Wells v. Consolidated Judicial Retirement System

Justice ORR

dissenting.

The majority in this case strains mightily to construct a statutory rationale for depriving plaintiff, Judge Hugh Wells, of his retirement benefits earned under the Consolidated Judicial Retirement System. Because of his subsequent service as Chairman of the North Carolina Utilities Commission, the majority concludes that Judge Wells had to forgo receiving those benefits during that period of time. In its effort to appease a purported legislative intent to thwart such conduct, the majority ignores the plain language of the applicable statutes, applies provisions that have no bearing on benefits earned by plaintiff, and constructs a veritable house of legal cards that is held up more by hot air than substance.

In an overview, this case deals with two separate retirement systems created by the General Assembly over thirty years apart. The Teachers’ and State Employees’ Retirement System (“TSERS”) was passed in 1941 and applied to those two categories of individuals— our public school teachers and state employees. In 1974, the General Assembly created a separate retirement system for members of the judiciary—the Uniform Judicial Retirement System, which was changed in 1985 to the Consolidated Judicial Retirement System (“CJRS”). As would be expected, CJRS has its own independent comprehensive statutory framework for its application and implementation. TSERS was included in Chapter 135 of the General Statutes as Article 1, and years later, CJRS was added to that Chapter as Article 4.

As noted by the majority, plaintiff retired in 1994 after fourteen years as a judge on the North Carolina Court of Appeals. As such, he was eligible for and received retirement benefits under CJRS. Upon being requested by Governor Hunt to chair the North Carolina Utilities Commission, plaintiff accepted that appointment and thereupon was deprived of his right to draw retirement benefits that he had previously earned (including substantial portions that he had contributed himself). The majority says that such a result is mandated by the laws of this state. I strongly disagree and therefore dissent.

The premise relied on by the majority to the effect that N.C.G.S. ! 135-52(a) under Article 4 and CJRS as set out below ‘mandates” that the “beneficiary return to service” provision *322of N.C.G.S. § 135-3(8)(c) applies to Judge Wells’ case, sinks like an anchor under close examination. The majority’s statement is totally conclusory and without foundation.

(a) References in Article 1 of this Chapter to the provisions of “this Chapter” shall not necessarily apply to this Article. However, except as otherwise provided in this Article, the provisions of Article 1 are applicable and shall apply to and govern the administration of the Retirement System established hereby. Not in limitation of the foregoing, the provisions of G.S. 135-5(h), 135-5(n), 135-9, 135-10, 135-12 and 135-17 are specifically applicable to the Retirement System established hereby.

N.C.G.S. § 135-52(a) (1981 & 1999). This statute controls the interaction between Article 4 and Article 1 but in no way stands as controlling authority for the position taken by the majority. N.C.G.S. § 135-52(a) provides that (1) use of the term “this Chapter” in Article 1 does not necessarily apply to Article 4; (2) Article 1 merely governs the administration of CJRS, and only does so if Article 4 fails to provide otherwise; and (3) certain sections of Article 1 dealing with administration of the plan are applicable to CJRS, and by naming these sections specifically, other sections dealing with administration are not precluded from applying.

The effort by those in the majority to expand the reach and scope of Article l’s interplay with Article 4 is critical to their reasoning because they must rely on a provision in Article 1 if they are to successfully deprive Judge Wells of his benefits obtained under Article 4. The provision in question is section 135-3(8) (c) of Article 1 (later amended and recodified as section 135-3(8)(d)), which provides in pertinent part:

Article 1.

Retirement System for Teachers and State Employees.

§ 135-3. Membership.

The membership of this Retirement System shall be composed as follows:

*323(8) The provisions of this subsection (8) shall apply to any member whose membership is terminated on or after July 1, 1963 and who becomes entitled to benefits hereunder in accordance with the provisions hereof.

c. Should a beneficiary who retired on an early or service retirement allowance be restored to service for a period of time exceeding six calendar months, his retirement allowance shall cease, he shall again become a member of the Retirement System and he shall contribute thereafter at the uniform contribution rate payable by all members.

N.C.G.S. § 135-3(8)(c) (Supp. 1983) (emphasis added).

