                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1998-SA-01185-SCT
SELMA P. DAVIS
v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEM

DATE OF JUDGMENT:                                08/18/1997
TRIAL JUDGE:                                     HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                       HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          DAVID WAYNE BARIA
ATTORNEY FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL
                                                 BY: MARY MARGARET BOWERS
NATURE OF THE CASE:                              CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                     AFFIRMED - 11/4/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                  11/29/99



     BEFORE PITTMAN, P.J., MILLS AND WALLER, JJ.
     MILLS, JUSTICE, FOR THE COURT:
¶1. This case comes on appeal from the Circuit Court of the First Judicial Circuit of Hinds County, where
the lower court affirmed the Board of Trustees of the Public Employees' Retirement System (PERS)
decision on August 18, 1997, holding that: 1) There is no dispute that William Davis signed the application
for a disability retirement benefit; 2) The application signed by William Davis shows that the maximum
monthly benefit option was selected instead of the option providing a spousal death benefit; 3) Following the
receipt of the application for a disability retirement benefit, PERS sent William Davis an "awards letter"
informing him of the amount the benefit he would receive each month; 4) The law prohibited a change in the
benefit option once the first check was cashed; 5) William Davis was provided an estimate of benefits
indicating the amount of the benefits payable under each of the options available before making a selection;
6) William Davis received a disability benefit under the maximum monthly option, which he had selected,
from January 1, 1989 through June of 1992; 7) Selma Davis is not entitled to posthumously change the
option selected by William Davis on his application for a disability benefit; and 8) The PERS decision was
based on substantial evidence that was neither arbitrary or capricious. Aggrieved, Mrs. Davis appeals to
this Court, assigning as error the following pertinent issue.

                                                  ISSUE

     WHETHER THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM BOARD OF
     TRUSTEES' DECISION TO DENY SPOUSAL BENEFITS IS SUPPORTED BY
     CREDIBLE EVIDENCE.
                                                   FACTS

¶2. William E. Davis, the deceased husband of Selma P. Davis, was an employee of the Mississippi Fair
Commission when he became unable to work because of medical problems. Upon the request of the Davis
family, an application and estimate of benefits was provided to Mr. Davis by PERS. The letter enclosed
with the application and estimate of benefits informed Mr. and Mrs. Davis of a decision they would have to
make regarding the benefit options. One option was for Mr. Davis or another beneficiary to receive the
maximum monthly benefit allowance only during the remaining life of Mr. Davis. An alternative option was
for Mrs. Davis or another beneficiary to receive a reduced monthly allowance during the life of Mr. Davis,
in addition to a spousal death benefit remaining for any named beneficiary upon the demise of Mr. Davis.
Mrs. Davis acknowledged that the estimate of benefits included a detailed breakdown of the amounts
payable under each available option.

¶3. PERS subsequently received the application for disability benefits, and Ms. Johnnie Shook, a PERS
analyst, processed the necessary paperwork for the disability benefit selected by Mrs. Davis. Initially, Mr.
and Mrs. Davis failed to complete the relevant part of the application, and mailed the application to PERS
without making a benefits selection. However, Mrs. Davis did acknowledge that she and her husband had
been provided an estimate of benefits, that they were aware of the different options, and that the estimate
included the amount of benefit payments under both the maximum option and the reduced monthly option.
Mrs. Davis had authority to handle Mr. Davis's business during the relevant period of time, including the
authority of making signatures on Mr. Davis's behalf, but the signature on the disability application
containing the maximum monthly benefit option is that of Mr. Davis.

¶4. Mr. and Mrs. Davis subsequently visited with Ms. Shook at the PERS office to remedy the incomplete
section of the application regarding benefits options. Here lies the main point of confusion and dispute giving
rise to this litigation. Mrs. Davis contends that they initially selected the maximum option not providing for
spousal death benefits, allowing more available benefit payments for mounting medical expenses, but that
they later changed their minds and selected the option which would provide spousal death benefits with a
reduced monthly benefit. Mrs. Davis argues that Ms. Shook completed the application in accordance with
their instructions in the first instance but then mistakenly forgot to change the benefits section in a manner
consistent with their changed selection of spousal death benefits.

