § received, salary was not some basis for calculat- ing necessary the level of governmental contribution Retroactive to claim service in this service, such part service credit State includes full needed. We note or time whether election, Virginia (1981 by employment, West appointment, Replace- Code 51-2-12 § or to the Virginia any per ment political State of West establishes a or of its diem level of com- pensation “special" judges subdivisions. for See footnote 37 intra. We note of courts of “political per compensation definition of record. The diem subdivision” con- rate of for public employees special judges tained in the $100.00 retirement stat- has been since 1975. See ute: 1975 W.Va.Acts ch. 126. Prior to the most re- Virginia cent amendment to West Code "Political subdivision” means the State of (1981 Replacement Vol.), 51-2-12 Virginia, per § county, city West State; a or town in the compensation unit; special diem rate of corporation judges for corporate a school or progressively any separate corporation instrumentality increased. See or 1973 W.Va. 34; 57; counties, Acts ch. established one 1951 W.Va.Acts ch. or more 1921 W.Va. cities or towns, 77; law; 21; permitted by Acts ch. any corporation W.Va.Acts ch. and 1872-73 instrumentality supported part by Virginia or counties, W.Va.Acts ch. in most 129. Under West Code towns; (1979 any public corpora- Replacement cities or 2-2-1 and -2 Vol. & charged by Supp.1984), performance Saturday, tion Sunday legal law with the “a or holi- governmental jurisdic- day” a days. function and whose are not work See State ex counties, Ellis, 522, tion is Varney coextensive with one or more rel. 149 W.Va. 142 S.E.2d 63 towns, any Thus, agency organization (1965). cities or or year a state work consists of by, approved by department established approximately or fifty two working hundred and 34, 1953, “by judges’ retirement paying who tem into the ch. until W.Va. Acts in he would have been initially participate not fund all contributions elected to fund, required pay together ex- into the system were both to retirement cent, per re- if he any public interest thereon at four had empt participation from not to precluded previously from sub- not elected contribute.” system36 tirement (1955). retire- 51-9-5 participation in the See West Code sequent § Still, Virginia Code not meant ex- system. election to contribute See West emption participation In W.Va. other see 1953 51-9-5 § proviso public system. added to retirement how- Acts ch. was ever, permits judge Acts ch. provision election see participate public system was initially employees elects who created,37 subsequently participation, which makes judicial retirement noted, sys- mandatory previously for under the for all individ- eligible benefits become calculating special exceptional employees days. con- and offi- the basis class only required for a retirement fund cers are to serve a limited tribution to governmental claiming military judge days year, ranging or service working each number of $15.00 credit for time served in 1949 would sixty days legislators, case of see working days multiplied by 18; $3750.00. or VI, West art. four Constitution percent would then contribute six commissioners, county days in the case see plus percent four inter- this amount to the fund 9; IX, art. to no Constitution following eligibility any period to claim est meeting requirements the case of numerical prior military governmental service such or members, city council see military credit. who claimed or her A Vol.), while all §§ 8-9-1-3 entering judicial office for service credit when required ap- are officers account required therefore be time served in would fifty days year. proximately two hundred each $225.00 to the contribute 51-l-17(b) (Supp. Code § See West however, judge, If waited until fund. the same 1984). credit, a later to claim such he she date employees, For these officers required percent ten would be base, contribute operates employees to create $375.00. multipliers. multipliers not uncom- Such are credit, military avail- Unlike which is service See, e.g., systems. mon in retirement immediately upon entry able into the 51-163(c) (1982). pub- A review of the system, governmental credit service employees reveals that lic only can be after ten of service claimed multipliers at there at least three work. credit. See First, multiplier, explicitly denominated as Vol.). such, average computing the "final is utilized They any exempt participating in 36. were salary" Virginia legislators under West Code of system public were no retirement because there Vol.). 5-10-2(15) (1979 Replacement See § public systems existence in other retirement in Campbell Kelly, W.Va. 202 S.E.2d 369 they eligible participate. which to The were Second, (1974). multiplier implicitly a uti- is system public employees not was retirement legisla- crediting of the state lized in ture, “members ch. 118. created until 1961. See 1961 W.Va.Acts delegates, of house of the the clerk the senate, legisla- members of the clerk of the state system public employees The retirement is 37. judges any political and body subdivision tive of designed em- primarily branch for executive of with full-time credit of the state court claims” political ployees subdivi- of the State its and Virginia part-time Code for service under West whereby legislative- provides system sions. a It Vol.). (1979 5-10-2(6) Replacement This § multiplier ly "employees” creditable defined accumulate by to include has been extended rule employment. See West service for "full-time” Virginia clerks, doorkeepers sergeants-at-arms, of 5-10-2(6) (1979 Replacement Code § legislature. Regu- of the See Rule 50 Rules Vol.). "employ- defining the term The section by Adopted of the Board of Trustees the lations ee,” however, exceptional special a also contains Employees Virginia Retirement West Public grant legislative officers and of status to certain System the also Rule 41 of Rules See despite employees full-time credit who receive Adopted Regulations the Board of Trust- "Provided, only rendering part-time service: Employees Virginia of West Public Re- ees the legislature, the clerk that members state (1978) (full-time System service credit tirement delegates, the the clerk of the state of house of assessors). legislators, part-time deputy For for senate, any legislative body of members of the grant operates multiplier two hundred the political the state subdivision and service, days fifty sixty days’ of actual credit for to be em- court claims considered shall be 4:1; _” county multiplier approximately for 5-10-2(6) or a ployees Virginia West Code § commissioners, grant Therefore, multiplier operates to Vol.). public the the days fifty days’ credit for four employees system two hundred creates a retirement statute statutory systems developed indepen- the defini- tirement uals included within were times,39 Virginia dently, at for employees. See West Code different different tion of 5-10-17(a) purposes, rath- accommodation in the (Supp.1984). § systems