ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 3010
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Passed May 17, 2005; to take effect July 1, 2005.]
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AN ACT to amend and reenact §51-9-1a, §51-9-4, §51-9-6, §51-9-6a,
§51-9-6b and §51-9-7 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new
section, designated §51-9-6d, all relating generally to the
judicial retirement system; increasing the contribution rate
for judges and justices effective the first day of July, two
thousand five, consistent with the salary increase granted to
judges and justices of courts of record during the two
thousand five regular legislative session; providing that
judges and justices appointed or elected for the first time as
judge of a court of record after the first day of July, two
thousand five, must have served fourteen years as a sitting
judge to receive annual retirement benefits; changing the
annual benefit calculations and retirement qualifications for
all judges and justices appointed or elected for the first time as judge of a court of record after the first day of
July, two thousand five; changing the annual benefit
calculations for the spouses and children of all judges and
justices appointed or elected for the first time as judge of
a court of record after the first day of July, two thousand
five; clarifying the ability of judges and justices to use
prosecutorial service as qualifying service; providing that
retired judges and justices may hold a public office or trust
for compensation from the State of West Virginia; and
providing that retired judges and justices are ineligible to
participate in any other pension plan maintained by the State
of West Virginia.
Be it enacted by the Legislature of West Virginia:
That §51-9-1a, §51-9-4, §51-9-6, §51-9-6a, §51-9-6b and
§51-9-7 of the Code of West Virginia, 1931, as amended, be amended
and reenacted; and that said code be amended by adding thereto a
new section, designated §51-9-6d, all to read as follows:
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-1a. Definitions.
(a) As used in this article, the term "judge", "judge of any
court of record" or "judge of any court of record of this state"
means, refers to and includes judges of the several circuit courts
and Justices of the Supreme Court of Appeals. For purposes of this
article, the terms do not mean, refer to or include family court
judges.
(b) "Beneficiary" means any person, except a member, who is entitled to an annuity or other benefit payable by the retirement
system.
(c) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(d) "Final average salary" means the average of the highest
thirty-six consecutive months' compensation received by the member
as a judge of any court of record of this state.
(e) "Internal Revenue Code" means the Internal Revenue Code of
1986, as it has been amended.
(f) "Member" means a judge participating in this system.
(g) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending the
following thirtieth day of June.
(h) "Required beginning date" means the first day of April of
the calendar year following the later of: (i) The calendar year in
which the member attains age seventy and one-half; or (ii) the
calendar year in which the member retires or otherwise separates
from covered employment.
(i) "Retirement system" or "system" means the Judges'
Retirement System created and established by this article.
Notwithstanding any other provision of law to the contrary, the
provisions of this article are applicable only to circuit judges
and Justices of the Supreme Court of Appeals in the manner
specified in this article. No service as a family court judge may
be construed to qualify a person to participate in the Judges'
Retirement System or used in any manner as credit toward eligibility for retirement benefits under the Judges' Retirement
System.
§51-9-4. Required percentage contributions from salaries; any
termination of required contributions prior to actual
retirement disallowed; leased employees; military
service credit; maximum allowable and qualified
military service; qualifiable prosecutorial service.
(a) Every person who is now serving or shall hereafter serve
as a judge of any court of record of this state shall pay into the
judges' retirement fund six percent of the salary received by such
person out of the State Treasury: Provided, That when a judge
becomes eligible to receive benefits from such trust fund by actual
retirement, no further payment by him or her shall be required,
since such employee contribution, in an equal treatment sense,
ceases to be required in the other retirement systems of the state,
also, only after actual retirement: Provided, however, That on and
after the first day of January, one thousand nine hundred
ninety-five, every person who is then serving or shall thereafter
serve as a judge of any court of record in this state shall pay
into the judges' retirement fund nine percent of the salary
received by that person:
Provided further, That consistent with
the salary increase granted to judges of courts of record during
the two thousand five regular legislative session and to changes
effectuated in judicial retirement by provisions enacted during the
third extraordinary legislative session of two thousand five, on
and after the first day of July, two thousand five, every person who is then serving or shall thereafter serve as a judge of any
court of record in this state shall pay into the judges' retirement
fund ten and one-half percent of the salary received by that
person
. Any prior occurrence or practice to the contrary, in any
way allowing discontinuance of required employee contributions
prior to actual retirement under this retirement system, is
rejected as erroneous and contrary to legislative intent and as
violative of required equal treatment and is hereby nullified and
discontinued fully, with the State Auditor to require such
contribution in every instance hereafter, except where no
contributions are required to be made under any of the provisions
of this article.
(b) An individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this
system, a "leased employee" means any individual who performs
services as an independent contractor or pursuant to an agreement
with an employee leasing organization or other similar
organization. If a question arises regarding the status of an
individual as a leased employee, the Board has the final power to
decide the question.
