concurring:
I was originally disqualified from participating in In Re Dostert, 174 W.Va. 258, 324 S.E.2d 402 (1984), and explained the reasons for my disqualification in a statement following the majority opinion. 174 W.Va. at 280-81, 324 S.E.2d at 424.1 The pension issue discussed in Dostert was again considered in Oakley v. Gainer, 175 W.Va. 115, 331 S.E.2d 846 (1985), by a special panel of circuit judges appointed to hear the case.2
One of the issues in Oakley was whether the widow of a deceased circuit court judge was entitled to a widow’s pension from the judges’ retirement system.3 Her husband, after the Dostert opinion and prior to his death, had paid some $28,000 to qualify for benefits under the judges’ retirement system. The special panel reaffirmed the Dos-tert opinion and held that the deceased judge’s years of service in the military and as city attorney were properly credited toward his judicial pension because he had made the proper payments for this service into the judges’ retirement fund before his death.
One of the arguments advanced by the Auditor in Oakley and utilized by the dissent in the present case is that the Auditor did not have an opportunity as an adversary to develop his position in the Dostert case. The special panel in Oakley, 175 W.Va. at 123, 331 S.E.2d at 854-55, rejected this argument stating:
“The Court noted in In re Dostert, 174 W.Va. at 264-65, 324 S.E.2d at 408, that ‘[Bjecause of their statutory duties, copies of the intervenor’s petition were ordered to be transmitted to the Governor, the Auditor, the Treasurer, and the Attorney General, with a request that they file memoranda setting forth their positions with respect to the issues raised therein.’ [Emphasis added] [Footnotes omitted]. As the Court further noted in In re Dostert, 174 W.Va. at 265 n. 11, 324 S.E.2d at 408 n. 11, ‘In response, the Attorney General filed a memorandum on his own behalf and on behalf of the State Treasurer and the State Audi-tor_’ [Emphasis added]. Thus, respondent Gainer had ample opportunity to place his views on the issues presented in In re Dostert, and, in fact, through the Attorney General, did present those views.” (Emphasis in original).
Oddly enough, the dissent makes only a peripheral reference to Oakley even though the author of the dissent was a member of this Court who had voluntarily recused himself along with the other justices, thus bringing about the special panel of circuit court judges. It was this special panel which had the first opportunity to decide whether to follow Dostert’s principles in a case involving the rights of a judge’s widow to his pension, which is the identical issue in this case.
The dissent’s argument about the impropriety of the justices hearing the Dostert case overlooks the fact that ho recusal motion was made in Dostert. Furthermore, while it may be acknowledged that some pecuniary interest existed in Dostert, the subsequent special panel’s decision in Oakley would appear to have settled this pecuniary interest issue.
In Oakley, this issue was raised and disposed of by the special panel under the *216“rule of necessity” which was discussed at some length in United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980). In Will, the United States Supreme Court had the question of whether Congress could reduce certain previously enacted cost of living increases scheduled to be added to the salaries of the Supreme Court justices as well as other federal judges and federal officials. The Supreme Court in a unanimous decision held that Congress could not do so. Recognizing that the members of the Supreme Court had a pecuniary interest in the issue, the Supreme Court concluded every other federal judge would have a similar interest, so that necessity dictated the issue had to be resolved by the sitting court. See also Wagoner v. Gainer, 167 W.Va. 139, 279 S.E.2d 636 (1981).
Finally, the facts in this case, Dostert, and Oakley are clearly distinguishable from the pecuniary interest problem arising under the peculiar facts of Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), which the dissent claims would vitiate the Dostert opinion. Again, the dissent fails to mention the special panel’s discussion in Oakley, which dealt with the rule of necessity. In Aetna Life, the issue was whether due process was violated when a state appellate judge refused to disqualify himself on a recusal motion. The basis of the recusal motion was that the appellate judge was a party plaintiff in a similar case pending in a trial court. He had cast the deciding vote in the appellate case which favored his position in the related suit.4 His failure to recuse himself was found to violate due process concepts.