complete exemption in a administration the two resulting er than neces- sary fully sys- pre- retirement in order effectuate the participation participate legislative tem, judi- the sumed intent.40 election not under West system cial retirement effect, judges who transfer from the Vol.) (1981 Replacement Code 51-9-5 § public employees system retirement into participation in pub- mandatory means system retirement are con- Thus, system. employees lic retirement sidered to their member- have terminated system retirement public employees ship employees public retirement system for Arti- a “substituted” retirement system under West Code Virgi- under West cle VIII officers (Supp.1984). Virgi- 5-10-18 Under § VIII, nia Constitution art. § 5-10-30(a) (1979 Replacement nia Code § noted, Vol.) previously judge receives a refund As involved Vol.) contributions, (1981Replacement permits together 51-9-5 of accumulated § public judge employ- from the with the total interest credited to his or her to transfer if system employ- ees retirement into the re- account a member “by paying ees system tirement into the more than two years, judges’ deposit, fund all he he must then contributions or she required pay together would have been into the with additional contributions nec- fund, essary percent together interest thereon at four order to meet ten previously salary requirement under percent, if he elected had (1981 Replacement Vol.), opera- not to This occurs contribute.”38 tion Code 51-9-5 into the fund. of West and the then service credit “substituted” receives for time public employees judiciary. nature of the served as a Of member course, Constitution once a member of the re- under West art. is the result of tirement make such 8. It adminis- recognition respective necessary that the contributions trative re- as are receive service, multiplier approximately public employees both actual 60:1; or a retire- members, relatively antique city multiplier council ment statutes are Furthermore, enactments. operates grant fifty days' hundred credit neither have been amended to two service, days multiplier judi- accommodate for X of actual the constitutionalization of operation Finally, by cial X:l. of West retirement. 5-10-17(b) (Supp.1984) Virgi- and West (Supp.1984), overlay nia Code members of patchwork ap- § 18-7A-17 40.This administrative who are also proach developed filling teachers retirement as a means of legislature may receive two statutory provisions members of the the interstices between every year one respective systems. pro- of service credit of the cess, however, This rendered, public multiplier or a 2:1. difficulty. service of without is not For example, public of the board trustees of the public ability 38. This to transfer credit from the employees system commonly, retirement al- system employees into another re- retirement though perhaps unknowingly, does not follow system unique not to tirement members of regulations. Notably, its and own formal rules Virginia judiciary. the Under West Regulations Adopted and Rule 21.8 of the Rules Vol.), 5-13-3(c) (1979 Replacement “in the by the Board of of the West Trustees position a covered event a member leaves public the (1978), Employees System Public Retirement employed system posi- becomes in a that, provides employee "Any participating of a system, tion teacher he shall covered the not eligible employer membership who is in acquired service forfeit his credited as a mem- political system body another retirement of a system public ber of the ...See also West eligible membership shall not be in the West 5-13-5(b) (1979 Virginia Vol.). Code § Employees System.” Public Retirement Furthermore, 6, 21, provisions of Rules and 22 Regulations Adopted by of the Rules and the Compared Board the West to West Constitution art. of Trustees of- Public VIII, (1978) Employees System part appear, was ratified as Retirement § which face, Reorganization statutory provisions. Judicial Amendment on their to contradict employees given public nature the governmental military ser- the credit sys- system as a “substituted” previously discussed. retirement vice constitution, judges under our tem for as an system develops accommoda- This initially subsequently judges either judges intent that legislative to the tion judicial in the retire- participate to elected precluded participation from in may not be may system public transfer into the ment system judicial retirement because the system. retirement employees participate to and that initial election not system public employee retirement the Virgi to proviso The second mandatory “substituted” retire- as a serves (Supp.1984)requires 5-10-18 nia Code § system under West Constitu- public reentering employees the individual initial- art. 8 for who do tion “to mem system to return the retirement participate judicial in ly elect not to the amount, any, he deposit the if bers’ fund Furthermore, system. sys- the retirement therefrom, regular together with withdrew develops recognition fact that tem the the date withdraw interest thereon from entering judicial those service do many of addition, repayment.” al the date of to having served the State or one of so after required to to judges would be contribute immediately prior political its subdivisions deposit members’ fund the amount the service, and commencement of such to the had which would have been contributed pub- the indeed have been members of judi participate elected in the they not system in connec- employees lic retirement system, together regu cial retirement governmental service. with such tion thereon, by the as established lar interest Therefore, entering that follows those public employees of trustees of the board might initially remain the service system, the date of with retirement from system. public employees retirement reentry. If the drawal to the date of noted, to transfer judges who leave who wishes As system public employees employees system retirement retirement public system previously not been must enter the employees public retire their a member considered to have terminated be required system, judge would be membership Virginia Code ment under West which would have public employ contribute amount (Supp.1984) 5-10-18 initially or she had he been contributed system.41 ees retire participate (Supp.1984) provides, elected 5-10-18 together with interest there that, system, part, “When a member ment pertinent on, by the of trustees em established board participating a employ leaves the public employees a ployer ... he be member ceases that the date commencement to him at forfeits service credited em until transfer into service considered time.” system. It should be ployees retirement participating em employ have left the unnecessary transfers between into noted ployer when transfers he discouraged through the systems further system. The statute penalties upon trans that, of interest however, imposition “If provides, he becomes fer. See em reemployed by participating public (Supp. and 5-10-18 a member

