Because the salaries of our State’s five justices and sixty-five trial court judges were recently increased by the legislature, several newspaper articles have questioned their pension plan and have called upon the Governor to veto the salary increase bill.  The bill, SB 514, also provided much needed raises to the Family Law Judges and Magistrates.  Their pension system differs from that of the Justices and Circuit Judges and is not subject the questions raised in the newspaper articles.

The questions are raised because the benefits of retired judges are directly related to the salaries of active judges.  As the salaries of our active judges increase, so do the benefits payable to the retired judges.  This automatic escalator is a benefit that no other public retirement system vests in its members.  Why should we automatically increase the benefits of these retirees simply because working judges need and deserve a raise?  It is a compelling question which should be answered with some thought and informed judgment.  A fair, knowledgeable and independent judiciary is a cornerstone of our democratic form of government.

Our state judges deserve a salary increase.  West Virginia State judges are last in the country in what state judges are paid.  Their salaries have not been increased since 1999.  Trial judges earn ninety thousand dollars a year.  West Virginia State judges need to have their salaries increased.  No one with a concern for a quality judiciary can argue otherwise.

Nor should we complain because the legislature has finally given them a substantial raise.  If the legislature would more frequently increase their salaries by small increments as they do for other public employees, the “sticker shock” of a major increase would be less noticeable.  Failure to fairly compensate sitting judges because the legislature has long neglected them does nothing to maintain the quality of our judiciary.  The State Bar has proposed legislation, not yet enacted, to cause judicial salaries to be reviewed at regular intervals through a Judicial Compensation Commission.

A veto by the governor of the salary increase bill will not change the judicial retirement system.  Again, failure to fairly compensate sitting judges because of the added expense of retired judges does nothing to maintain the quality of our judiciary.  Pensions are different for different groups because their objectives are different.  Pensions are one of the devices used to attract persons to job positions.  Any discussion of changes to the judicial retirement system must be considered within this context.

No public employment retirement system can be changed to the detriment of current participants.  If any retirement system is to be changed, it can only be changed prospectively – that is a change can apply only to new employees.   Judges are no different than any other public employee in that regard and have the same legal rights as all public employees to that protection.  Denying sitting judges a salary increase will not alter the terms of their retirement plan.

Pension systems are currently a focal point of discussion throughout our country.  Pensions in both the private and public sector are under scrutiny.  This may be the time when government should consider these benefits and how they are to be funded.  It is a problem for government at all levels.  The discussion process must consider the reason for the design of the several pension benefit structures.

West Virginia currently has seven separate public employee retirement plans; Plan A and B for state troopers; the deputy sheriffs retirement system; the defined benefit and defined contribution plans for school teachers; the omnibus public employees retirement system; and, the smallest of them all, the judicial retirement system. 

Each of these plans offer different benefits, credits, eligibility criteria and employee contribution rates.  Of the six defined benefit plans, all are currently underfunded; however, the judges’ plan is the most solvent.  Under the same current assumption applicable to all of the plans, the judicial plan will be fully funded not later than June 30, 2018; whereas, the defined benefit plan for teachers will not be fully funded until June 30, 2034.  Part of the reason for this difference is that judges contribute 9% of their salary toward their retirement plan; teachers contribute 6%.  Obviously, all of these projections contain assumptions that may or may not prove true, but what they do point out is that of all our public employee retirement plans the judicial retirement plan is in the best fiscal shape.

The judicial retirement system was designed to draw to the bench good, qualified lawyers who have a proven record in the courtroom.  It was recognized that these good lawyers should be in full bloom of their careers.  Something was needed to pull them from the financial lucrative private sector to public service.  The lure of a built in cost of living escalator was one of the attractions.  Most judges do not take the bench until their early forties.  They would be leaving their private retirement plans.  The system was created so that they would begin drawing a public retirement around the age of sixty-five years, unlike other retirement systems which provide for fill retirement at much earlier ages.  The benefits are greater for retired judges; however, pay out periods are much longer for other public employees because of their earlier retirement.

Additionally, these other retirees may supplement their retirement income with other governmental employment.  State government has many retirees who draw their full retirement as well as a current government salary.  Also, these retirees may participate in the public employees retirement system and at age sixty draw a second retirement with only five years of other public employment. 

Only judges are prohibited from drawing a judicial retirement and simultaneously receiving other state income or benefits.  No second public job after retirement, and, importantly, no other public retirement.  Retired judges who were previously prosecuting attorneys or otherwise employed in state government cannot also draw a retirement from the public employees retirement system.  Even though these judges may have worked for five, ten or twenty years and fully paid their retirement contributions like any other public employee, they may only draw their judicial retirement.  Judges alone are penalized in this manner.  The justification for this penalty is the automatic escalator.

The purpose of this writing is to point out that pensions are complex and serve many needs.  The governor should not veto the judicial pay raise simply because retired judges will also benefit.  If the retirement benefits of future judges need to be changed, then let us make these changes in the context of an orderly discussion of all of our public employee retirement plans.  Failure to fairly compensate sitting judges now with a veto does not serve the over all public good.

Charles M. Love, III

West Virginia Bar Association, President

West Virginia State Bar, President