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WV Supreme Court: judges could receive retirement, salary

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Three judges did not break the law when they received both their salaries and retirement benefits after they retired and were subsequently reelected to the bench, West Virginia Supreme Court justices recently affirmed.

Attorney Richard Robb filed a petition for writ of mandamus in Kanawha County Circuit Court, seeking the West Virginia Consolidated Public Retirement Board to stop paying retirement benefits to three judges.

The lower court denied the writ, saying Robb lacked standing and failed to prove he or the public was harmed by this payment. 

Robb asserted Kanawha County Circuit Court Judge Charles E. King, Cabell County Circuit Judge Alfred E. Ferguson Jr. and Summers County Magistrate J.W. Jeffries Jr. "gamed the system" by drawing a salary and a pension.

In his brief to the state Supreme Court, justices noted that Robb indicated he no longer wished to challenge Jeffries' retirement.

According to court documents, all three judges submitted application for retirement and were subsequently reelected in 2009.

In his petition for writ of mandamus, Robb asserted the three judges never retired and the board breached its fiduciary duty when it "arbitrarily recognized these bogus retirements."

The board argued the judges resigned from office and additionally said Robb failed to show that he and the public were harmed by the pension payment.

The court agreed, saying Robb did not show this pension payment had a negative fiscal effect on taxpayers' or his retirement annuity.

"Based on the large number of active members and retirees participating in the Public Employees Retirement System, the effect of the payment of benefits to three judicial officers who qualify for benefits under the statute is so remote, fluctuating and uncertain, that there is no basis for judicial intervention," the Kanawha County Circuit Court order stated.

The lower court also noted all three judges retired for a period of months and then were reelected. Additionally, the court ruled that it wasn't necessary for a successor to assume that position on the bench to classify as a retirement.

"The three judicial officers met the statutory requirements for receiving their retirement annuities when they retired in 2008," the Kanawha County Circuit Court order stated. "Whether the three judicial officers receive their retirement benefits now or when they retire from their current positions has a remote effect on the Retirement Fund based on the large number of citizens who are members of the Public Employees Retirement System."

In the March 29 memorandum decision, justices affirmed the circuit court's decision. The Supreme Court noted that since 2009, the Legislature has enacted Senate Bill 244, which amended state code to provide that members of the system as an elected public official cannot retire from that position, receive an annuity and then be elected to the same position unless they retire for 12 months beforehand.

At the time the judges retired, court documents note, state code permitted a continuation of retirement benefits even if they were subsequently elected.

However, justices said there is "no indication that the Legislature intended retroactive application," so it did not apply to the judicial officers who retired in 2008.