In Re Dostert

NEELY, Justice

dissenting:

It is with considerable reluctance that I respectfully but vigorously dissent to the Court’s opinion in this matter. My reluctance proceeds from the glaring inequities of the judicial retirement system and the diminishing chances that in the ordinary course of things those inequities will be addressed by the Legislature. Therefore, before proceeding to my specific legal grounds for dissent I shall address the reasons for my reluctance.

I

Every year American law schools graduate approximately 35,000 new lawyers. These yearly increases in lawyers far exceed either replacement requirements or the needs of a growing economy. In West Virginia, for example, the number of practicing lawyers has increased by about sixty percent in the last fifteen years although the population has declined and the economy, dominated as it is by coal and steel, has actually contracted. Yet most of our new lawyers are still able to get jobs either practicing law or working in a law-related field like government. The least talented new lawyers may be unemployed for awhile, but eventually, even they will get better jobs than had they not gone to law school.

The job opportunities for lawyers reflect both annual increases in traditional litigation and a recent tendency for other institutions, such as government agencies, universities, and business to emulate the judicial system in making decisions. For example, teachers cannot be fired without elaborate, court-like, “due process” hearings, W.Va. Code, 18A-2-8 [1969]; DeVito v. Board of Educ., 173 W.Va. 396 , 317 S.E.2d 159 (1984); Wilt v. Flanigan, 170 W.Va. 385 , 294 S.E.2d 189 (1982); Mason Cty. Bd. of Ed. v. State Supt. of Sch., 165 W.Va. 732 , 274 S.E.2d 435 (1980), and a humble state agency like our Board of Barbers and Beauticians cannot alter policy to allow barbers to give permanent waves without a ceremony that would do the Old Bailey proud. Wheeling Barber College, etc., et al. v. Roush, etc., et al., 174 W.Va. 43 , 321 S.E.2d 694 (1984). Both the larger volume of traditional litigation and the tendency to copy the courts in a multitude of non-judicial settings are symptoms of a basic structural transformation in American government that places progressively more matters in the courts for decisions.

In a typical year over twelve million cases are filed in general jurisdiction courts in the United States. 1 We cannot even count the scores of millions more cases filed in small claims and other minor courts. The largest percentage of all cases are either settled or decided according to well established principles, but every year more and more cases are filed inviting courts to change some time-honored part of our socio-economic system.

*282 Employees file cases seeking greater job security; parents want courts to give them the money for schools that they can’t get from legislatures; injured workers demand more money than legislatures have given them under workers’ compensation; and, people who view themselves as underprivileged — particularly women, minorities and the poor — want courts to redistribute wealth and power in their favor. These groups, and others too numerous to name, come to court because courts are faster, cheaper, and less influenced by the power of money than other lawmakers.

Courts have probably been chosen for an expanded lawmaking role because they are more adaptable than other political institutions for solving problems at this particular stage of our social development. Among these problems is a technology, increasingly widespread and complex, that has made society ever more interdependent. Additionally, in the last twenty years our consensus on the proper distribution of wealth and power in the community has changed dramatically. The most obvious beneficiaries of this transformed consensus are blacks, women and the poor, but there are more subtle changes as well that rearrange older, time-honored power relationships.

The divorced household, for example, is now as acceptable as the married household. This places an unprecedented number of family matters into the hands of the courts. Sources of moral authority, such as churches, parents, employers and schools that were given weight twenty years ago when we were a more traditional society, are declining in strength as America becomes less cohesive. This, in turn, leads people to the courts to resolve problems that were formerly resolved elsewhere. The need for regulation has placed more aspects of everyone’s life at the mercy of anonymous and unconcerned bureaucrats who, so far, can be brought to heel only by the courts. The efficiencies and low prices of large-scale enterprises have augmented the power of professional management at the expense of individual ownership because large-scale enterprise requires a modern corporation. But corporations are divorced from traditional sources of community control and thus people go to court to control them rather than to a local, individual owner.

Technology has made us interdependent: our own jobs often depend on the investment decisions of anonymous corporate managers; our children’s education depends on public schools, and this is particularly true as single-parent families and two-income families provide less parental guidance; recreational opportunities depend on public facilities; health depends on hospitals, doctors and government rules; the value of our property depends on zoning laws; and, our incomes depend on government grants, subsidies and tax breaks. Today we do not even die at home; we go to nursing homes for professional death management.