(c) In drawing warrants for the salary checks of judges, the
State Auditor shall deduct from the amount of each such salary
check six percent thereof, which amount so deducted shall be
credited by the Consolidated Public Retirement Board to the trust
fund: Provided, That on or after the first day of January, one
thousand nine hundred ninety-five, the amount so deducted and credited shall be nine percent of each such salary check:
Provided, however, That consistent with the salary increase granted
to judges of courts of record during the two thousand five regular
legislative session and to changes effectuated in judicial
retirement by provisions enacted during the third extraordinary
legislative session of two thousand five, on or after the first day
of July, two thousand five, the amount so deducted and credited
shall be ten and one-half percent of each such salary check.
(d) Any judge seeking to qualify military service to be
claimed as credited service, in allowable aggregate maximum amount
up to five years, shall be entitled to be awarded the same without
any required payment in respect thereof to the judges' retirement
fund.
(e) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. The Retirement Board
is authorized to determine all questions and make all decisions
relating to this section and may promulgate rules relating to
contributions, benefits and service credit pursuant to the
authority granted to the Retirement Board in section one, article
ten-d, chapter five of this code to comply with Section 414(u) of
the Internal Revenue Code.
(f) Any judge holding office as such on the effective date of the amendments to this article adopted by the Legislature at its
regular session in the year one thousand nine hundred eighty-seven
who seeks to qualify service as a prosecuting attorney as credited
service, which service credit must have been earned prior to the
year one thousand nine hundred eighty-seven, shall be required to
pay into the judges' retirement fund nine percent of the annual
salary which was actually received by such person as prosecuting
attorney during the time such prosecutorial service was rendered
prior to the year one thousand nine hundred eighty-seven and for
which credited service is being sought, together with applicable
interest. No judge whose term of office shall commence after the
effective date of such amendments to this article shall be eligible
to claim any credit for service rendered as a prosecuting attorney
as eligible service for retirement benefits under this article, nor
shall any time served as a prosecutor after the year one thousand
nine hundred eighty-eight be considered as eligible service for any
purposes of this article.
§51-9-6. Eligibility for and payment of benefits.
(a) Except as otherwise provided in sections five, six-d,
twelve and thirteen of this article, and subject to the provisions
of subsection (e) of this section, any person who is now serving,
or who shall hereafter serve, as a judge of any court of record of
this state and shall have served as such judge for a period of not
less than sixteen full years and shall have reached the age of
sixty-five years, or who has served as judge of such court or of
that court and other courts of record of the state for a period of sixteen full years or more (whether continuously or not and whether
said service be entirely before or after this article became
effective, or partly before and partly after said date, and whether
or not said judge shall be in office on the date he or she shall
become eligible to benefits hereunder) and shall have reached the
age of sixty-five years, or who is now serving, or who shall
hereafter serve, as a judge of any court of record of this state
and shall have served as such judge for a period of not less than
twenty-four full years, regardless of age, shall, upon a
determination and certification of his or her eligibility as
provided in section nine hereof, be paid from the fund annual
retirement benefits, so long as he or she shall live, in an amount
equal to seventy-five percent of the annual salary of the office
from which he or she has retired based upon such salary of such
office and as such salary may be changed from time to time during
the period of his or her retirement and the amount of his or her
retirement benefits shall be based upon and be equal to
seventy-five percent of the highest annual salary of such office
for any one calendar year during the period of his or her
retirement and shall be payable in monthly installments: Provided,
That such retirement benefits shall be paid only after such judge
has resigned as such or, for any reason other than his or her
impeachment, his or her service as such has ended: Provided,
however, That every such person seeking to retire and to receive
the annual retirement benefits provided by this subsection must
have served a minimum of twelve years as a sitting judge of any such court of record: Provided further, That every individual who
is appointed or elected for the first time as judge of a court of
record of this state after the first day of July, two thousand
five, who subsequently seeks to retire and to receive the annual
retirement benefits provided by this subsection must have served a
minimum of fourteen years as a sitting judge of any court of
record.
(b) Notwithstanding any other provisions of this article with
the exception of sections twelve-a and twelve-b, any person who is
now serving or who shall hereafter serve as a judge of any court of
record of this state and who shall have accumulated sixteen years
or more of credited service, at least twelve years of which is as
a sitting judge of a court of record, and who has attained the age
of sixty-two years or more but less than the age of sixty-five
years, may elect to retire from his or her office and to receive
the pension to which he or she would otherwise be entitled to
receive at age sixty-five, but with an actuarial reduction of
pension benefit to be established as a reduced annuity receivable
throughout retirement: Provided, That every individual who is
appointed or elected for the first time as judge of a court of
record of this state after the first day of July, two thousand
five, who subsequently seeks to retire and to receive the annual
retirement benefits provided by this subsection must have served a
minimum of fourteen years as a sitting judge of any court of
record. The reduced percentage (less than seventy-five percent)
actuarially computed, determined and established at time of retirement in respect of this reduced pension benefit shall also
continue and be applicable to any subsequent new annual salary set
for the office from which such judge has retired and as such salary
may be changed from time to time during the period of his or her
retirement.
