DePond v. Gainer

351 S.E.2d 358, 177 W. Va. 173

• Court: West Virginia Supreme Court
• Decided: July 24, 1986
• Docket: 16902
• Status: Published

Opinions

McGRAW, Justice:

The petitioner, Gloria DePond, widow of the late Honorable Frank J. DePond, Chief Judge of the Circuit Court of Monongalia County, seeks a writ of mandamus to compel respondent Glen B. Gainer, Jr., Auditor of the State of West Virginia, to “authorize and direct” the payment of her spousal annuity under West Virginia Code § 51-9-6b (1981 Replacement Vol.). The West Virginia Judicial Association, as amicus curiae, emphasizes the importance of the doctrine of stare decisis and argues that the theory of defense raised by the respondent is unconstitutional.

The late Honorable Frank J. DePond served with distinction for more than eight years as Circuit Judge of Monongalia County from January 1,1977 until his tragic death on September 2, 1985 in an automobile accident in which the petitioner was severely injured. Previously, he had served on active duty in the United States Army from 1943 to 1946, as a Hearing Examiner with the Workmen’s Compensation Commission from 1961 through 1968, and as City Attorney for the City of Mor-gantown from 1969 through 1976. Thus, over his distinguished career, Judge De-Pond had accumulated a total of twenty-eight years¹ of combined military, other governmental, and judicial service credit as of the date of his death.

West Virginia Code § 51-9-6b (1981 Replacement Vol.) provides, in relevant part, that, “There shall be paid ... an annuity to the widow of a judge, who, at death, is eligible for the retirement benefits provided by sections six, six-a or eight [§§ 51-9-6, 51-9-6a or 51-9-8] of this article, or who, at death, has ... sixteen years” of service. And provides that, “The annuity granted hereunder shall accrue monthly and shall be due and payable in monthly installments on the first business day of the month following the month for which the annuity shall have accrued. Such annuity shall commence on the first day of the month in which said judge dies and shall terminate upon the death or remarriage of the annuitant.”

Under West Virginia Code § 51-9-6 (1981 Replacement Vol.), “[A]ny person who is now serving, or who shall hereafter serve, as a judge of any court of record of this State ... and shall have served as such judge for a period of not less than twenty-four years, regardless of age, shall ... be paid from the fund annual retirement benefits.” Under West Virginia Code § 51-9-6 (1981 Replacement Vol.), “[Military service, or its equivalent, rendered during a period of compulsory military service, ‘shall be considered as served’ ... for the purpose of determining eligibility for disability and retirement benefits.” In re Dostert, 174 W.Va. 258, 324 S.E.2d 402, 417 (1984) (Footnotes omitted); affirmed in Oakley v. Gainer, 175 W.Va. 115, 331 S.E.2d 846, 852 (1985). Under West Virginia Code § 51-9-6 (1981 Replacement Vol.), “[S]erviee to this State or any of its political subdivisions ‘shall qualify as years of service’.... ” In re Dostert, 174 W.Va. 274, 324 S.E.2d at 418 (Footnote omitted); affirmed in Oakley v. Gainer, 175 W.Va. at 121, 331 S.E.2d at 852. Furthermore, “[G]overnment service in this State includes full or part time service, whether by employment, election, or appointment, to the State of West Virginia or any of its political subdivisions.” In re Dostert, 174 W.Va. at 274 n. 33, 324 S.E.2d at 418 n. 33; affirmed in Oakley v. Gainer, 175 W.Va. at 121, 331 S.E.2d at 852.

Clearly, under the relevant criteria, Judge DePond had twenty-eight years of creditable service under West Virginia Code § 51-9-6 (1981 Replacement Vol.). His contributions corresponding to this creditable service were deposited by the respondent into the judges’ retirement fund. Thus, at the time of his death, Judge DePond had twenty-eight years of credited service in the judges’ retirement system. This exceeded the twenty-four year requirement for eligibility for retirement benefits by four years, thus entitling the petitioner to a spousal annuity under West Virginia Code § 51-9-6b (1981 Replacement Vol.) commencing on September 1, 1985.

Granted the self-evidence of the widow DePond’s entitlement to a spousal annuity, we are puzzled by the respondent’s refusal to perform his lawful duty to expedite processing for payment. See also Oakley v. Gainer, 175 W.Va. 120-124, 331 S.E.2d at 851-55. In the present action, the respondent musters another attempt to evade his statutory and administrative obligations with respect to the payment of an annuity to the surviving spouse of a judicial officer. He does not contradict the Judge’s death, the couple’s marriage, or the spouse’s eligibility to receive a widow’s annuity. Indeed, the respondent agrees that the petitioner is entitled to an annuity under the law, conceding that he “is not here involved in an argument over the legality or wisdom of ... In re Judge Pierre Dostert of the Circuit Court of Jefferson County, 174 W.Va. 258, 324 S.E.2d 402 (1984), nor the effect of the follow up case of Oakley v. Gainer, 175 W.Va. 115, 331 S.E.2d 846 (1985).” In this regard, the West Virginia Judicial Association, as amicus curiae on behalf of the petitioner, correctly notes the importance of stare decisis to judges who have become members of the judges’ retirement system in reliance upon this settled law.

