Board of Trustees of Employees' Retirement System of Georgia v. Kenworthy

• Citation: 253 Ga. 554,322 S.E.2d 720
• Decision Date: 26 November 1984
• Docket Number: Nos. 41230,41232,s. 41230
• Parties: BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEM OF GEORGIA, et al. v. KENWORTHY. EMPLOYEES' RETIREMENT SYSTEM OF GEORGIA, et al. v. GEORGIA STATE EMPLOYEES ASSOCIATION, INC., et al.
• Court: Supreme Court of Georgia

Page 720

322 S.E.2d 720

253 Ga. 554

BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEM OF

GEORGIA, et al. v. KENWORTHY.

EMPLOYEES' RETIREMENT SYSTEM OF GEORGIA, et al. v. GEORGIA STATE EMPLOYEES ASSOCIATION, INC., et al.

Nos. 41230, 41232.

Supreme Court of Georgia.

Nov. 26, 1984.

Michael J. Bowers, Atty. Gen., Carl C. Jones, Sr. Asst. Atty. Gen., for Bd. of Trustees of the Employees' Retirement System of Georgia et al.

G. Stephen Parker, Southeastern Legal Foundation, Atlanta, Robert B. Baker, Allen R. Hirons, for Henry E. Kenworthy.

Nickolas P. Chilivis, Kenneth G. Menendez, Powell, Goldstein, Frazer & Murphy, Joseph B. Haynes, Ralph A. Pitts, King & Spalding, Atlanta, W. Fred Orr II, Decatur, for Georgia State Employees' Ass'n, Inc., et al. BELL, Justice.

These cases, consolidated for appeal, arise out of the payment by appellant Employees' Retirement System of Georgia (ERS) to former Governor George D. Busbee of certain retirement benefits allegedly due him by virtue of Busbee's "involuntary separation" from state service following the expiration of his second term as Governor in 1983. See OCGA §§ 47-2-123, 47-2-1(20) & (21). The trial court held in each case that Busbee was not entitled to the involuntary separation benefits claimed by him. For reasons which follow, we dismiss the appeal.

The procedural history of this case is rather complex. On February 7, 1983, former Governor Busbee applied to the ERS for involuntary separation retirement benefits in the amount of $57,673.80 annually, based on some 27 years of state employment, principally as a member of the Georgia House of Representatives and as Governor. The ERS Board granted Busbee's application and he received his first monthly retirement check in the amount of $4,749.01. In calculating the benefits due Busbee, the ERS credited him with additional service to the state based on the statutory requirement that persons involuntarily separated without prejudice from state service be treated as though they had remained in service until, and received a service retirement at, age 65. See OCGA § 47-2-123(c)(3). ¹

On March 16, 1983, Henry E. Kenworthy, appellee in case no. 41230, filed an action in Fulton Superior Court, naming as defendants the Board of Trustees of ERS, both individually and in their official capacity, and Abe Domain, director of ERS. Former Governor Busbee, although not named originally as a defendant, was later added as a party. In his complaint Kenworthy, as a taxpayer and citizen of Georgia, sought to have the payment of involuntary separation benefits to Busbee declared illegal and enjoined. Similarly, on April 18, 1983, Georgia State Employees Association, Inc., (GSEA) and four of GSEA's individual members, appellees in case no. 41232, filed suit in Fulton Superior Court seeking substantially the same relief, and naming as defendants Busbee, ERS, the Board of Trustees of ERS, the Georgia Legislative Retirement System (LRS), its Board of Trustees, and each member of ERS, LRS, and their respective Boards, both individually and officially. In its complaint GSEA prayed that ERS be restrained from paying involuntary separation retirement benefits to former Governor Busbee, to four members of Busbee's staff named in the complaint, to past or present members of the General Assembly, to individuals who had transferred into ERS from other retirement systems, and to others. Later GSEA amended its complaint to name some 50 additional pensions it considered improper and asked the court to enjoin their payment. On January 9, 1984, the trial judge issued an order requiring GSEA to join as defendants all individuals whose involuntary separation benefits were being challenged. In response to this order, the plaintiffs amended their complaint on February 3, 1984, to delete their challenge to the receipt of involuntary separation benefits by anyone other than Busbee. Thus it can be seen that, in each of these cases, former Governor Busbee was the only party to the lawsuit who had received or was potentially entitled to receive involuntary separation retirement benefits.

Following extensive discovery, all parties to case no. 41230 filed motions for summary judgment, while in case no. 41232 only Busbee and ERS moved for summary judgment. On March 26, 1984, trial judge Luther Alverson entered the orders which form the basis of this appeal. In case no. 41230 the court granted summary judgment for appellee Kenworthy and against defendants Busbee and the Board of Trustees of ERS. Judge Alverson enjoined the disbursement of involuntary separation retirement benefits to Busbee, and referred to his order in case no. 41232, entered the same day, for his rationale.

