Opinion No. 70-135 (1970) Ag ( 1970 )

SUPERNUMERARY JUDGES — RETIREMENT The first possible retirement date for Supernumerary Judges was January 13, 1969. All Supernumerary Judges were retired on January 13, 1969. The first possible retirement date for Justices and Judges who were serving on May 9, 1968, as a Justice or Judge of the State Supreme Court or Court of Criminal Appeals was May 9, 1968. The first possible retirement date for District Judges and Superior Judges of this State serving in such capacity on May 9, 1968, was January 13, 1969. A Justice or Judge who is retired for part of a month is entitled to receive retired pay for that portion of the month he served in a retired status, and his retired pay must be prorated accordingly, for such month. He should then receive his retired pay on the first of each month thereafter. Retirement credit is determined as of the date of retirement. A Justice or Judge shall receive credit for each year he has served as a Justice or Judge of a court of record and the major fraction of a year shall count as a whole year. The Attorney General has considered your letter requesting an official opinion as to the following questions: "1. What is the first possible retirement date for any Justice or Judge who (a) at the time of passage of this act, was serving as a justice or judge of a court that is included in the State Supernumerary Judges Act, (b) on January 12, 1969, was not serving as a justice or judge of a court that is included in the State Supernumerary Judges Act? In other words, does the clause, 'providing that he has served a period of two (2) years after assuming the office of a justice or judge of one or more of the above-mentioned courts,' apply to both (a) and (b) or only to (b)? "2. For the purposes of computing retirement benefits, we request your opinion as to the legality of utilizing the first of the month coinciding with or following a justice's or judge's expiration of his term of office or resignation, i.e., February 1, 1971, to begin his retirement benefits, in lieu of the day following the expiration of his term of office or resignation, i.e., January 12? Paying benefits as of the first of a month is consistent with the provisions of the Oklahoma Public Employees Retirement System, the Social Security Act, and other retirement systems. "3. Several Judges have indicated their terms of office expire January 11, 1971, and they plan to retire at that time. Will the January 11, 1971, date meet the two years required to receive credit for previous years service as a justice or judge? "4. Section 1102 further states, 'In determining the total number of years of service, a major fraction of a year shall count as a whole year.' May we assume that the intent was that a justice's or judge's months of service shall be added together, and any major fraction of a year shall be counted as an additional year of service?" In answer to your first question, your attention is directed to 20 Ohio St. 1102 [20-1102] (1969), as amended by S.B. 595, 1, 32nd Oklahoma Legislature, 2nd Session (1970), which reads as follows: "Any justice or judge of the Supreme Court, Court of Criminal Appeals, State Industrial Court, Intermediate Appellate Court or District Court who serves as justice or judge of any of said courts in the State of Oklahoma for a period of eight (8) years or longer and upon reaching or passing the age of 70 seventy (70) years, or who serves for a period of ten (10) years or longer and upon reaching or passing the age of sixty-five (65) years, or serves for a period of twenty (20) years or longer and upon reaching or passing the age of sixty (60) years, shall receive the retirement benefits herein provided, and, if such justice or judge is still serving in such capacity when the above requirements are complied with, he may elect to retire and may elect whether such retirement shall become effective immediately or at a specified time within his term or at the expiration of his term, by filing a written declaration of his desire to retire with the Governor and the Court Administrator, and the Governor shall endorse his approval thereon if the conditions herein specified exists. For the purpose of this act, years to be credited for retirement shall be as follows: Any justice or judge who, at the time this act was originally passed in 1968, was serving as a justice or judge of a court that is included in the State Supernumerary Judges Act shall receive credit for retirement under this act for each year said justice or judge has served in any court of record, and any justice or judge who, on January 12, 1969, was not serving as a justice or judge of a court that was included in the State Supernumerary Judges Act shall receive credit for each year he has served as a justice or judge of a court of record, providing that he has served a period of two (2) years after assuming the office as a justice or judge of one or more of the above-mentioned courts, and, in determining the periods of time above mentioned, a major fraction of a year shall count as a whole year . . . Upon approval by the Governor of an election of any justice