The respondent’s most recent contrivance is that the execution of his duties with respect to the payment of a spousal annuity under the judges’ retirement system is contingent upon exercise of the chief executive’s “obviously discretionary” role under West Virginia Code § 51-9-9 (1981 Replacement Vol.) to certify entitlement to the receipt of judges’ retirement system benefits. After an unsuccessful assertion of no obligation to act in the face of a gubernatorial order to the contrary in Oakley v. Gainer, 175 W.Va. at 120, 331 S.E.2d at 851, the respondent now takes one step back and asserts no obligation to act in the absence of a gubernatorial order. In this respect, the respondent’s hesitancy to perform his legal obligations under the judges’ retirement system, particularly when widows’ annuities are involved, is perplexing.

West Virginia Code § 51-9-9 (1981 Replacement Vol.), which was enacted as an original provision of the judges’ retirement system statute, see 1949 W.Va. Acts ch. 34, provides that:

■ Before any person shall be entitled to retirement benefits under the provisions hereof, he shall submit proof of his eligibility for such benefits to the governor, and if such judge be then in office, he shall at the same time tender to the governor his resignation as judge upon condition that, if such resignation be accepted, he be paid retirement benefits as herein provided. Thereupon the governor shall make such investigation as he shall deem advisable and, if the governor shall determine that such person is entitled to retirement benefits under the provisions hereof, the governor shall accept the resignation and certify said facts and the amount of retirement benefits to be paid to said retired judges by a written order to be filed in the office of the secretary of state. The secretary of state shall thereupon file a certified copy of said order with the State auditor. The resignation so accepted shall create a vacancy in said office of judge which shall be filled by appointment or election as provided by law. t

The primary purpose of the statute is to certify entry in the public record entitlement to property rights created under the judges’ retirement system in a manner that will ensure the expeditious receipt of benefits and annuities by qualified judges and their surviving spouses. In Wagoner v. Gainer, 167 W.Va. 139, 279 S.E.2d 636, 643 (1981), this Court held that “the West Virginia Retirement System for Judges creates contractually vested property rights for retired and active participating plan members....” These property rights, however, are not due until certain requirements are met. For example, in order to-be eligible for the receipt of benefits under the judicial retirement system, a judge must have twenty-four years of credited service; sixteen years of credited service and be sixty-five years old; or eight years of judicial service after the age of sixty-five years. See West Virginia Code § 51-9-6 and -6a (1981 Replacement Vol.). Therefore, prior to payment of benefits in the judges’ retirement system and certification to the constitutional status of retired judge, a procedure is provided under West Virginia Code § 51-9-9 (1981 Replacement Vol.) by which entitlement to those property rights is established and documented as a matter of public record. The simplicity of the process designed by the legislature indicates an intention that receipt of benefits by qualified judges and their surviving spouses be secured as expeditiously as possible.

As noted by this Court long ago in Syllabus Point 2 of Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281 (1896):

A ministerial act or duty is one which is to be performed under a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to or exercise of the judgment of the one doing it upon the propriety of the act’s being done.

Clearly, the determination to be made by the governor under West Virginia Code § 51-9-9 (1981 Replacement Vol.), is whether the judge concerned “is entitled to retirement benefits under the provisions hereof.” Moreover, under West Virginia Code § 51-9-9 (1981 Replacement Vol.), “the governor shall accept the resignation and certify facts and the amount of retirement benefits to be paid” for any person who is entitled to benefits in the judges’ retirement system statute. From this mandatory language, the ministerial character of chief executive responsibility under West Virginia Code § 51-9-9 (1981 Replacement Vol.) becomes manifestly clear. See Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969) (“The word ‘shall’ in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.”); see also Allen v. Human Rights Commission, 174 W.Va. 139, 147 n. 10, 324 S.E.2d 99, 108 n. 10 (1984), and cases cited therein. Thus, fixation of entitlement to judges’ retirement benefits, acceptance of resignation from active status which is premised thereon, and the certification to the constitutionally official status of retired justice or judge is a ministerial duty reposed in the chief executive.