(c) In determining eligibility for the benefits provided by
this section, active full-time duty (including leaves and
furloughs) in the armed forces of the United States shall be
eligible for qualification as credited military service for the
purposes of this article by any judge with twelve or more years
actual service as a sitting judge of a court of record, such
awardable military service to not exceed five years: Provided,
That in determining eligibility for the benefits provided by this
section for every individual who is appointed or elected for the
first time as judge of a court of record of this state after the
first day of July, two thousand five, active full-time duty
(including leaves and furloughs) in the armed forces of the United
States qualifies as credited service for the purposes of this
article for any judge with fourteen or more years actual service as
a sitting judge of a court of record of this state, the awardable
military service not to exceed five years.
(d) If a judge of a court of record who is presently sitting
as such on the effective date of the amendments to this section
enacted by the Legislature at its regular session held in the year
one thousand nine hundred eighty-seven and who has served for a
period of not less than twelve full years and has made payments into the judges' retirement fund as provided in this article for
each month during which he or she served as judge, following the
effective date of this section, any portion of time which he or she
had served as prosecuting attorney in any county in this state
shall qualify as years of service, if such judge shall pay those
sums required to be paid pursuant to the provisions of section four
of this article: Provided, That any term of office as prosecuting
attorney, or part thereof, commencing after the thirty-first day of
December, one thousand nine hundred eighty-eight, shall not
hereafter in any way qualify as eligible years of service under
this retirement system.
For purposes of this article, eligible
service as a "prosecuting attorney" or as a "prosecutor" does not
include any service as an assistant prosecuting attorney. The
amendment to this subsection during the third extraordinary session
in the year two thousand five is not for the purpose of changing
existing law but is intended to clarify the intent of the
Legislature as to existing law regarding eligibility for benefits
for service as a prosecuting attorney since its initial enactment
and this clarification shall be applied retrospectively to the
effective date of this section and any predecessor acts in which
service as a prosecuting attorney was initially determined by
statute to qualify as eligible years of service under the
retirement system provided by this article.
(e) Any retirement benefit accruing under the provisions of
this section shall not be paid if otherwise barred under the provisions of article ten-a, chapter five of this code.
(f) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member would otherwise receive under the system.
§51-9-6a. Eligibility benefits; service and retirement of judges
over sixty-five years of age.
Any judge of a court of record of this state who shall have
served for a period of not less than eight full years after
attaining the age of sixty-five years and who shall have made
payments into the judges' retirement fund as provided in this
article for each month during which he or she served as such judge
following the effective date of this section, shall be subject to
all the applicable terms and provisions of this article, not
inconsistent with the provisions hereof, and shall receive
retirement benefits in an amount equal to seventy-five percent of
the annual salary of the office from which he or she has retired
based upon such salary of such office as such salary may be changed
from time to time during the period of his or her retirement and
the amount of his or her retirement benefits shall be based upon
and be equal to seventy-five percent of the highest annual salary
of such office for any one calendar year during the period of his
or her retirement and shall be payable in monthly installments. If
such judge shall become incapacitated to perform his or her said
duties before the expiration of his or her said term and after
serving for six years thereof, and upon the acceptance of his or
her resignation as in this article provided, he or she shall be paid the annual retirement benefits as herein provided so long as
he or she shall live. The provisions of this section shall prevail
over any language to the contrary in this article contained, except
those provisions of sections twelve-a and twelve-b of this article:
Provided, That no individual who is appointed or elected for the
first time as judge of a court of record of this state after the
first day of July, two thousand five, is eligible for retirement
under this section.
§51-9-6b. Annuities for surviving spouses and surviving dependent
children of judges; automatic escalation and increase
of annuity benefit; proration designation by judge
permitted.