Even if the effort to apply section 135-3(8)(c) to Article 4 could be done in some sort of general fashion, the specific language of the section clearly precludes it from applying to any benefits received under Article 4 and thus from applying to Judge Wells. First and foremost, the introductory language in subsection (8) categorically applies its terms to any “member” entitled to benefits. “Member” is defined in Article 1 as “any teacher or State employee included in the membership of the System as provided in G.S. 135-3 and 135-4.” N.C.G.S. § 135-1(13) (1981 & 1999). Thus, subsection (8) by its very terms does not apply to someone with retirement benefits under CJRS but instead applies only to those deriving benefits under TSERS. The definition of “Retirement System” in N.C.G.S. § 135-1(22) specifically limits this term to the Teachers’ and State Employees’ Retirement System.

Secondly, the language in (8)(c) relied on by the majority specifically applies to “a beneficiary” restored to service as an “employee” or “teacher.” The word “restored” is defined as “[t]o put (someone) back in a former position.” The American Heritage Dictionary of the English Language 1538 (3d ed. 1992). Judge Wells could not be restored as an employee or teacher because the definition of “employee” in Article 1 specifically excludes someone covered under CJRS, and Judge Wells was obviously not a teacher.

Thirdly, N.C.G.S. § 135-3(8)(c) does not apply because a full reading of subsection (c) shows that the purpose of this section is not to prevent a beneficiary like Judge Wells from drawing the retirement benefits he earned under CJRS, after his retirement from that system and while working for the Executive Branch and contributing to *324TSERS. Instead, the purpose of subsection (8)—from before the time Judge Wells vested and through the present—is to calculate retirement benefits under TSERS when someone restored under TSERS goes back into service and then later re-retires. The fact that Judge Wells served several years under TSERS while Chairman of the Utilities Commission in no way affected any calculation of his benefits earned under CJRS.

The majority makes several efforts to bolster its result. They can be summarily disposed of as follows:

(1) The majority relies in part on the expansive definition of “beneficiary” in N.C.G.S. § 135-1(6) to validate its enlarged scope of application of N.C.G.S. § 135-3(8)(c). However, Article 4 has its own definition of “beneficiary” in N.C.G.S. § 135-53(3), which includes only persons receiving benefits under CJRS. Thus, this definition in Article 4 must prevail over the definition in Article 1, and the Article 1 definition of “beneficiary” does not apply to Judge Wells.

(2) The majority relies on the amendment to N.C.G.S. § 135-3(8)(c) in 1993, which added the language “under this Chapter.” The majority says that this clarifies that the provision was intended to apply to each of the articles within Chapter 135 and that Judge Wells was restored as an “employee.” However, as previously noted, this section merely serves to clarify the retirement benefits someone receives under TSERS, after retiring under TSERS, coming back to work under TSERS, and then retiring again under TSERS. There is no provision that suggests the calculation of a judicial retirement allowance under CJRS changes because of any later benefits earned under TSERS. Likewise, as previously noted, Judge Wells was not restored to TSERS because his retirement benefits were based on service under CJRS.

(3) The majority also relies on Thornburg v. Consolidated Jud’l Ret. Sys. of N.C., 137 N.C. App. 150, 527 S.E.2d 351 (2000), to support the proposition that the administrators of the various retirement systems have interpreted the statutes consistent with the majority’s position. While Thornburg as a case has no relevance to the issue before us, the opinion does include a statement that Thornburg’s benefits under CJRS were suspended while Thornburg was Attorney General of North Carolina. That the interpretation of this statute has been interpreted that way for a number of years by the personnel administering the system is not contested. What is contested is whether that interpretation is correct. I conclude that it is not.

*325What is perfectly clear is that there is absolutely no language in Article 1 or Article 4 that says someone going to work under TSERS loses retirement benefits earned under CJRS while so employed. Article 1 says you cannot retire from TSERS and go back to work under TSERS and still draw a retirement benefit, N.C.G.S. § 153-3(8)(d) (1999); N.C.G.S. § 135-3(8)(c) (Supp. 1983), and Article 4 says you cannot retire from CJRS and go back to work under CJRS and draw a retirement benefit, N.C.G.S. § 135-71 (1999). Nothing says, however, that you cannot move from one retirement system to another and still draw a retirement benefit previously earned.

