Harshbarger v. Gainer
| Decision Date | 22 January 1991 |
| Docket Number | No. 19713,19713 |
| Citation | 184 W.Va. 656,403 S.E.2d 399 |
| Court | West Virginia Supreme Court |
| Parties | Sam R. HARSHBARGER v. Glen B. GAINER, Auditor. |
1. Nemo debet esse judex in propria causa.
3. The case of In re Dostert, 174 W.Va. 258, 324 S.E.2d 402 (1984), is overruled in each and every regard and no rights, privileges or benefits created thereunder shall inure to any person who is not currently receiving benefits.
Roger W. Tompkins, Atty. Gen., Bruce Ray Walker, Deputy Atty. Gen., Charleston, for Glen B. Gainer.
Rudolph L. diTrapano, Lonnie C. Simmons, diTrapano & Jackson, Charleston, for Sam R. Harshbarger.
This case requires us to determine whether In re Dostert, 1 the controversial We believe it is time to abandon Dostert and its progeny--Oakley and DePond. For that reason we reverse the Order of the Circuit Court of Kanawha County granting Justice Sam R. Harshbarger, appellee, a writ ordering appellant, Glen B. Gainer, Auditor, to pay a judicial pension and ordering appellant to pay appellee's court costs and attorneys' fees.
[184 W.Va. 657] decision that liberalized eligibility requirements under the judges' retirement system, should be disapproved. The Circuit Court of Kanawha County, based upon our holdings in Dostert, Oakley v. Gainer, 2 and DePond v. Gainer 3, which allow credit for public and military service, concluded that Justice Sam R. Harshbarger is eligible to receive a pension under the judges' retirement system.
Appellee, Justice Sam R. Harshbarger, was a scholarly and compassionate member of this Court from 1976 until 1984. His eight years of service as a justice and four years of service in the military did not qualify him for a pension under the judges' retirement system. 4 However, because of the holdings of Dostert and DePond, the state auditor, under protest, certified to the governor that Justice Harshbarger was eligible to receive retirement benefits in the judges' retirement system. When the state auditor later cancelled the statement of eligibility, Justice Harshbarger sought a writ of mandamus from the Circuit Court of Kanawha County compelling the state auditor to begin paying him a judicial pension.
The Dostert and DePond decisions permitted Justice Harshbarger to include, as creditable service in the judges' retirement system, four years in the military and fourteen years as city attorney of Milton, West Virginia. After paying $10,500.00, Justice Harshbarger, in accordance with the Dostert decision's judicially created retirement system, became eligible to receive from the judges' retirement fund an amount equal to 75% of the salary he received as a justice for so long as he lives. Without Dostert, Justice Harshbarger has only eight years of credited service--the eight years he actually served on this Court--and does not qualify for a judicial pension. Justice Harshbarger however, could have qualified for a much less generous pension under the public employees retirement system.
A look at the historical background of the Dostert case is helpful in understanding our reasons for our now disapproving it. The Dostert decision is unique among all reported opinions in this jurisdiction in terms of a truly exotic procedural history. Judge Pierre F. Dostert of the Thirty-First Judicial Circuit had been convicted of criminal contempt, and disciplinary proceedings were pending before the Judicial Investigation Commission. Judge Dostert was the only party before the Court. It is impossible to determine the ratio decidendi of the Dostert decision by ascertaining what question was presented to this Court to be answered.