Unquestionably, to accept the respondent’s plea to construe West Virginia Code § 51-9-9 (1981 Replacement Vol.) to impart chief executive discretion in the acceptance of judicial resignations would, as the petitioner and West Virginia Judicial Association point out, raise serious separation of powers problems. For example, the spectre that a chief executive could hold hostage a judge who tenders a conditional resignation by refusal to transmit an order pursuant to West Virginia Code § 51-9-9 (1981 Replacement Vol.) to the secretary of state certifying eligibility to receive retirement benefits under the judges’ retirement system would clearly contradict fundamental separation of powers principles. To breathe discretion into the chief executive’s role in the judges’ retirement system would be to place each judge's compensation at the peril of the chief executive’s good will, a most fundamental evil which separation of powers is designed to prevent. As explained in Alexander Hamilton’s rationale for the compensation clause in the federal constitution, “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter.” The Federalist No. 79 (A. Hamilton). This rationale applies with equal force to the executive branch.² Moreover, granted the frequency of involvement of the chief executive³ and other executive officers and agencies, as well as issues in which the chief executive has an interest, in litigation before members of the judges’ retirement system, the potentially coercive power to deny acceptance of tendered resignations based upon asserted ineligibility to receive judges’ retirement system benefits would invade judicial independence and the fundamental constitutional theory of separation of powers, which this Court has consistently reiterated “must be strictly construed and closely followed.” Syl. pt. 1, State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981); see also In re Dostert, 174 W.Va. at 269 n. 21, 324 S.E.2d at 413 n. 21; State ex rel. Quelch v. Daugherty, 172 W.Va. 422, 306 S.E.2d 233, 235 (1983); State ex rel. Steele v. Kopp, 172 W.Va. 329, 305 S.E.2d 285, 293-94 (1983); O’Connor v. Margolin, 170 W.Va. 762, 296 S.E.2d 892, 7898 (1982); State ex rel. State Building Commission v. Bailey, 151 W.Va. 79, 83, 150 S.E.2d 449, 452 (1966); State ex rel. Richardson v. County Court, 138 W.Va. 885, 890-91, 78 S.E.2d 569, 573-74 (1953); State v. Huber, 129 W.Va. 198, 209-11, 40 S.E.2d 11, 18-19 (1946); Sims v. Fisher, 125 W.Va. 512, 524-25, 25 S.E.2d 216, 222 (1943). Therefore, the exercise of gubernatorial discretion, which the respondent pleads in defense of his refusal to accept and approve judicial retirement, would clearly violate separation of powers.

It is important to recognize that retirement benefits similar to those provided by the judges’ retirement system are available to members of the judiciary under the public employees’ retirement system.⁴ Yet, unlike the procedure for securing retirement benefits in the substituted judges’ retirement system, no participation by either the chief executive or the auditor is required for receipt of retirement benefits in the public employees’ retirement system. A judge, eligible to retire in the public employees’ retirement system, must simply announce his retirement and notify the public employees retirement system. Subjected to analysis, this fundamental discrepancy between the two retirement systems in which judges may participate would present fatal equal protection complications, except for the ministerial nature of the participation by the chief executive and the auditor.

Chief executive participation in the judges’ retirement process is a remnant of administrative structural deficiencies which existed in the judiciary in this State prior to passage of the Judicial Reorganization Amendment of 1974. As one commentator noted, “With the passage, on November 5, 1974, of the Judicial Reorganization Amendment to the West Virginia Constitution, a new era of judicial administration began for West Virginia. Central to this new judicial article was the unification of lower state courts under the general supervision of the Supreme Court of Appeals of West Virginia.” Note, Judicial Reform in West Virginia: The Magistrate Court System, 79 W.Va.L.Rev. 304, 304 (1977) (Footnotes omitted); see also Berry, A Proposed New Judicial Article for West Virginia, 76 W.Va.L.Rev. 481, 483 (1974) (“The proposed amendment would afford a unified court system for this State. This is the essential requirement for modernizing all court systems.”).

At the time of its enactment, three types of judges of courts of record were eligible for participation in the judges’ retirement system. First, West Virginia Constitution art. VIII, § 1 provided, “The supreme court of appeals shall consist of [five] judges_” With respect to their compensation, West Virginia Code § 6-7-2 (1949) provided, “The salary of each of the judges of the supreme court of appeals shall be twelve thousand five hundred dollars per annum.” Second, West Virginia Constitution art. VIII, § 10 provided, “The State shall be divided into [twenty-four] circuits. For the circuit hereinafter called the first, two judges shall be elected, and for each of the other circuits one judge shall be elected by the voters thereof.” With respect to their compensation, West Virginia Code § 6-7-4 (1949) provided that, in addition to annual salaries to be paid out of the state treasury in proportion to population served, “A county court ... may pay the judge of the circuit court additional compensa-tion_” Finally, West Virginia Constitution art. VIII, § 19 provided, “The Legisla-’ ture may establish courts of limited jurisdiction within any county, incorporated city, town or village....” With respect to their compensation, annual salaries to be paid out of county treasuries were established by legislative enactment and amendment. See, e.g., 1915 W.Va.Acts ch. 109, § 9 (creating court of common pleas of Kanawha County and establishing annual compensation at forty-five hundred dollars); 1921 W.Va.Acts ch. 166 (increasing annual salary of judge of criminal court of Raleigh County to forty-five hundred dollars).

Pursuant to West Virginia Constitution art. VIII, § 19, the legislature both created and abolished courts of limited jurisdiction over the years prior to the enactment of the judicial retirement system statute. As of 1949, criminal courts existed in Harrison, Marion, McDowell, Mercer, Raleigh, and Wyoming counties; domestic relations courts existed in Cabell and Kanawha counties; common pleas courts existed in Cabell and Kanawha counties; and, intermediate courts existed in Kanawha and Ohio counties. See 33 West Virginia Blue Book 250 (1949). Therefore, at the time of the creation of the judges’ retirement system in 1949, membership was available to five judges of the supreme court of appeals, twenty-five circuit judges, six criminal court judges, two domestic court judges, two common pleas court judges, and two intermediate court judges. See 33 West Virginia Blue Book 240-50 (1949).