ployer he shall reinstated as 1984). particularly This is true transfers credited of the retirement judicial retirement to the him re from the by shall be service last forfeited Thus, public employees system retirement be- particularly to his stored credit.” that, position judi- ability "in the event a member leaves a credit the 41. This transfer to system by system public the and becomes employees teacher covered employed cial retirement into position public ability covered system to to retirement is similar sys- system, he shall not forfeit credited service credit the teachers retirement transfer system sys- acquired of the teacher employees as member public retirement tem into the _” 5-13-5(a) also Code regard, Code See West tem. this Vol.). (1979 13—3(b)(1979 Vol.) Replacement provides Replacement § 5— (1981 public Although cause West Code 51-9-12 cial and there are service. Replacement provides that contribu- many systems distinctions between the two judicial tions refunded from the retirement merely degree, one which are matters of system shall be done so “without inter- important sys- difference between the two est.” applicable Judge tems that to Dos- governmental military tert is service stated, already

As we have Adminis- credit. Supreme Court of trative Director judicial Appeals is the constitutional officer public employees Under the retire charged by this Court with mainte- system, “prior” ment service credit is limit administration, nance, and certification of prior July ed to service rendered to salary retirement

judicial records. It 5-10-2(11) See West duty certify all service is his to credit for 5-10-14(a) (1979 Vol.). Replacement As we judges proper courts of record to admin- stated, governmental ser retroactive istrators, including specifically those re- judicial vice credit is available under the sponsible for the administration of the re- system any governmental retirement systems spective retirement in which State, is, service in of its participate. judges may duty It is his political subdivisions as defined under West judges assist of courts of record calculat- 5-10-2(4) (1979 Replace ing necessary the level of contribution Vol.). Therefore, respec- judicial the credit desired from the obtain under the systems. duty tive retirement It is his temporal to retirement there are no employers’ calculate the contribution neces- granted gov limitations on the credit sary systems to transfer credit between the degree ernmental service. Given upon employers’ based what the contribu- transferability judicial between tion would have been if the who public employees systems, retirement fun desires transfer had been a member of the equal protection damental dictates that system transferring. into which he or she is judges obtaining governmental retroactive Finally, duty it is his to calculate contribu- equal service credit receive treatment un required judges system tions in either systems, particularly given der both prior govern- who wish claim credit for public employ “substituted” nature of the military mental or service. system applies ees retirement as it Otherwise, judges. judi members of the public

The “substituted” nature of the system cial retirement who wish to trans employees system applies retirement public employees fer into the retirement judges degree is the foundation for the system would be denied and transferability judicial forced to for between the qualifying feit public creditable service under the employees systems. retirement Pri- judicial system. marily, retirement Such ability of Article VIII denial participate public employ- impair officers to in the and forfeiture would the contractu ally system legis- property rights judges ees retirement derives from a vested of those judi- lative accommodation of the nature of who wish to transfer.

42. We note that under West Vol.). This stat- Vol.), exclusively repayment § 51-9-12 "refunds" ute is concerned with the judges upon are limited to minated, "whose services have ter- of contributions termination of otherwise than retirement under service. It does not address the transfer of provisions by judge of this statute." Because service credit who continues to serve judiciary wish to transfer from the retirement as a member of the into the system public employees employees system. leg- into the retirement Because the system public employees specifically provided must islature has not contribute to contributions which fund all reimbursement of accumulated contributions they would have been contributed had not elect- under the est, however, with inter- participate sys- ed to such reimbursements of accumu- tem, however, the reimbursement of contribu- lated contributions must be done so without interest, particularly given legislative tions made to the the clear meaning fund is not a "refund" within the intent that "refunds” are to be made "without Virginia term as utilized in West interest.” necessary Syllabus Wagoner Point 1 of been made to examine the issue that, Gainer, supra, this Court held of eligibility disability for benefits under System Virginia Retirement for “The West systems. both contractually proper

