Johnson v. BD. OF CONTROL OF EMP. RETIREMENT SYSTEM

• Decision Date: 15 January 1999
• Parties: Inge P. JOHNSON v. BOARD OF CONTROL OF the EMPLOYEES' RETIREMENT SYSTEM OF ALABAMA.
• Court: Alabama Supreme Court

740 So.2d 999

Inge P. JOHNSON v. BOARD OF CONTROL OF the EMPLOYEES' RETIREMENT SYSTEM OF ALABAMA.

1980406.

Supreme Court of Alabama.

January 15, 1999.

Rehearing Overruled June 25, 1999.

J. Mark White and William M. Bowen, Jr., of White, Dunn & Booker, Birmingham, for appellant.

William T. Stephens and William F. Kelley, Jr., Montgomery, for appellee. James C. Barton, Artur G. Davis, and Anna R. Minor of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for amici curiae Alabama Ass'n of Circuit Judges and Alabama Ass'n of District Judges, in support of Judge Inge P. Johnson, on application for rehearing.

SHORES, Justice.

This case involves purely a question of law that has not heretofore been addressed by this Court: Does a circuit judge who meets the eligibility requirements for retirement as provided by Ala. Code 1975, § 12-18-6(b)(5), lose the right to those benefits upon his or her appointment as a United States district judge?

Inge Johnson, a circuit judge, who participated in the Judicial Retirement System for almost 20 years, has appealed from an order of the Board of Control of the Employees' Retirement System of Alabama denying her claim for retirement benefits.

The parties have stipulated to the following facts:

"1. Judge Johnson was a Circuit Judge for the 31st Judicial Circuit of Alabama from January 16, 1979, through October 22, 1998.

"2. On October 8, 1998, she was appointed a federal district judge for the Northern District of Alabama, Northwestern Division.

"3. On October 14, 1998, Judge Johnson submitted a form given to her by the Administrative Office of Courts entitled `Declaration of Intention to Retire Under the Judicial Retirement Act of the State of Alabama,' requesting that her retirement become effective on October 23, 1998. Provision number 5 of the form states: `I hereby certify that at the time my retirement becomes effective I shall take the oath of office as a retired judge and thereupon become an extra or additional Judge of the State of Alabama and file the said oath with the appropriate officials of the State of Alabama.' Judge Johnson `x-ed out' the language that stated `thereupon become an extra or additional Judge of the State of Alabama' and added the word `inactive' before `retired judge.' Section 12-18-7(b), Code of Alabama 1975, provides: `The retiring justice or judge, upon being retired, shall take the oath of office as a retired justice or judge and thereupon become an extra or additional judge of the state.'

"4. On October 14, 1998, Judge Johnson executed a form entitled `Oath of Office for Retired Judge or Justice' and specifically stated on the form that she was entering the office of `Inactive Retired Circuit Judge.'

"5. Section 12-18-10(h), Code of Alabama 1975, states: `Nothing contained in this section or hereafter shall limit the power and authority of the Chief Justice to transfer a retired justice or judge from inactive status to active status or from active status to inactive status as the public interest in his judgment requires.'

"6. Section 12-18-7(b), Code of Alabama 1975, states: `Therefore, on the request of the Chief Justice, the presiding judge of one of the courts of appeals or the Governor, any such retired justice or judge may serve on the Supreme Court, on either of the courts of appeals or on any circuit court in the state.'

"7. Judge Johnson has over 19 years of continuous active service as a circuit judge, as verified by a letter from Don Nelson of the Retirement System dated October 15, 1998.

"8. Judge Johnson met the service eligibility requirement for retirement as provided by Ala.Code 1975, § 12-18-6(b)(5):

"`(b) Any judge of a circuit court who was serving on September 18, 1973, who elects to become a member of the retirement fund hereby established and any circuit judge assuming such office after September 18, 1973, may elect to be retired pursuant to this article if he:

"`. . . .

"`(5) Has served for not less than 18 years or three full terms or a time equal to three full terms as a circuit judge.'

"9. The Declaration of Intent to Retire was endorsed by the Chief Justice of the Alabama Supreme Court on October 16, 1998. By letter dated October 15, 1998, Chief Justice Hooper transferred Judge Johnson to inactive status, effective October 23, 1998. Judge Johnson commenced service as a federal judge on October 23, 1998—one day after she left office as a Circuit Court Judge.