¶5. PERS contends that the initial selection of the maximum monthly benefit option was made by Mr. and
Mrs. Davis and was not made by Ms. Shook. PERS argues that Shook did not make any modification to
the benefits option because a request was never made before the first check was cashed. According to
PERS, the relevant benefits portion of the application was completed at the time Ms. Shook received the
application, and Mr. and Mrs. Davis did not change their minds because they needed the maximum amount
of money available for medical expenses.

¶6. An "awards letter" was then mailed from PERS to Mr. Davis confirming approval of retirement benefits
and expressly stating that Mr. Davis had selected the maximum monthly benefit option of $892.67 and not
the reduced benefit plan with spousal death benefits. The letter specifically stated that the maximum monthly
benefit option had been selected, and that "no changes may be made in selection of option except as
provided in Section 25-11-115, Mississippi Code of 1972." Mr. Davis cashed the first check he received
based on the maximum monthly benefit option, and the remaining monthly checks were received and cashed
by Mr. or Mrs. Davis over a period of approximately forty-one (41) months. Mr. Davis died on May 23,
1992.

¶7. After the death of Mr. Davis, PERS notified Mrs. Davis twice that no other benefits were available
under the maximum benefit option selected and advised her that the check mailed the month after her
husband's death needed to be returned. Mrs. Davis waited approximately seven (7) months after her
husband's death to communicate her position that the maximum monthly benefits option was incorrectly
made on the application, and PERS responded by letter repeating its position that the original option
selected could not be posthumously modified. PERS subsequently wrote to Mrs. Davis again confirming the
fact that no modification or request for modification was made before Mr. Davis cashed the first check, that
the option could not be changed according to the PERS law.

¶8. In April of 1993, Mrs. Davis contacted the office of Governor Kirk Fordice to assist her in the
acquisition of spousal death benefits. The matter was delegated to the Office of the Inspector General, and
a report was issued in February of 1996. The report makes observations regarding specific allegations:

      1) The benefits section of the application was completed by Ms. Roby, the PERS analyst.

      2) There is nothing in the PERS file of Mr. Davis indicating when, if ever, he received the documents
      representing benefit calculations made by PERS.

      3) The signature of William Davis on the PERS application was notarized 17 days after he actually
      signed the form, and that material parts of the application were inserted erroneously after Davis signed
      and in his absence.

      4) PERS failed or refused to correct the error once it was discovered or discuss the possible error
      with Mrs. Davis at the time the first check was received by Davis.

      5) The file on Davis was incomplete, in error and fails to support the position expressed by PERS in
      various correspondence.

      6) The medical condition of Mr. Davis and the stressful circumstances surrounding the involvement of
      Mrs. Davis rendered them unable to fully understand the options available to them or the
      consequences of their decision.

¶9. While the Inspector General may have had reservations about the procedural actions of PERS in this
process, he did not make an unequivocal finding that the evidence upon which this case rests was lacking
credibility. He merely suggested that PERS review its file and enter a final administrative decision regarding
the Davis claim according to PERS regulations. A final administrative decision unfavorable to Mrs. Davis
was rendered in letter from the Executive Director's office. She proceeded to prosecute her appeal before
the PERS Claims Committee.

¶10. Upon affirmance of the decision before the Claims Committee, Findings of Fact and Conclusions of
Law were submitted to the PERS Board of Trustees. The PERS Board of Trustees entered an Opinion and
Order denying the Davis request to posthumously change the option selected by Mr. William Davis in
1988. Mrs. Davis then pursued an appeal in the Circuit Court of the First Judicial District of Hinds County.
On August 18, 1997, the circuit court entered an Order affirming the Opinion and Order of the PERS
Board of Trustees. Mrs. Davis, being aggrieved by the decision of the circuit court, prosecutes her appeal
to this Court.
                                              DISCUSSION

     WHETHER THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM BOARD OF
     TRUSTEES' DECISION TO DENY SPOUSAL BENEFITS IS SUPPORTED BY
     CREDIBLE EVIDENCE.