Throughout America big business is replacing small business. In manufacturing, most consumer products — cars, appliances, drugs and even housing — are made by huge, efficient and well-capitalized corporations. Small restaurants are gobbled up by the fast food chains; local stores are being forced out by discounters; and, local banks are being replaced by state-wide banks operated locally by indifferent strangers selected from a central management pool. We have developed institutions like American Express, Mastercard and Visa which, by denying us creditcards, can foreclose us from renting a car or checking into a hotel. In short, unlike our grandfathers who were born, lived and died in a nation of self-reliant farmers and small entrepreneurs, we are increasingly under the power of others. 2

Judges, then, often despite themselves, are being pushed into more and more functions in order to protect citizens from the caprice — often unintentional — of anonymous institutions. Sometimes the judges are wrong, but as the magnitude and breadth of our interdependence increases annually, we intensify our search for pro *283 tection from impersonal and apparently uncontrollable forces like corporations and governments. People have found such shelter in the courts, which give them leverage against those with power over them and mitigate the caprice of major institutions. People turn to the courts both to widen their participation in a society increasingly dominated by experts like school administrators, welfare workers and bureaucrats and to provide a buffer against all sorts of decisions that adversely affect their lives. 3

Courts are ultimately a refuge for everyone — from International Harvester who wants to slacken the pace of environmental regulation to John Kelly [Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970) ] who wants his welfare benefits restored — because courts are comparatively inexpensive, decisive, fast, and honest. The irony of this wholesale transfer of authority to courts is that the people who most consistently vilify the courts are still the first to use them. Business, for example, goes to court at the first sign of an adverse decision by an administrative agency. The social welfare constituencies go to court to get judges to pry more money from reluctant legislatures for social programs like mental hospitals, juvenile facilities, prisons, and welfare; legislators use the courts for their dirty work by passing deliberately vague statutes and then blaming the judges for interpretations that adversely affect their constituents; and presidents, governors, and mayors use court decisions as shields against public outrage over such socially explosive issues as abortion and integration. Yet most of these groups claim to hate the courts!

We now appear to have in America what the sociologists’ tortured jargon calls a lack of “attitude-behavior congruence.” If you ask the average American what he thinks of democracy he will extol its virtues. Yet whenever that same American is confronted by a democratic decision adverse to his interests, he will try to get the decision overturned in the (at least arguably) undemocratic courts.

With over twelve million lawsuits filed in general jurisdiction courts each year it is difficult for judges not to be in the eye of almost every imaginable storm. Regardless of how judges rule — either making new law or declining to make new law— they will inevitably incur a host of powerful enemies. In a state like West Virginia where circuit judges are elected for eight-year terms and supreme court justices are elected for twelve-year terms we will inevitably find that more and more judges will be defeated in their bids for reelection.

Yet, as I shall attempt to explain, a judge’s loss of his job is very different, in many regards, from the loss of regular governmental or private employment. In fact, the setup of our legal system almost guarantees that a judge who dies or loses his bid for reelection before he is eligible for retirement will suffer severely, both financially and emotionally, or his family will suffer.

II

Typically a practicing lawyer becomes a judge in his mid-forties at just about the time when he is entering the peak earning years. Everything for which a practicing lawyer works in terms of building a reputation, organizing a law firm, and developing a panel of regular clients capable of paying reasonably, if not handsomely, for services, must be sacrificed the moment a lawyer goes on the bench. Furthermore, although a lawyer’s ownership interest in his own private practice may be of immense economic value to him if he continues to practice, this hard-earned asset is almost valueless to anyone else and, therefore, is not a salable commodity. If, therefore, a successful practicing lawyer accepts an appointment as either a circuit judge or supreme court justice — a path to our state’s judiciary that is at least as common as running for a seat in an election — the judge must abandon everything for which he worked over a typical period of fifteen years. If, then, that same judge is defeated in a bid for reelection he is put back out *284 on the street without a law office, without a panel of regular fee-paying clients, and if the judge has served for a full term or more, without the youth and energy to start over again with the enthusiasm of his youth.

