                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2001-CP-00247-SCT

W. O. “CHET” DILLARD AND OTHERS IN LIKE
OR SIMILAR CIRCUMSTANCES
v.
GOVERNOR RONNIE MUSGROVE,
LIEUTENANT GOVERNOR AMY TUCK, HOUSE
SPEAKER TIM FORD, AND THE PUBLIC
EMPLOYEES RETIREMENT SYSTEM OF THE
STATE OF MISSISSIPPI IN THEIR OFFICIAL
CAPACITY AND NOT INDIVIDUALLY

DATE OF JUDGMENT:                          1/18/2001
TRIAL JUDGE:                               HON. LAWRENCE J. FRANCK
COURT FROM WHICH APPEALED:                 HINDS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                   PRO SE
                                           E. MICHAEL MARKS
ATTORNEYS FOR APPELLEES:                   ROGER GOOGE
                                           DAVID B. MILLER
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               AFFIRMED - 02/13/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      SMITH, PRESIDING JUSTICE, FOR THE COURT:

      W. O. “Chet” Dillard filed a complaint in Hinds County Chancery Court alleging that

the Supplemental Legislative Retirement Plan ("SLRP") violates his equal protection rights

guaranteed under the Fourteenth Amendment of the U.S. Constitution since legislators and

the Lieutenant Governor receive retirement benefits under both the Public Employees'

Retirement System ("PERS") and SLRP while other state employees only receive benefits
under PERS. The chancery court denied Dillard's motion for summary judgment and

granted the M.R.C.P. 12(b) motion to dismiss filed by Governor Ronnie Musgrove,

Lieutenant Governor Amy Tuck, House Speaker Ford, and PERS ("defendants").

       On appeal Dillard argues that the trial court erroneously treated the defendants'

motion to dismiss as a motion for summary judgment and reasserts his argument that SLRP

violates his equal protection rights. He also challenges only legislators being allowed to

include expenses in "earned compensation" to be attributed toward retirement. Further, he

asserts that PERS is not a state agency, that it is improper for liaison members of the

Legislature to meet with the Board of Trustees of PERS for the benefit of the Legislature,

and that the Lieutenant Governor cannot simultaneously be a member of the executive and

legislative branches of the state government.

       We affirm the judgment of the chancery court.

                                            FACTS

       Dillard has served Mississippi in several capacities over the years1 and is now

receiving state employee retirement benefits under PERS, Miss. Code Ann. §§ 25-11-1 to

25-11-145 (Rev. 1999 & Supp. 2002). SLRP was enacted in 1989 to give legislators, as

well as the Lieutenant Governor, retirement benefits in addition to those they receive under

PERS. Miss. Code Ann. §§ 25-11-301 to 25-11-3109 (Rev. 1999 & Supp. 2002). Other

state employees, including the Governor, draw from only one retirement system. The State

contributions to retirement, which are a percentage of each member's compensation that the


       1
        Dillard has served as a Chancellor, the Commissioner of Public Safety, a District
Attorney, an Assistant Attorney General, and as a member of the military.

                                                2
State pays to the Board of Trustees of PERS, are higher under SLRP than under PERS.

Also, "all remuneration or amounts paid, except mileage allowance" are included as

compensation under SLRP, but not under PERS. Compare Id. § 25-11-307(1) with Id. § 25-

11-103. Further, SLRP allows legislators and the Lieutenant Governor to receive up to

100% of what they receive under PERS. Id. § 25-11-309.

       During the 2000 Regular Session, the Legislature amended SLRP to substantially

increase participant and State contribution percentages to SLRP.2 After much public

criticism, Governor Musgrove called the Legislature into extraordinary session wherein the

increased contribution percentages were repealed.3 Before the enactments to SLRP were

repealed, Dillard filed a complaint in the Chancery Court of the First Judicial District of

Hinds County against defendants seeking declaratory and injunctive relief alleging that

SLRP violates the equal protection clause of the Fourteenth Amendment to the U.S.

Constitution.