Judges creates vested This final with observation conforms the participat rights and active ty for retired language of West Constitution art. members, rights are ing plan and these VIII, provides that, su- “[T]he impaired or di and cannot be enforceable preme appeals court of is authorized to ... rights These minished the State.” any judge eligible retire ... ... who is for capa unenforceable and would become 'Virgi- retirement benefits under the West impairment merely a mem ble of because (or judges’ system any nia retirement suc- system the retirement elect ber of system or cessor substituted retirement advantage option par the ed to take _)” added). (Emphasis ... for ticipate sys in “substituted” retirement a public employees system The retirement is tem, public sys employees retirement meaning a “substituted” within the operation note that the tem. We also provision. this constitutional Under the spoken, in multipliers, of which we have system, judge retirement a must public employees retirement generally years ten of creditable ser- provide certain nonexecutive branch offi disability qualify vice order to for bene- employees with full-time service cers fits.43 See West applies for service part-time credit (1981 Replacement Vol.). noteWe equal judiciary, force to members currently Judge has less Dostert served entitled annual service credit eight year than one full term as circuit politi its any for service in the state or face judge. on the stat- subdivisions, special provided in the cal ute, he additional must demonstrate two exceptional provision of West service, prior years of creditable as dis- 5-10-2(6) (1979 Code § herein, “eligible” is cussed before he for Regulations Rule of the Rules and judicial re- retirement benefits under the Adopted by the Board of Trustees public system. employ- tirement Under Employees Retire Public system, a member must ees retirement also System Accordingly, retroac years” quali- “ten more order to serve public employ tive service credit under benefits, fy disability for unless his her available, ees retirement shall be proximate disability is “the natural and re- system, for under the retirement personal arising injury of a or disease sult this State or service rendered a per- of and in the course of his actual out prior to political of its subdivisions employ partici- duty formance of of a public becoming member of public employer, he is in pating and ... irrespective employees receipt compensation on ac- workmen’s of when such rendered. service was physical or mental disabili-

count such IX 5-10-25(a) ty.” See West Code §§ Vol.). Therefore, —(b) final issue for determination statute, Judge on the face of the Dostert case is standard whether the constitutional in his claim for work- must be successful disability applies in disability he compensation benefits before will ers’ proceedings are mem- involving judges who “eligible” disability retirement bene- public employees bers of statutory fits under the standards noted, Judge system. previously Dos- As public This employees system. currently tert member however, that, ignores the fact proposition, employees Because of system. art. under Constitution participatory option contained statute, however, supreme appeals” it “the court of noted, however, previously 51-9-6a Re- As who is See sixty-five age only Vol.). years serve six placement over must disability qualify benefits. order 280 Compensation Judge