¶11. Where an employee has instituted an appeal of a final agency decision to the proper circuit court, the
scope of the this Court's review of the circuit court shall be limited to a review of the record made before
the agency or hearing officer to determine if the action is unlawful for the reason that it was: a) Not
supported by substantial evidence; b) Arbitrary or capricious; or c) In violation of some statutory or
constitutional right of the employee. Young v. Mississippi State Tax Comm'n, 635 So. 2d 869, 874
(Miss.1994) (citing Bertucci v. Mississippi Dep't of Corrections, 597 So. 2d 643 (Miss.1992)).

¶12. The standard of review for this Court from an administrative decision of an agency or board is also set
forth in Rule 5.03 of the Uniform Circuit and County Court Rules. The scope of review is limited to whether
the final PERS determination was: 1) Supported by substantial evidence; or 2) Arbitrary or capricious; or
3) Beyond the powers of the Board to make; or 4) Violated a statutory or constitutional right. Brinston v.
Public Employees' Retirement Sys., 706 So. 2d 258, 259 (Miss.1998); Sprouse v. Mississippi
Employment Sec. Comm'n, 639 So. 2d 901 (Miss.1984). This Court may not substitute its own
judgment for that of the agency which rendered the decision, nor may we re-weigh the facts of the case. Id.
at 259 (citing Mainstream Sav. & Loan Ass'n v. Washington Federal Sav. & Loan Ass'n, 325 So.
2d 902 (Miss.1976)). A rebuttable presumption exists in favor of PERS's decision, and the employee
seeking the benefit, Mrs. Davis, is left with the burden of proving the contrary. Brinston, at 260 (citing
Mississippi Comm'n on Envt'l Quality v. Chickasaw County Bd. of Supervisors, 621 So. 2d 1211
1215 (Miss.1993)).

¶13. Should the record and proceedings below reflect a decision wholly unsupported by any credible
evidence, we would regard that decision as contrary to law and subject to modification or reversal.
Chandler v. City of Jackson Civil Serv. Comm'n, 687 So. 2d 142, 144 (Miss.1997) (citing Gill v.
Mississippi Dep't of Wildlife Conservation, 574 So. 2d 586, 591 (Miss.1990)). We are thus in our
familiar position of judicial review of administrative processes wherein we may interfere only where the
board or agency's decision is arbitrary and capricious, accepting in principle the notion that a decision
unsupported by any evidence is by definition arbitrary and capricious. Id. But such instances are rare,
because this Court has stated:

     Our courts are not permitted to make administrative decisions and perform the functions of an
     administrative agency. Administrative agencies must perform the functions required of them by law.
     When an administrative agency has performed its function, and has made the determination and
     entered the order required of it, the parties may then appeal to the judicial tribunal designated to hear
     the appeal. The appeal is a limited one, however, since the courts cannot enter the field of the
     administrative agency.

Mississippi State Tax Comm'n v. Mississippi - Alabama State Fair, 222 So. 2d 664, 665
(Miss.1969).

¶14. Miss. Code Ann. Section 25-11-115(2) (1972) provides in pertinent part:
      (2) No change in the option selected shall be permitted after the member's death or after the member
      has received his first retirement check except as provided in Section 25-11-127...

¶15. In light of pertinent case law and statutory authority viewed in connection with the specific facts of this
case, PERS and the circuit court below made the correct determination in denying the benefits. The circuit
court concluded:

      1) The Board of Trustees of the Public Employees' Retirement System, by unanimous vote, entered
      its Opinion and Order in this action on December 17, 1996, denying the request of Mrs. Davis to
      posthumously change the option selected by her deceased husband on his application for disability
      retirement benefits.

