DePond v. Gainer, 16902

• Court: Supreme Court of West Virginia
• Citation: 177 W.Va. 173,351 S.E.2d 358
• Decision Date: 12 March 1986
• Docket Number: No. 16902,16902
• Parties: Gloria DePOND v. Honorable Glen B. GAINER, Jr., Auditor of West Virginia.

Page 358

351 S.E.2d 358 177 W.Va. 173 Gloria DePOND
v.
Honorable Glen B. GAINER, Jr., Auditor of West Virginia. No. 16902. Supreme Court of Appeals of
West Virginia. March 12, 1986.
Dissenting Opinion July 16, 1986.
Concurring Opinion July 24, 1986.

Page 360

[177 W.Va. 175] Syllabus by the Court

1. "A ministerial act or duty is one which is to be performed under a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to or exercise of the judgment of the one doing it upon the propriety of the act's being done." Syl. pt. 2, Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281 (1896).

2. The determination to be made by the governor under West Virginia Code § 51-9-9 (1981 Replacement Vol.) is whether the judge involved "is entitled to retirement benefits under the provisions hereof."

3. Under West Virginia Code § 51-9-9 (1981 Replacement Vol.), "the governor shall accept the resignation and certify facts and the amount of retirement benefits to be paid" for any person who is entitled to benefits under the judges' retirement system statute.

4. "Interpretations of statutes by bodies charged with their administration

Page 361

are given great weight unless clearly erroneous." [177 W.Va. 176] Syl. pt. 4, Security National Bank & Trust Co. v. First W. Va. Bancorp, Inc., 277 S.E.2d 613 (W.Va.1981).

5. "An administrative body must abide by the remedies and procedure it properly establishes to conduct its affairs." Syl. pt. 1, Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977).

6. The administrative director of the supreme court of appeals has a duty to progressively certify creditable service for all members of the judges' retirement system to the auditor on at least an annual basis.

7. The auditor, upon annual receipt of certification of creditable service for members of the judges' retirement system from the administrative director of the supreme court of appeals, has a duty to acknowledge that contributions corresponding to the amount of creditable service certified have been made and to forward, to each member of the judges' retirement system, a letter certifying credited service.

8. Under West Virginia Code § 51-9-4 (1981 Replacement Vol.), which provides that "when a judge becomes eligible to receive benefits," the auditor has a duty to forward to such judge the original and one certified copy of a letter of certification of eligibility for benefits in the judges' retirement system.

9. Following receipt of a "certification of eligibility for benefits in the judges' retirement system" from the auditor, a member of the judges' retirement system may notify the governor, by letter and copy of the "certification of eligibility for benefits in the judges' retirement system," of an intention to retire, and, concomitantly with a copy of the letter to the governor, request the state auditor to prepare and forward to the governor forthwith a proposed gubernatorial order and a certified copy of the "certification of eligibility for benefits in the judges' retirement system."

10. The ministerial duty of the chief executive to certify the constitutional office of "retired justice or judge" under West Virginia Constitution art. VIII, § 8 upon eligibility for retirement is analogous to the ministerial duty of the chief executive to certify the constitutional office of active justice or judge under West Virginia Constitution art. VIII, §§ 2 and 5 upon election.

11. Following submission by a spouse to the administrative director of the supreme court of appeals of evidence of death, evidence of marriage, and a gubernatorial order for those judges who were already receiving benefits in the judges' retirement system or a "certification of eligibility for benefits in the judges' retirement system" for those judges who were eligible to receive benefits in the judges' retirement system, the administrative director has a duty to forward a letter of certification of eligibility for spousal annuity in the judges' retirement system to the auditor, who, upon receipt, has a duty to present a proposed gubernatorial order forthwith.

12. A member of the judges' retirement system with twenty-four years of credited service is immediately eligible for retirement benefits.

13. Creditable service in the judges' retirement system statute includes military, other governmental, and judicial service.

14. Military service, or its equivalent, rendered during a period of compulsory military service, "shall be considered as served" under West Virginia Code § 51-9-6 (1981 Replacement Vol.) for the purpose of determining eligibility for disability and retirement benefits in the judges' retirement system.

15. Service to this State or any of its political subdivisions "shall qualify as years of service" under West Virginia Code § 51-9-6 (1981 Replacement Vol.) for the purpose of determining eligibility for disability and retirement benefits in the judges' retirement system.