and not the Workers’ Com- actuarial value of Dostert’s benefits of Trustees judicial system pursu- mission or the Board under retirement System, Employees Public Retirement ant to 51-9-8 § of existence Article VIII determines the public or under the em- judicial disability. ployees system pursuant retirement 5-10-26(c) (1979 Re- Code § Constitu Under placement Vol.), de- may case be 8, any judge tion art. “who ... § upon Judge pending eligibility Dostert’s not, opinion of supreme should in the respective systems. benefits under the appeals, court to serve as continue a ... advancing judge and at Accordingly, [because we direct the Administra- mental physical incapacity],” tendant or tive Judge’s Director to calculate the cred- involuntarily retired due to disabili certify itable service and that service to ty, irrespective of which retirement respective systems retirement as the such is a member. The issue in a case Additionally, need be. we remand this judicial disability proceeding retirement ais disciplinary proceeding to the Judicial not,” question opin of who “should in the Hearing disposition Board for immediate Court, perform ion of this continue those complaint emphasis ethical and with an physical duties the result of upon determining existence of Work-relatedness, incapacity. mental un disability. employees public sys like Remanded with directions. context, prerequisite tem is not to a de disability termination of in the dis MILLER, Justice, regard my ciplinary irrespective context. disqualification: Judge disposition Dostert’s work claim, compensation explain ers’ I my disqualifica- Judicial Hear file this note to remand, ing Board, upon jurisdiction April year, tion. I subpoe- was disability recommend retirement under the naed and as a testified material State’s employees contempt or un witness in the criminal trial der the Judge if he which was Dostert the defendant. eligible elects to transfer and otherwise This trial was held Circuit Court benefits, County Judge if it finds he should not contin Kanawha resulted in perform ue to judicial duties as a retired Dostert’s contempt. conviction criminal “advancing years present as the proceeding result of is a direct out- growth physical incapaci attendant mental of that conviction since it involves 44 ty.” Hearing If the Judicial Board finds claimed breach of the Judicial Code of Con- judicial disability, arising existence duct the Ad from the same facts which gave ministrative Director should contempt calculate the rise to the criminal convic- (West 1982); jurisdictions apply We note § that other a sim- 121.091 Ga.Code Ann. 47-9-72 § 108‘/2, disability disciplinary (Supp.1984); ilar standard in ch. Ill.Ann.Stat. 18-126.1 § See, Falk, e.g., (Supp.1984); In re cases. 300 So.2d Ind.Code Ann. § 33-13-8-11 Alexander, (Fla.1974); (Burns 1975); (West 260 In re 323 So.2d 448 Iowa Ann. § 602.9112 Anderson, 442, (La.1973); 32, Supp.1984); Matter 312 Minn. 6 Mass.Gen.Laws Ann. ch. § 1977); (Minn. (West Supp.1984); Quinn 252 N.W.2d 592 v. State Minn.Stat.Ann. §§ 490.- 386, Conduct, 025(1) .121(13) (Supp.1984); Commission on Judicial 54 N.Y.2d Miss.Code 879, (1981); (Supp.1983); 430 N.E.2d N.Y.S.2d 446 3 Ohio Ann. § 25-11-113 Mo.Ann.Stat. Mayer, (Vernon Supp.1984); State Bar Association 54 Ohio St.2d 476.445 § NJ.Stat.Ann. (Ohio 1978); (Supp.1984); 8 O.O.3d N.E.2d 770 § 377 43:6A-12 N.M.Stat.Ann. (Okla.1979); Woodiiff, (Supp.1983); Lavender v. 605 P.2d § N.C.Gen.Stat. 7A- §§ Field, (Ore. (1981); 1.310(c) Matter 281 Or. P.2d 348 39.11 and -55 Or.Rev.Stat. 1978). (1983); 8-34-115, -127, is also This standard reflected in defini- §§ Tenn.Code Ann. (1980); disability tions of contained within other state -143 Tex.Rev.Civ.Stat.Ann. art. 44.201 See, (Vernon e.g., Supp.1983); statutes. Utah Code Ann. 18—6(a)(1) -6(b)(1) 49-7a-7(21) (Supp. (Supp.1983); Ala.Code §§ Vt.Stat.Ann. tit. 12— 1984); (Supp.1983); (1982); (Supp.1983); Ark.Stat.Ann. 22-902 Cal. Va.Code § 51-169 (West 1976); 2.10.120(1) Gov't Code § 75060 Colo.Rev.Stat. Wash.Rev.Code Ann. and 2.12.- (Supp.1983); (Supp.1984). § 24-51-609 Fla.Stat.Ann.

281 The least talented government. field like I be called It is conceivable tion. unemployed for may be lawyers disci- new in this material witness as a get awhile, eventually, they will even proceeding. but plinary gone to law they had jobs better than clearly of Conduct The Judicial Code school. sitting in a case in judge a forecloses participant or prior a he has been reflect opportunities lawyers job The witness.* as a material called could be litiga in increases traditional both annual holding that dis cases There are numerous tendency for other institu a recent tion and these circum exists under qualification tions, government agencies, univer such as Swenson, 427 F.2d Tyler v. E.g., stances. sities, to emulate the and business Cir.1970); (8th v. Travelers Tanner 412 example, For making decisions. (La.App.1980); Co., 721 389 So.2d Ins. elaborate, cannot be fired without teachers State, (Mo.App. S.W.2d 582 598 Davis v. court-like, hearings, process” “due W.Va. (1968); Annot., 1198 1980); 22 A.L.R.3d cf. Code, [1969]; v. Board 18A-2-8 DeVito McClure, 160 Bros., v. W.Va. Inc. Stern Educ., 159 W.Va. 317 S.E.2d 173 (1977). 567; 222 236 S.E.2d (1984); 170 Flanigan, Wilt (1982); Cty. Mason Bd. 294 S.E.2d 189 dissenting: NEELY, Justice Supt. of Sch., 165 W.Va. Ed. v. State I reluctance that considerable It is with (1980), and a humble state 435 S.E.2d vigorously dissent to respectfully but Board of Barbers and agency like our My reluc- opinion in this matter. Court’s policy to allow cannot alter Beauticians glaring inequities from the proceeds tance a give permanent waves without barbers and the Bailey do the Old ceremony that would ordinary diminishing chances that etc., College, et Wheeling Barber proud. inequities will be things those course of al., Roush, etc., et 174 W.Va. al. v. Legislature. by the addressed larger volume Both the S.E.2d legal my specific proceeding to before tendency to litigation and the traditional I address the grounds for dissent shall non-judi multitude of courts in a copy the my reluctance. reasons of a struc settings symptoms are basic cial govern in American transformation tural I more mat places progressively ment that gradu- law schools Every year American decisions. in the courts for ters 35,000 lawyers. new approximately ate million twelve typical year over In a lawyers far ex- yearly These increases jurisdiction courts cases are filed requirements or replacement ceed either even We cannot States.1 in the United economy. In West growing the needs of a more cases of millions the scores count prac- number Virginia, example, minor and other in small claims filed sixty about ticing lawyers has increased of all cases largest percentage courts. although fifteen percent the last according to or decided either settled are and the econo- population has declined every year principles, but established steel, well by coal and my, as it is dominated inviting filed cases are more and more most of our Yet actually contracted. part of change some time-honored courts get jobs either lawyers are still able new system. socio-economic in law-related our working practicing law * (b) been a material ... has ... 3(C) part: provides, in relevant Canon it; concerning witness "(1) disqualify himself in A should might impartiality proceeding in which knowledge likely (d)(iv) judge’s to be is to the including but not reasonably questioned, proceeding.” witness in the a material where: limited to instances Society, (a) prejudice in American con- Role Courts personal bias or 1. See The he has a knowledge report on the Role of The Council cerning personal the final Courts, party, Paul, (St. Publishing Company concerning pro- evidentiary disputed facts 1984). MN: ceeding; job large-scale enterprise