       The defendants filed a M.R.C.P. 12(b) motion to dismiss asserting, among other

grounds, that Dillard's prayer for relief was mooted by the intervening repeal of portions of

Miss. Code Ann. §§ 25-11-307 & -309, that he failed to state an equal protection violation,

and that he failed to state a claim under Article 4, § 46 of the Mississippi Constitution.


       2
          Member contributions were increased from 3 % to 6 %. The State was to pay an
amount equal to member contributions termed "normal contributions", i.e. match the 6%, in
addition to an "accrued liability contribution." The accrued liability contribution was increased
from 6 1/3 % to 17.09% through the 2000 amendments. See Miss. Code Ann. § 25-11-307
(Supp. 2002) Amendment Notes.
       3
         Normal contribution percentages were returned to 3%, and the accrued liability
contribution was returned to 6 1/3 %. See id.

                                                 3
Dillard subsequently filed a motion for summary judgment supported by his affidavit. The

court granted defendants' motion to strike certain portions of Dillard's affidavit. As the case

proceeded, all parties agreed there were no genuine issues of material fact and the issues

presented were entirely legal issues. After oral arguments on the motions, the special

chancellor, appointed by this Court, issued an opinion and final judgment denying Dillard's

motion for summary judgment and granting the motion to dismiss on the merits.

       Dillard timely appealed to this Court and later sought recusal of all Justices who

previously served in the Legislature as well as consolidation with another case before us at

the time, Public Employees' Retirement System v. Hawkins, 781 So. 2d 899 (Miss. 2001),

wherein all Justices had recused themselves. We denied consolidation and discretionary

recusal and now address the issues raised in his appeal here. Even though the contribution

percentages of the amendments to SLRP were repealed, the broader challenge that SLRP

violates the equal protection clause is still at issue.

                                        DISCUSSION

       This is a case of first impression for this Court. The issue is whether a specified

portion of a branch of state government and select groups of another branch can supplement

over and above the general retirement system. The Legislature has carved out an exception

for Mississippi Highway Safety Patrol officers to have a separate retirement system with

more benefits. See Miss. Code Ann. §§ 25-13-1 to -33 (Rev. 1999 & Supp. 2002). The

Fifth Circuit upheld that statute as constitutional and noted that the legislative purpose of the

statute was attributed to the dangerous nature of a patrolman's job. See Anderson v. Winter,

631 F.2d 1238, 1240 ( 5th Cir. 1980).

                                                4
       When providing varying benefits to different classes of employees the only

requirement is to "look to see whether the distinction has a rational relationship to a

legitimate state interest." Jackson Firefighters Ass’n Local 87 v. City of Jackson, 736 F.2d

209, 213 (5th Cir. 1984). Further, "[a] legislative enactment is cloaked with a presumption

of constitutionality, and in order to rebut this presumption the unconstitutionality must

appear beyond reasonable doubt." State v. Jones, 726 So. 2d 572, 574 (Miss. 1998) (citation

omitted). Since the SLRP statute does not interfere with a fundamental right and does not

create a suspect class, it violates the equal protection clause only if we find that the statute

is not "rationally or reasonably related to a proper legislative purpose." Id. at 574.

       The U.S. Supreme Court has spoken on this matter:

     equal protection is not a license for courts to judge the wisdom, fairness, or
     logic of legislative choices. In areas of social and economic policy, a statutory
     classification that neither proceeds along suspect lines nor infringes
     fundamental constitutional rights must be upheld against equal protection
     challenge if there is any reasonably conceivable state of facts that could
     provide a rational basis for the classification.
FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 221; 113 S. Ct. 2096, 124 L.Ed.

2d 211 (1993).