This Court has stated numerous times that “ ‘[w]hen the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give [the statute] its plain and definite meaning.’ ” Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 811, 517 S.E.2d 874, 878 (1999), quoting Lemons v. Old Hickory Council, BSA, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988)). As a necessary corollary, the doctrine of administrative deference has no application to a clear and unambiguous statute. See Watson Indus. v. Shaw, 235 N.C. 203, 211, 69 S.E.2d 505, 511 (1952) (interpretation of statute by agency charged with its enforcement entitled to deference only in case of ambiguity); see also In re Total Care, Inc., 99 N.C. App. 517, 520, 393 S.E.2d 338, 340, disc. rev. denied, 327 N.C. 635, 399 S.E.2d 122 (1990).

In conclusion, whatever the General Assembly may have intended either in the past or the present, it surely has failed to specifically address by statute the scenario now before us. How very simple to say that a person cannot draw a retirement benefit from any retirement system enacted by the state while working for the state. As previously noted, the General Assembly has specifically said that a person cannot draw benefits from TSERS and go back to work under TSERS, and it has specifically said that a person cannot draw benefits under CJRS and go back to work under CJRS. If the General Assembly intended to prohibit moving from one system to another and still draw retirement benefits, it clearly could have said so, but the General Assembly did not. The only relationship between Article 1 and Article 4 deals with the administration of the two distinct systems. Otherwise, each retirement system is independent with different definitions of terms and provisions governing the respective operations. In fact, N.C.G.S. § 135-51(c) specifically says: “The retirement benefits of any person who becomes a justice or judge, district attorney, or solicitor on and after January 1, 1974, or clerk of superior *326court on and after January 1, 1975, shall be determined solely in accordance with the provisions of this Article.” N.C.G.S. § 135-51(c) (1999) (emphasis added).

On 30 June 1994, at the age of seventy-two, Judge Hugh Wells retired after a distinguished career of public service including fourteen years as a judge on the North Carolina Court of Appeals. Having done so, he could have easily retired to his home in Shelby, done nothing, and still draw a monthly retirement income of $5,182, a substantial portion of which he contributed from his salary over the years. He also could have drawn additional salary by becoming “of counsel” to a law firm, by teaching at a private law school, or by engaging in any other type of business in the private sector and still continue to draw his retirement benefits. However, heeding the request of Governor Hunt, Judge Wells opted instead to continue working in public service as Chairman of the North Carolina Utilities Commission, despite a steadily debilitating fight with Parkinson’s disease. His salary in this new position was $6,781 per month.

Judge Wells served as Chairman of the Utilities Commission from July of 1994 until December of 1996. As a result, the practical effect of suspending his judicial retirement benefits for that period of two and a half years is that Judge Wells worked full-time for our state in a challenging and difficult position for a net increase in income of less than $1,600 per month over what he could have drawn in retirement income back home relaxing in Shelby. If this is the public policy intended by the legislature, interpreted by the bureaucracy, and endorsed by the majority of this Court, then I find it a poor policy and of little, if any, benefit to the public. The broad result of such a policy is to penalize a public servant of our state willing to move from one branch of our government to another under entirely distinct and separate retirement systems while imposing no such penalty on any other person coming to work in state government with retirement benefits from another state, the federal government, or private industry. All those persons could serve as Chairman of the Utilities Commission without loss of retirement benefits—but, according to the majority, Judge Hugh Wells could not. Judge Wells died on 4 December 2000, having drawn his full judicial retirement for only four years, despite having contributed to the Judicial Retirement System for fourteen years. His commendable service to this state was dutifully noted at his passing. It is now dutifully noted that the retirement benefits he earned and paid for in part will not be paid because he heeded the request of the Governor of this state and *327chose to continue serving his fellow North Carolinians after retiring from the judiciary.

The majority has misconstrued the law of our state and imputed a bad public policy to the General Assembly. Therefore, I dissent.