The Supreme Court, however, made it clear that the other judges who sat with the disqualified judge were not themselves disqualified even though they might have had some interest in the disqualified judge’s underlying suit. The Supreme Court pointed out that if every judge in the state were disqualified, then “it is possible that under a ‘rule of necessity’ none of the judges or justices would be disqualified. See United States v. Will, 449 U.S. 200, 214 [101 S.Ct. 471, 480, 66 L.Ed.2d 392, 405] (1980).” 475 U.S. at 826, 106 S.Ct. at 1587, 89 L.Ed.2d at 835. I do not believe that Aetna Life is applicable to the Dostert case and conclude the special panel correctly applied the “rule of necessity” in Oakley.
Returning to the merits of the present case, had I been a member of the original Dostert panel, I might well have disagreed with its sweep. However, several defects existed in the judges’ retirement system which would have caused me to conclude that certain provisions of the applicable statutes violated equal protection concepts and, therefore, to that extent, were correctly found to be unconstitutional.
We have historically applied a two-pronged test for analyzing equal protection problems. If the issue to be analyzed is one involving a constitutional or other fundamental right, then it must be shown that there is a compelling state interest served by permitting the inequality to exist. Where there is no such constitutional or fundamental right involved, the state need only demonstrate that there is some rational basis for the unequal treatment. See, e.g., Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981); State ex rel. Piccirillo v. City of Follansbee, 160 W.Va. 329, 233 S.E.2d 419 (1977); Cimino v. Board of Education, 158 W.Va. 267, 210 S.E.2d 485 (1974).
First, even though pension statutes, dealing as they do with economic matters, are subject to a rational basis test rather than a strict scrutiny test, I can find no rational *217basis for crediting time spent as a prosecutor as distinguished from all other public service time. In Syllabus Point 7 of Atchinson v. Erwin, 172 W.Va. 8, 302 S.E.2d 78 (1983), we elaborated on the rational basis test by stating:
“Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 39 of Article VI of the West Virginia Constitution.”
See also Syllabus Point 4, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984). I know of no social, economic, historic, or geographic factor that calls for favored treatment for prosecutors such that when they become elected as judges, they should be the only people who are entitled to credit their time serving the public along with their judicial time.5 Most prosecutors are not required to devote full time to their duties. W.Va.Code, 7-7-4. Thus, as part-time public officials, they are no different than city solicitors or other attorneys who are employed in public service.
Furthermore, it seems to me that the credit for military service, although presenting a much closer problem, would cut into the equal protection area because of its limited scope.6 It was these problems that caused the majority in Dostert to correct them by applying the doctrine of the least intrusive remedy. 174 W.Va. at 273, 324 S.E.2d at 417. See also Peters v. Narick, 165 W.Va. 622, 635, 270 S.E.2d 760, 767 (1980); Waite v. Civil Service Comm’n, 161 W.Va. 154, 166, 241 S.E.2d 164, 171 (1977); Syllabus Point 4, State ex rel. Alsop v. McCartney, 159 W.Va. 829, 228 S.E.2d 278 (1976). I would have declared the involved sections to violate equal protection concepts and let the Legislature revise the judges’ retirement system.
For purposes of this present case, however, different considerations are present. One and one-half years have elapsed since Dostert and more than one year has elapsed since the special panel’s decision in Oakley. Some sixteen judges in reliance on these two opinions and the inactivity of the Legislature in enacting any legislation with regard to the judges’ retirement system have transferred from the public employees retirement system to the judges’ retirement system pursuant to W.Va.Code, 51-9-5.7 These judges have contributed collectively a total of $418,485 into the judges’ retirement system.