       As articulated by the defendants, the rational bases for the enactment of SLRP are (1)

the inherent uncertainty in holding a legislative office, (2) the hours during which the

legislators are on call to their constituents; (3) the time taken away from other gainful

employment or business enterprise; and (4) the need to attract capable, qualified persons to

these elected positions. These reasons are certainly plausible, and there was clearly a

reasonable basis for the Legislature to create SLRP and a rational relationship between its

provisions and legitimate State interests. Clearly, absence from other gainful employment

                                               5
for, at times, an indefinite period of time would potentially put a terrible strain on that

business. The uncertainty in serving in the Legislature is a legitimate concern. Additionally,

the need to attract capable, qualified people to these four-year elective positions is certainly

needed incentive. While the factors listed might be different from a patrolman, nonetheless,

they are legitimate, reasonable, and plausible. Thus judicial intervention by this Court is

unwarranted.

       This Court has held that “a state may confer benefits on some and not others under

equal protection, so long as its decision is rational.” Westbrook v. City of Jackson, 665 So.

2d 833, 838 (Miss. 1995). Furthermore, in apportioning limited resources, governments

“need not provide the same level of benefits to all recipients.” Baker v. City of Concord,

916 F.2d 744, 748 (1st Cir. 1986).         The rational basis standard of review is highly

deferential to the legislative branch. Turner v. Glickman, 207 F.3d 419, 426 (7th Cir.

2000). Also, the United States Supreme Court has held that statutory distinctions based on

the character of employment (i.e., service as a legislator versus as a state trooper) rather than

its duration do not violate the equal protection clause. United States R.R. Ret. Bd. v. Fritz,

449 U.S. 166, 178, 101 S.Ct. 453, 66 L.Ed. 2d 368 (1980).

       Although some might question the wisdom, fairness, or logic of the Legislature’s

decision in establishing SLRP, that is not the function of this Court. It is clear United States

Supreme Court precedent holds that so long as it is based upon the rational basis, the

Legislature may properly establish a different system of benefits for a specific group such

as we have here, i.e., Legislators and the Lieutenant Governor. In referring to the rational

basis test, the Supreme Court stated: “Where there are ‘plausible reasons’ for Congress’

                                               6
action, ‘our inquiry is at an end.’” Beach Communications, 508 U.S. at 313-14 (quoting,

Fritz, 449 U.S. at 179, 101 S.Ct. at 461). The Fifth Circuit has addressed this issue and in

rejecting the claim of the Bureau of Narcotics Agents who challenged the separate retirement

plan that the Mississippi Legislature established for the Mississippi Highway Patrol, noted

that “if the challenged classification bears a reasonable relationship to the accomplishment

of some legitimate governmental objective, the statute must be upheld.” Anderson, 631 F.2d

at 1241. Additionally, that court noted that even though the argument of the narcotic agents

appeared reasonable, the argument “is made in the wrong forum. It must be addressed to the

Mississippi Legislature.” Id. Thus, the remedy Dillard seeks from this Court is not judicial,

but is political. The proper forum to address his concerns is the Legislature which clearly

has the sole authority to establish different systems of benefits for any group including

themselves, so long as the judgment of the Legislature has a rational basis for classifying that

group differently.

       Under Dye v. State ex rel. Hale, 507 So. 2d 332, 344-47 (Miss. 1987), the Lieutenant

Governor may properly exercise some legislative functions as delegated by the Senate.

Therefore, the Legislature is within its authority to allow the Lieutenant Governor the

privilege of participation along with the Legislature in SLRP.

       The benefits which Dillard receives under PERS are in no way diminished by SLRP.

Thus, he has failed to state a claim which could be deemed a violation of the equal

protection clause of the Fourteenth Amendment of the United States Constitution. See

Jackson Firefighters, 736 F.2d at 213. Dillard has alleged no harm that he has suffered



                                               7
which can be distinguished from any other retiree who receives PERS benefits. Absent an

allegation that Dillard’s benefits were impaired, his complaint alleging SLRP created

disproportionate benefits did not state a claim and Dillard’s challenge must fail. See Heath

v. New York State Teachers Ret. Sys., 435 N.Y.S. 2d 136 (N.Y. App. Div. 1980). See also

Patton v. Fed. Security Agency, 69 F. Supp. 282 (E.D.N.Y. 1946).

