DePond v. Gainer

BROTHERTON, Justice,

dissenting:

I dissent to the Court’s opinion in this matter because it is a continuation of the illegal, unfounded, unsupportable course set by this Court in the case of In re Dostert.1 I review the Dostert opinion as a part of this dissent because DePond, like the vertex of a pyramid, is based on the foundation set forth in Dostert.

The Dostert opinion redrafted the judicial pension plan, making several important changes in W.Va.Code § 51-9-6 (1981), as follows:

1. A provision which allowed a judge who was called into the military during his judicial term to credit this time toward his retirement, was converted to: Credit for military service or its equivalent whenever served.2
*2072. A provision which credited service as a prosecuting attorney as years of judicial service, became:
Credit for any prior service to this State or a political subdivision thereof.3
3. A requirement that all years of service be fully served, became:
A provision which allows part-time service to be counted as full-time service.4
4. Creation of a system for calculating the amount of contributions necessary to claim retroactive credit for years of service invented by the first three changes.5

In re Dostert is flawed in two major aspects, one constitutional (State and Federal) and one procedural, the majority opinion in this case is wrong because it relies entirely on the unconstitutional In re Dostert decision. The DePond decision compounds this wrong by expanding its holdings. The two cases are twin sisters and must be reviewed together.

I. VIOLATION OF. STATE AND FEDERAL CONSTITUTIONS

A. Violation of West Virginia Constitution

The West Virginia Constitution, Art. VIII, § 7, provides that the compensation of judges and justices shall be fixed as any other law, that is, by the legislature.6 In re Dostert attempts to fix the compensation of judges by Court opinion and not by law.7 This Court, in syllabus point 8 of In re Dostert, states: “West Virginia Retirement System for judges creates contractual vested property rights for retired and active participating plan members, and these rights are enforceable and cannot be impaired or diminished by the State,” citing syllabus point 1, Wagoner v. Gainer.8 Wagoner, however, was based on statutes enacted by the legislature. It cannot be cited as authority for vesting contractual rights in judges based on rights created by Court opinions such as Dostert and De-Pond. The pension, being part of the salary of a justice and judge, must be fixed by the legislature. Even a cursory reading of In re Dostert reveals that the judicial pension system was redrafted by Court opinion and not fixed by law.

The fact that In re Dostert fixed compensation (retirement benefits) by opinion and not by law makes the benefits derived therefrom unconstitutional.9 The benefits, therefore, are not a contractual right binding on later courts that might have the matter again brought to their attention. The Dostert opinion is fatally flawed because it is based on an unconstitutional premise, and those who take from the poison tree may find at a later date, in a decision by another court, that they in fact do not have any vested rights and do not qualify for a judicial pension under the terms and conditions set out by Dostert.

B. Violation of Federal Constitution

The validity of In re Dostert is also in jeopardy because of a recent United States Supreme Court decision which held that a *208judge sitting on a case in which he has a direct pecuniary interest violates the due process clause of the 14th amendment of the United States Constitution.10 Some of the majority11 in Dostert have a direct pecuniary interest from the decision, and therefore should not have participated in the case.12

II. PROCEDURAL PROBLEMS

The second error that makes In re Dos-tert invalid, and thereby invalidates the majority opinion in this case, is procedural.

A. An invented case

In re Dostert, when it came to this Court, was an extraordinary judicial disciplinary proceeding arising under Rule II(J) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates. The only party before the Court was Judge Pierre E. Dostert. The issue before the Court was whether to suspend Judge Dostert, after he had been convicted of criminal contempt. The case had nothing to do with judicial pensions.13 Nevertheless, the Court wanted a different pension plan and was not patient enough for a case to be brought by normal means.