Given the decentralized structure of the judiciary in 1949, independent investigation on the part of some officer was necessary to ascertain the adequacy of prior contributions to the judges’ retirement fund under West Virginia Code § 51-9-4 (1949); the length of military and judicial service rendered under West Virginia Code § 51-9-6 (1949); and, the level of compensation received during the last year of judicial service under West Virginia Code § 51-9-6 (1949). Necessarily, this would have entailed inquiry of the auditor, the treasurer, and each county court in the judicial circuit in which a circuit judge served or the county court in the county in which a judge of a court of limited jurisdiction served. Due to the absence of a responsible administrative officer within the judicial branch to certify the fundamentals necessary for judges’ retirement benefits, it was natural that the legislature chose the chief executive, especially in light of the chief executive’s judicial appointment responsibilities, chairmanship of the board of public works, and supervision of the auditor and treasurer, to act as conduit between the judicial and executive branches of government in the investigation and determination of eligibility for the receipt of benefits in the judges’ retirement system.

Unlike the other three state retirement systems, the administration of the judges’ retirement system was not consolidated in a judges’ retirement board. Many of the same officers, however, who have statutory duties in the judges’ retirement system also serve as members of the boards of the other state retirement systems. The membership of the Public Employees’ Retirement Board, charged with “[t]he administration and management of the retirement system, the responsibility for making effective the provisions of this article, and the authority to make all rules and regulations therefor,” includes the auditor and the treasurer. See West Virginia Code § 5-10-5 (1979 Replacement Vol.). The membership of the Department of Public Safety Retirement Board, granted the power to “make rules and regulations ... governing procedure and order and manner of business by and before such board [and] to make awards and to revise and terminate awards previously made ...,” includes the attorney general and treasurer. See West Virginia Code § 15-2-26 (1985 Replacement Yol.). The membership of the Teachers’ Retirement Board, directed to “make all necessary rules and regulations to carry out the provisions of this article,” includes the governor and the treasurer. See West Virginia Code § 18-7A-4 and -5 (1984 Replacement Yol.).

In the judges’ retirement system, the governor,⁵ the auditor,⁶ the secretary of state,⁷ the treasurer,⁸ the attorney general,⁹ the superintendent of schools,¹⁰ and, the commissioner of agriculture¹¹ are charged by statute with certain responsibilities. Unlike the other three state retirement systems, however, their powers are not coordinated and consolidated into a single authority with power to promulgate formal rules and regulations governing the administration of the judges’ retirement system. Granted this structural diffusion, as well as the skeletal nature of the statutory scheme, the systemic evolution of judges’ retirement has been interstitial.¹²

In order to obtain an accurate picture of the actual operation of the judges’ retirement system since its inception, the respondent was directed by the Court to supply all records relating thereto in his possession as custodian of the judges’ retirement fund.¹³ Examination of those records reveals certain patterns of behavior with respect to the actual administration of the judges’ retirement system.¹⁴ With the passage of time, these patterns became increasingly standardized procedures, including the development of form letters, form affidavits, and form orders. “[T]he traditional role of the executive to fill in the interstices left by flexible statutory standards,” noted by this Court in State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622, 636 (1981), has been reflected in the maturation of the judges’ retirement system. Analysis of the procedures utilized for obtaining benefits will reveal the interpretation given the judges’ retirement statute by those charged with its administration.

According to records supplied by the respondent, a total of forty-nine judges have been awarded benefits in the judges’ retirement system since its inception. Files were made available for all but the Honorable John Harold Brennan, Judge of the First Judicial Circuit,¹⁵ who died on January 1, 1968. For the remaining forty-eight judges, the files contain both retirement and nonretirement material. One common denominator, however, to each of the files, is a gubernatorial order, pursuant to West Virginia Code § 51-9-9 (1981 Replacement Vol.), certifying entitlement to retirement benefits and the amount of retirement benefits to be paid.

Through 1968, the first nine judges to retire applied directly to the governor by affidavit, although the records reflect, at least for two of these judges, the involvement of the auditor who ascertained the amount of salary supplement provided by the county courts in the judicial circuits of the judges involved. Commencing with the retirement of the Honorable Stanley Bos-worth, Judge of the Twentieth Judicial Circuit, whose order was signed on January 8, 1969, the auditor assumed an active role in the application process.

From 1969 through 1981, the auditor received proof of eligibility for judges’ retirement benefits; transmitted such proof of eligibility to the chief executive with a form cover letter outlining the particulars required by statute; and, forwarded a form order prepared for the chief executive’s signature. From the retirement of Judge Bosworth to the retirement of the Honorable James G. McClure, Judge of the First Judicial Circuit, whose order was signed on January 15, 1981, the auditor prepared the gubernatorial order for twenty-three of twenty-four judges who retired over that period. In an illustrative letter to the Honorable Gray Silver, Jr., Judge of the Twenty-Third Judicial Circuit, the state auditor explained, “I have gathered the data which will be required for the determination of your eligibility for participation in the system. I have prepared a draft of an order to be signed by the Governor....”

