WILSON, Circuit Judge:
This case requires us to determine whether In re Dostert,
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.
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.
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)
By a sort of legal alchemy, the Court combined its constitutional authority
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,"
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 , 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.
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."
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:
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."
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."
The issue in Dostert was, simply, whether Judge Dostert should be suspended pending final disposition of the judicial disciplinary proceedings against him. Judge Dostert resolved that issue by agreeing to refrain from conducting judicial duties until the final resolution of the judicial disciplinary proceedings.
The majority in Dostert created the judicial retirement constitutional issue by ordering its own administrative director to intervene in the case. Through the use of information outside of the record before the Court, the majority forged a constitutional issue. In doing so, the court paved the way for an advisory opinion on an issue that was at most a mere contingent possibility.
We recognize that in cases which are primarily concerned with a declaration of
INSTITUTIONAL CONSIDERATIONS; AVOIDING CONSTITUTIONAL ADJUDICATION
The Dostert majority should have avoided the issue of the constitutionality of the judicial retirement system. Even if one could somehow conclude that the Dostert issues were technically constitutional, it was clearly indiscrete and gave rise to appearances of impropriety for the Court to interfere with the functions of the legislature in an area where the Court had a pecuniary interest.
Justice Neely, dissenting in Dostert, said that his most militant objection to the decision "... can be stated clearly and succinctly: Nemo debet esse judex in propria causa"
Institutional prudence—balancing the desirability of judicial intervention against the devastating institutional and political cost—should have been enough for the Court to have avoided the judicial pension issue in the Dostert case. In Dostert, where it was unnecessary to even reach the constitutional issue, a "sense of self-restraint" clearly should have been exercised by this Court.
INSTITUTIONAL CONSIDERATIONS: SEPARATION OF POWERS
Finally, we conclude that the Dostert majority had no business intruding into an area committed to the legislative branch of government. Whether it's called "judge made law" or "judicial legislation," the Dostert majority had no constitutional power to rewrite the judges' retirement statute. It is a fundamental constitutional law that the power to legislate belongs to the legislature. W.Va.Const. art. VI § 1.
The separation of governmental powers through a tripartite allocation of powers in both our state and federal constitutional systems is recognized as "`one of the chief merits' of the American system of written constitutions and ... [it is] essential to the successful working of the system `that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.'"
It is for these reasons that we now strike the fatal blow to the judicial retirement system written by the Court in Dostert and DePond. As the effacers of our past mistakes, we neither point a finger nor claim
We regret this chapter in our history. The people of West Virginia have been very good to their judiciary. Judges earn an income that is six times greater than the income of the average wage earner in West Virginia. Judges who qualify for the judicial retirement system are paid seventy-five percent of their judicial salary. Justices have twelve year terms and Judges need to run for reelection only every eight years. The Dostert decision was "a violation of the trust reposed in us by the people of the State of West Virginia. This case [Dostert] has no place in the jurisprudence of our State or our nation."
Justice Miller, in his concurring opinion in DePond, expressed concern over the retroactivity problems caused when the Court changes the direction of the law.
Regrettably, the same reliance argument does not apply to Justice Harshbarger. The appellee contends that it is patently unfair and a denial of due process to deny him his benefits when the widows of other Judges "in an identical situation" are receiving pension payments. But it is obvious that the situations are not identical.
The difference between Justice Harshbarger's situation and that of the widows is that Justice Harshbarger was a member of the Dostert Court while Mrs. DePond and Mrs. Kingdon were innocent bystanders who happened to benefit by the Court's decision. Justice Harshbarger, as a participant in the Court's decision that made him eligible for a pension for which he was not otherwise qualified, had a direct stake in the outcome of the case. Justice Harshbarger cannot place any faith in or rely on a pension that was created by his own act. We are satisfied that it would be contrary to established law to permit Justice Harshbarger to receive a judicial pension at this time.