Further, necessary parties, i.e., the President of the West Virginia Senate and the Speaker of the West Virginia House of Delegates, were not present.14 These two parties are necessary because they represent the constitutional bodies of the legislative branch of government that fix salaries of the judiciary by law.15

This Court only has the power to decide cases before it. An invented controversy without proper parties is not a case but an attempt to draft legislation. Therefore, that part of In re Dostert that deals with retirement issues is mere dicta and should be of no effect in a subsequent case.

III. THE DOCTRINE OF BENEFICIAL TRANSFERABILITY

All judicial pronouncements must stand on some pretense of law. The Court, therefore, needed some law on which to base its holding. No existing standard would support their holdings, so the Court created a new doctrine: The Doctrine of Beneficial Transferability,16 Evidently the doctrine provides that a court may transfer statutory language from one legislative plan (the Public Employees Retirement System) to another plan (the Judicial Retirement System), and may transfer only those parts of the language which give the greatest benefits and disregard any of those parts which are not beneficial. The majority opinion in Dostert cites no authority for this proposition. (Indeed, none exists!!) An examination of the different areas where the doctrine was applied shows its weakness.

A. Military service

The majority first scanned the other retirement systems liké an eager shopper leafing through the Sears catalog:

With respect to the military service credit provision, we note that general grants of retirement credit for military service are found in three of this State’s other retirement systems. See West Virginia Code § 5-10-15 (1979 Replacement Vol.) (public employees); West Virginia Code § 15-2-28(b) (1979 Replacement Vol.) (department of public safety); West Virgi*209nia Code § 18-7A-17 (Supp.1984) (teachers).
Furthermore, it is important to note that many of the judicial retirement systems in other states contain general grants of prior military service credit. See, e.g., Ala.Code § 12-18-5(b) (Supp.1984); Fla. Stat.Ann. § 121.111 (West 1982); Mich. Comp.Laws Ann. § 38.813b (West Supp. 1984); Miss.Code Ann. § 25-11-117 (Supp.1983); N.Y.Retire. & Soc.Sec.Law §§ 24(d), 24(e), 29, 29-a, 30, and 31 (McKinney 1971 & Supp.1983); Ohio Rev. Code Ann. § 145.30.1 (Page 1984); 71 Pa.Cons.Stat.Ann. § 5304 (Purdon Supp. 1984); S.C.Code Ann. § 9-8-50(3) (Supp. 1983); Tex.Rev.Civ.Stat.Ann. art. 43.103 (Vernon Supp.1983); Utah Code Ann. § 49-7a-41 (Supp.1983); Wis.Stat.Ann. § 40.02(15)(c) (West Supp.1983).

(Footnote added to text)17

After finding what they wanted, the majority placed an order. They took the second paragraph of W.Va.Code § 51-9-618 and rewrote it. The part of the section granting service credit for active military service during a judge’s term of office was declared unconstitutional because it violated the constitutional provision against dual office holding in W.Va. Const. Art. VIII § 7. The section provides that a violation of that provision vacates the judicial office.19 The majority simply ignored that admonition and instead struck those words from the paragraph. The military service credit portion of Section 6 reads as follows:

In determining eligibility for the benefits provided by this section, any portion of the term of office of any judge of a court of record which shall have elapsed while such judge was on active duty ... in the armed forces of the United States shall be considered as served

The majority declared the emphasized portion of Section 6 unconstitutional and deleted it from the statute.20 That left the section to read “In determining eligibility for the benefits provided by this section ... active duty ... in the armed forces of the United States shall be considered as served....”21

West Virginia Code § 51-9-16 allows sections, subsections, clauses, phrases or requirements of the judicial pension system to be declared unconstitutional without affecting the validity of the remaining portions. This Court has held on numerous occasions that unconstitutional portions of a statute may be deleted without affecting the remainder of the statute, unless the remainder is incapable of being executed in accordance with legislative intent. The Court in Dostert made no attempt to be consistent with legislative intent. Instead they used selective editing to rewrite the statute contrary to legislative intent. We do not have the power to selectively edit so as to bring about a material *210change.22 This is judicial legislation, which by definition is unconstitutional and therefore void.23

The majority opinion went on to say: Accordingly, we limit the scope of our holding in conformance with the sever-ability statutes and case law and the presumed intent of the legislature, and hold that military service, or its equivalent, rendered during a period of compulsory military service “shall be considered as served” under W.Va.Code § 51-9-6 for disability and retirement benefits.