There is virtually unanimous agreement in other jurisdictions that when a person is required to contribute toward his public pension, he obtains a property right in the pension fund. We discussed this concept *218at some length in Wagoner v. Gainer, 167 W.Va. 139, 279 S.E.2d 636 (1981), with regard to the judges’ retirement fund and cited numerous authorities from other jurisdictions in support of the property right principle.8
What emerges in this case is that the petitioner widow seeks to obtain the derivative benefits resulting from her husband’s joining the judges’ retirement system following this Court’s Dostert opinion and the special panel’s decision in Oakley. For me, the issue is now whether the doctrine of stare decisis must control the result of this case. Justice Neely spoke to the essence of the doctrine of stare decisis in Hock v. City of Morgantown, 162 W.Va. 853, 856, 253 S.E.2d 386, 388 (1979):
“Predictability is at the heart of the doctrine of stare decisis, and regardless of what we think of the merits of this case, we must be true to a reasonable interpretation of prior law in the area of property where certainty above all else is the preeminent compelling public policy to be served.”
See also Syllabus Point 2, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974); Adkins v. St. Francis Hospital, 149 W.Va. 705, 143 S.E.2d 154 (1965).
Furthermore, we have traditionally accorded great weight to the reliance factor in determining how far to extend the reach of an opinion for purposes of retroactivity. LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312, 41 A.L.R.4th 445 (1983); Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539 (1981); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979); Syllabus Point 5, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).
In summary, two cases bearing directly on the issue in the present case have been decided in favor of the petitioner’s position. In the intervening years since Dostert and Oakley, the Legislature has not seen fit to alter their result by amending the judges’ retirement statutes. Finally, a number of judges have in reliance on these two opinions contributed in excess of $400,000 to bring themselves into the judges’ retirement system. The petitioner’s husband was one of these judges who acted in reliance on the Dostert and Oakley decisions prior to his death to provide for his family’s future by paying into and qualifying under the judges’ retirement system. To wait until after his death to alter the law upon which he relied and to deny his widow the full benefits to which she is entitled under the judges’ retirement system would not only be contrary to the established law, but would also be callous and unconscionable.
. The basis for my disqualification was that I had testified adversely'to Judge Dostert in his criminal contempt trial.
. In Oakley, as explained in note 1, 175 W.Va. at 116-17, 331 S.E.2d at 847, all of the justices of this Court had individually recused themselves and, pursuant to Article VIII, Section 2 of the West Virginia Constitution, a special panel was appointed.
.The Oakley case involved claims made by several circuit court judges and the widow of Judge Arthur R. Kingdom
. The appellate judge, a member of the Alabama Supreme Court, had filed a suit on his behalf and on behalf of all other state employees against Blue Cross-Blue Shield of Alabama for willful and intentional withholding of payments on valid claims. The extent of the tort of bad faith failure to pay and the right to punitive damages were key issues in the Blue Cross case and were the central issues in the case that was then pending before the Alabama Supreme Court. The Alabama Supreme Court recognized a cause of action for the willful failure to pay valid insurance claims. It also allowed for the recovery of punitive damages in a 5 to 4 decision.
. This credit is found as a proviso to W.Va. Code, 51-9-6, and is 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 court in this State shall qualify as years of service.”
. This credit is contained in the following portion of W.Va. Code, 51-9-6:
"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."
.W.Va. Code, 51-9-5, enables a judge to initially decline to join the judges’ retirement system and still join the system at a later date. This can be accomplished by paying the contributions he would have had to make plus interest.
. It should be noted that Wagoner was decided some three and one-half years before Dostert. This Court pointed out in Wagoner that an inequality existed in the judges’ retirement system by reason of the provisions relating to the prosecutor and military credits. 167 W.Va. at 152—154, 279 S.E.2d at 644-45. We held in Syllabus Points 1 and 3 of Wagoner:
"1. The West Virginia Retirement System for Judges creates contractually vested property rights for retired and active participating plan members, and these rights are enforceable and cannot be impaired or diminished by the State.”
"3. While the Legislature has the right to make reasonable alterations to the judicial pension fund, such alterations cannot impair the benefit level where there are extant statutorily-created inequities and special unfunded benefit provisions that affect the equal application of the law or the financial integrity or cost of the pension fund.”