EFFECTIVE DATE OF OPTIONS UNDER THE STATE EMPLOYEES' RETIREMENT ACT

EFFECTIVE DATE OF OPTIONS UNDER THE STATE EMPLOYEES' RETIREMENT ACT

After December 1, 1951, options selected between June 6, 1951, and December 1, 1951, are effective and valid from the date of filing.

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                                                               November 14, 1951

Mr. Samuel P. Totten
Executive Secretary
State Employees' Retirement System
215 East 5th Avenue
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 172

Dear Sir:

            Receipt is acknowledged of your letter of September 17, 1951, in which you request our opinion concerning an amendment to RCW 41.40.290, as derived from section 2, chapter 141, Laws of 1951.  The amendment pertains to the election of options under the State Employees' Retirement Act and you ask the following questions:

            1. Should the effective date of the option be based on when it was filed or when the act takes effect?

            2. If effective from the date of filing, then should payment be made to the member from the time of filing his option or from the date the new law becomes effective?

            It is our conclusion:

            1. That after December 1, 1951, the option will be valid from the date that application was made.

            2. That payment to the member should be made in accordance with the option selected from the date it was filed and in accordance with the other provisions of the Retirement Law.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            The amendment you refer to is found in section 1, chapter 10 of the Second Extraordinary Session of the Thirty-Second Legislature of 1951 and is as follows:

            "Provided, That any member who, after June 6, 1951, and prior to the effective date of this act, attempted to make an election of option but which election was invalid under laws then in force either because of failure (1) to file written election of option within twelve months before date of his retirement, or (2) to pass a satisfactory health examination at the time of making such election, shall nevertheless be deemed to have made a valid election of option.  * * *"

            As stated in your letter, the above quoted portion of section 1, chapter 10, in effect removes the requirement that a member of the State Employees' Retirement System in order to select an option must make his election a year prior to his retirement or submit to a medical examination and it appears to validate those elections made after June 6, 1951, and prior to the effective date of chapter 10.

            This particular section has been amended several times and in order to discuss your questions we believe it necessary to refer to the amendments.  RCW 41.40.290, as derived from section 20, chapter 240, Laws of 1949, was amended by section 8, chapter 50, Laws of 1951.  This law was signed by the governor on March 13, 1951, and became effective on April 1, 1951.  The same section was again amended by section 1, chapter 141, Laws of 1951, and was signed by the governor on March 15, 1951, and became effective on June 6, 1951.  It should be noted that chapter 141 was signed two days after chapter 50 was signed and upon its effective date took precedence over section 8, chapter 50, Laws of 1951, because of its subsequent passage.

            A review of section 8, chapter 50, Laws of 1951, discloses that the purpose of the amendment was to eliminate the requirement that a member making an election must give written notice a year prior to retirement or pass a satisfactory physical examination, as no other part of the section was changed.

            Section 1, chapter 141, Laws of 1951, evidently was passed for the purpose of making certain options effective for those who heretofore died or shall hereafter die while still in service and over the age of 70 years.  This was done by  [[Orig. Op. Page 3]] adding a new proviso to the law as it was passed in 1949.  The two amendments by the 1951 Legislature were for different reasons and could have been included in the same section without conflict of purpose.  Chapter 10 of the Second Extraordinary Session of 1951 was passed to again give effect to the amendment found in section 8, chapter 50, Laws of 1951, and did not change or affect the amendment proposed in section 1, chapter 141, Laws of 1951.

            The purpose and object of a statute is very important in determining the legislative intent.  It is plain from the language used in the title of the act and in section 1 of chapter 10 that the Legislature wanted and intended to validate and give effect to those elections made during the period from June 6, 1951 to December 1, 1951.  The dates involved and the reasons the options were invalid were specifically set out and the act provided that members making such elections shall nevertheless be deemed to have made a valid election of option the same as though no requirement for giving notice or passing a physical examination had existed.

            Were this not true the Legislature would not have mentioned those options selected during that period of time and could have amended the law by eliminating the requirements after the effective date.  They went further than that by specifically stating the dates and reasons the elections of options were invalid.  This has the effect of making the law retroactive, but when, from the language of the statute the legislative intent is clearly apparent, it must prevail.  (Shorts v. Seattle, 95 Wash. 531, Shelton Hotel Company v. Bates, 4 Wn. (2d) 498, and Layton v. Home Indemnity Company, 9 Wn. (2d) 25, 33).

            The general rules of statutory construction provide that statutes shall have no retroactive effect unless the legislative intent is so expressed.  (2 Lewis' Sutherland, Statutory Construction (2d ed.) 1157, sec. 642, andNelson v. Department of Labor & Industries, 9 Wn. (2d) 621, 627).  The court in theNelson case, supra, discussed this rule and its exceptions and stated that the general rule applied unless the legislative intent was clearly expressed or included in the exceptions to the rule.  The court in the same case on page 627 stated:

            "Assuming, however, that the act did not by its wording have a retroactive effect, it is apparent that it comes within the exception to the above general rule to which we have just referred.  The exception is that an act has retroactive application when it relates to practice, procedure or remedies and does not affect a contractual or vested right."  (Citing cases).

             [[Orig. Op. Page 4]]

            On page 628 the court further stated:

            "As a prefatory remark, it seems advisable to recall to mind that workmen's compensation acts are considered remedial in character, the provisions of which should be construed broadly and liberally in order to effectuate their purpose, which, among other things, is to benefit the working man."  (Citing cases).

            The courts have often given retroactive effect to legislative acts when the language used was not as plain and clear as in this act.  (Nelson v. Department of Labor & Industries, supra, and Mattson v. Department of Labor & Industries, 176 Wash. 345).  It is, therefore, apparent that retroactive effect can be given to the act if it were intended and it is our opinion that it was so intended.

            Until chapter 10 of the Second Extraordinary Session of 1951 becomes effective on December 1, 1951, you are required to operate under the provisions of chapter 141, Laws of 1951.

            In answer to your specific questions it is our opinion:

            1. That on December 1, 1951, all elections of options made from June 6, 1951 to December 1, 1951, will be valid and effective from the date that application was made.

            2. That when the option becomes valid the member is entitled to payment in accordance with the option selected from the date of application and in accordance with the other provisions of the Retirement Act.

Very truly yours,

SMITH TROY
Attorney General

PHIL H. GALLAGHER
Assistant Attorney General