(Emphasis added).24 Can anyone believe that the Court’s revisions were the intent of the legislature, either actual or presumed? The legislature intended the provision to apply to military service by a judge who had his term of office interrupted, not to all military service, and there is no provision in any state retirement system that provides for military service or its equivalent.25 Section 6 does not even allow for that interpretation in the redrafted form.

The doctrine of beneficial transferability, therefore, takes this military service credit of the Public Employees Retirement System and transfers it to the Judicial Retirement System.

B. Other governmental service

The further massacre of § 51-9-6 deals with the provision allowing judges credit in the retirement system for service as prosecuting attorney in any county. The provision reads as follows:

Provided further, that if a judge of a' court of record has served for a period of not less than ten full years and has made payments into the judges retirement fund as provided in this article for each month during which he served as judge, following the effective date of this section, any portion of time which he had served as prosecuting attorney in any county in this State shall qualify as years of service.

The majority in Dostert held that this provision violated the constitutional prohibition against special legislation and held that language unconstitutional, and therefore deleted the emphasized phrase, totally changing the statute’s meaning. Now Pandora’s box is fully opened, but in order to benefit from the goodies inside, it was necessary to go further, because striking the language “as prosecuting attorney in any county” gave judges credit for prior service only if they had served “in this State,” a meaningless phrase. The purpose of the holding was to change the wording of section 6 so that it would allow a judge who had ten full years of credited service (judicial and military) to also credit any portion of time which he had served in government in this State as qualifying years of service in order to qualify for benefits under the Judicial Retirement System. To allow credit for all government service, the majority invented a broad new definition for the word “in. ” In footnote 32 of the majority opinion “in” is defined as follows:

“In” connotes service to the State of West Virginia or any of its political subdivisions. The Administrative Director should view the word “in" to mean “political subdivision” as defined in the public employees retirement system statute. (emphasis added).

I wish the majority had included the cite to the dictionary from which they obtained this incredible definition of the word “in.”

*211The preposition “in” not only opened up credit for all prior service to this State or any of its political subdivisions, but note 33 interprets severability statutes, case law and the presumed intent of the legislature to include retroactive governmental service in this State for full or part-time service, whether by employment, election or appointment by the State of West Virginia or any of its political subdivisions. Since there is no language in the Judicial Retirement System dealing with prior service in this State or its political subdivisions, it was necessary to transfer the beneficial language in the Public Employees Retirement System to the Judicial Retirement System. The majority therefore adopted the definition of a political subdivision from W.Va.Code § 5-10-2(4) (1979) of the Public Employees Retirement System. For some reason no mention was made of W.Va.Code § 5-10-2(5) (1979) of the same system, defining “participating public employer” to mean:

... the State of West Virginia, any board, commission, department, institution or spending unit, and shall include any agency created by rule of the supreme court of appeals having full-time employees, which for the purpose of this article shall be deemed a department of state government; and any political subdivision in the State which has elected to cover its employees, as defined in this article, under the West Virginia public employees retirement system.

(emphasis added). The majority opinion simply granted retroactive governmental service to judges without any regard to whether the employer of the judge had been a covered employer, i.e., making the payments into the Public Employees Retirement System as set forth in the act.

The doctrine of beneficial transferability took the credit for governmental service as defined in the Public Employees Retirement System and transferred it to the Judicial Retirement System without the requirement that the employer must be a participating employer.