or judge to retire as authorized by this act, the office held by such justice or judge shall become vacated immediately or at the specified time within his term, or at the expiration of his term in accordance with the election of the judge desiring retirement status, and any such vacancy so created shall be filled in the manner provided by law and the Constitution. Provided, however, if any retired justice or judge should be elected or appointed to any political or judicial office, his retirement compensation shall be suspended during the period of time that he holds such office and be reinstated upon his leaving such office." Title 20 Ohio St. 1106 [20-1106] (1969), provides: "The provisions of this Act shall become effective immediately upon the passage of this Act as to the Justices and Judges of the Supreme Court and Court of Criminal Appeals. The provisions of this Act shall become effective on and after January 13, 1969, as to all other Judges included in this Act." Title 20 Ohio St. 1105 [20-1105] (1969), states: "The office of 'State Supernumerary Judges' is hereby abolished on the effective date of this Act and on said effective date all State Supernumerary Judges shall immediately become retired Justices or Judges, as the case may be, and shall be entitled to receive as retirement compensation an amount equal to the salary they received as a State Numerary Judge, payable monthly out of the State Treasury." Title 20 Ohio St. 1104 [20-1104] (1969), reads: "Each retired justice or judge who is a member of The Uniform Retirement System for Justices and Judges shall be entitled to receive as retirement compensation, until changed by the Legislature, an annual amount, each monthly payment of which shall be in an amount equal to four and one-half percent (4-1/2%) of the monthly salary he was receiving when he last served as a justice or judge, multiplied by the number of total years of service as a justice or judge of a court of record, not to exceed seventy-five percent (75%) of said former salary, payable monthly out of the State Judicial Retirement Fund by warrants drawn by the State Budget Officer on the State Treasurer and against said fund upon the filing in his office of proper vouchers executed by the chairman or the executive secretary of the board of trustees of the Public Employees Retirement System; provided that any justice or judge who on January 12, 1969, was serving as a State Supernumerary Judge shall continue receiving his retirement compensation from the appropriations made to the Supreme Court of Oklahoma until the end of the fiscal year beginning July 1, 1969." Section 20 Ohio St. 1105 [20-1105], abolishes the office of the "State Supernumerary Judges" and retires all State Supernumerary Justices and Judges on the effective date of "The Uniform Retirement System for Judges and Justices" Act. Section 1106 makes the effective date of this Act on January 13, 1969, with regard to Supernumeraries. From that date forward, all Supernumerary Judges became retired Justices or Judges and hold their assignments, if any, by virtue of 20 Ohio St. 1107 [20-1107] (1969), which provides for a continued status in the judiciary according to the provisions thereof. Therefore, the two year provision of Section 1102, supra, does not apply to Supernumerary Judges. Section 1102, supra, refers to courts included in the State's Supernumerary Judges Act. Referring thereto, we note that 20 Ohio St. 922 [20-922] (1961), was repealed by O.S.L. 1968, ch. 128, 7, effective January 13, 1969, and included Justices and Judges of the Supreme Court, Court of Criminal Appeals, District Courts and Superior Courts of the State of Oklahoma. We further note that the language "at the time this act was originally passed in 1968", refers to the date of May 9, 1968. We read Section 1102, supra, to mean that any Justice or Judge, otherwise qualified, who on May 9, 1968, was serving as a Justice or Judge of the Supreme Court or Court of Criminal Appeals of this state shall, upon retirement, have his years of service on a court of record of this state credited toward retirement Section 1106, supra, makes the Act effective on the date of May 9, 1968, as to Justices and Judges of the Supreme Court and in Court of Criminal Appeals, serving in said capacity on May 9, 1968. Accordingly, the first possible date a Justice or Judge of the Supreme Court or the Court of Criminal Appeals of the State of Oklahoma who was serving in said capacity on May 9, 1968, could retire would have been on May 9, 1968, if otherwise qualified. Section 20 Ohio St. 1106 [20-1106], supra, declares the effective date of this act for District Judges and Superior Judges of this State serving in said capacity on May 9, 1968, as January 13, 1969. Therefore, the first possible date a Judge of the District Court or Superior Court of this State who was serving in said capacity on May 9, 1968, could retirement would have been January 13, 1969, if otherwise qualified. Referring further to Sections 1102 and 1106, supra, any Justice or Judge not serving as a Justice or Judge of the Supreme Court, Court of Criminal Appeals, District