JUDGES ‑- RETIREMENT ALLOWANCE ‑- COMPUTATION THEREOF UNDER § 2, CHAPTER 286, LAWS of 1961

JUDGES ‑- RETIREMENT ALLOWANCE ‑- COMPUTATION THEREOF UNDER § 2, CHAPTER 286, LAWS of 1961.

The additional pension benefit provided under § 2, chapter 286, Laws of 1961, for supreme and superior court judges who serve more than eighteen years in the aggregate is not payable to a judge who had retired from service under RCW 2.12.010 prior to June 8, 1961.

                                                              - - - - - - - - - - - - -

                                                                  January 4, 1962

Honorable Tom Martin
State Treasurer
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 87

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on questions which we paraphrase as follows:

            (1) Is the "additional pension benefit" provided for by § 2, chapter 286, Laws of 1961, for supreme and superior court judges who serve more than eighteen years in the aggregate payable to such a judge who had retired for service under RCW 2.12.010 prior to June 8, 1961?

            (2) In the event your first question is answered in the affirmative, is this "additional pension benefit" also available to the qualified widow of such a judge?

            We answer your first question in the negative, thus rendering Consideration of your second question unnecessary.

                                                                     ANALYSIS

            Section 2, chapter 286, Laws of 1961, provides as follows:

            "In the event any judge of the supreme or superior court of the stateserves more than eighteen years in the aggregate as computed under RCW 2.12.010, he shall receivein addition to any other pension benefits to which he may be entitled under chapter 2.12 RCW, an additional pension benefit based upon  [[Orig. Op. Page 2]] one‑eighteenth of his salary for each year of full service after eighteen years, provided his total pension shall not exceed seventy-five percent of the monthly salary he was receiving as a judge at the time of his retirement."  (Emphasis supplied.)

            The above‑quoted provision constitutes a new section which was added to chapter 229, Laws of 1937, and to chapter 2.12 RCW by the 1961 legislature, and became effective on June 8, 1961.  Prior to the effective date of this section, the only statute providing for service retirement pay for supreme or superior court judges was RCW 2.12.010, codifying § 1, chapter 229, Laws of 1937, as amended by § 1, chapter 221, Laws of 1943.  This specific statutory provision has not been amended.  It provides in material part as follows:

            "Any judge of the supreme or superior court of the state of Washington who heretofore and/or hereafter shall have served as a judge of either or both of such courts for eighteen years in the aggregate or who shall have served ten years in the aggregate and shall have attained the age of seventy years or more may, during or at the expiration of his term of office, in accordance with the provisions of this chapter, be retired and receive the retirement pay herein provided for. . . . Any judge desiring to retire under the provisions of this section shall file with the state treasurer, who is hereby created treasurer, ex officio, of the fund hereinafter established, and who is hereinafter referred to as 'the treasurer;' a notice in duplicate in writing, verified by his affidavit, fixing a date when he desires his retirement to commence, one copy of which the treasurer shall forthwith file with the state auditor.  The notice shall state his name, the court or courts of which he has served as judge, the period of service thereon and the dates of such service.  No retirement shall be made within a period of less than thirty days after such statement is filed, and no retirement after separation from office by expiration of term shall be allowed unless the statement be filed within thirty days thereafter."

            The retirement pay of a judge retiring under RCW 2.12.010 is, pursuant to RCW 2.12.030,

             [[Orig. Op. Page 3]]

            ". . . an amount equal to one‑half of the monthly salary he was receiving as a judge at the time of his retirement, or at the end of the term immediately prior to his retirement if his retirement is made after expiration of his term. . . ."

            Thus, under pre‑1961 law, a judge of the supreme or superior court was eligible to retire, at the equivalent of half-pay, after having served as a judge of either or both of such courts for eighteen years in the aggregate, or after having so served for ten years in the aggregate and having attained the age of seventy years.  However, no significance for retirement pay purposes was attached to judicial service in excess of eighteen years in the aggregate.

            Section 2, chapter 286, Laws of 1961, supra, obviously, was designed to remedy this situation; i.e., to provide "an additional pension benefit . . . for each year of full service after eighteen years."  By your first question you have asked whether this "additional pension benefit" is payable to a judge who had retired under RCW 2.12.010, supra, after more than eighteen years of service but prior to June 8, 1961 (the effective date, as aforesaid, of § 2, chapter 286, Laws of 1961).