C. Full-time equals part-time

The lid on Pandora’s box has been ripped asunder, and the hand of rhetoric has reached in and taken the skeletal form of the Public Employees Retirement System to be the new skeletal form of the Judicial Retirement System. But, alas, why stop there? If full benefit of the retroactive governmental service was to benefit those who were rewriting the Judicial Retirement System, it was necessary to graft another appendage to the skeletal form, having to do with the definition of full-time and part-time service. Note 37 of Dostert points out that the legislature, by statute defined full-time employees to include members of the State Legislature, the clerk of the House of Delegates, the clerk of the State Senate, members of the legislative body of any political subdivision, and judges of the State Court of Claims. These are “employees” elected or appointed for definite terms. The majority used that grant as a basis for granting full credit to judges in the judicial pension system for part-time service to the State or a political subdivision. This application of the doctrine of beneficial transferability goes far beyond even the statute from which it is borrowed.

This Court in Campbell v. Kelly, 157 W.Va. 453, 202 S.E.2d 369 (1974) had reviewed the Public Employees Retirement System as it applied to the West Virginia legislature. In doing so they struck out several special benefits the legislators provided for themselves.26 The Court did not, however, strike down the provision of one year’s credit for one year’s elected service or one year’s tenure service.

Because certain elected and appointed non-executive branch officers and employees are granted a full year’s credit service without actually working the necessary six*212teen days of a month for ten months in any one year to qualify for a year’s credited service, the Court in Dostert granted all members of the judiciary full-time credit for any part-time service. That is utter nonsense. None of those tenured non-executive branch officers and employees who received full-time credit for so-called part-time service under the Public Employees Retirement System got a year’s credit when they worked two months as a clerk of a legislative committee, worked part-time for an administrative agency of the executive, or worked part-time for a political subdivision prior to election or appointment to the tenured class, or after leaving the tenured class. Further, if the grant of credit was special legislation, that evil would be better cured by restricting credit for legislative service to actual time served, than by extending credit for a myriad of part-time positions bearing no relation to judiciary service. There is no rationale, no logic, that says certain non-executive elective officers granted a full year’s credit for elective term applies in any manner to the judicial branch of government. A legislator receives no full-year credit for part-time governmental service performed prior to his election or performed after he leaves legislative service.27 The justices of this Court granted themselves a right that no other person had.

D. Contributions

The grant of retroactive governmental service by Court opinion requires some methodology for making retirement payments to the fund for the period of retroactive governmental service claimed. Of course the Court rose to the task. By judicial enactment, a methodology was created for retroactive contributions to the Judicial Retirement System. In note 35 of the Dostert opinion the majority uses the compensation rate of payments made to a special judge ($15.00 per day in 1949; currently $100.00 per day) as a guide. Fifteen dollars multiplied by 250 working days in a calendar year produces a salary of $3,750.00, of which the judge would then be required to pay 6%, or $225.00.28 This calculation has no basis in reality and allows a justice to, in essence, buy a dollar for seven cents.29 Apparently if the judge electing to seek credit for prior governmental service made the payment promptly, he would not have to pay the 4% interest, although that is not entirely clear. Dostert relies on W.Va.Code § 51-9-5 (1981) for the authority for the payment into the Judicial Retirement System, but the legislature never intended the per diem compensation of special judges to be the basis for contributions to the Judicial Retirement System. Even if W.Va.Code § 51-9-5 would allow public employees credit to be given as judicial service, the 6% payment should be based on the salary paid to judges at the time for the years of claimed retroactive governmental service, not on some contrived salary of $3,750.00 which was neither paid to nor received by any of those claiming retroactive governmental service, and payment should be accompanied by interest at a realistic rate, compounded annually.