      2) Mrs. Davis argued that Mr. Davis did not select the disability retirement benefit option that is
      shown on his application and that PERS decision was based primarily on an consideration of an
      affidavit that was improperly submitted and considered. However, there is no dispute that Mr. Davis
      signed the application, and even without deciding whether the aforesaid affidavit was improperly
      considered, the record in this action contains other substantial evidence to support PERS' decision.

      3) The application for disability benefits that Mr. Davis signed and submitted to PERS shows he
      selected a maximum monthly benefit option instead of the option of a reduced monthly benefit with an
      additional spousal death benefit.

      4) After Mr. Davis submitted his application to PERS, PERS responded with an "awards letter" that
      specified the amount of money Mr. Davis would receive each month and the fact that the law under
      which PERS is governed precludes a change in the option selected by Mr. Davis after his death or
      after the first benefit check is cashed.

      5) Prior to Mr. Davis selecting a disability benefit option, PERS provided to Mr. and Mrs. Davis an
      estimate of benefits which specified the amounts that would be paid under the various available
      options

      6) From January 1, 1989, through June, 1992, Mr. Davis received monthly disability retirement
      benefits in the amount payable under the option for maximum benefits that he selected.

      7) Now, after Mr. Davis has died, Mrs. Davis wants to posthumously change the original option
      selected by Mr. Davis on his application for disability retirement benefits.

¶16. Regarding the first finding, it is clear that the circuit court considered all of the procedures, hearings and
arguments which occurred before the PERS Board of Trustees made a final decision denying Mrs. Davis a
posthumous disability modification. The record indicates that these considerations were not taken lightly by
PERS, as a comprehensive review of the entire saga was made by the Inspector General of Mississippi.
The Legislative intention behind Section 25-11-115(2) is that a choice regarding disability retirement
benefits is a very important decision not to be taken as a mere afterthought by any state employee,
regardless of whether they are young or old, in good health or bad. An employee must take into
consideration the present and future financial needs of themselves and their dependants, and can not change
his or her decision in mid-stream to maximize benefits. By the same token, this Court does not take lightly
the final administrative decision of a state agency. The scope of review is limited to the record made before
the agency in determining whether the action was unlawful because of unsubstantial evidence, an arbitrary or
capricious decision, or a violation of some statutory or constitutional right. Young, 635 So. 2d at 874. A
rebuttable presumption in favor of the benefit denial arose in favor of PERS after the final determination,
placing the burden squarely on the shoulders of Mrs. Davis to overcome. Brinston, 706 So. 2d at 260.

¶17. The second conclusion by the circuit court addresses the contention of Mrs. Davis that her husband
did not select the maximum monthly benefit option and that the PERS decision was improperly based on an
affidavit that was subsequently impeached. The decisions made by the PERS Claims Committee and Board
of Trustees were administrative actions, and as such, were not bound by strict adherence to rules of
evidence, absent extraordinary circumstances. New South Communications, Inc. v. Answer Iowa,
Inc., 490 So. 2d 1225, 1227 (Miss.1986). While the right of cross examination is a hallmark of American
jurisprudence, and the affiant, Ms. Shook was not present, cross examination is not an absolute right carved
in stone for administrative cases. Central Freight Lines, Inc. v. United States, 669 F.2d 1063 (5th Cir.
1982). Additionally, the circuit court found that the record in this action contains other substantial evidence
supporting the PERS Board of Trustees decision.

¶18. The third finding of the circuit court is that Mr. Davis selected the maximum monthly benefit option
instead of a reduced monthly benefit with an additional spousal death benefit. This is an issue that was
considered by the administrative Claims Committee of PERS and the Inspector General, reconsidered by
the PERS Board of Trustees, and affirmed after even further consideration of the Trial Court. The
procedural actions and substantive decisions of PERS in this case were an administrative requirement of
law. Mississippi State Tax Comm'n, 222 So. 2d at 665. When PERS made the final administrative
decision, Mrs. Davis exercised her right to appeal, but that right is limited by the unwillingness and
impropriety of courts to enter the field of the administrative agencies, reflecting the general doctrine of
separation of powers between the executive and judicial branches of state government. Id. Judicial
deference for valid administrative decisions based on reasonable considerations, not necessarily perfection,
arises from the realistic limitations of our court system in reviewing every minute detail in the executive
branch of state government.