Court or Superior Court of this State on January 12, 1969, would be entitled to receive credit for each year served as a Justice or Judge of any State Court of Record upon retirement, provided the Justice or Judge has served in excess of one year and a major fraction of another year after assuming the office of Justice or Judge of the Supreme Court, Court of Criminal Appeals, State Industrial Court, Intermediate Appellate Court, or District Court of the State of Oklahoma. Section 1106, supra, declares the effective date of the act as January 13, 1969, with regard to any Judge or Justice not serving on January 12, 1969, as a Justice or Judge of the Supreme Court, Court of Criminal Appeals, District Court or Superior Court. Therefore, the first possible date for retirement of such Justice or Judge not serving on January 12, 1969, as a Justice or Judge of the Supreme Court, Court of Criminal Appeals, District Court or Superior Court would be one year and one hundred eighty-two and one-half days after January 13, 1969, or July 15, 1970, providing all Justices and Judges referred to above would be otherwise qualified by age and total length of service before retirement. It is therefore the opinion of the Attorney General that your first question be answered as follows: The first possible retirement date for Supernumerary Judges was January 13, 1969. All Supernumerary Judges were retired on January 13, 1969. The first possible retirement date for Justices and Judges who were serving on May 9, 1968, as a Justice or Judge of the State Supreme Court or Court of Criminal Appeals was May 9, 1968. The first possible retirement date for District Judges and Superior Judges of this State serving in such capacity on May 9, 1968, was January 13, 1969. The first possible date of retirement for any Justice or Judge not serving on January 12, 1969, as a Judge or Justice of the Supreme Court, Court of Criminal Appeals, District Court or Superior Court of the State would be one year and a major fraction of another year after January 13, 1969, or July 15, 1970, and upon any other date thereafter when such Justice or Judge has served one full year and the major portion of another, if otherwise qualified by age and total length of service. Section 20 Ohio St. 1104 [20-1104], supra, requires retired Justices and Judges be paid monthly. No definition of the term "monthly" is included in the statute, and we find no cases in point that adequately define the term "monthly" that can be applied to your question. No procedure or payment is set forth in the statute other than the same be paid monthly. We note, however, that the State of Oklahoma has since January 15, 1956, in compliance with executive order — DB, dated October 6, 1955, and signed by the Honorable Raymond Gary, Governor of the State of Oklahoma, paid salaries on the last day of the month in which services were rendered. The executive order, supra, provides in part: "3. The State Budget Director, as the administrative head of the Division of the Budget and The Division of Central Accounting and Reporting, shall audit the payrolls and prepare warrants; said warrants to be dated the last day of the month in which services are rendered." The long-continued administrative practice by a department of government charged with the execution is entitled to great weight and should not be overturned without cogent reason. See Peterson v. Oklahoma Tax Commission, Okl. 395 P.2d 388. We must assume that the Legislature was aware of the long-standing administrative practice of paying State payrolls on a calendar month basis and the executive order, supra, at the time of the passage of the Judges Retirement Act, and we therefore must conclude that it was the intent of the Legislature that payment made thereunder would be in accordance therewith. It is therefore the opinion of the Attorney General, in answer to your second question, that a Justice or Judge who is retired for part of a month is entitled to receive retired pay for that portion of the month he served in a retired status, and his retired pay must be prorated accordingly for such month. He should then receive his retired pay on the first of each month thereafter. The answer to your first question makes the answer to your third question unnecessary. It is the opinion of the Attorney General that your fourth question be answered in the affirmative. Section 20 Ohio St. 1102 [20-1102], supra, requires that retirement credit is determined as of the date of retirement. It then provides "years to be credited for retirement shall be as follows:" 'shall receive credit for each year he has served as a justice or judge of a court of record' and 'in determining the period of time above mentioned, the major fraction of a year shall count as a whole year.' It is evident that the clear meaning of the statute is that the months of service are added together and any major fraction of the year is counted as an additional year of service. Upon retirement, a Justice's or Judge's months of service must be added together, and any major fraction of a year must be counted as an additional year. (W. Howard O'Bryan Jr.)