This relatively expeditious process did not reflect any exercise of discretion by either the chief executive or the auditor. The average time lapse between transmittal and signature was only 5.68 days. The longest period of time between transmittal and signature was twenty-seven days and a number of orders were signed on the day of transmission.¹⁶ The evolution of the auditor as the chief actor in the judges’ retirement system application process was a function of two factors — his statutory role as fiscal officer of the judges’ retirement fund and the lack of an administrative officer in the judicial branch to serve as agent for collection, compilation, and certification of eligibility documentation for members of the judges’ retirement system.

Over the years, different types of certification accompanied judicial applications for retirement benefits. The most common was a birth certificate, submitted to establish the requisite age of sixty-five for retirement under West Virginia Code §§ 51-9-6 and 6a (1981 Replacement Vol.) except for those judges who had at least twenty-four years of credited service. Documentation also included W-2 forms, to establish levels of compensation or length of governmental service; affidavits of circuit and county clerks, to establish levels of compensation, length of other governmental service, or length of judicial service; affidavits of the judges themselves, to establish various criteria of eligibility; and, various other forms of documentation, including certificates of election, marriage certificates, court administrator affidavits, physicians’ reports, certificates of military service, census reports, clerk of the supreme court of appeals affidavits, a voter’s registration certificate, an auditor’s affidavit, and, a court order. Survey of this documentation demonstrates that “proof of eligibility” in the judges’ retirement system statute has been consistently interpreted to refer to only two categories of eligibility criteria — age and length of credited service.¹⁷

A form letter¹⁸ was used by the auditor in connection with the transmission of a form order and accompanying documentation. Over the years, any variance from this basic form letter of transmission was slight. As “Fiscal Officer for Judges’ Retirement Fund,” the auditor acted as conduit between the judge applying for benefits and the chief executive. Although letters of resignation were invariably addressed to the chief executive, many times they were initially transmitted to the auditor. When a judge did transmit his letter of resignation and proof of eligibility directly to the chief executive, a form letter of receipt was often used which explained that the auditor would process the application for benefits.¹⁹ Deviation from this form letter of receipt and referral was slight. On a few occasions, for example, the letter included the statement, “In accordance with your request, I hereby accept your resignation as Judge of the _Judicial Circuit of the State of West Virginia, effective _ _, 19_” For the most part, however, this letter merely acknowledged receipt and informed the judge that the auditor would process the application and prepare an order. The proposed gubernatorial orders, prepared by the auditor, that certified judicial eligibility for the receipt of retirement benefits, also became quite formalized.²⁰

From 1961, when the first widow began receiving an annuity in the judges’ retirement system, until 1977, the procedure for obtaining a spousal annuity under the judges’ retirement system was even more formalized than that for obtaining judges’ benefits. According to the records, a total of twenty-six widows have been awarded an annuity in the judges’ retirement system. Although nineteen of these widows were awarded annuities pursuant to gubernatorial order, seven of the last eight widows to receive annuities, covering a period of from 1982 through 1985, have done so without a gubernatorial order. This belies the respondent’s assertion by brief that, “[N]o widow’s benefit has ever been paid out of the judicial system without the ... order from the Governor,” something the respondent characterizes as “the quintessential element of the Auditor’s involvement in the matter of judicial retirement.” It also indicates the respondent’s lack of awareness of the operations of his own office or the judges’ retirement system. In fact, the auditor’s role in assisting widows in the judges’ retirement system has been historically even more active than it has been with judges.

Unlike judicial application for retirement benefits, where the chief executive was occasionally the initial contact, the process for obtaining spousal annuities characteristically commenced with communication between the widow and the auditor. Such communication was generally initiated by the widow or her representative, either by letter or by telephone. Following this initial contact, the auditor would normally detail, in a letter sent to the widow or her representative, the procedure and necessary documentation for obtaining retirement benefits. For example, in a letter to several widows or their representatives, the auditor stated that, “It has been the practice of this office to procure the necessary information for the Governor in order that he may make the determination of eligibility for benefits.... ” Similarly, in a number of other letters to widows or their' representatives, the auditor noted that, “It has been the practice of this office to obtain the information necessary for the Governor in order that he may make the determination of eligibility for benefits_” Finally, in addition to other letters utilizing similar language, the auditor stated in a letter to the lawyer of Mrs. Kathryn A. Pryor that, “[T]his office will forward same to the office of the Governor with a cover letter requesting the Governor to determine ... the eligibility for benefits_”

The types of certification that accompanied the applications of widows for annuities in the judges’ retirement system were not as numerous as those that accompanied judicial applications for benefits. The most common form of documentation was a certificate of death, appearing in twenty-four of the twenty-six files. A certificate of marriage was the next most frequently attached form of documentation, appearing in twenty-two of the twenty-six files. Additionally, a form widow’s affidavit appeared in eighteen of the twenty-six files. Finally, the widows’ files also contained six certificates from county clerks and three certificates from life insurance companies. Survey of this documentation demonstrates that “proof of eligibility” for widows in the judges’ retirement system has consistently been interpreted to refer to only three categories of eligibility criteria — death, marriage, and cohabitation.²¹ As enumerated in several of the letters sent from the auditor to widows or their representatives:

[W]e respectfully request the following information:

(1) Copy of the Marriage Certificate.