       Here there are “plausible reasons” for the Legislature’s actions and when the rational

basis test is applied and considered, this Court cannot judge the wisdom of the adoption of

SLRP. Such is the prerogative of the Legislature. There are clearly no material factual

issues yet to be determined. We have it all before us at this time for decision. Dillard cannot

prevail as a matter of law.

                                      CONCLUSION

       There is no violation of the equal protection clause. See Fritz, 449 U.S. at 178 n. 11.

The judgment of the chancery court is affirmed. Additionally, we affirm the special

chancellor’s holding that the Attorney General may represent PERS. It is unnecessary to

address the other issues raised on appeal.

       AFFIRMED.

       PITTMAN, C.J., WALLER, CARLSON AND GRAVES, JJ., CONCUR.
EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE,
P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. COBB AND DIAZ, JJ.,
NOT PARTICIPATING.


IN THE SUPREME COURT OF MISSISSIPPI




                                              8
                                 No. 2001-CP-00247-SCT




W. O. “CHET” DILLARD
AND OTHERS IN LIKE
OR SIMILAR CIRCUMSTANCES

v.

GOVERNOR RONNIE MUSGROVE,
LIEUTENANT GOVERNOR AMY TUCK,
HOUSE SPEAKER TIM FORD, AND
THE PUBLIC EMPLOYEES
RETIREMENT SYSTEM OF THE STATE
OF MISSISSIPPI IN THEIR OFFICIAL CAPACITY
AND NOT INDIVIDUALLY



       PITTMAN, CHIEF JUSTICE, CONCURRING:

       I concur with the majority and write separately only to address Presiding Justice

McRae’s unprecedented behavior today. Today, only hours before this case was scheduled

to be handed down, Justice McRae insisted that an internal e-mail sent by Justice Waller to

the members of the Court be added to his dissent, believing, incorrectly, that it supports his

attack on Justice Waller. No order of recusal has ever been issued by Justice Waller in this

case, nor has any party ever sought his recusal. A majority of the Court has asked Justice

McRae not to publish this informal, internal communication, and he has chosen to disregard

that request. A majority of the Court meeting en banc approves this statement.




                                              9
          In order for an appellate court to function, justices must be able to communicate their

thoughts to other justices in confidence by conference, memorandum or e-mail. It is through

this communication and exchange of their initial thoughts that the Court comes to final

decisions which are announced in the official opinions and orders of the Court. Until today,

those communications have been held confidential.

          This revelation of internal communications of the Court, over the objection of a

majority of the Court’s justices, appears to be in direct violation the Code of Judicial

Conduct, including, but not limited to Section 2A and Section 3B(11). This action will be

reported to the Mississippi Commission on Judicial Performance for appropriate disciplinary

action.



SMITH, P.J. AND WALLER AND CARLSON JOIN THIS OPINION.

COBB, J. NOT PARTICIPATING ON THE MERITS OF THE CASE, JOINS THIS
OPINION AS ADDRESSING MATTERS OF COURT ADMINISTRATION.
     WALLER, JUSTICE, CONCURRING:

          I concur with the majority, and I write separately only to state that the day before this

opinion was to be handed down and issued to the public, Presiding Justice McRae inserted

footnote #4 to his dissent, in which he relates that I had previously recused myself, and then

later began participating in the case, "knowing that one of the litigants is his commander in

chief in the National Guard." I presume that Presiding Justice McRae is referring to

Governor Ronnie Musgrove.




                                                 10
       To set the record straight, I have neither recused myself in this case nor entered an

order of recusal. No party has filed a motion asking for me to recuse myself. Presiding

Justice McRae has never chosen to present my participation in this case as an issue to the

Supreme Court through established internal operating procedures.

       I did, however, vote "not participating" in one circulation. The distinction between

recused judges and judges who fail to take part for other reasons is fundamental. The law --

statutes, rules and case law -- mandates the nonparticipation of a judge disqualified by

recusal. To recuse or disqualify a judge means to debar legally. A judge who merely

abstains on a vote is a voluntary non-voter. See Arnold v. Eastern Air Lines, 712 F.2d 899,

903 n.3 (4th Cir. 1983) (en banc), cert. denied, 104 S. Ct. 703 (1984).

