Densley v. Department of Retirement Systems

¶43

Madsen, J.

(dissenting) — RCW 41.40.170 permits retirement system service credit for military service predating public employment only where the military service is active federal service. However, the majority misconstrues the statute to mean that an individual who serves in the military before entering public employment is entitled to credit for all service in the armed forces, whether active federal service or not, based on different phrases used in the first three subsections of the statute. But when all six subsections of the statute are read together, it is obvious that the legislature meant one thing: active federal service.

¶44 The majority’s erroneous construction of the statute is made obvious by considering its result: under the majori*229ty’s construction, a retirement system member who leaves public employment to serve in the military receives less in retirement benefits based on military service than a member who serves in the military prior to public employment. On its face this makes no sense and the majority offers no reasonable explanation for such a result. A fundamental tenant of statutory construction is to avoid absurd or improbable results. Accordingly, I cannot agree with the majority’s statutory analysis.

I. The Plain Language of RCW 41.40.170 Does Not Support the Majority’s Conclusion

¶45 RCW 41.40.170 addresses retirement system service credit for employees who have served in the armed forces and who are members of Public Employees’ Retirement System Plan 1 (PERS 1). Subsections (1) and (2) concern interruptive service and apply to individuals who leave public employment to serve in the military and then return to public employment either immediately or after an interval beyond their control. Subsections (5) and (6), which the majority does not quote or even mention, also pertain to interruptive circumstances under which military service may be credited for purposes of PERS 1. These subsections, enacted later than the first three subsections, confirm that the legislature’s intent was that the same requirement apply in all instances, i.e., the requirement of active federal service.

f46 The statute provides in full:

(1) A member who has served or shall serve on active federal service in the military or naval forces of the United States and who left or shall leave an employer to enter such service shall be deemed to be on military leave of absence if he or she has resumed or shall resume employment as an employee within one year from termination thereof.
(2) If he or she has applied or shall apply for reinstatement of employment, within one year from termination of the military service, and is refused employment for reasons beyond his or her control, he or she shall, upon resumption of service within ten years have such service credited to him or her.
*230(3) In any event, after completing twenty-five years of creditable service, any member may have service in the armed forces credited to him or her as a member whether or not he or she left the employ of an employer to enter the armed service: PROVIDED, That in no instance, described in this section, shall military service in excess of five years be credited: AND PROVIDED FURTHER, That in each instance the member must restore all withdrawn accumulated contributions, which restoration must be completed within five years of membership service following the first resumption of employment or complete twenty-five years of creditable service: AND PROVIDED FURTHER, That this section will not apply to any individual, not a veteran within the meaning of RCW 41.04.005.
(4) (a) A member, after completing twenty-five years of creditable service, who would have otherwise become eligible for a retirement benefit as defined under this chapter while serving honorably in the armed forces as referenced in RCW 41.04-.005, shall, upon application to the department, be eligible to receive credit for this service without returning to covered employment.
(b) Service credit granted under (a) of this subsection applies only to veterans as defined in RCW 41.40.005.
(5) The surviving spouse or eligible child or children of a member who left the employ of an employer to enter the uniformed services of the United States and died while serving in the uniformed services may, on behalf of the deceased member, apply for retirement system service credit under this subsection up to the date of the member’s death in the uniformed services. The department shall establish the deceased member’s service credit if the surviving spouse or eligible child or children:
(a) Provides to the director proof of the member’s death while serving in the uniformed services; and
(b) Provides to the director proof of the member’s honorable service in the uniformed services prior to the date of death.
(6) A member who leaves the employ of an employer to enter the uniformed services of the United States and becomes totally incapacitated for continued employment by an employer while serving in the uniformed services is entitled to retirement system service credit under this subsection up to the date of discharge from the uniformed services if:
*231(a) The member obtains a determination from the director that he or she is totally incapacitated for continued employment due to conditions or events that occurred while serving in the uniformed services; and
(b) The member provides to the director proof of honorable discharge from the uniformed services.

RCW 41.40.170 (emphasis added).