¶19. The fourth conclusion drawn by the circuit court is that after Mr. Davis submitted his application to
PERS, PERS responded with an "awards letter" specifying the amount of money Mr. Davis would receive
each month, along with the recognition that the law under which PERS is governed precludes a change in
the option selected by Mr. Davis after his death or after the first benefit check is cashed. Mrs. Davis
properly asserts that the appeal process from the final PERS decision is governed by Miss. Code Ann. §
25-11-120(2)(1999), which states in relevant part:

      (2) Any individual aggrieved by the determination of the board may appeal to the Circuit Court of the
      First Judicial District of Hinds County, Mississippi, in accordance with the Uniform Circuit Court
      Rules governing appeals to the circuit court in civil cases. Such appeal shall be made solely on the
      record before the board and this procedure shall be the exclusive method of appealing determinations
      of the board.

¶20. Application of the standard of review set forth in Rule 5.03 of the Uniform Circuit and County Court
Rules limits the scope of judicial review to the question of whether the final PERS benefit decision was
supported by substantial evidence, arbitrary or capricious, or in violation of some statutory or constitutional
right of the employee. Brinston, 706 So. 2d at 259. Considering the totality of the record below, both in
the administrative hearings of PERS and in the circuit court, the decision denying modification of the
maximum monthly benefit option is clearly supported by credible evidence and thus not contrary to law or
subject to modification or reversal. Our familiar position of judicial review for administrative decisions is that
we may interfere only when the decision is arbitrary or capricious, leaving a very heavy burden for Mrs.
Davis to carry. Chandler, 687 So. 2d at 591.

¶21. The remainder of the circuit court findings show that PERS gave notice of benefits to Mr. and Mrs.
Davis before an option was selected; that Mr. and Mrs. Davis received the maximum monthly benefit
checks over a period spanning well over three years before Mr. Davis died; and that Mrs. Davis wants to
make a posthumous change of the maximum benefits option selected by Mr. Davis on his application. Mrs.
Davis contends that she and her husband never received the estimate of benefits under the various options,
but there is no dispute that Mr. Davis wanted the maximum monthly benefit and signed the benefit
application. There is no dispute that the maximum monthly benefit checks were received and cashed for a
substantial period of time. The only indication from the record that Mr. and Mrs. Davis had changed their
selection from the maximum monthly benefit to a spousal death benefit before cashing the first benefit check
was a "nod of the head" by Mr. Davis. The importance of the benefit decision was well recognized by Mr.
and Mrs. Davis.

¶22. Section 25-11-115(2) clearly states that the opportunity to modify a benefits selection is waived after
the member's death or after the first benefit check is cashed, reflecting the gravity and heavy weight of such
a choice. There is a rebuttable presumption in favor of the action of an administrative agency, and the
burden of proof is upon the one challenging its action. Ricks v. Mississippi State Dep't of Health, 719
So. 2d 173 (Miss.1998); Mississippi Dep't of Envt'l Quality v. Chickasaw County Bd. of
Supervisors, 621 So. 2d 1211, 1215 (Miss.1993). Since the record shows that the only indication Mr.
Davis made was a supposed "nodding" of his head, the application of the facts to authoritative law results in
there being an insufficient showing on the part of Mrs. Davis in overcoming the presumption that their
wishes were followed.

