                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Richard A. Robb,                                                                    FILED
Petitioner Below, Petitioner                                                      March 29, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs.) No. 11-1650 (Kanawha County 09-Misc-352)                                   OF WEST VIRGINIA



West Virginia Consolidated Public Retirement Board,
Respondent Below, Respondent

                              MEMORANDUM DECISION

        Petitioner Richard A. Robb, an attorney proceeding in his own interest, appeals the circuit
court’s November 7, 2011 order denying his petition for a writ of mandamus against Respondent
West Virginia Consolidated Public Retirement Board. The respondent board, by J. Jeaneen
Legato, its attorney, filed a response.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       The respondent board is a public body established pursuant to West Virginia Code §
5-10D-1 to serve as the statutory administrator of all public retirement plans in West Virginia.
According to the respondent board, it is responsible for nine separate and distinct retirement plans.
The Public Employees Retirement System, at issue in the case at bar, is administered in accordance
with West Virginia Code §§ 5-10-1, et seq., and is funded by contributions deducted from the
member’s salary, contributions paid by the member’s public employer on the member’s behalf,
and earnings on those investments.

        The instant action originates from the retirements and subsequent reelections, shortly
thereafter, of three public employees: two circuit court judges (one in Kanawha County, another in
Cabell County) and a magistrate in Summers County.1 Petitioner challenges the retirements of
these judicial officers on the ground that they “gamed the system” with the result being they
resumed their judicial offices, after reelection, drawing both a salary and a pension paid by the
respondent board.

1
  In a footnote on page four of his brief, petitioner indicates he is no longer challenging the
retirement of the Summers County magistrate.
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        At the outset, the Court notes the legislature has since acted to prevent other public officials
from taking similar actions. Senate Bill 244 amended West Virginia Code § 5-10-48(d) to provide
in pertinent part that “[n]otwithstanding the provisions of this subsection, a member who is
participating in the system as an elected public official may not retire from his or her elected
position and commence to receive an annuity from the system and then be elected or reappointed
to the same position unless and until a continuous twelve-month period has passed since his or her
retirement from the position.” § 5-10-48(d)(2) (changes in italics). There is no indication that the
legislature intended retroactive application. Therefore, the amendment to § 5-10-48(d), made in
2009, does not apply to the judicial officers who retired in 2008.

        In September of 2009, petitioner filed a petition for a writ of mandamus in the Circuit
Court of Kanawha County 2 seeking a writ to compel the respondent board to cease paying
retirement benefits to the judicial officers. On October 19, 2009, the respondent board filed a
motion to dismiss for a failure to state a claim upon which relief can be granted, arguing: (1)
petitioner lacked standing to maintain a mandamus action, and (2) petitioner could not establish
any of the elements necessary for the issuance of a writ of mandamus.

        The circuit court conducted a hearing on April 8, 2010. The circuit court subsequently
entered an order dismissing petitioner’s petition for a writ of mandamus. However, a copy of this
order was not mailed to either petitioner or the respondent board. Consequently, the circuit court
reentered the order on November 7, 2011.

        On appeal, petitioner asserts that he has standing to maintain his mandamus action for
several reasons including the fact that he is a beneficiary of the retirement system. Petitioner
argues that while the issuance of a writ of mandamus is normally inappropriate unless the right or
duty to be enforced is nondiscretionary, the judicial officers in the case at bar never “retired” in the
common understanding of the term. Petitioner asserts that the respondent board had a duty to stop
the travesty where the judicial officers “gamed the system.” The respondent board argues that it is
statutorily required to process retirements once retirees achieve the eligibility requirements. The
respondent board further argues that petitioner could not establish standing to maintain the instant
action. The respondent board notes that the actuarial variables which determine the amount of an
employee’s retirement are not impacted whatsoever by what the employee chooses to do
post-retirement and that the post-retirement choice does not have any impact, positive or negative,
on the Public Employees Retirement System.

        The standard for determining whether the issuance of a writ of mandamus is necessary was
set forth in Syllabus Point Two, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170
S.E.2d 367 (1969): “A writ of mandamus will not issue unless three elements coexist—(1) a clear
legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the
thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.” After

2
 By an administrative order subsequently entered February 17, 2010, Senior Status Judge James
O. Holliday was assigned to preside.

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careful consideration of the parties’ arguments, this Court concludes that the circuit court did not
err in dismissing petitioner’s petition. Having reviewed the circuit court’s “Order Denying and
Dismissing Petitioner’s Writ of Mandamus” entered November 7, 2011, we hereby adopt and
incorporate the circuit court’s well-reasoned findings and conclusions as to the assignment of error
raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this
memorandum decision.

       For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha
County and its November 7, 2011, order dismissing petitioner’s petition for a writ of mandamus is
affirmed.

                                                                                         Affirmed.


ISSUED: March 29, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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