Osick v. Public Employee Retirement System of Idaho

Decision Date08 June 1992
Docket NumberNo. 18836,18836
PartiesRobert OSICK, Petitioner-Appellant, v. PUBLIC EMPLOYEE RETIREMENT SYSTEM OF IDAHO, Respondent. Boise, February 1992 Term
CourtIdaho Supreme Court

Goicoechea Law Offices, Chartered, Boise, for appellant. Lynn M. Luker argued.

Larry EchoHawk, Atty. Gen., Steven F. Scanlin, Deputy Atty. Gen., Boise, for respondent. Steven F. Scanlin argued.

JOHNSON, Justice.

This is a public employee disability retirement benefits case. The issues presented are:

1. Does I.C. § 72-318 prohibit the offset required by I.C. § 59-1320(1), now I.C. § 59-1353(1), against disability retirement benefits under the Public Employee Retirement System (PERSI) of the annual amount of workers' compensation benefits payable because of the same disability?

2. If not, does the offset violate the constitutional right to equal protection of the laws?

We conclude that I.C. § 72-318 does not prohibit the offset and that the offset does not violate the right to equal protection of the laws. In doing so, we hold that the rationale of the opinion in Deonier v. Public Employee Retirement Bd., 114 Idaho 721, 760 P.2d 1137 (1988) is not controlling precedent, because only two members of the Court concurred, with one member concurring in the result only.



Robert Osick was an employee of the Ada County Highway District (ACHD) from 1959 until he was injured while working for ACHD in June 1986. Osick filed a workers' compensation claim, which resulted in a lump sum award of $24,667.50 (150 weeks at $164.45 per week), plus $500.00 per month in compensation for his injury.

During his employment with ACHD, Osick was a member of PERSI. After being injured on the job, Osick applied to PERSI for disability retirement, which PERSI approved in the amount of $903.60 per month. Pursuant to I.C. § 59-1320(1)(b), PERSI offset against Osick's disability retirement benefits the annual amount payable to Osick as workers' compensation.

Osick petitioned the PERSI board (the board) for a hearing, contending that in light of Deonier, Osick was entitled to full payment of his disability retirement benefits and reimbursement of past amounts offset. Following a hearing, the board upheld the offset.

Osick appealed the board's decision to the district court, which affirmed the board. Osick then appealed to this Court.



Osick asserts that Deonier controls our decision in this case. We disagree.

In Deonier, the Court considered a somewhat similar case. Two employees of the Boise City Fire Department were injured on the job and negotiated lump sum settlements of their workers' compensation claims. The board granted them disability retirement benefits, but ordered, pursuant to I.C. § 72-1414, that these retirement benefits be offset by the amount of the lump sum workers' compensation benefits the two firemen had received. The firemen appealed the PERSI decision to the Industrial Commission. The Commission affirmed the setoff, but reduced the amount.

The opinion issued by the Court in Deonier reversed the Commission's decision. The opinion stated that I.C. § 72-1414 did not allow for any offsetting of workers' compensation benefits from the firemen's disability retirement benefits. The opinion also stated that the offset was an unconstitutional impairment of contract and violated the firemen's right to equal protection of the laws.

The board cross-appealed in Deonier, contending that it should attribute the firemen's receipt of permanent partial disability benefits under the workers' compensation statutes to periods of actual wage loss for purposes of offsetting pursuant to I.C. § 72-1414. In disposing of the cross-appeal, the opinion in Deonier stated: "In view of our holding that the offset provisions of I.C. § 72-1414 are inoperative as violative of equal protection of the law and contractual rights, the issue on cross-appeal is moot." 114 Idaho at 729, 760 P.2d at 1145.

Justice Huntley authored the opinion in Deonier. Justice Bistline concurred. Chief Justice Shepard concurred in the result. Justice Donaldson did not participate in the opinion due to his untimely death. Justice Bakes dissented.

Our concern about the precedential authority of Deonier is that because only two members of the Court concurred in both the result and the rationale stated in the opinion, the rationale is not controlling for other cases, including this one.