IV. EXPANDING DOSTERT

A. The Doctrine of Beneficial Transferability Revisited

Now we turn our attention to the present case of Gloria DePond v. Hon. Glen B. Gainer, Jr., Auditor of West Virginia. This opinion immediately starts out with the litany concerning what is credited judi*213cial service. What is actually credited is not necessarily set out in the text, but in footnote 1. The footnote reiterates the legal doctrine of transferability and points out that because of In re Dostert judges are entitled to judicial credit for full or part-time governmental service without the liabilities for that service as imposed on those members of the government who participate in the Public Employees Retirement System. In order to give some logic to this grab of credited service, the majority relies again, as it did in Dostert, on the fact that W.Va.Code § 5-10-2 (1985) holds that certain elected officials, i.e., legislators, county commissioners, city councilmen, and others are entitled to count a full year for the time that they serve as an elected official. This is statutory and carries with it certain requirements and limitations, and it has been approved by this Court in Campbell v. Kelly, supra. Only certain elected and appointed officials are included in the statutory language, and other public employees do not receive that credit. The breakdown in the majority opinion granting this credit to judges is the fact that those elected officials who get full-time credit for their elective office do not get full-time credit for part-time service in other public service prior to or after their elective tenure, but must work ten months in any one year to get a full year’s credit. Yet we have seen by the majority opinions in Dostert and DePond a sweeping grant of credited service for judges unlike that granted other public employees, including those elected. There is no authority for this rationale.

Note 4 of DePond goes on at great length about the benefit of the Public Employees Retirement System compared to the Judicial Retirement System, as did a number of footnotes in Dostert. I assume that this recitation is intended to show how unjust the legislature has been to judges. That is about as far removed from the facts as anything could be, because provisions in the Public Employees Retirement System allowed judges to join the system to give them some retirement protection until such time as they were able to qualify under the Judicial Retirement.System. It is not as if they were left with no retirement, but once joining the Public Employees Retirement System they were bound by the rules and regulations thereof. Certainly, once they qualified for the judicial system they immediately switched to that system, because it did not have the restrictions of the Public Employees Retirement System of being computed on the basis of salary and number of years service to the government. Instead, judges would join the judicial system and have their pension based on 75% of their salary at the date of retirement with a continuing increase in that pension as the salary increased except as provided in W.Va.Code § 51-9-6(c) (1981). So who are we crying for? The judges? I would hope not. They have the best of both worlds. Public employees? Certainly, because they were not fortunate enough to be able to choose between two retirement systems.

The majority opinion states as follows: “In this regard, the West Virginia Judicial Association, as amicus curiae on behalf of the petitioner, correctly notes the importance of stare decisis to judges who have become members of the judges retirement system in reliance upon this settled law.” Bouvier’s Law Dictionary defines stare de-cisis as follows: “To abide by or adhere to decided cases.” It is quite obvious that stare decisis does not apply in the DePond case. Apparently the law was not settled, as DePond expands upon Dostert. If the law was settled there would be no reason to expand upon what was said in Dostert. Further, the only cases concerning the Judicial Retirement System as now envisioned' are Dostert, Oakley30 and DePond, and only two of the present members of this Court participated in the majority opinion in Dostert and none participated in Oakley. If the stare decisis law is from these cases, it is quite apparent that there is no settled law in this field as of this date.

B. Replacement of Auditor

The remainder of DePond deals with removing the executive branch of govern*214ment .from their statutorily authorized auditing role.

In this Court’s opinion, where departments of the executive branch are not doing what we want them to do, we can take away their duties and give them to someone we appoint. In the present case, the auditor and governor were questioning the judicial pension system. The auditor was attempting to perform an auditory function with respect to the judicial pensions. Such oversight was not permitted by this Court. The majority removed the auditor from all meaningful oversight roles and converted him into a rubber stamp. In his place they put the court appointed administrative director of the Supreme Court. If the auditor should attempt to stray from his perfunctory role, he will be subject to writs of mandamus and personally liable for attorneys’ fees. See majority opin. at 382, n. 33, supra. The governor is also subject to writs of mandamus.