(2) Copy of the Death Certificate.

(3) Affidavit by petitioner setting forth the date of marriage, date of the death of husband, that said husband and wife were living together as man and wife until the date of death, and that widow has not remarried.²²

As with the retirement of judges, form letters of transmittal and form orders were used by the auditor in the processing of requests for annuities by widows in the judges’ retirement system. In the file of. Mrs. Mabel Price Snyder, handwritten notations appearing upon a copy of a letter previously sent on behalf of Mrs. Ruby Mae Winters reflect the utilization of a form letter of transmittal.²³ Similarly, as with judicial applicants for retirement benefits, a form order was utilized for gubernatorial approval of spousal annuities.²⁴

As with the more formalized procedure that prevailed for judicial applications from 1969 through 1980, this process, again reflecting absolutely no exercise of discretion by either the chief executive or the auditor, was completed with relative alacrity. The average time lapse between transmittal of the auditor’s draft order and gubernatorial signature of that order was a mere 7.60 days, with the longest lapse at 20 days and the shortest lapse on the same day as transmittal. Further, the average lapse of time between the death of the judge and gubernatorial signature of the proposed order was 26.41 days, with the longest lapse at 53 days and the shortest lapse at 4 days.

Commencing with the retirement of the Honorable W.H. Belcher, Judge of the Thirteenth Judicial Circuit, whose order was signed by the chief executive on July 23, 1981, and with the award of an annuity to Mrs. Doris Jarrett, widow of the Honorable Howard M. Jarrett, Judge of the Ninth Judicial Circuit, who died on October 20, 1981, the auditor’s participation in processing benefits in the judges’ retirement system declined. For example, while records reflect that all judges who received benefits after Judge Belcher did so pursuant to a gubernatorial order, it appears that none of these draft orders were, as in the past, presented by the auditor. In fact, one of the orders, for the Honorable Arthur R. Kingdon, Judge of the Twenty-Seventh Judicial Circuit, was presented by the administrative director of the supreme court of appeals. Moreover, one of the reasons that seven of the last eight widows to receive an annuity did not receive a gubernatorial order was undoubtedly that the auditor failed to present proposed orders to the chief executive.

Although the auditor continued in some instances to receive documentation in support of applications for judicial retirement benefits, several of the files of judges who retired after 1981 contain no correspondence between the judge and the auditor regarding such applications. For example, the Honorable Kenneth K. Hall, Judge of the Twenty-Fifth Judicial Circuit, applied directly to the chief executive by letter dated January 4, 1988, and was awarded benefits by gubernatorial order on February 24, 1983; the Honorable Donald F. Black, Judge of the Fourth Judicial Circuit, applied directly to the chief executive by letter dated November 19, 1984, and was awarded benefits by gubernatorial order on January 1, 1985; the Honorable H. Harvey Oakley, Judge of the Seventh Judicial Circuit, applied directly to the chief executive by letter dated August 1, 1985, subsequently supported by the administrative director of the supreme court of appeals’ certification of proof of his eligibility, and was awarded benefits by gubernatorial order on October 9, 1985; and, the Honorable C.W. Ferguson III, Judge of the Twenty-Fourth Judicial Circuit, applied directly to the chief executive by letter dated September 17, 1985, subsequently supported by the administrative director of the supreme court of appeals’ certification of proof of his eligibility, and was awarded benefits by gubernatorial order on October 9, 1985.

For widows, documentation was still consistently transmitted directly to the auditor, but no effort was apparently made by the auditor to secure a gubernatorial order prior to payment of the benefits sought. Presumably, the auditor commenced payment immediately upon receipt of proof of death and marriage. It is important to note that in at least one case, Mrs. Elizabeth Meredith, widow of the Honorable J. Harper Meredith, Judge of the Sixteenth Judicial Circuit, there existed no prior gubernatorial order awarding retirement benefits to the deceased judge. Therefore, it does not appear that the auditor was relying upon a previous gubernatorial order for the husband to support his failure to secure a gubernatorial order for the widow prior to paymént.

Eventually, the auditor not only became more apathetic with respect to processing judges’ retirement system benefits, he became increasingly antagonistic. For example, in response to a request from the chief executive’s office on January 31, 1984 to work “together to determine what rights [the Honorable Vance E. Sencindiver, Judge of the Thirty-First Judicial Circuit] has under ... the Judicial Retirement Fund ... and what additional steps he may have to take in order to receive benefits from the Judicial Retirement Fund ...,” the respondent’s office tersely replied, “At such time as Judge Vance Sencindiver files with the Governor’s office his intent to retire ... this office will begin the process to include Judge Sencindiver in the judicial retirement benefits program.” Never before, in the history of the judges’ retirement system, had the auditor demanded evidence of gubernatorial receipt of resignation before processing an application for judges’ retirement benefits. In fact, the auditor had previously facilitated judicial retirement far in advance of impending formal resignation.

