SB 649 — Clarifying per diem compensation for certain judges recalled to service

WEST VIRGINIA LEGISLATURE REGULAR SESSION Enrolled Committee Substitute for Senate Bill 649 BYSENATORSHUNTBy ANCHAPMANSenators [OriginatingHunt inand theChapman Committee[Passed onMarch The7, Judiciary;2024;

reportedin Februaryeffect 15,90 2024]days from passage] Enr CS for SB 649 AAN BILLACT to amend and reenact §5-10-48 of the Code of West Virginia, 1931, as amended;

The Legislature further finds and declares that reemploying these persons on a limited per diem basis after they have retired is not only in the best interests of 1 Enr CS for SB 649 of this state but has no adverse effect whatsoever upon the actuarial soundness of this particular retirement system.

2 Enr CS for SB 649 (d) Senior judges, justices, and magistrates.

– (1) Notwithstanding the provisions of subsection (c) of this section, a retired judge or justice intermediate court judge, circuit court judge, or family court judge, or justice who is recalled and assigned to temporary service as a senior judge or justice by the West Virginia Supreme Court of Appeals may receive per diem compensation pursuant to the requirements of §51-9-10 of this code while continuing to receive his or her annuity.

Provided, however, That the limitation on compensation provided 3 Enr CS for SB 649 provided by subsection (c) of this section does not apply to the reemployed former employee:

Provided, however, That the member elects to stop actively contributing to the system while receiving the in-servicein- service distributions.

(h) The provisionsLegislature ofhereby §5-10-22hfinds and declares that a severe shortage of thischild codeprotective areservices notworkers applicableand toadult protective services workers exists throughout the amendmentsstate, madeand totherefore, thisa sectioncompelling duringstate interest exists in expanding the 2006use regularof session.retired employees to serve this critical need.

(i)Notwithstanding (h)any Theprovision Legislatureof herebysubsection finds(c) andof declaresthis thatsection to the contrary, a severeperson shortagereceiving retirement benefits or who is eligible to receive retirement benefits pursuant to the provisions of this chapter, may accept employment as a child protective services workersworker andor an 4 Enr CS for SB 649 adult protective services workersworker existson throughouta thefull-time state,or andpart-time therefore,basis awithout compellinghaving statepayment interestof existshis inor expandingher theretirement useannuity ofsuspended retiredand employeeswithout toreentering servethe thisretirement criticalsystem need.as a contributing member.

Notwithstanding any provision of subsection (c) of this section to the contrary, a person CS for SB 649 receiving retirement benefits or who is eligible to receive retirement benefits pursuant to the provisions of this chapter, may accept employment as a child protective services worker or an adult protective services worker on a full-time or part-time basis without having payment of his or her retirement annuity suspended and without reentering the retirement system as a contributing member.

"justices,"[j]ustices, judges and magistrates shall receive the salaries fixed by law".

(2) WhenOccasionally, originallycircumstances enactedmay inrequire 1949,the thisextended sectionassignment of thesenior codejudges requiredand anyjustices, retirednecessitating judgethe receivingLegislature retirement benefits to serveprescribe assuch acircumstances special judge, when assignedthe tolimitations temporaryon service,compensation "withoutof chargesenior orjudges compensation,and perjustices diemreceiving orretirement otherwisebenefits tomay him".be exceeded.

(3)(b) InThe 1974,Legislature recognizes and acknowledges the Judicialauthority Reorganizationof Amendmentthe West Virginia Supreme Court of Appeals to recall retired judges and justices for temporary assignment and to create a panel of senior judges and justices to utilize the Constitutiontalent and experience of Westformer Virginiaintermediate wascourt, ratified.circuit court, family court judges, and supreme court justices of this state:

AmongProvided, otherThat matters,extended inassignment sectionof eight,retired articlejudges VIII,and thejustices amendmentmust addressednot thebe ongoingutilized practicein ofsuch recallinga retiredway judicialas officers to servicethreaten bythe empoweringqualified status of the ChiefJudges' JusticeRetirement System under applicable provisions of the SupremeInternal CourtRevenue ofCode, Appealsincluding toTreasury recallRegulation section 1.401(a)-1(b)(1) 5 Enr CS for SB 649 requiring that a retiredqualified judgeplan ormust justicebe established primarily to service,provide "withpayment hisof permissiondefinitely anddeterminable withbenefits theto approvalits ofemployees theafter supremeretirement courtor attainment of appeals",normal forretirement temporaryage. assignment.

CS for SB 649 (4) Absent from the Judicial Reorganization Amendment and article VIII of the Constitution of West Virginia is any provision authorizing the Supreme Court of Appeals to fix compensation for recalled judges or justices.

Indeed, the Judicial Reorganization Amendment added language to section seven, article VIII of the Constitution of West Virginia, unequivocally stating that "[j]ustices, judges and magistrates shall receive the salaries fixed by law".

(5) In 1975, the Legislature amended and reenacted this section of the code, which still then required any retired judge receiving retirement benefits to serve as a special judge, when assigned to temporary service "without charge or compensation, per diem or otherwise to him".

(6) In 1991, the Legislature amended and reenacted this section of the code again, authorizing and empowering the Supreme Court of Appeals to create a panel of senior judges and justices "to be assigned duties as needed and as feasible toward the objective of reducing caseloads and providing speedier trials to litigants throughout the State".

(7) The 1991 reenactment of this section of the code statutorily authorized, for the first time, "reasonable payment" to senior judges and justices "on a per diem basis", and provided that "the per diem and retirement compensation of a senior judge shall not exceed the salary of a sitting judge".

(8) In 2018, the West Virginia House of Delegates adopted and communicated Articles of Impeachment to the West Virginia Senate, naming justices of the Supreme Court of Appeals serving at that time as respondents.

Several of the articles alleged that certain justices, each while serving as Chief Justice of the Supreme Court of Appeals, had intentionally signed contracts agreeing to pay retired judges recalled to service above the compensation limitations of this section of the code.

(9) In a petition to the Supreme Court of Appeals, styled State ex.

rel.

Workman v.

Carmichael, one justice named as respondent in the 2018 impeachment proceedings challenged the constitutionality of the Articles of Impeachment in which she was named, including the articles alleging payment of senior judges above the limitations of this section of the code.

CS for SB 649 (10) In ruling on the petition in State ex.

rel.

Workman v.

Carmichael, the Supreme Court of Appeals, at that time composed of five circuit judges temporarily assigned to sit as justices for that case, issued a writ of prohibition staying impeachment proceedings.

(11) In direct contradiction of section seven, article VIII of the Constitution of West Virginia, the decision in State ex.

rel.

Workman v.

Carmichael held, in part, that this section of the code, providing for and limiting the compensation of senior judges, is "unconstitutional and unenforceable".

(12) The majority opinion in State ex.

rel.

Workman v.

Carmichael ignored the plain language of section seven, article VIII of the Constitution of West Virginia, which explicitly provides that "[j]ustices, judges and magistrates shall receive the salaries fixed by law".

(13) Syllabus point four of the majority opinion in State ex.

rel.

Workman v.