Article VII, Section 3 of the Constitution of West Virginia, when it refers to a court administrator, states as follows: “The Court shall appoint an administrative director to serve at its pleasure at a salary to be fixed by the Court. The administrative director shall, at the direction of the chief justice, prepare and submit a budget for the Court.” Nowhere in the Constitution or the statutes of the State of West Virginia is the administrative director of the Supreme Court given power to administer, through maintenance and certification, the Judicial Retirement System. . That authority had been granted by statute to the auditor and the governor. The DePond decision transfers that authority to the administrative director of the Supreme Court and states that he shall certify to the auditor the records of each justice or judge in the system as they pertain to his tenure for retirement and the auditor must accept that as absolute and certify it back to the administrative director of the Supreme Court. Why bother? The administrative director of the Supreme Court is lord and master. To have a constitutional officer, i.e., the auditor certify something without any input into what he is certifying is unbelievable and unconscionable.

The majority in DePond devotes at least one page of the opinion to citations stating that an administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs. As far as I know there are no written administrative procedures or rules as to the requirements necessary to establish credited judicial service. This is merely left to the whim and desires of the judge or justice submitting them and they are certified by the Court administrator and submitted to the auditor. Note 25 of DePond says: “Of course, for a judge to obtain certification of proof of creditable service by the administrative director of the Supreme Court of Appeals, proof of actual military and governmental service must be submitted under his rules.” There being no rules, I must believe that not a single judge or justice can be certified under either Dostert or DePond to the auditor of the State of West Virginia.

I assume if you make a statement enough times, and there is no challenge of that statement, it will eventually be taken as a true statement. Throughout both Dostert and DePond the majority continues' to set out in various phrases, forms and innuendos that the terms of the Judicial Retirement System are embodied in that system’s statute. The DePond decision is prophetic when it says on page 380: “Terms of the retirement contract between members of the judiciary who participate in the Judicial Retirement System and the State of West Virginia are embodied in the provisions of the judges retirement system statute.” That is as wrong as right is right. There are no statutes that provide a judicial retirement system as embodied in Dostert and DePond.

Justice is depicted as a lady in flowing robes, blindfolded, arms outstretched, holding the scales of justice equally. After reading Dostert and DePond, she has lowered the scales to the ground to use her hands to wipe the tears from her blindfolded eyes.

V. EPILOGUE

In the foregoing I have tried to voice my objections to the majority’s actions in this *215case. In truth, my disappointment with my colleagues cannot be expressed in words. This is not a case of bad law, but a parody written to look like law. It is a violation of the judicial oath to uphold the Constitution and a violation of the trust reposed in us by the people of the State of West Virginia. This case has no place in the jurisprudence of our State or our nation.

Therefore, for the reasons set forth above, I most forcefully dissent.

. See id. at 416-17.

. See id. at 417-18.

. See id. at 418-19 nn. 33 & 37.

. See id. n. 35.

. 4 "Justices, judges and magistrates shall receive the salaries fixed by law, which shall be paid entirely out of the State Treasury, and which may be increased but shall not diminished during their term of office, and they shall receive expenses as provided by law.” (emphasis added).

. To try to distinguish between “salary” and overall compensation in this situation would be to eviscerate the intent of the framers of our state constitution. This Court equated retirement benefits with salary in In re Dostert, 174 W.Va. 258, 324 S.E.2d 402, 411 (1984), when it said: "... West Virginia Code § 51-9-6 (1981 Replacement Volume) contemplates that judges retain their positions, accruing retirement benefits as an element of judicial compensation which accompany those positions ...”

. Wagoner v. Gainer, 167 W.Va. 139, 279 S.E.2d 636 (1981).

. This Court has the power, when absolutely necessary, to declare acts of the legislature void as unconstitutional. We do not have the power to selectively edit so as to bring about a material change. See, e.g., syl. pt. 20, State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953). This is judicial legislation, which by definition is unconstitutional and therefore void. See W.Va. Const. art. V, § 1.

. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986).

. Justice Miller did not participate in the case and Justice Neely dissented.