Furthermore, being a judge is a specialty: it is a specific, discrete metier in the law just like tax practice, administrative practice, or personal injury practice. Being a good judge demands study and attention, and that in turn forecloses a judge from devoting time to keeping up with the fields of law in which he excelled as a practicing lawyer. When, therefore, a judge is ousted from office before he is eligible to retire he finds that he is no longer even able to practice in his former specialties.

As the facts presented by the majority in this particular case fairly imply, Judge Dostert did not exactly possess a paradigmatic judicial temperament. Some, in fact, might observe that he deserved to be defeated. Nonetheless, a substantial majority of the trial court judges in this State compare favorably to the best state and federal judges throughout the United States and it is such individuals whom we must attract to the judiciary. If the retirement system for judges is so structured that it penalizes with Rhadamanthine severity anyone who is defeated in an election, it then becomes almost impossible for our judges to decide cases in any fashion contrary to the demands of ótn¿>Uot .

If the federal courts have a general reputation for handing out a brand of justice superior to the state courts, part of their reputation in that regard has been made possible by the fact that they are life tenured judges whose decisions never cause them any disastrous, or even mildly untoward personal consequences.

The current West Virginia retirement system for judges is remarkably generous for judges who ultimately qualify, especially if W.Va.Code, 51-9-6(c) [1979] has been, as it appears to be, rendered entirely unconstitutional by this Court in Wagoner v. Gainer, 167 W.Va. 139 , 279 S.E.2d 636 (1981). The current system permits benefits for retired judges to be increased whenever a sitting judge receives a salary raise.

This pension is an attempt to provide judges with restitution for sacrificing their own private practices and their peak earning years in the service of the courts. Is it not a remarkable injustice that under the current statutory scheme a judge with ten years of credited service who dies must leave his family almost destitute because he has neither qualified for a judicial pension nor stored up enough private treasure to protect his family?

Furthermore, it is no answer to this latter proposition to suggest that a judge in such circumstances can elect to join the public employees’ retirement system and get credit for his few years of judicial service. There are few state jobs for lawyers in the fifty-four counties of West Virginia outside of the State Capital in Kana-wha County. The most common government job in an outlying county is that ¡of the prosecuting attorney or assistant prosecuting attorney. There are a few additional positions for salaried city attorneys or roving hearing examiners for such agencies as the Workers’ Compensation Fund. But in general, except for prosecutors and legislators, salaried lawyers are not the individuals with the political clout and experience to be elected judge. Very few judges, in fact, have more than a couple of years of creditable prior State service, and as time goes on even fewer will have any creditable military service. The type of lawyers whom we should be attracting to the judiciary are experienced practitioners — not paper-pushing drones from government bureaucracies — and these lawyers have organized their careers in such a way as to receive their highest dividends from the age of forty to seventy, the very years we want them as judges. Politics, being what it is, prohibits anyone from planning on a judicial career!

The legislature has consistently declined to revamp the judicial retirement system to eliminate the problems I have enumerated and it is unlikely that the legislature will ever do so. It appears that at least an *285 effective minority of legislators will consistently and indefinitely wish to punish judges for actions or decisions that they perceive as perverse or wrongheaded. Because courts have no natural constituency, then, we will inevitably continue to witness such pitiful human dramas as judges with incurable cancer struggling to live an additional few months so that their pensions can vest and their widows not be reduced to penury. And we will also continue to witness the equally pitiful political dramas of judges so fearful of being thrown penniless into the street by outraged voters that they cannot decide controversial cases with the requisite integrity and impartiality of a first-class judiciary.

III

Nonetheless, notwithstanding all of the compelling reasons that make the majority’s opinion correct from an overall social perspective, I dissent to all of the majority’s specific holdings except syllabus points 4, 5, 8, and the entirely innocuous quote in syl. pt. 6. My first, and perhaps my most militant objection can be stated clearly and succinctly: Neno debet esse judex in pro-pria causa. W.Va. Const., art. VIII, § 8 provides a mechanism for avoiding this problem and at all stages when the case was in the breast of the court I urged that the art. VIII, § 8 mechanism be employed. Furthermore, this case is in no way an adversarial proceeding; the proper parties defendant, namely the Speaker of the House, the President of the Senate, and the State Auditor were not joined as parties defendant.