Employees seeking greater ownership file cases because corpo- parents give requires corporation. courts to them a modern But security; want they get can’t from traditional money for schools that rations divorced injured community peo- demand sources of control and thus legislatures; workers given ple go money legislatures than to court to control them rather than more and, local, compensation; to a individual owner. them under workers’ underprivi- as people who view themselves Technology interdependent: has made us women, minorities and leged particularly — depend our jobs own often on the invest- poor courts to redistribute —want anonymous corporate ment decisions of These power and in their favor. wealth managers; our children’s education de- name, groups, and others too numerous to pends schools, particu- on and this is faster, are come to court because courts larly single-parent true as families and two- power cheaper, by influenced and less provide parental guid- income families less money than other lawmakers. ance; opportunities depend recreational on public facilities; depends hospi- health on probably chosen for an Courts have been tals, rules; government doctors and they lawmaking role are expanded because property depends zoning value of our on adaptable political more than other institu- laws; and, depend govern- our incomes on particular at solving problems tions for grants, subsidies and tax To- breaks. stage development. Among of our social home; day go we do not even die at we technology, increasing- problems these is a nursing professional homes for death complex, ly widespread and that has made management. society interdependent. Addi- ever more tionally, twenty years our the last con- Throughout big America re- business is proper sensus on the of wealth distribution placing manufacturing, small In business. community changed power and in the has products cars, appliances, most consumer — dramatically. The most obvious benefi- drugs housing by and even made —are ciaries of this consensus are transformed huge, well-capitalized corpora- efficient and blacks, poor, women and the there are but gobbled up by tions. Small restaurants are rearrange changes more subtle as well that chains; being the fast food local stores are older, power relationships. time-honored discounters; and, by forced out local banks being replaced op- are state-wide banks household, example, The divorced locally by strangers erated indifferent se- acceptable now as as the married house- management pool. lected from a central places unprecedented hold. This num- developed have institutions like Ameri- We family ber of matters into the hands of the which, Express, can Mastercard and Visa authority, courts. such Sources of moral creditcards, by denying us can foreclose us churches, parents, employers and renting checking a car or into a hotel. weight twenty schools given that were short, grandfathers In unlike our who were years ago when a more traditional we were born, lived and died in a nation of self-reli- society, declining strength are Amer- entrepreneurs, ant farmers and small we This, turn, ica becomes less cohesive. increasingly power are under the of oth- people prob- leads to the courts to resolve ers.2 formerly lems that resolved else- were then, regulation placed Judges, despite themselves, where. The need for often aspects being pushed everyone’s more life at the mer- are into more and more func- cy protect anonymous and unconcerned bureau- tions order to citizens from the who, far, brought caprice crats to heel anony- so can be unintentional —of —often only by judges The efficiencies and mous institutions. courts. Sometimes the prices enterprises wrong, magnitude low large-scale are but as the and augmented power professional interdependence breadth our increases management expense annually, intensify pro- at the of individual we our search for By population 2. At dropped the conclusion of World ers. the farm War II over had percent population percent. of the American were farm- to 2.6 filed in million lawsuits un- With over twelve apparently impersonal tection it is year each corporations general jurisdiction courts like forces controllable eye of judges found such not to in the People have difficult for governments. courts, give Regard- them every imaginable storm. almost shelter power making over against judges those with rule—either leverage less of how caprice major mitigate declining new law— to make them new law courts power- turn to the both People inevitably host of they institutions. will incur a society in a participation their like West to widen ful enemies. a state experts like increasingly eight- dominated elected for judges circuit are where administrators, welfare workers supreme justices school court year terms and provide a buffer bureaucrats inevi- twelve-year terms we will elected for adversely of decisions against all sorts more and more will tably find that lives.3 affect their in their for reelection. be defeated bids ultimately refuge every- a Courts Yet, explain, a attempt I to shall International Harvester who one—from different, very job of his is judge’s loss pace of environmental slacken the wants to regular many regards, from the loss Kelly [Goldberg v. Kel- regulation to John employment. governmental private or 1011, 25 L.Ed.2d 90 S.Ct. ly, 397 U.S. fact, setup legal system almost of our (1970) who wants his welfare benefits ] judge a who dies or loses guarantees that compara- courts are restored —because eligible he is before his for reelection bid decisive, fast, and hon- tively inexpensive, severely, both retirement will suffer transfer irony this wholesale est. The family emotionally, or his financially and people is that authority to courts suffer. will consistently vilify the courts are most Business, for them. still the first to use II sign the first example, goes to court at by an administrative an adverse decision a practicing lawyer becomes Typically a constituencies agency. The social welfare just mid-forties at about judge in his pry more get judges to go to court to earning entering peak he is time when legislatures for so- money from reluctant practicing for which a years. Everything juve- hospitals, mental programs cial like building reputa- a in terms of lawyer works welfare; legisla- facilities, prisons, and nile firm, developing tion, and organizing a law dirty their work courts for tors use the capable paying regular clients panel a deliberately vague statutes passing services, handsomely, if reasonably, interpretations blaming judges for then lawyer a the moment sacrificed must be constituents; their adversely affect Furthermore, although goes on the bench. mayors use governors, presidents, in his own ownership interest lawyer’s a against as shields court decisions immense eco- practice may be of private socially explosive issues outrage over such prac- to him if he continues to nomic value integration. Yet most as abortion and almost value- tice, asset is this hard-earned hate the courts! to groups these claim and, therefore, is not a else anyone less therefore, If, a suc- commodity. what salable have in America appear to We now ap- lawyer accepts an practicing a lack cessful jargon calls sociologists’ tortured judge su- circuit as either a you pointment If congruence.” of “attitude-behavior path to our state’s justice preme court he thinks average American what ask the —a as common as is at least judiciary that Yet extol its virtues. democracy he will judge election—the running for a seat is confront- American that same whenever which he everything for abandon his must adverse to decision ed a democratic period of fifteen typical a over decision worked interests, try get he will If, then, judge is defeat- that same years. (at arguably) unde- least overturned put back out for reelection he ed in a bid courts. mocratic Society, Op. N. l. cit. Courts in American 3. See The Role