"10. By letter dated October 27, 1998, R. Donald Nelson, Director of Benefits, Judicial Retirement Fund, Employee Retirement System of Alabama, notified Judge Johnson that her `application for retirement has been processed and your first regular retirement check will be mailed from this office on November 30, 1998.'

"11. Judge Johnson received one retirement check from the Judicial Retirement Fund for part of October.

"12. Judge Johnson was subsequently advised that William T. Stephens, Deputy Director and Counsel of the Retirement System, had determined that her retirement benefits would be suspended while she served as a federal judge.

"13. Judge Johnson and Lynda Flynt [director of the legal division of the Administrative Office of Courts] met with Mr. Stephens and Mr. Nelson on November 4, 1998. Judge Johnson was advised that it was the position of the Retirement System that as a federal judge she was ineligible for retirement benefits as a retired circuit court judge.

"14. The position of the Retirement System, based upon this Court's decision in Hogan v. Bronner, 491 So.2d 226 (Ala.1986), and the Opinions of the Attorney General issued to Judge John D. Snodgrass and Thomas T. Gallion was that as a retired state judge, Judge Johnson holds `office,' and is prohibited by § 280, Article XVII, Alabama Constitution of 1901, from holding two offices at the same time. Additionally, § 12-18-7(b), Code of Alabama 1975, states: `The retiring justice or judge, upon being retired, shall take the oath of office as a retired justice or judge and thereupon become an extra or additional judge of the state.'

"15. Mr. Stephens agreed to review any authority that Judge Johnson believed refuted the Retirement System's position. Through counsel, Judge Johnson submitted to the Retirement System essentially the same document she filed as her brief in the Supreme Court.

"16. Former Chief Justice Howell Heflin did not receive Judicial Retirement Benefits while serving in the U.S. Senate.

"17. Retired Circuit Judge Claude Harris did not receive Judicial Retirement Benefits while he served in the U.S. House of Representatives.

"18. Chief Justice Perry O. Hooper does not receive Judicial Retirement Benefits based upon his service and retirement as a circuit judge. Upon taking office as Chief Justice, his retirement benefits were suspended. Chief Justice Hooper repaid retirement benefits that he received from the Judicial Retirement Fund after it had been determined that he was entitled to back pay for the period of time his election contest was before the courts.

"19. No retired state judge has been appointed to and held the position of federal district court judge.

"20. The Board of Control met on December 2, 1998, and heard Judge Johnson's case. That same date, the Board voted and adopted the recommendation of the staff of the Employees' Retirement System that Judge Johnson's request that she be allowed to receive Judicial Retirement Fund Benefits while serving as a federal district court judge be denied.

"21. RSA states that Judge Johnson may withdraw her contributions plus interest from the Judicial Retirement Fund.

"22. RSA states that Judge Johnson may leave her contributions with the Judicial Retirement Fund, and in the event she predeceases her husband, he would be entitled to spousal/survivor benefits."

By constitutional provision, Alabama has historically denied the legislature the authority to provide for retirement benefits for state officers, including, by implication, judges. This restriction on the legislative power is currently found in Article IV, § 98, of the Alabama Constitution of 1901:

"The legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer."

This constitutional prohibition against providing pensions for state officials led to legislation over the years creating supernumerary positions for certain state officials who met the statutory requirements for such positions. These statutes creating supernumerary positions were enacted to compensate certain public officials who had served the state for a number of years (as prescribed by statute) and who had reached a certain age (also prescribed by statute), provided that the official entering upon the supernumerary office performed certain duties prescribed by the legislature. See James v. Thompson, 392 So.2d 1178 (Ala.1981). Because Article IV, § 98, of the constitution prohibited laws granting retirement benefits to such state officials, the validity of these statutes depended upon the fact that these supernumerary officials performed certain duties and responsibilities [related to] the supernumerary office created. Although these statutes may have been drafted deliberately to evade the constitutional prohibition against legislation granting retirement pay to state officials, it is clear that the compensation provided was in exchange for services performed by the supernumerary officials, as opposed to compensation for past service to the state.

For example, by Act No. 357, Ala. Acts 1979 (§ 36-22-60 et seq., Ala.Code 1975), the legislature created the office of supernumerary sheriff. This act permitted a sheriff who had served for at least 16 years in law enforcement, 12 as sheriff, and who had reached 55 years of age to elect to become a supernumerary sheriff, subject to call to active duty by the Governor.

Sheriffs were not the only officials who were permitted to assume office as super-numeraries.¹ Act No. 288, Ala. Acts 1945, adopted July 7,...