¶47 The meaning of a statute is reviewed de novo. Wright v. Jeckle, 158 Wn.2d 375, 379-80, 144 P.3d 301 (2006) ; State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001). The court’s goal is to ascertain and implement the legislature’s intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). The starting point is the plain language and ordinary meaning; when the language of a statute is plain and unambiguous, a court must give effect to that language as the expression of what the legislature intended. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). “The plain meaning of a statute may be discerned ‘from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.’ ” Id. (quoting Campbell & Gwinn, 146 Wn.2d at 11). “In deriving the meaning of a statute, [a] court[ ] should ‘read the statute in its entirety,’ rather than isolating individual phrases.” Seto v. Am. Elevator, Inc., 159 Wn.2d 767, 774, 154 P.3d 189 (2007) (quoting State v. Keller, 143 Wn.2d 267, 277, 19 P.3d 1030 (2001)). “[A] doubtful term or phrase in a statute or ordinance takes its meaning from associated words and phrases.” Burns v. City of Seattle, 161 Wn.2d 129, 148, 164 P.3d 475 (2007) ; State v. Rice, 120 Wn.2d 549, 560-61, 844 P.2d 416 (1993) (“the meaning of doubtful words may be determined through their relationship to associated words and phrases”). “The meaning of words in a statute is not gleaned from those words alone but from ‘ “all the terms and provisions of the act in relation to the subject of the legislation, the nature of the act, the general object to be accomplished and consequences that would result from construing the particular statute in one way or another.” ’ ” *232Burns, 161 Wn.2d at 146 (quoting State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994) (quoting State v. Huntzinger, 92 Wn.2d 128, 133, 594 P.2d 917 (1979))).

¶48 As is immediately obvious, the legislature employed several phrases in RCW 41.40.170 to describe service in the armed forces — “active federal service in the military or naval forces,” “the military service,” “service in the armed forces,” “serving honorably in the armed forces,” “the uniformed services of the United States,” “the uniformed services.” But reading the statute as a whole can lead to only one reasonable result — that the same thing is meant by all of these terms. Active federal service is required in all circumstances. The majority concludes, however, that under subsections (1), (2), and (3), retirement system service credit must be given for other than active federal service in the case of service in the armed forces that precedes, generally, public employment, noninterruptive service, while for purposes of service that interrupts public employment credit is given only for active federal service.

¶49 The majority’s result does not flow from the legislature’s use of language. Subsections (1), (5), and (6) all pertain to interruptive service. While in subsection (1) the legislature refers to “active federal service,” it does not do so in subsection (5), which authorizes a surviving spouse or eligible child to apply for retirement system service credit on behalf of a deceased PERS 1 member who leaves public employment to enter “the uniformed services of the United States” and dies while “serving in the uniformed services.” RCW 41.40.170(5). The same is true of subsection (6), which authorizes a PERS 1 member to obtain retirement system service credit if he or she interrupts public employment to enter “the uniformed services of the United States” and then becomes totally incapacitated “while serving in the uniformed services.” RCW 41.40.170(6).

¶50 Subsections (5) and (6) of the statute do not mention “active federal service” for purposes of interruptive service, and, just like subsection (3) at issue here, do not expressly refer back to the term “active federal service” in the first *233subsection either. Yet, if subsections (5) and (6) are not read in the same way as subsection (1), the result is unlikely and absurd. There is no reasonable basis for reading one subsection pertaining to interruptive service to require active federal service and the others not to. In undertaking a plain language analysis, a court must avoid interpreting a statute in a manner that leads to unlikely, strained, or absurd results. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82 (2005) (quoting Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005)); State v. Votava, 149 Wn.2d 178, 187, 66 P.3d 1050 (2003). Absurd results should be avoided because “ ‘it will not be presumed that the legislature intended absurd results.’ ” J.P., 149 Wn.2d at 450 (quoting State v. Delgado, 148 Wn.2d 723, 733, 63 P.3d 792 (2003) (Madsen, J., dissenting) (citing, among other cases, State v. Vela, 100 Wn.2d 636, 641, 673 P.2d 185 (1983))).

151 Instead, subsections (5) and (6) should be read in the same way as subsection (1), regardless of whether the exact same words are used, because they all pertain to the same situation — interruptive military service. Because this is so, the majority’s analysis based on different words to describe military service is seriously flawed. Just as the legislature uses different but interchangeable language to describe such service in subsections (1), (5), and (6), all pertaining to interruptive service, so are different phrases used to describe military service for purposes of interruptive and noninterruptive service in subsections (1) and (3). Just as in the case of the different subsections pertaining to interruptive military service, this means no more than that the legislature did not believe it necessary to use the exact same turn of phrase in each instance to describe the type of military service intended, because it identified that type of service in the first subsection for all circumstances as active federal service.