       In conclusion, I believe that Justice McRae has created no reasonable basis for

questioning my impartiality. I have done absolutely nothing improper or unethical. I deny

that I possess any interest, bias, prejudice, or other mental attitude which would preclude me

from acting objectively, fairly and impartially in the above entitled matter.

       McRAE, PRESIDING JUSTICE, DISSENTING:



       While I agree that the Special Judge correctly held that the Attorney General may

represent PERS, I disagree with the majority’s affirmance of the trial court's dismissal under

M.R.C.P. 12(b). As a member of PERS, Dillard has standing to bring this challenge to the

supplemental benefits conferred on other PERS members. The majority strains at a gnat's

hair to find a reasonable basis for a select group to compensate itself over and above the



                                             11
general public employees of this State. In effect it allows the Legislature to enhance

themselves with a silent pay raise and allow it to circumvent the Constitution at the expense

of all other state employees in the retirement system. See Miss. Code. Ann. § 96 and § 272 (A).

This is not like the Highway Patrol group in which they set up a separate retirement system

with separate boards of trustees and giving a legitimate reason for having done so. This is

a "retirement system" within the retirement system causing the other participants to have to

incur expenses to pay for a few to have additional benefits over and above the state

employees under this system. To say that Dillard has no standing to file this suit is

disingenuous. Based on the simple filing of a motion to dismiss under M.R.C.P. 12 (b) the

trial court cut him off by not allowing any proof of facts. Then, in its rush to grant the

legislators this extra benefit over and above all other state employees, the majority uses facts

that are not in the pleadings to preclude Dillard from going forward. One wonders if the

majority is seeking certain legislation to be part at this time.4 This simply should not occur

under the equal protection clause of our Constitution. The four factors that the majority lists

as reasons would apply to any public official in this State. To say that the Lieutenant

Governor who is a member of the executive branch and who has some duties in the

legislative branch can be pulled into and be given benefits because of it, is disingenuous.

This case should be reversed and remanded. Accordingly, I respectfully dissent.




       4
          Justice Pittman talked Justice Waller, who had recused himself, to get back into the case
in order to have a majority knowing that one of the litigants is his commander in chief in the
National Guard.

                                                12
       Our highway patrolmen have a separate retirement system, and the cost of

administering that system is absorbed by the members of that system. The expenses for

SLRP are paid by everyone under PERS. See Miss. Code Ann. §§ 25-13-27 & 25-11-307

(3). Moreover, SLRP is not a separate retirement system, but rather is a supplement or

addition to PERS for members of the Legislature and the Lieutenant Governor. Therefore,

the majority's comparison to the Highway Patrol's separate retirement system is of little

import here.

       This case comes down to whether a selective group can have additional benefits, and

in essence, double dip from the same general retirement system. There was no actuarial

study done as to the impact that all other employees would suffer at the hands of a select

few. The rational basis for allowing the Patrol to have a separate retirement system from

the general system is completely different and distinguishable from the case sub judice.

However, the Legislature has attempted to use the same rational basis factors that applied

to th.e Highway Patrol in Anderson (the comparative dangers and the need to attract the

most capable and qualified persons) and certain firefighters and policemen in Jackson

Firefighters (the time of employment and the fiscal integrity of the system) to apply to a

supplemental fund of the general retirement fund for legislators and the Lieutenant

Governor.

       As the majority states, the rational basis factors given for the enactment of SLRP are

(1) the inherent uncertainty in holding a legislative office, (2) the hours during which the

legislators are on call to their constituents; (3) the time taken away from other gainful


                                             13
employment or business enterprise; and (4) the need to attract capable, qualified persons to

these elected positions.

        The invocation of these factors, however, is but a weak attempt at parroting the

factors used for highway patrolmen and firefighters in order to establish a rational relation

to a legitimate state interest so that the statute would seemingly hold constitutional muster.