¶23. The United States Constitution and the Mississippi Constitution guarantee the right to due process of
law before an administrative agency. U.S. Const. amend. XIV; Miss. Const. Art. 3, Section 14. But there is
a distinction between due process of law and administrative findings of fact, the latter of which is not
required to conform to the strict rules of evidence absent extraordinary circumstances. New South
Communications v. Answer Iowa, Inc., 490 So. 2d 1225, 1227 (Miss.1986). As long as administrative
proceedings are conducted in a fair and impartial manner, free from any just suspicion, prejudice,
unfairness, fraud or oppression, the findings of fact should not be disturbed. Mississippi State Bd. of
Health v. Johnson, 197 Miss. 417, 19 So. 2d 445, 447 (1944). The record indicates that there was no
dispute between the parties involving the procedure of the PERS hearings, but Mr. and Mrs. Davis were in
disagreement with the findings of fact. The circuit court below considered the entire record, both
procedurally and factually, determining that the PERS findings were supported by substantial evidence.

¶24. Substantial evidence affords a substantial basis of fact from which the fact in issue can be reasonably
inferred. Delta CMI v. Speck, 586 So. 2d 768 (Miss.1991). And when applied with the relevant statutes
of Miss. Code. Ann. Sections 25-11-115(2) and 25-11-120(2), the resulting outcome is that there was a
rational, substantial basis for the circuit court to hold that Mr. and Mrs. Davis knew the maximum monthly
benefit selection created a substantial risk on the remaining life of Mr. Davis. The potential future benefits
enjoyed by Mr. Davis were directly proportional to his remaining life span.
¶25. When called upon to apply statutes to specific factual situations, we apply the statutes literally
according to their plain meaning, and there is no occasion to resort to rules of statutory interpretation where
the language used by the legislature is plain, unambiguous and conveys a clear and definite meaning.
Chandler v. City of Jackson Civil Serv., 687 So. 2d 142, 144 (1997) (citing Jones v. Mississippi
Employment Sec. Comm'n, 648 So. 2d 1138, 1142 (Miss.1995); Marx v. Broom, 632 So. 2d 1315,
1318 (Miss.1994); City of Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss.1992); Forman v.
Carter, 269 So. 2d 865, 868 (Miss.1972)). This Court attempts to give a statute the meaning which best
reflects the legislative language and is most consistent with the best statement of policies and principles
justifying that language. Id. at 144. The plain meaning of Section 25-11-115(2) prohibits a change in the
benefits option selected after the death of Mr. Davis or after Mr. Davis received and cashed the first
benefits check under the maximum option. In the case sub judice, both of these events happened prior to
the modification request of Mrs. Davis.

¶26. These findings of fact originating in the PERS hearing process and were affirmed in the circuit court
because they were not arbitrary or capricious and were supported by substantial evidence. "Substantial
evidence", like other popular words in statutes, must be accepted in their popular sense and we must
attempt to glean from the statutes the legislative intent. Chandler, 687 So. 2d at 144 (citing Mississippi
Power Co. v. Jones, 369 So. 2d 1381, 1388 (Miss.1979); Dennis v. Travelers Ins. Company, 234
So. 2d 624, 626 (Miss.1970); Mississippi State Tax Comm'n v. Hinton, 218 So. 2d 740, 742
(Miss.1969)).

                                              CONCLUSION

¶27. The record before this Court establishes that Mr. and Mrs. Davis, when applying for disability
retirement benefits, made a choice for the maximum monthly benefit option available. This decision
precluded the spousal death benefit, which was available as an alternative option up until the time that the
first check was cashed or Mr. Davis died, either of which would have waived the modification opportunity.
The Board of Trustees for the Public Employees' Retirement System made a final administrative decision
regarding the allegations set forth by Mrs. Davis and denied her request for a posthumous modification of
the spousal death benefit option. The decision was properly affirmed by the circuit court after considering
the record and the law governing PERS. Accordingly, the judgment of the Hinds County Circuit Court is
affirmed.

¶28. AFFIRMED.

      PRATHER, C.J., SULLLIVAN AND PITTMAN, P.JJ., BANKS, SMITH,
      WALLER AND COBB, JJ., CONCUR. McRAE, J., CONCURS IN
      RESULT ONLY.