Furthermore, in the case of widows, the respondent also began supplanting himself in what he now claims to be the chief executive’s role. As previously mentioned, beginning in 1982, the respondent failed to secure gubernatorial orders prior to the payment of spousal annuities. In a letter to Mrs. Doris Jarrett, the first widow to receive benefits in the absence of a gubernatorial order, the respondent explained that, “In order to ... justify the fact that Mrs. Doris Jarrett is receiving income from the Judges Retirement Fund, we are suggesting that the following documents be furnished to this office: A certified copy of the death certificate of Judge Howard M. Jarrett. A certified copy of the marriage license certificate of Howard M. Jarrett and Doris F. Jarrett.” (Emphasis added).

Ultimately, the respondent’s antagonistic reluctance to process requests for judges’ retirement system benefits as his office had done in the past matured into recalcitrance and refusal. In a letter to the Honorable Arthur R. Kingdon, whose order, was signed by the chief executive on January 10, 1985, the respondent stated on February 1, 1985, that, “I ... decline to process your application for retirement benefits .... ” This .refusal culminated with our decision in Oakley v. Gainer, 175 W.Va. at 122, 331 S.E.2d at 853, where this Court held that:

In the present case, the Administrative Director certified Judge Kingdon’s military, governmental, and judicial service to the proper administrators; calculated, the level of contribution necessary to obtain the credit desired and to transfer such credit into the judicial retirement system; and forwarded this information, together with the necessary contribution, to respondent Gainer. Further, after appropriate consideration and investigation, the Governor certified Judge Kingdon’s eligibility for retirement benefits under the judicial retirement system to the Secretary of State. At that point, it became respondent Gainer’s duty, under West Virginia Code § 51-9-11 (1981 Replacement Vol.), to issue the appropriate warrants on the judicial retirement fund for payment of Judge Kingdon’s retirement benefits.

Following our decision in Oakley v. Gainer, however, the respondent continued to evidence a fundamental misunderstanding of his role with respect to the judges’ retirement system. In a letter to Mrs. Elsa Kingdon, widow of Judge Kingdon and a successor petitioner in Oakley v. Gainer, the respondent stated, on June 10, 1985, that, “[Although I do not believe that this matter has been finally adjudicated I do believe that it would be unfair of me to continue not allowing Judge Kingdon to retire so that you may begin receiving benefits.” (Emphasis added) (Judge King-don died several months prior to this letter). Again, with respect to widows, the respondent was asserting that he acted as final arbiter of judicial retirement and not the chief executive. This clearly departs from prior administrative practice and the plain language of West Virginia Code § 51-9-9 (1981 Replacement Vol.). Finally, after the respondent continued in his steadfast refusal to perform his statutory duties with respect to the deposit of contributions received from judges for creditable service in the judges’ retirement system, this Court was required under law to the respondent, in an action brought by three widows currently receiving benefits in the judges’ retirement system, to place into the spousal annuity fund all present and future contributions made under West Virginia Code § 51-9-4 (1981 Replacement Vol.) and this Court’s opinion in In re Dostert. See Pryor v. Gainer, No. 16745, slip op. at 1 (W.Va. July 2, 1985) (per curiam).

As previously noted, the assumption of the role by the auditor as chief actor in the judges’ retirement system application process was a function of his statutory role as fiscal officer of the judges’ retirement fund and the lack of an administrative officer in the judicial system to serve as agent for collection, compilation, and certification of eligibility for members of the judges’ retirement system. As the auditor assumed a more apathetic and, finally, antagonistic posture, and as the office of the administrative director of the supreme court of appeals grew in expertise, efficiency, and logistical support, many of the responsibilities with respect to “service” eligibility, as opposed to “financial” eligibility, which were previously performed by the auditor, were not being exercised by the court administrator.

Systemically, there was nothing in the judges’ retirement statute that formed the basis for assumption of responsibilities with regard to “service” eligibility by the auditor. Certainly, reference to the auditor by the chief executive was necessary to determine “financial” eligibility, i.e., whether all contributions required by law had been made. The auditor was also better equipped to assist in the determination of a judge’s level of current compensation, which varied widely from circuit to circuit and from court to court prior to the Judicial Reorganization Amendment of 1974, necessary for calculation of the amount of retirement benefits to be paid. On the other hand, gubernatorial reference was also made to the auditor, in the absence of another officer equipped to perform such function, in order to determine “service” eligibility, i.e., whether the age and/or years of creditable service were sufficient for entitlement to judicial retirement system benefits.

Not only did the creation and maturation of the office of the administrative director of the supreme court of appeals diminish the necessity for performance of these duties by the auditor, simplification of the judicial system itself, of which creation of the office of the administrative director was a part, including consolidation of courts of general and limited jurisdiction into a unified system of circuit courts with a standardized compensation scheme, vitiated executive department assumption of determination of “service” eligibility. Furthermore, as evidenced by the failure of the respondent to present gubernatorial orders prior to payment of widows’ annuities since 1982, performance of both “financial” and “service” functions by one officer tended to create a conflict which resulted in .unnecessary delay. Therefore, the chief executive increasingly relied upon the court administrator in investigation of retirement eligibility.