In case no. 41232, Judge Alverson entered a lengthy order detailing the reasons for deciding that former Governor Busbee was not entitled to involuntary separation benefits from the ERS. As a preliminary matter, he dismissed the LRS and its Board of Trustees as unnecessary parties to the suit, and further held that there was no controversy presented by the suit with respect to any retirees except former Governor Busbee. The order proceeded to deny summary judgment to defendants Busbee and ERS, holding that for essentially three reasons Busbee was not entitled to receive involuntary separation retirement benefits. First, the court held that the definition of "involuntary separation" found in the ERS Act, OCGA § 47-2-1(20), does not apply to a governor who is constitutionally prohibited from serving beyond a second consecutive term. Second, the court stated that OCGA § 47-2-294 prohibits any person who transfers into ERS from LRS from applying transferred creditable service toward involuntary separation retirement benefits. Since former Governor Busbee had included such transferred creditable service from the LRS, he did not have the required minimum years of service to qualify for the grant of involuntary separation benefits, the court held. Third, the court held that these issues notwithstanding, former Governor Busbee had not accrued sufficient creditable service to the state to qualify for involuntary separation retirement benefits.

The Board of Trustees of ERS filed a direct appeal from the grant of summary judgment to Kenworthy in case no. 41230. Busbee also filed a notice of appeal from that judgment, but subsequently withdrew his appeal prior to the transmittal of the case to this court. In case no. 41232, Busbee and ERS each applied to this court for permission to pursue an interlocutory appeal from the denial of their motions for summary judgment, which we granted. See OCGA § 5-6-34(b). Busbee, however, did not file a notice of appeal following the grant of his application. See OCGA § 5-6-34(b). In addition to abandoning his appeals, former Governor Busbee withdrew his application to ERS for involuntary separation retirement benefits, and returned all involuntary separation retirement benefits previously paid to him. On May 17, 1984 the Board of Trustees of ERS authorized the withdrawal of Busbee's application for involuntary separation retirement benefits. The remaining parties then filed briefs and orally argued the case before this court, concentrating their efforts on the trial court's construction of OCGA § 47-2-294 as prohibiting the transfers of involuntary separation credits from LRS into ERS. After considering the appeals, we have concluded that they should be dismissed.

When former Governor Busbee abandoned his appeals, the first and third reasons given by Judge Alverson in his order for denying involuntary separation retirement benefits--that the definition of "involuntary separation" found at OCGA § 47-2-1(20) did not apply to a governor who is constitutionally prohibited from serving beyond a second consecutive term, and that Busbee had not accrued sufficient creditable service to the state to qualify for involuntary separation retirement benefits--immediately became moot. The only remaining issue, all parties agree, is whether the trial judge correctly construed OCGA § 47-2-294 as prohibiting any legislator who transferred into ERS from LRS from claiming involuntary separation retirement benefits.

Appellee Kenworthy asserts that the appeals should be dismissed for lack of a justiciable controversy. We agree. "A controversy is justiciable when it is appropriate for judicial determination. It must be definite and concrete, touching the legal relations of parties having adverse legal interests, rather than being hypothetical, abstract, academic or moot. The controversy must be such that it will be resolved immediately and definitely by the judicial declaration." Allstate Ins. Co. v. Shuman 163 Ga.App., 313, 315(3), 293 S.E.2d 868 (1982) (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). This court has in the past generally refused to issue advisory opinions. See DeKalb County v. Ga. Power Co., 249 Ga. 704, 707(4), 292 S.E.2d 709 (1982); St. John's Melkite Catholic Church v. Commissioner, 240 Ga. 733, 735(3), 242 S.E.2d 108 (1978); McDowell v. Judges ex Officio, 235 Ga. 364, 219 S.E.2d 713 (1975). We normally limit our rulings to the specific case or controversy decided by the trial court, DeKalb Cty. v. Ga. Power Co., supra, and do not venture an opinion as to the legality of future actions which may or may not occur. McDowell v. Judges ex Officio, supra.

Here, former Governor Busbee, the only named party to this litigation eligible to receive an involuntary separation retirement pension from ERS, has abandoned his appeals, and his withdrawal of his application for involuntary separation retirement benefits has been authorized by the Board of Trustees of ERS. It is therefore clear that as to this litigation neither Busbee nor the ERS has pending claims adverse to the plaintiffs. To decide these appeals in their its present posture would be to resolve a question as to the abstract meaning of OCGA § 47-2-294, and to...