284' bene- office, system permits The current without a law the street without on increased judges to be clients, if fits for retired regular fee-paying panel of a salary receives a sitting judge a whenever term or for a full has served judge raise. energy to

more, youth without of his enthusiasm again with the start over provide attempt pension This is an youth. sacrificing their judges with restitution for peak earn- practices and their private own special- Furthermore, judge is a being a Is it of the courts. ing years in the service metier in the specific, discrete a ty: under the injustice that not a remarkable practice, administrative like tax just law judge with ten statutory scheme a current practice. Being injury personal practice, dies must years of credited service who attention, study and demands good judge family almost destitute because leave his judge in turn forecloses and that judicial pen- qualified neither for a he has keeping up with the fields devoting time to up enough private treasure sion nor stored practicing he excelled as a in which of law protect family? When, therefore, is ousted lawyer. Furthermore, no to this lat- it is answer eligible he he is to retire office before suggest that a proposition ter longer even able to he is no finds that join such circumstances can elect specialties. in his former practice system and public employees’ retirement in by majority presented facts As the judicial get years credit for his few of fairly imply, Judge case particular jobs There are state for law- service. few exactly possess paradig- did not Dostert fifty-four of West Vir- yers in the counties Some, fact, in temperament. matic Capital in Kana- ginia outside the State to de- that he deserved be might observe County. govern- The most common wha Nonetheless, majori- a substantial feated. ¡of job outlying county in is that ment judges in this State ty the trial court prose- prosecuting attorney or assistant and favorably to the best state compare cuting attorney. There are a few addition- throughout the United judges federal attorneys or positions city for salaried al we it is such individuals whom States and agen- roving hearing examiners for such judiciary. If the retire- must attract to the Compensation Fund. cies as the Workers’ structured system judges for is so prosecutors general, except in for and But se- penalizes Rhadamanthine that it with lawyers are not the legislators, salaried anyone defeated an elec- verity who is expe- political with the clout and individuals tion, impossible for it then almost becomes judge. Very few rience to be elected any judges cases in fashion our to decide fact, couple have more than a judges, ótn¿>Uot contrary the demands of to . service, prior and years of creditable State goes any on fewer will have as time even type military service. The creditable reputa- If the federal courts have attracting lawyers whom we should be to justice handing out a tion for brand experienced practition- judiciary are courts, part of their superior to the state paper-pushing ers—not drones reputation regard has been made that these law- government bureaucracies—and they life ten- possible by the fact that are organized their careers in such a yers have never cause judges ured whose decisions way highest to receive their dividends as disastrous, mildly un- age forty seventy, very or even them from the to Politics, judges. them as personal consequences. toward we want is, anyone being prohibits it what current The planning on a career! remarkably generous system judges for espe- judges ultimately qualify, consistently legislature has declined cially if W.Va.Code, 51-9-6(c) ^[1979] to revamp system to been, be, entirely appears problems it rendered I enumerated as to eliminate the unlikely legislature that the Wagoner unconstitutional this Court and it is will Gainer, appears so. It that at least an 636 ever do v. 167 W.Va. 279 S.E.2d

