Oakley v. Gainer

• Citation: 175 W.Va. 115,331 S.E.2d 846
• Decision Date: 31 May 1985
• Docket Number: No. 16584,16584
• Court: West Virginia Supreme Court
• Parties: H. Harvey OAKLEY, C.W. Ferguson, III, and Elsa Louise Kingdon as widow and executrix of the estate of Arthur R. Kingdon v. Glen B. GAINER, A. James Manchin, and Martha Merritt.

Page 846

331 S.E.2d 846

175 W.Va. 115

H. Harvey OAKLEY, C.W. Ferguson, III, and Elsa Louise Kingdon as widow and executrix of the estate of Arthur R. Kingdon v. Glen B. GAINER, A. James Manchin, and Martha Merritt.

No. 16584.

Supreme Court of Appeals of West Virginia.

May 31, 1985.

Syllabus by the Court

"A writ of mandamus will not issue unless three elements coexist--(1) a clear right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

Larry Harless, Morgantown, for petitioners.

Thomas Trent, Asst. Atty. Gen., Charleston, for respondents.

CHAFIN and STEPHENS, Justices:

The petitioners, the Honorable H. Harvey Oakley, formerly Judge of the Circuit Court of Logan County, the Honorable C.W. Ferguson, III, formerly Judge of the Circuit Court of Wayne County, and Elsa Louise Kingdon, widow and executrix of the estate of Arthur R. Kingdon, formerly Judge of the Circuit Court of Wyoming County, seek a writ of mandamus compelling respondents Glen B. Gainer, Jr., State Auditor, A. James Manchin, State Treasurer, and Martha Merritt, Workers' Compensation Commissioner, as members of the West Virginia Public Employees Insurance Board, to credit accumulated leave toward extended insurance coverage under West Virginia Code § 5-16-12 (Supp.1984). In addition, petitioner Kingdon seeks a writ of mandamus compelling respondent Gainer to issue warrants to respondent Manchin for the payment of widows' retirement benefits under West Virginia Code § 51-9-6b (1981 Replacement Vol.). Following a brief discussion of the appropriateness of mandamus in this proceeding, we will address each of the two issues presented. ¹

The criteria for the award of extraordinary relief by writ of mandamus are well established in this jurisdiction. "A writ of mandamus will not issue unless three elements coexist--(1) a clear right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969); see also Allen v. Human Rights Commission, 174 W.Va. 139, 324 S.E.2d 99, 105 (1984), and cases cited therein; Reed v. Hansbarger, 173 W.Va. 258, 314 S.E.2d 616, 619-20 (1984), and cases cited therein. The first two elements of this formula require an analysis of the legal rights and duties of the respective parties. As to the third element, there is no specific contention by the respondents that an adequate alternative remedy exists for the petitioners in this case, and we are unable to identify any. Accordingly, we must analyze the respective rights and duties of the parties to this action under each of the issues presented in order to determine the appropriateness of the issuance of a writ of mandamus in this case.

I

In 1971, the West Virginia Legislature created the public employees insurance system. See West Virginia Acts, 1st Ex.Sess., Ch. 14; West Virginia Code §§ 5-16-1-19 (1979 Replacement Vol. & Supp.1984). West Virginia Code § 5-16-1 (1979 Replacement Vol.) provides that, "[I]t is the express intent of the legislature to encourage and promote a uniform partnership relation between all employers and employees participating in the insurance plan or plans formulated under the provisions of this article and to hereby declare same to be a public purpose." The term "employer" is defined under West Virginia Code § 5-16-2(4) (1979 Replacement Vol.) as "the State of West Virginia, its boards, agencies, commissions, departments, institutions or spending units...." The term "employee" is defined under West Virginia Code § 5-16-2(2) (1979 Replacement Vol.) as "any person, including elected officials, who works regularly full time in the service of the State of West Virginia...." Accordingly, it is uncontroverted that all judicial officers are included and eligible to participate under the West Virginia Public Employees Insurance Act.