152 The majority’s reading also leads to other absurd results, because it means that PERS 1 members who left PERS 1 employment to perform military service could receive less in PERS 1 retirement benefits than those whose *234military service was performed before they began PERS 1 covered employment. There is simply no basis to read the statute to reach this unreasonable result, when nothing in the statute indicates this is what the legislature intended.

¶53 The majority’s analysis is flawed for another reason. The majority reasons that the phrase “any member” in subsection (3) at the least removes the restriction in subsection (1) that the member must have interrupted public employment to serve in the military, and is broad enough to suggest that none of the restrictions in subsection (1) apply. The majority cites no authority for this reasoning and I can think of none that supports the conclusion. The legislature’s choice to permit retirement system service credit for noninterruptive service once a member has 25 years of creditable service says nothing about whether “service in the armed forces” in subsection (3) has the same meaning as “active federal service” in subsection (1). In light of the legislature’s interchangeable use of “active federal service” and “uniformed services of the United States” in subsections (1), (5), and (6), all pertaining to interruptive service, it is much more reasonable to conclude that the legislature intended “service in the armed forces,” as in subsection (3), “uniformed services of the United States” and “uniformed services,” as in subsections (5) and (6), and “active federal service,” as in subsection (1), to mean the same thing. As stated earlier, when read as a whole, the statute clearly pertains to one, and only one, kind of military service: active federal service.

II. Amendments to RCW 41.40.170 Demonstrate that Benefits Apply Only to Active Federal Service

¶54 The statute’s language over time shows there is no doubt that the legislature meant the same thing by all of the phrases it used. RCW 41.40.170 was initially enacted without subsections. When there was only a single section, there was no question that each reference to military service was to the type of service stated in the first sentence of the statute, i.e., active federal service. See Laws or 1969, *235ch. 128, § 7 (showing how the statute read before it was divided into subsections).5 In 1972, the legislature subdivided the statute, with three subsections resulting — what are now the first three subsections of the statute. See Laws of 1972, 1st Ex. Sess., ch. 151, § 3. At the same time, it expressly provided for noninterruptive service, provided the member had 25 years of creditable service. But, as the Department of Retirement Systems explained in its order in this case, the legislature retained the phrase “active federal service” in the first section and retained as well its subsequent references just as they had appeared in the statute when it was one section. In other words, it is obvious that the legislature did not intend its choice of references to military service to have different substantive import. Although other changes have occurred in subsections (1) through (3) since that time (for example, references to individuals were made gender-neutral), the different references to military service have remained the same and still mean the same thing. Therefore, to count as retirement system service credit for PERS 1, service in the military must be “active federal service” no matter when it occurs.

¶55 The Washington National Guard is the organized militia of the State, under the control of the governor. RCW 38.08.020-.060. Members of the Washington National Guard are also subject to command by the president and *236the armed forces of the United States. See Pepich v. Dep’t of Def., 496 U.S. 334, 345-46, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990) (discussing dual nature of the national guard). Under 10 U.S.C. § 12401, “[m]embers of the Army National Guard of the United States and the Air National Guard of the United States are not in active Federal service except when ordered thereto under law.”

¶56 Accordingly, the only national guard service for which James Densley is entitled to retirement system service credit is active federal service performed under Title 10 U.S.C. orders, as the department concluded.

Conclusion

¶57 Because the majority erroneously interprets RCW 41.40.170, leading to unfair and absurd results, I dissent. I would affirm the department’s order. I agree, however, that travel to and from active federal service is part of that service, as the majority reasons. Because the department has not had the opportunity to address the question whether and how much of Mr. Densley’s claimed travel time is active federal service, remand on this issue as the majority directs is appropriate.

Fairhurst, J., concurs with Madsen, J.

The statute then provided:

A member of the retirement system who has served or shall serve on active, federal service in the military or naval forces of the United States and who left or shall leave an employer to enter such service shall be deemed to be on military leave of absence if he has resumed or shall resume employment as an employee within one year from termination thereof, or if he has applied or shall apply for reinstatement of employment and is refused employment for reasons beyond his control within one year from termination of the military service shall upon resumption of service within ten years from termination of military service or shall in all events after completing twenty-five years of creditable service have his service in such armed forces credited to him as a member of the retirement system: PROVIDED, That no such military service in excess of five years shall be credited: AND PROVIDED FURTHER, That he restore all withdrawn accumulated contributions, which restoration must be completed within five years of membership service following his first resumption of employment.

Laws of 1969, ch. 128, § 7.