Our constitution provides: "The Supreme Court shall consist of five justices, a majority of whom shall be necessary to make a quorum or pronounce a decision." Idaho Const., art. 5, § 6. Roy v. Oregon Short Line R.R., 55 Idaho 404, 42 P.2d 476 (1934), cert. denied, 296 U.S. 579, 56 S.Ct. 89, 80 L.Ed. 409 (1935), is an interesting example of how an earlier Court struggled with the implications of this provision. There, on rehearing, three members of the Court decided a case based on their construction of the positions on the merits taken by three members of the Court, one of whom did not join in the majority decision. The manner in which this curious case was decided is described by Justice Morgan in his dissent:

In this case the chief justice is in favor of reducing the judgment from $35,000 to $20,000 with the alternative that it be reversed unless the reduction be agreed to by respondent, and two of the justices are in favor of reducing it to $25,000 with like alternative. One of the justices is in favor of reversing the judgment and remanding the case for a new trial on the sole question of the amount of damages to be awarded, and I am in favor of affirming the judgment for respondent in the sum of $35,000.

The chief justice and the two justices who favor lopping $10,000 off the recovery are agreed that the judgment is reduced to that extent, although but two justices voted for it, and that an option is given respondent to accept it or suffer a reversal.

While it takes three members of this court to constitute a majority, required by the constitution to pronounce a decision, and but two are agreed that the judgment shall be $25,000, the reasoning of the opinion on rehearing, admirable for its ingenuity, has brought about the remarkable result of 1 + 1 = 3. In order to produce this mathematical monstrosity my vote to affirm the judgment for $35,000 has been so counted as to reduce it to $25,000, or to reverse it if that result proves to be less distasteful to respondent than the reduction.

All this is, no doubt, entirely clear to the three members of the court who have agreed that this is the result of our disagreement, but it leaves me scratching my bucolic head in uncertainty as to which shell conceals the elusive little ball of justice.

Id. at 429, 42 P.2d at 486.

This plaintive postmortem is a fitting prelude to our consideration of plurality opinions. Justice Morgan clearly identified the constitutional necessity for three votes to pronounce a decision of this Court, and the majority implicitly acknowledged this necessity:

It is the opinion of the Chief Justice, Justice Holden and the writer [Justice Ailshie] that, since one of the justices favors an affirmance of the judgment in toto and two favor affirming in the sum of $25,000, it necessarily follows as a matter of law that the judgment should be, and is, affirmed in the sum of $25,000.

Id. at 426, 42 P.2d at 485.

In Roy, however, the Court did not address the question of the effect of two justices concurring and one concurring in the result. This is the question we must address here.

It is also interesting, and perhaps instructive, that among the books that Chief Justice Shepard cleared out of his office and delivered to the author of this opinion when Chief Justice Shepard stepped down as Chief Justice in May 1989, shortly before his death, is a volume entitled Manual on Appellate Court Opinions by B.E. Witkin (California Center for Judicial Education and Research 1977). In discussing the topic "Concurrence in Judgment Without Opinion," this treatise states:

The cryptic statement, "I concur in the judgment," has bothered many readers.

(a) It produces all the evils of a concurring opinion with none of its values; i.e., it casts doubt on the principles declared in the main opinion without indicating why they are wrong or questionable.

(b) It is equivocal: It could mean that the concurring justice does not agree with the principles; or that [the justice] agrees with the principles or some of them but not with the manner of their statement or the reasoning or authorities set forth in support of them; or that [the justice] neither agrees nor disagrees but wishes to stay aloof and keep [the justice] intellectually free to examine the question anew at some later date (perhaps as the author of an opinion); or that [the justice] objects to something in the opinion--a quotation, reliance on an authority that is anathema to [the justice], humor or satire, or castigation of a litigant or counsel--and withholds [the justice's] signature because the author would not take it out.

Id. at 223.

This description of the meaning of a vote to "concur in the result," coming as it does from a treatise that Chief Justice Shepard had in his office may shed some light on what his understanding was of his vote to "concur in the result" in Deonier. In any event, it provides some outside view of the significance of a concurrence of this type.

In Chicago, B. & Q.R. Co. v. United States, 60 F.Supp. 580 (E.D.Ky.1945), the court dealt with the effect of a report of four members of the nine-member Interstate Commerce Commission, with a fifth member concurring in the result. The court concluded:

We interpret the statement by the fifth Commissioner that he "concurs in the result" of both reports filed in this case to mean that, while he does not assent to all the comments or observations made therein, he is, nevertheless, sufficiently in accord with the...

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