. See abo W.Va. Judicial Code of Ethics, Canon 3(c)(1)(c).

. Further, Judge Dostert was not even a member of the judicial retirement system, instead he had elected to participate in the public employees retirement system. See 174 W.Va. at 266, 324 S.E.2d at 410.

. The retirement issues brought before the Court in In re Dostert were created by a request of the Court to the Court administrator to file pleadings raising the retirement issues and, therefore, no one raised the question of a lack of proper parties who might have an adversarial interest in the outcome of the issues created by the Court administrator.

. See W.Va. Const, art. VIII, § 7.

. The majority did not give a name to the doctrine, but used it extensively.

. In re Dostert, 174 W.Va. 258, 324 S.E.2d 402, 416 (1984).

. ... In determining eligibility for the benefits provided by this section, any portion of the term of office of any judge of a court of record which shall have elapsed while such judge was on active duty (including leaves, furloughs, and time consumed going to his place of duty and returning to his place of residence after discharge or release from active duty) in the armed forces of the United States shall be considered as served: Provided further, that any judge who enters active duty in the armed forces of the United States during his term of office and after the effective date [June 5, 1949] of this article shall during, or within one year after such military service, pay into the state treasury all contributions required by section four [§ 51-9-4] of this article, and, by reason of such military service not deducted from his salary: Provided further, that if a judge of a court of record has served for a period of not less than ten full years and has made payments into the judges retirement fund as provided in this article for each month during which he served as judge, following the effective date of this section, any portion of time which he had served as prosecuting attorney in any county in this State shall qualify as years of service. W.Va.Code § 51-9-6.

. I wonder what the pronouncement does to those judges who may be in the national guard and the reserves, both of which require an oath and appointment to such position by a government other than the State of West Virginia.

. 174 W.Va. at 272-73, 324 S.E.2d at 416.

. Id.

. See, e.g., syl. pt. 20, State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953).

. See W.Va. Const. art. V, § 1.

. 174 W.Va. at 273, 324 S.E.2d at 416-17.

. “Or its equivalent” is an expandable term not in the statute. It should, at a minimum, be confined to the definition in 50 U.S.C.App. 456(j) (1982), footnoted by Justice McGraw in the opinion, which concerns alternative service for conscientious objectors. See 174 W.Va. at 273 n. 27, 324 S.E.2d at 417 n. 27. Otherwise the proverbial floodgates will be opened, pouring out credit for many different types of service, including, but not limited to, service in the national guard, military reserve, military academies, volunteer service, or just about anything more rigorous than the Boy Scouts. Despite the majority opinion's massive rhetoric and citations that when unconstitutional language is stricken from a section the Court should presume the legislature would have enacted the remaining valid provisions without the uncon*211stitutional or void ones, they add the words "or its equivalent” to the statute.

. The Court limited legislators to credit for their salary actually received instead of multiplying their salary by eight times. Further, legislators were forbidden from receiving credit from the system for two employments simultaneously. The Court also struck down that part of the statute which granted increased annuities to members of the legislature who had retired because they were benefits not provided other public employees.

.The legislature in 1985 amended W.Va.Code § 5-10-17 to allow part-time legislative employees who have worked on a part-time or temporary basis for the legislature for ten years to join the Public Employees Retirement System and receive one month’s credited service for any calendar month. They were not granted a full year's credited time for any year in which they had worked one credited month. See W.Va. Code § 5-10-17 (1985) and Public Employees Retirement System implementation of the amended section.

. Based on service in 1949.

. The dollar for seven cents is only my unskilled estimate. Note 35 of Dostert allows a year of back service to be purchased for $225.00. I arrived at the figure of seven percent by taking the $225.00 and dividing it by $3,300.00, the amount a justice must currently contribute to the pension fund for a year of service credit.

. Oakley v. Gainer, 175 W.Va. 115, 331 S.E.2d 846 (1985).