            We answer your question in the negative.  To conclude otherwise would, manifestly, be to conclude that in enacting the statute here under consideration the legislature intended not only to provide an additional pension benefit for judges who retire in the future (i.e., after June 8, 1961), but also to provide, in effect, for an increase in the pensions previously granted (pursuant to RCW 2.12.010 and 2.12.030, supra) to judges who retired prior to the effective date of the statute.

            We are, of course, aware that since passage of Amendment 35 of our state constitution (in November, 1958) there no longer exists a constitutional barrier precluding increasing the pensions of public officers or employees after the grant thereof.  Luders v. Spokane, 157 Wash. Dec. 55 [[57 Wn. 2d 162]], 536 P. (2d) 331 (1960).  Prior to that time, such "post-retirement" pension increases had been held unconstitutional as constituting a grant of extra compensation after the services of the officer or employee had been rendered.  Sonnabend v. Spokane, 53 Wn. (2d) 362, 333 P. (2d) 918 (1958) (applying Article II, § 25, of the Washington Constitution prior to the passage of Amendment 35).

            However, granting the possibility of legislation providing for an increase in pensions previously granted to retired judges, the intention of the 1961 legislature to enact such legislation is far from clear.  The "additional pension benefit" provided for by § 2, chapter 286, Laws of 1961,supra, is made payable to a judge who  [[Orig. Op. Page 4]]"serves more than eighteen years in the aggregate," not to one who "has served" or "heretofore or hereafter shall have served" for such a period.  This language should be contrasted with the language appearing in RCW 2.12.010,supra, establishing basic eligibility for retirement pay for judges as follows:

            "Any judge of the supreme or superior court of the state of Washingtonwho heretofore and/or hereafter shall have served as a judge of either or both of such courts for eighteen years in the aggregate . . . may, during or at the expiration of his term of office, in accordance with the provisions of this chapter, be retired and receive the retirement pay herein provided for. . . ."  (Emphasis supplied.)

            Thus, where our legislature has intended that a statute providing for a pension or retirement pay shall operate in favor of persons already retired, it has expressly provided that such shall be the case.  See, also, in this connection,Luders v. Spokane, supra.

            The absence of language in § 2, chapter 286, Laws of 1961, supra, clearly evidencing legislative intent to provide an additional pension benefit for both judges retiring in the future and those already retired is particularly significant in view of the well-established rule of statutory construction, stated by our court inIn re Cascade Fixture Co., 8 Wn. (2d) 263, 111 P. (2d) 991 (1941), as follows:

            "The general rule of statutory construction followed by this and other courts is that legislative enactments will not be construed retroactively or retrospectively unless the intent that they be so construed is clearly shown by the language of the act, either expressly or as a matter of necessary implication.  [Citations omitted.]"

            In 50 Am.Jur. Statutes, § 476, p. 492, a retrospective law is defined as follows:

            "A retrospective law, in the legal sense, is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect of transactions or considerations already past. . . ."

             [[Orig. Op. Page 5]]

            See, also,Hammack v. Monroe Street Lumber Co., 54 Wn. (2d) 224, 339 P. (2d) 684 (1959), and authorities cited therein.

            In this state it is well recognized that a pension granted to a public officer or employee is not a gratuity but is deferred compensation for services rendered pursuant to a contract of employment.  Bakenhus v. Seattle, 48 Wn. (2d) 695, 296 P. (2d) 536 (1956), and cases cited therein.  Thus, clearly, to apply § 2, chapter 286, Laws of 1961, to a judge who retired under RCW 2.12.010,supra, prior to June 8, 1961, would be to give the statute retrospective effect.  Prior to June 8, 1961, there existed no obligation to pay an additional pension benefit for service in excess of eighteen years in the aggregate.  A judge who retired under RCW 2.12.010, supra, prior to June 8, 1961, had, at the time of his retirement, no right to such an additional benefit.  To now grant him this right, while perhaps constitutional under Amendment 35, referred to earlier, would nevertheless certainly be to create a new obligation and impose a new duty in respect of considerations already passed; i.e., would be to give retrospective effect to § 2, chapter 286, Laws of 1961, supra.

            In the absence of a clear expression of legislative intent that this should be done, we feel constrained to conclude that it is not to be done.

            By your second question you have asked whether, assuming an affirmative answer to your first question, the "additional pension benefit" provided for by § 2, chapter 286, Laws of 1961, supra, is available to the qualified widow of such a judge as you have described in your first question.  Though pension benefits for certain qualified widows of supreme or superior court judges are provided for in § 1, chapter 243, Laws of 1957, (cf. RCW 2.12.030) our negative answer to your first question renders consideration of your second question unnecessary.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General