In 1984, the Legislature amended West Virginia Code § 5-16-12 (Supp.1984) to provide that:

When a participating employee is compelled or required by law to retire before reaching the age of sixty-five, or when a participating employee voluntarily retires as provided by law, the employee's accrued annual leave and sick leave, if any, shall be credited toward an extension of the insurance coverage provided by this article, according to the following formulae: Such insurance coverage for a retired employee shall continue one additional month for every two days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his retirement. For a retired employee, his spouse and dependents, such insurance coverage shall continue one additional month for every three days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his retirement.

The effective date of this extended insurance benefits amendment was July 1, 1984. Two days later, on July 3, 1984, the Supreme Court of Appeals, by administrative order, promulgated an annual/sick leave policy, which provided, in relevant part, that:

The Court undertook an examination of a leave policy for constitutional judicial officers. (This leave policy is to provide for computation of retirement insurance benefits under H.B. 1429 and for other purposes.)

After discussion, the Court adopted a single personal/sick leave category of leave, and provided the following annual accumulations:

                Magistrates                    --  36 days
                Circuit Judges (and the Clerk  --  48 days
                  and Administrative
                  Director)
                Justices                       --  60 days
                

Justices' and judges' leave is chargeable only in term.

The Administrative Director was instructed to request a statement of personal/sick leave taken to July 1, 1981, from each judge and magistrate, relying on the time sheets submitted by judges and magistrates since July 1, 1981.

The effective date for beginning computations was fixed at January 1, 1977.

Under this policy, the petitioners assert that, at the time of their retirement on December 31, 1984, each had accumulated more than one hundred personal/sick leave days. The respondents, however, who comprise the public employees insurance board under West Virginia Code § 5-16-5 (1979 Replacement Vol.), refuse to extend the health insurance of any of the petitioners, contending that the Legislature did not intend to extend those expanded insurance benefits to public officials, but intended only that the amendment apply to public employees. Furthermore, the respondents contend that the Court's adoption of the new personal/sick leave policy exceeded the scope of their inherent administrative powers under West Virginia Constitution art. VIII, §§ 3, 8.

We firmly reject the respondents' invitation to endeavor an analysis of the legislative intent in enacting the extended insurance benefits provision. One of the most well-settled rules of statutory construction is that, "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968); see also Syl. pt. 1, State v. Warner, 172 W.Va. 142, 308 S.E.2d 142 (1983); Syl. pt. 2, State ex rel. Underwood v. Silverstein, 167 W.Va. 121, 278 S.E.2d 886 (1981). The term "employee," as noted, is clearly defined in the Public Employees Insurance Acts as "including public officials." Indisputably, judicial officers, including the petitioners, are "public officials," and have participated in the public employees insurance system since its inception without controversy. Furthermore, the extended insurance benefits provision clearly covers any "participating employee." Accordingly, under the plain language of the statute, any participating public official, including judicial officers, is entitled to the benefit of the extended insurance provision.

Nevertheless, we must hold that, despite the plain meaning of the extended insurance benefits provision, the statute is invalid as it applies to all elected public officials, including judicial officers. It has been noted that:

In general, the right of compensation is not dependent on the exercise of the functions or on the performance of duties of the office. Hence, in the absence of constitutional or statutory provision to the contrary, the fact that officers have not performed the duties of the office does not deprive them of the right to compensation, provided their conduct does not amount to an abandonment of the office. Thus, it has been held that the right of an officer to his salary is not necessarily impaired by occasional or protracted absence from his office, or a temporary incapacity to perform the duties of the office, as a result of illness or other extenuating causes or by the neglect of his duties.

67 C.J.S. Officers § 219(b), at 708-09 (1978) [Footnotes omitted]. Similarly, in Syllabus Point 1 of State ex rel. Godby v. Hager, 154 W.Va. 606, 177 S.E.2d 556 (1970), the Court held that, "The salary of a public officer is an incident to the office and the legal right to receive or enforce its payment with the title to the office."

In a remarkably similar case, the New York Court of Appeals, in Bookhout v Levitt, 43 N.Y.2d 612, 403 N.Y.S.2d 200, 374 N.E.2d 111 (1978), was confronted with a challenge by four retired elected public officials, including one county judge, to the refusal by the administrative head of the state employees retirement system to credit their accumulated sick leave in the calculation of their pension benefits pursuant to state statute. Earlier, the lower court, although holding that these elected...