Indeed, “uncertainty in holding office” is in no way comparable to the potentially deadly

peril patrolmen face on a daily basis. While these factors may be legitimate if the Legislature

established a separate retirement system, that is not what has been created here. SLRP is

a supplemental system under which the Lieutenant Governor and members of the

Legislature are entitled to receive benefits in addition to the benefits they receive under

PERS.

        It must be determined, therefore, whether the equal protection clause is violated by

allowing a particular group to double dip by drawing supplemental benefits from the same

retirement system. To make this determination, more facts need to be established.

        The trial court essentially treated the defendants' Rule 12(b) motion to dismiss as a

motion for summary judgment. Both sides agreed that no facts were needed for the motion

for summary judgment. However, the court went further on the pending motion to dismiss

and dismissed it, holding that there was no substantial basis under equal protection. In this

case, other factors need to be resolved before that determination can be made, including how

much money has been put into SLRP by the legislative members from which they can draw

under the bill that was pending at the time. Also, the Legislature repealed only a portion of



                                              14
the statute; the supplementation is still there. Further, the Legislature selectively put in as

a participant the Lt. Governor, a member of the executive branch who also has duties in the

legislative branch.

       The Lieutenant Governor is a full-time member of the executive branch, but since she

serves as President of the Senate when the Legislature is in session, she is considered part

of the legislative branch for purposes of SLRP and is allowed to draw retirement under both

PERS and SLRP. This dual classification creates an arguable violation of the separation of

powers provision of our Constitution.

       The Mississippi Constitution of 1890, Art. 1, Sec. 1 provides:

              The powers of the government of the state of Mississippi shall
              be divided into three distinct departments, and each of them
              confided to a separate magistracy, to wit: those which are
              legislative to one, those which are judicial to another, and those
              which are executive to another.

       Further, Article 1, Section 2 states:

              No person or collection of persons, being one or belonging to
              one of these departments, shall exercise any power properly
              belonging to either of the others. The acceptance of an office
              in either of said departments shall, of itself, and at once, vacate
              any and all offices held by the person so accepting in either of
              the other departments.

       While we have held that it is not a violation of the separation of powers doctrine for

the Lieutenant Governor, a full-time member of the executive branch and the President of

the Senate, to exercise certain legislative functions as delegated by the Senate through Senate

Rules and not in violation of our Constitution, we have not addressed the dual capacity in




                                               15
relation to collecting from one retirement system twice. See Dye v. State ex rel. Hale, 507

So.2d 332 (Miss. 1987). This matter clearly needs to be addressed by the trial court.

       While the trial court dismissed this under M.R.C.P. 12(b) the trial court did not allow

additional facts to be pled and granted a final judgment. Under our rules, a plaintiff is

entitled to amend to allege additional facts, M.R.C.P. 15(a), and this was not done. Indeed,

additional factors need to be addressed and resolved to determine the constitutionality of

SLRP. The constitutionality of the SLRP retirement system for this select group should not

be resolved on a Rule 12(b) dismissal, it should only be done after a full trial. While the

legislators may be able to prove that there is a reason for a separate retirement system, it

should not be allowed to have their own retirement system based on the shoulders of all

public employees that come under PERS. This was not done with the Highway Patrol or the

Bureau of Narcotics. The majority has opened a Pandora's box; any set of public officials

can give the same "logical" rational basis of factors to grant separate retirement systems for

any group that can curry the favor of the legislators. "The inherit uncertainty in holding a

office, the hours the legislators work, on call to their constituents, the time taken away from

other gainful employment or business enterprise, and the need to attract capable qualified

persons to this position" will fit any public office, and there is no basis given as to why none

of the others particularly firefighters cannot get the same SLRP retirement benefits.

       On this limited record, I refuse to accept the apparent premise of both the Legislature

and the majority that a few privileged members of PERS are more equal than others.

Accordingly, I dissent.



                                              16
