dissenting from the holding of the majority on Part II:
At the outset, it is appropriate to note that if In Re Dostert, 174 W.Va. 258, 324 S.E.2d 402 (1984) qualifies for the application of the doctrine of stare decisis, then it indeed “... thoroughly disposes of the issue of Judge Kingdon’s eligibility for retirement benefits.” (See majority opinion) It is, however, the application by the majority of the doctrine of stare decisis to In Re Dostert that compels me to respectfully dissent from the majority holding of my colleagues on Part II.
An analysis of In Re Dostert is appropriate. That case involved an extraordinary judicial disciplinary proceeding under Rule II(J) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates. The Court explains how it gets into the retirement issue with the following notation: “As previously noted, Judge Dostert’s deteriorating physical condition has resulted in a claim for workers’ compensation disability benefits and recusal from the exercise of his judicial duties. Therefore, issues involving the interpretation of our judicial retirement statutes and West Virginia Constitution, Article VIII, Section 8 are raised.” In Re Dostert, 174 W.Va. at 265, 324 S.E.2d at 409. The Court then proceeded to determine that a portion of West Virginia Code 51-9-6 which granted military service credit on retirement eligibility to judges who served in the military during their terms of office and also granted governmental service credit on retirement eligibility to judges who were former prosecuting attorneys was unconstitutional. The military service credit was adjudged to be unconstitutional on the basis of the constitutional prohibition against dual office-holding. The majority held that service in the military, whether as a private or as a general, by a Judge during the term of his or her *126office constituted the holding of another "... office, or accepting) any appointment or public trust under this or any other government” within the meaning of West Virginia Constitution, Article VIII, Section 7. The credit for service as a prosecuting attorney was adjudged to be unconstitutional on the basis that it violated the prohibition of West Virginia Constitution, Article VI, Section 39, which provides that “... in no case shall a special act be passed, where a general law would be proper.” The In Re Dostert majority elaborated that “We fail to see any relationship between the exercise of prosecutorial power and the exercise of judicial power which supports this exclusive grant of credit.” In Re Dostert, 174 W.Va. at 268, 324 S.E.2d at 411.
Having then declared the only special credit provisions of the judicial retirement statutes to be unconstitutional, the Court proceeded to presume a “constitutional” legislative intent regarding special credits towards retirement for judicial officers. By this exercise, the Court created certain substantive property rights for judicial officers, including:
1. A credit for military service not performed during term of office; and
2. A credit for service to the State or any of its political subdivisions, including part-time service.
In so doing, the Court found a “... fundamental constitutional interest in attracting and retaining professional talent in order to maintain the integrity of an independent judiciary. As a means of fulfilling this fundamental constitutional interest, the West Virginia Constitution in Article VIII, Section 8 constitutionalizes judicial retirement and classifies participants who obtain certain irrevocable rights in the judicial retirement system. There are several important public interests that support this constitutional recognition of judicial retirement. As an integral part of judicial compensation, judicial retirement systems perform an important role in the attraction and retention of professional talent that might otherwise remain in the lucrative practice of law.” (Emphasis added) In Re Dostert, 174 W.Va. at 270 and 271, 324 S.E.2d at 413 and 415.
It is absolutely uncontroverted that In Re Dostert renders the Judicial Retirement System far more attractive and substantially liberalizes the availability of benefits which are already more “lucrative” than those available through the public employees retirement system. By so doing, the Court materially embellished, altered and expanded the compensation of Justices and Circuit Judges. It did so without the benefit of law.
West Virginia Constitution, Article VIII, Section 7 expressly vests the exclusive determination of compensation for Justices, Judges and Magistrates in the Legislature. The pertinent part thereof states that: “Justices, Judges and Magistrates shall receive salaries fixed by law ... and they shall receive expenses as provided by law.” (Emphasis added)
West Virginia Constitution, Article V, Section 1 provides that, “The Legislative, Executive and Judicial Departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; ...” This Court in State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981), recognized that, “This constitutional provision which prohibits any one department of our state government from exercising the powers of the others is not merely a suggestion, it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed.” Supra, 167 W.Va. at 167, 279 S.E.2d at page 630. The matter of the compensation of judicial officers being expressly and exclusively vested in the Legislature by the West Virginia Constitution, the same may not be embellished, altered or expanded by the Judiciary regardless of the basis of judicial analysis until such time as the people of West Virginia, in their wisdom, may choose to so provide by amendment to their constitution. Even the inherent power of the Judiciary must yield to the constitutional mandate of separation of powers.
The doctrine of stare decisis is a foundation of our judicial system because it provides a requisite uniformity, predictability and continuity in the law. But “... the principle of stare decisis admits of excep*127tion, ...” which permits and even requires “... deviation from its application ...” if there exists “... some urgent and compelling reason ...” or if there is “... evidence of changing conditions or serious judicial error.” Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169, at 173 (1974). I urge that the portion of In Re Dostert which is applicable to the case before this panel represents serious judicial error in that its holding clearly violates the constitutional doctrine of the separation of powers and, therefore, that there is an urgent and compelling reason for this Court not to apply the doctrine of stare decisis to it.
For the reasons stated above, I would deny the Writ of Mandamus sought by Elsa Louise Kingdon on Count II of the Second Amended Petition for a Writ of Mandamus.