IV

Although I believe that the West Virginia judicial retirement system is aberrational and randomly and senselessly unjust, it does not violate traditional precepts of equal protection. All persons contained in the class that it creates are equally treated. The classification that the retirement system uses is rationally based and bears a rational relation to a legitimate state purpose. For these reasons it violates neither the Fourteenth Amendment to the United States Constitution nor W. Va. Const., art. Ill, § 17. See syl. pt. 3, Shackleford v. Catlett, 161 W.Va. 568 , 244 S.E.2d 327 (1978); Note, Legislative Purpose, Rationality and Equal Protection, 82 Yale L.J. 123 (1972).

The West Virginia Public Employees’ Retirement System is the standard for all West Virginia public employees, and judges are eligible both to join it initially and to transfer into it. The judicial retirement system is an optional retirement system for judges that they may elect to join. Were judges forced to join the judicial retirement system there might, indeed, be equal protection problems, but as the system is entirely voluntary, it must be accepted either in its entirety or not at all.

Although the original intention of the judicial retirement scheme may have been poorly implemented, it was rationally calculated to attract qualified lawyers to serve as judges and to encourage them to serve for two full elected terms. It has always been a problem in state government that successful practicing lawyers cannot be paid a sufficient salary to attract them to government service without creating the appearance of inequities in the State’s salary schedule. For this reason most government lawyers are young and inexperienced. I doubt that many of our good judges would be willing to serve at the current salary level without the added inducement of a peculiarly favorable retirement plan.

The retirement plan, then, was designed as a way of attracting competent people to the bench without creating irresistible pressure to overpay a host of other state employees. The brilliance of the scheme was that the retirement plan’s complexity and deferred nature obscured it and prevented the compensation of judges from becoming a cause célebre. The same problem as well as the same solution occurs in other contexts whenever the state must hire professionals who are regularly compensated outside of government at a very high level: the well-qualified doctors at the West Virginia University Medical Center, for example, regularly earn half again as much as the Governor of West Virginia! Our state *286 hospitals, on the other hand, where the salaries are more in line with other government compensation, are staffed largely by doctors who barely speak English and who graduated from foreign medical schools where clinical training is either sparse or non-existent.

The provision in the judicial retirement system that allows credit for years spent as a prosecuting attorney but not years spent in other government service is perfectly rational and is not discriminatory. Prosecutors are the lawyers in our system who perform functions closer to the functions that judges perform than any other lawyers. Although the criminal defense bar may complain that trial judges are already too prosecution-oriented, that is an objection that goes to policy and not rationality. Prosecutors have experience representing all of the county governmental entities and prosecutors have extensive experience trying criminal cases, working with juveniles, and providing protective services.

V

Finally, I vociferously dissent to syllabus point 7 of the majority opinion that holds that the public employees’ retirement system is a “substituted” retirement system under W. Va. Const., art. VIII, § 8. IF Va. Const., art. VIII, § 8 gives extensive power to the West Virginia Supreme Court of Appeals to recall retired judges for active service on both the circuit court and supreme court benches. It is obvious that the intention of the drafters and ratifiers of that constitutional section was to allow this Court to take judges who had served a full sixteen years in our courts of general jurisdiction and recall them to active duty: it is inconceivable to me that judges who have been rejected by the people after eight or fewer years of service on the bench, as the petitioner in this case indeed was, can then be recalled for active duty at the whim of this Court. I am further appalled by the thought that a judge can serve the five years necessary to vest his pension under the West Virginia Public Employees’ Retirement System, resign his commission as a judge, and then be regularly recalled by this Court for active service.

VI

Unfortunately, as a result of the style of the majority opinion I have great difficulty understanding it in its entirety and separating its holdings from its dicta. I have, therefore, contented myself by registering dissent only to the syllabi. Probably if I understood the majority opinion more I would dissent more.

. See The Role of Courts in American Society, the final report of The Council on the Role of Courts, West Publishing Company (St. Paul, MN: 1984).

. At the conclusion of World War II over 17 percent of the American population were farmers. By 1982 the farm population had dropped to 2.6 percent.

. See The Role of Courts in American Society, Op. cit. N. l.