(a) There shall be paid, from the fund created or continued by
section two of this article, or from such funds as may be
appropriated by the Legislature for such purpose, an annuity to the
surviving spouse of a judge, if such judge at the time of his or
her death is eligible for the retirement benefits provided by any
of the provisions of this article, or who has, at death, actually
served five years or more as a sitting judge of any court of record
of this state, exclusive of any other service credit to which such
judge may otherwise be entitled, and who dies either while in
office or after resignation or retirement from office pursuant to
the provisions of this article. Said annuity shall amount to forty
percent of the annual salary of the office which said judge held at
his or her death or from which he or she resigned or retired. In
the event said salary is increased or decreased while an annuitant is receiving the benefits hereunder, his or her annuity shall
amount to forty percent of the new salary: Provided, That with
respect to any individual who is appointed or elected for the first
time as judge of a court of record of this state after the first
day of July, two thousand five, any annuity to the surviving spouse
of the judge shall be an amount equal to forty percent of the
judge's final average salary: Provided, however, That the
annuitant is not entitled to an increase in benefits by virtue of
any increase in the salaries of the offices of circuit court judge
or Justice of the Supreme Court of Appeals. The annuity granted
hereunder shall accrue monthly and shall be due and payable in
monthly installments on the first business day of the month
following the month for which the annuity shall have accrued. Such
annuity shall commence on the first day of the month in which said
judge dies and shall, subject to the provisions of subsection (b)
of this section, terminate upon the death of the annuitant or shall
terminate upon the remarriage of the annuitant.
(b) If there be no surviving spouse at the time of death of a
judge who dies after serving five years or more as a sitting judge
of any court of record and such judge leaves surviving him any
dependent child or children, such dependent child or children shall
receive an amount equal to twenty percent of the annual salary of
the office which said judge held at the time of his or her death:
Provided, That the total of all such annuities payable to each such
child shall not exceed in the aggregate an amount equal to forty
percent of such salary. Such annuity shall continue as to each such child until: (i) He or she attains the age of eighteen years;
or (ii) attains the age of twenty-three years so long as such child
remains a full-time student. The Auditor shall by legislative rule
establish the criteria for determining a person's status as a
full-time student within the meaning and intent of this subsection.
In the event there are surviving any such judge three or more
dependent children, then each such child's annuity shall be
proratably reduced in order that the aggregate annuity received by
all such dependent children does not exceed forty percent of such
salary and the amount to be so received by any such child shall
continue throughout the entire period during which each such child
is eligible to receive such annuity. The provisions of this
subsection shall also apply to those circumstances and situations
wherein a surviving spouse of a deceased judge shall die while
receiving benefits pursuant to subsection (a) of this section and
who shall leave surviving dependent children of such deceased judge
who would be entitled to benefits under this subsection as if they
had succeeded to such annuity benefits upon the death of such judge
in the first instance. In the event the salary of judges is
increased or decreased while an annuitant is receiving benefits
pursuant to this subsection, the annuities payable shall be
likewise increased or decreased proportionately to reflect such
change in salary: Provided, however, That with respect to any
individual who is appointed or elected for the first time as judge
of a court of record of this state after the first day of July, two
thousand five, any annuity to any children of the judge shall be calculated with respect to the judge's final average salary:
Provided further, That the child is not entitled to an increase in
benefits by virtue of any increase in the salaries of the offices
of circuit court judge or Justice of the Supreme Court of Appeals.
The annuities granted hereunder shall accrue monthly and shall be
due and payable in monthly installments on the same day as
surviving spouses' benefits are required to be paid. Such
annuities shall commence on the first day of the month in which any
such dependent child becomes eligible for benefits hereunder and
shall terminate on the last day of the month during which such
eligibility ceases.
§51-9-6d. Adjusted annual retirement benefit calculations.
In calculating the annual retirement benefits under section
six of this article for any individual who is appointed or elected
for the first time as judge of a court of record of this state
after the first day of July, two thousand five, the judge shall
receive retirement benefits in an amount equal to seventy-five
percent of the individual's final average salary. The individual
is not entitled to an increase in benefits by virtue of any
increase in the salaries of the offices of circuit court judge or
Justice of the Supreme Court of Appeals.
§51-9-7. Ineligibility to receive pay or benefits.
A judge who retires under the provisions of any section of
this article and accepts the pay or benefits payable under this
article shall, while receiving said pay or benefits, be permitted
to hold any public office or trust for which the judge receives compensation from the State of West Virginia. If, after retirement
under the provisions of this article, a judge is elected or
appointed to any public office or trust for which he or she
receives any salary or other compensation from the State of West
Virginia, the retired judge is not eligible to participate in any
other pension plan maintained by the State of West Virginia, nor
accrue additional years of credited service under this system or
any other state pension system. A judge who retires because of
disability and accepts the pay or benefits payable under this
article because of his or her disability shall not, while receiving
said pay or benefits because of his or her disability, be permitted
to practice law. If, after disability retirement under the
provisions of this article and while receiving pay or benefits
payable under said article because of his or her disability, he or
she shall enter the practice of law, his or her pay or benefits
under this article because of his or her disability shall be
suspended for such time only as he or she shall be engaged in the
practice of law.