The issue that brought Dostert to our docket was whether Judge Dostert should be suspended pending final disposition of the judicial disciplinary proceedings against him. Upon hearing "through administrative channels" (and the Charleston Gazette) 5 that Judge Dostert claimed ill health, the Court ordered its administrative director to intervene as a party in interest. The administrative director then petitioned for clarification of the law concerning the judges' retirement system and the public employees retirement system that might impact upon Judge Dostert's potential disability retirement. 6
The Court never confronted the suspension issue because Judge Dostert voluntarily agreed to refrain from conducting his judicial duties until the conclusion of the disciplinary proceedings and the Court entered an order relieving him of all judicial duties until further notice. Thus, but for the Court ordered involvement of its own administrative director, the case would have ended in an eminently undramatic fashion. 7
By a sort of legal alchemy, the Court combined its constitutional authority 8 to retire disabled judges who are eligible for a judicial pension with Judge Dostert's illness claim and miraculously transmuted what began as a pedestrian disciplinary proceeding into a juridical tour-de-force culminating in a consideration of the constitutionality of the judges' retirement system.
As previously noted, Judge Dostert's deteriorating physical condition has resulted in a claim for workers' compensation disability benefits and recusal from the exercise of his judicial duties. Therefore, issues involving the interpretation of our judicial retirement statutes and West Virginia Constitution art. VIII § 8 are raised. 9
When the Court concluded its consideration of what it referred to as those issues "essential to Judge Dostert's establishing his eligibility for benefits under the judicial or public employee retirement systems," 10 a substantially altered and lavishly expanded judicial retirement system emerged. Justice Brotherton, in a stinging dissent in DePond, challenges with relentless rationality the flawed reasoning of the Dostert opinion and his analysis will not be repeated here. 11
West Virginians reacted both negatively and vehemently to the Dostert judge-created retirement system. Whatever its theoretical underpinnings, the Dostert decision was seen as an effort by the judiciary to advance its own self-interest. A disgruntled legislature also reacted by amending the judicial retirement system in 1987. In a statement of legislative intent prefacing the retirement system amendments, W.Va.Code, 51-9-lb [1987], the Court was accused of usurping the authority of the legislature to determine the public policy of this State and to set judicial compensation.
We are in substantial agreement with the legislature's opinion in this last regard. The legislature cannot impair or diminish the contractually vested property rights of retired and active members of the retirement system for judges. 12 But when the Court exceeds its structural limits and engages in self-serving lawmaking, masquerading as constitutional adjudication, the legislature has the right and responsibility to protect the fiscal soundness of the judicial retirement system. See W.Va.Code, 51-9-1b [1987].
In choosing to discard the holdings of Dostert and its progeny, we are sensitive to the doctrine of stare decisis, and we are aware of Mr. Justice Cardozo's warning that, "[a]dherence to precedent must be the rule rather than the exception if litigants are to have faith in the evenhanded administration of justice in the courts." 13 But Justice Cardozo also said, when discussing adherence We declare that by the lavish expansion of the judicial retirement system in Dostert, this Court invaded rights that were reserved by the Constitution of the State of West Virginia to the legislature. In so holding, we rely on the following longstanding and deeply rooted principles of constitutional adjudication.
to precedent, "I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avow and full abandonment." 14
The Dostert majority should not have considered the "constitutionality" of the judicial retirement system because the nature of the judicial retirement system was not a "justiciable controversy" in the case before the Court. In Mainella v. Board of Trustees of Policemen's Pension or Relief Fund of City of Fairmont, 126 W.Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943), we said:
Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes. The pleadings and evidence must present a claim of legal right asserted by one party and denied by the other before jurisdiction of a suit may be taken.
Since President Washington, in 1793, sought and was refused legal advice from the Justices of the United States Supreme Court, courts--state and federal--have continuously maintained that they will not give "advisory opinions." 15 And it is also well settled that "[l]itigants may challenge the constitutionality of a statute only insofar as it affects them." 16
Art. III of the Constitution of the United States is sometimes cited as the source of the limitations of the "judicial power" to "cases and controversies." 17 The "justiciable controversy" requirement in West Virginia is usually found in cases arising under the declaratory judgment act (even though the declaratory judgment act does not mandate an actual dispute or controversy), but the actual dispute or controversy rule applies to all West Virginia judicial proceedings. Dostert, of course, was not even a declaratory judgment action. 18
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