285 Const., minority legislators con- effective will States nor art. Constitution W.Va. Ill, syl. pt. 3, sistently indefinitely 17. See punish wish to Shackleford Catlett, S.E.2d judges they or for actions decisions that (1978); Note, Legislative Purpose, Ration- perceive perverse wrongheaded. Be- ality Equal Protection, 82 Yale L.J. constituency, cause no natural courts have then, inevitably continue to we will witness pitiful judges such dramas as human Employees’ The West Re- Public addi- struggling to live an incurable cancer System is tirement the standard all pensions

tional so that their few months employees, judges can their widows not be reduced vest and eligible join initially both to and to to penury. will also continue And we transfer into it. The pitiful political equally witness the dramas optional system is an judges being penni- so fearful thrown judges they join. may that elect Were by outraged less into the street voters judges join forced they cannot controversial cases with decide indeed, might, equal pro- there be requisite integrity impartiality of a problems, tection but as is en- judiciary. first-class tirely voluntary, accepted it must either entirety its not at all. III original Although intention of the Nonetheless, notwithstanding all retirement scheme have been majori- compelling that make the reasons poorly implemented, rationally it was calcu- ty’s opinion correct from an overall social qualified lawyers lated to attract serve majori- perspective, I dissent to all of the encourage them serve ty’s specific holdings except syllabus points always for two full elected terms. It has 4, 5, 8, entirely in quote and the innocuous problem government been a state that first, syl. pt. My perhaps and most my practicing lawyers successful cannot be objection clearly militant be stated and can paid salary a them sufficient to attract succinctly: pro- judex Neno esse debet government creating service without the Const., VIII, pria causa. art. inequities appearance in the State’s sala- provides avoiding this a mechanism for ry govern- For this most schedule. reason problem stages and at when the case all young inexperienced. lawyers ment are and urged was in the I that the breast of court good many judges I of our doubt that VIII, the employed. art. mechanism be willing to the would be serve at current Furthermore, way this case is no salary without the inducement level added proper parties proceeding; adversarial the plan. peculiarly of a favorable retirement defendant, Speaker the namely then, plan, designed The retirement was House, Senate, the and the President people way attracting competent as a joined parties State not Auditor were pres- creating the bench irresistible without defendant. overpay a state em- sure to host of other scheme

ployees. The brilliance of the was IV plan’s complexity that the retirement Virgi- prevented Although deferred nature obscured it and I that the West believe judges becoming system compensation nia the from is aberration- problem The same as well senselessly unjust, al and a cause célebre. randomly and other precepts does as the same solution occurs in con- not traditional violate profes- equal the state must hire protection. persons contained texts whenever All regularly compensated out- equally the class sionals who that it creates are treated. high sys- government very at level: The side of a classification that well-qualified doctors at the West Vir- rationally tem uses based bears Center, University pur- ginia Medical for exam- legitimate rational state relation to again earn as much pose. ple, regularly For half these reasons it violates neither Virginia! Our the Governor West state Fourteenth Amendment to the United hand, hospitals, on the other where intention of the drafters and ratifiers govern- in line with salaries are more other of that constitutional section was allow by compensation, largely are staffed judges this Court had to take who served a barely speak English and who doctors who full years sixteen in our courts of graduated foreign medical schools jurisdiction duty: and recall them to active training sparse clinical either where it is judges me that inconceivable to who non-existent. people have been rejected after eight or years of service on the fewer provision bench, as petitioner in this case indeed years spent credit for that allows was, can duty then recalled for active be at attorney years prosecuting as a but the whim I ap- of this Court. am further spent government per- service is in other palled by thought can discriminatory. is not fectly rational and necessary serve the five vest his lawyers in our Prosecutors are pension under the West Public functions closer to the func- perform Employees’ System, Retirement resign his judges perform than other tions that judge, commission then regu- as a Although the lawyers. criminal defense larly recalled this Court active ser- complain that trial are al- bar vice. ready prosecution-oriented, that is an too policy goes to and not ration-

objection that experience ality. repre- have Prosecutors VI county governmental senting all of the en- Unfortunately, style as a result of the prosecutors expe- have extensive tities and majority opinion great I difficulty cases, trying working criminal rience understanding entirety separat- it in its juveniles, protective providing services. ing holdings have, its its dicta. I therefore, myself by registering contented V only syllabi. dissent to the if I Probably Finally, vociferously syllabus I dissent to majority opinion understood the I more point opinion majority 7 of the that holds would dissent more. employees’ sys- that the tem is a “substituted” retirement Const.,

under W.Va. art. 8. IF Va.

Const., gives pow- art. extensive Supreme

er to the West Court of

Appeals to recall retired for active su-

service on both the circuit court and

preme court It is benches. obvious

Case Details

Case Name: In Re Dostert

Court Name: West Virginia Supreme Court

Date Published: Nov 15, 1984

Citation: 324 S.E.2d 402

Docket Number: 26-84

Court Abbreviation: W. Va.