16. Governmental service in this State in the judges' retirement system includes full or part-time service, whether by employment, election, or appointment, to

Page 362

the State of West Virginia of any of its political subdivisions.

17. Where, following submission of a request for benefits and proof of eligibility, [177 W.Va. 177] the governor fails to certify eligibility for the receipt of judges' retirement system benefits within one month, the auditor has a mandatory ministerial duty to order the issuance of warrants necessary for the payment of those benefits.

18. "In mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded." Syl. pt. 4, Nelson v. West Virginia Public Employees Insurance Board, 300 S.E.2d 86 (W.Va.1982).

Larry Harless, Morgantown, for appellant.

Charlie Brown, Atty. Gen., Thomas N. Trent, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The petitioner, Gloria DePond, widow of the late Honorable Frank J. DePond, Chief Judge of the Circuit Court of Monongalia County, seeks a writ of mandamus to compel respondent Glen B. Gainer, Jr., Auditor of the State of West Virginia, to "authorize and direct" the payment of her spousal annuity under West Virginia Code § 51-9-6b (1981 Replacement Vol.). The West Virginia Judicial Association, as amicus curiae, emphasizes the importance of the doctrine of stare decisis and argues that the theory of defense raised by the respondent is unconstitutional.

The late Honorable Frank J. DePond served with distinction for more than eight years as Circuit Judge of Monongalia County from January 1, 1977 until his tragic death on September 2, 1985 in an automobile accident in which the petitioner was severely injured. Previously, he had served on active duty in the United States Army from 1943 to 1946, as a Hearing Examiner with the Workmen's Compensation Commission from 1961 through 1968, and as City Attorney for the City of Morgantown from 1969 through 1976. Thus, over his distinguished career, Judge DePond had accumulated a total of twenty-eight years ¹ of combined military, other governmental, and judicial service credit as of the date of his death.

West Virginia Code § 51-9-6b (1981 Replacement Vol.) provides, in relevant part, that, "There shall be paid ... an annuity to the widow of a judge, who, at death, is eligible for the retirement benefits provided by sections six, six-a or eight [§§ 51-9-6, 51-9-6a or 51-9-8] of this article, or who, at death, has ... sixteen years" of service. And provides that, "The annuity granted hereunder shall accrue monthly and shall be due and payable in monthly installments on the first business day of the month following the month for which the annuity shall have accrued. Such annuity shall commence on the first day of the month in which said judge dies and

Page 363

shall terminate upon the death or remarriage of the annuitant."

Under West Virginia Code § 51-9-6 (1981 Replacement Vol.), "[A]ny person who is now serving, or who shall hereafter serve, as a judge of any court of record of this State ... and shall have served as such judge for a period of not less than twenty-[177 W.Va. 178] four years, regardless of age, shall ... be paid from the fund annual retirement benefits." Under West Virginia Code § 51-9-6 (1981 Replacement Vol.), "[M]ilitary service, or its equivalent, rendered during a period of compulsory military service, 'shall be considered as served' ... for the purpose of determining eligibility for disability and retirement benefits." In re Dostert, 324 S.E.2d 402, 417 (W.Va.1984) (Footnotes omitted); affirmed in Oakley v. Gainer, 331 S.E.2d 846, 852 (W.Va.1985). Under West Virginia Code § 51-9-6 (1981 Replacement Vol.), "[S]ervice to this State or any of its political subdivisions 'shall qualify as years of service'...." In re Dostert, 324 S.E.2d at 418 (Footnote omitted); affirmed in Oakley v. Gainer, 331 S.E.2d at 852. Furthermore, "[G]overnment service in this State includes full or part time service, whether by employment, election, or appointment, to the State of West Virginia or any of its political subdivisions." In re Dostert, 324 S.E.2d at 418 n. 33; affirmed in Oakley v. Gainer, 331 S.E.2d at 852.

Clearly, under the relevant criteria, Judge DePond had twenty-eight years of creditable service under West Virginia Code § 51-9-6 (1981 Replacement Vol.). His contributions corresponding to this creditable service were deposited by the respondent into the judges' retirement fund. Thus, at the time of his death, Judge DePond had twenty-eight years of credited service in the judges' retirement system. This exceeded the twenty-four year requirement for eligibility for retirement benefits by four years, thus entitling the petitioner to a spousal annuity under West Virginia Code § 51-9-6b (1981 Replacement Vol.) commencing on September 1, 1985.

Granted the self-evidence of the widow DePond's entitlement to a spousal annuity,...