We note that Justice Harshbarger is a member of the judges' retirement system and prior to his retirement, could have elected to enroll in the public employees retirement system. See W.Va.Code, 5-10-17  (defining the requirements for membership in the public employees retirement system). Because of the confusion surrounding the Dostert decision, this Court finds that it would be inequitable not to allow Justice Harshbarger to transfer his membership from the judges' retirement system to the public employees retirement system. We hold that the transfer of membership from the judges' retirement system to the public employees retirement system is limited to the special circumstances
In accordance with the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and judgment is entered for appellant in this Court. However, because of the extraordinary confusion caused by Dostert from the time that case was filed until today, it is further ordered, adjudged and decreed that notwithstanding any other provision of law, appellee Justice Harshbarger shall be permitted to resign from the judicial retirement system and, within thirty days from the entry of the order in this case, join the public employees retirement system under terms and conditions, and receive such benefits, past and future, as would have been applicable had he elected to join said system in a timely fashion at the conclusion of his term in 1984.
Reversed. Judgment entered in this Court.
MILLER, McHUGH and WORKMAN, JJ., deeming themselves disqualified, did not participate in the consideration or decision of this case.
CAPLAN, C.J. (retired), was recalled to active service, and STEPHENS and WILSON, Circuit Judges, sat by designation.
STEPHENS, Circuit Judge, concurring:
Although I do not agree with all the majority's reasons, I concur in the result because Justice Harshbarger should not benefit from his participation in In re Dostert, ___ W.Va.___, 324 S.E.2d 402 (1984). Dostert liberalized the judicial pension's eligibility requirements, thereby making Justice Harshbarger eligible for a pension for which he could not otherwise qualify. I agree with the majority that "Justice Harshbarger cannot place any faith in, or rely on a pension that was created by his own act." Majority opinion supra at ___, 403 S.E.2d at 404. Stated more plainly, "no man ought to be a judge in his own cause." Id. at ___, 403 S.E.2d at 402, 403. But for Justice Harshbarger's participation, I would have been persuaded otherwise.
Justice Harshbarger's participation in Dostert makes his case philosophically and factually different from Oakley v. Gainer, ___ W.Va.___, 331 S.E.2d 846 (1985) and DePond v. Gainer, ___ W.Va. ___, 351 S.E.2d 358 (1986)—a distinction that the majority fails to appreciate. In Oakley and DePond, the widows of Judge Arthur R. Kingdon and Judge Frank J. DePond, relied on what they thought the law was at that particular time and had no involvement in the Dostert decision. Thus the distinguishing factor between Justice Harshbarger and the widows is reliance. See DePond, supra at___, 351 S.E.2d at 403-04 (Miller, J., concurring).
In failing to base its decision on Justice Harshbarger's participation, the majority abandons the doctrine of stare decisis as if adherence to precedent has little value in our system of jurisprudence. However the principle of stare decisis is firmly rooted in our jurisprudence. Although "the principle of stare decisis admits of exception," we have long required that "deviation from its application should not occur absent some urgent and compelling reason." Dailey v. Bechtel Corp., 157 W.Va. 1023, 1029, 207 S.E.2d 169, 173 (1974). See Adkins v. St. Francis Hospital of Charleston, W.Va., 149 W.Va. 705, 718, 143 S.E.2d 154, 162 (1965).
The adherence to precedent is particularly important in areas of property interest, such as entitlement to judicial retirement benefits. This Court recognized the need for reliance and certainty concerning property interests, when we said: "Predictability is at the heart of the doctrine of stare decisis, and regardless of what we think of the merits of this case, we must be true to a reasonable interpretation of prior law in the area of property where certainty above all else is the preeminent compelling public policy to be served." Hock v. City of Morgantown, 162 W.Va. 853, 856, 253 S.E.2d 386, 388 (1979); see also Signaigo v. N & W Ry. Co., ___ W.Va. ___, 301 S.E.2d 178, 181-82 (1982).
The widows in Oakley and DePond, along with others who did not participate in
Because of the need for certainty with respect to property interests, including entitlement to judicial retirement benefits, the majority should not have overruled Dostert, Oakley and DePond. The majority could have reached its decision based on Justice Harshbarger's participation and did not need to introduce uncertainty for those who rely on precedent. Whomsoever relied on what they perceived the law to be at that given time, utilized their mature judgment to do so, and stare decisis is at least one doctrine that assists one in that reliance.