Oakley v. Gainer

HRKO and GRUBB, Justices,

dissenting:

Judges Hrko and Grubb concur with the majority opinion as to Count II of the Petition for a Writ of Mandamus; however, dissent from the majority decision to deny the Writ of Mandamus as to Count I of said Petition. We would grant the petition for all purposes.

W.Va. Const., art. 8, § 8 provides, “Under its inherent rule-making power, which is hereby declared, the Supreme Court of Appeals shall, from time to time, prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics, and a code of regulations and standards of conduct and performances for justices, judges and magistrates, along with sanctions and penalties for any violation thereof, and the Supreme Court of Appeals is authorized to censure or temporarily suspend any justice, judge or magistrate having the judicial power of the state, including one of its own members, for any violation of any such code of ethics, code of regulations and standards or to retire any such justice, judge or magistrate who is eligible for retirement under the West Virginia judge’s retirement system (or any successor or substituted retirement system for justices, judges and magistrates of this state) and who, because of advancing years and attendant physical or mental incapacity, should not, in the opinion of the Supreme Court of Appeals, continue to serve as a justice, judge or magistrate”.

Under this section, administrative rules promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of statutory law and operate to supersede any law that is in conflict with *125 them. Stern Bros. v. McClure, 160 W.Va. 567 , 236 S.E.2d 222 (1977).

This provision of our constitution establishes the inherent rule-making power of the Supreme Court and actually permits the judicial branch of the government to function free from influence or control of the legislative and executive branches.

It provides for administration of our court system that runs the gamut from prescribing a judicial code of ethics to approving payment for paperclips purchased for a judge’s office in the smallest county of West Virginia. Therefore, we are of the opinion that it also provides for establishing a leave policy for circuit judges.

In an administrative conference on July 3, 1984, the Supreme Court established a policy giving circuit judges 48 days annual leave. The effective date for beginning leave computations was fixed at January 1, 1977.

W.Va.Code, ch. 5, art. 16, § 2 (Michie 1979), referred to as part of the “West Virginia Public Employee’s Insurance Act”, defines an employee as any person, including elected officers, who works regularly full time in the service of the State of West Virginia. This provision was enacted prior to 1979. We believe circuit judges are employees according to the definition set forth above.

On July 1, 1984, the legislature amended the act to provide “When a participating employee is compelled or required by law to retire ... that employee’s accrued annual leave ... 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”. W. Va. Code, ch. 5, art. 16, § 3 (Michie Supp.1979).

In short, we are of the opinion that circuit judges are state employees, the Supreme Court of Appeals has the right to establish leave days for circuit judges, and state employees have the right to an extension of insurance benefits according to the formulae set forth above.

Therefore, we would also award the Writ of Mandamus in according with Count I of the Petition.