Perhaps unavoidably, the absence of consolidation of authority and responsibility into a single judges’ retirement system board created uncertainty and inefficiency. Until 1981, however, the practical effect of this structural defect was minimized by the pragmatic application of standardized procedures for securing judges’ retirement system benefits. In particular, the utilization of form affidavits, form letters, and form orders, prepared by the auditor, integral parts of a rather comprehensive standard operating procedure, increased certainty and efficiency to a degree that approximated the promulgation of formal rules and regulations.

This Court has consistently held that, “Interpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous.” Syl. pt. 4, Security National Bank & Trust Co. v. First W. Va. Bancorp., Inc., 166 W.Va. 775, 277 S.E.2d 613 (1981); see also Syl. pt. 5, Hodge v. Ginsberg, 172 W.Va. 17, 303 S.E.2d 245 (1983); Syl. pt. 1, Dillon v. Board of Education, 171 W.Va. 631, 301 S.E.2d 588 (1983); Thomas v. Board of Education, 164 W.Va. 84, 91-92, 261 S.E.2d 66, 71 (1979); Syl. pt. 8, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975); Syl. pt. 7, Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453 (1975); State ex rel. Davis v. Hix, 141 W.Va. 385, 389, 90 S.E.2d 357, 359-60 (1955); State ex rel. Thompson v. Morton, 140 W.Va. 207, 222, 84 S.E.2d 791, 800 (1954); In re Newberry’s Estate, 138 W.Va. 296, 302, 75 S.E.2d 851, 854 (1953); State ex rel. Daily Gazette Co. v. County Court, 137 W.Va. 127, 132, 70 S.E.2d 260, 262 (1952); Wilson v. Hix, 136 W.Va. 59, 68, 65 S.E.2d 717, 723-24 (1951); Syl. pt. 4, Ballard v. Vest, 136 W.Va. 80, 65 S.E.2d 649 (1951); Wheeling Fire Ins. Co. v. Board of Equalization and Review, 111 W.Va. 161, 169, 161 S.E. 427, 430 (1931); Syl. pt. 2, State ex rel. Brandon v. Board of Control, 84 W.Va. 417, 100 S.E. 215 (1919); Syl. pt. 4, Thomas v. State Board of Health, 72 W.Va. 776, 79 S.E. 725 (1913); Syl. pt. 4, State v. Davis,. 62 W.Va. 500, 60 S.E. 584 (1907); Syl. pt. 6, Daniel v. Simms, 49 W.Va. 554, 39 S.E. 690 (1901). Relatedly, this Court has held that, “An administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs.” Syl. pt. 1, Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977); see also Syl. Pt. 1, Hooper v. Jensen, 174 W.Va. 643, 328 S.E.2d 519 (1985); Syl., Swallop v. Civil Service Commission, 172 W.Va. 121, 304 S.E.2d 25 (1983); C & P Telephone Co. v. Public Service Commission, 171 W.Va. 708, 301 S.E.2d 798, 804 (1983); Syl. pt. 2, Clarke v. West Virginia Board of Regents, 171 W.Va. 662, 301 S.E.2d 618 (1983); Syl. pt. 1, State ex rel. Wilson v. Truby, 167 W.Va. 179, 281 S.E.2d 231 (1981); Syl. pt. 1, Trimboli v. Board of Education, 163 W.Va. 1, 254 S.E.2d 561 (1979); McGrady v. Callaghan, 161 W.Va. 180, 187-88, 244 S.E.2d 793, 797 (1978).

The individual roles assumed by the various officers who independently participate in the administration of the judges’ retirement system have been self-delineated. Although this interstitial evolution has taken place with reference to the judges’ retirement system statute, much of the development of recent vintage is attributable to structural changes in the judicial department, particularly the creation of the office of the' administrative director of the supreme court of appeals. Moreover, the recession into a more apathetic role by the respondent created a void that the court administrator was lawfully equipped to fill. Although complete structural consolidation of authority and responsibility under the judges’ retirement system into a single board is not extant, an integrated process can be articulated from the standard operating procedures that will approximate the advantages of structural consolidation by coordinating the functions of the various officers who participate in the administration of the judges’ retirement system in order to promote and preserve stability, predictability, and efficiency.

“[T]he Administrative Director of the Supreme Court of Appeals,” as we noted in In re Dostert, 174 W.Va. at 278, 324 S.E.2d at 422, “is the constitutional judicial officer charged by this Court with the maintenance, administration, and certification of judicial salary and retirement records.” Granted this responsibility, we held in In re Dostert, 174 W.Va. at 278, 324 S.E.2d at 422, that, “It is his duty to certify all service credit for judgés of courts of record to proper administrators, specifically including those responsible for the administration of the respective retirement systems in which judges may participate.” In order to effectuate this duty, we held in In re Dostert, 174 W.Va. at 278, 324 S.E.2d at 422, that, “It is his duty to assist judges of courts of record in calculating the level of contribution necessary to obtain the credit desired from the respective retirement systems.” Certificates of proof of creditable service presented by the court administrator have been relied upon by the governor in certification of the retirement of the Honorable Arthur R. Kingdon, the Honorable Vance E. Sencindiver, the Honorable C.W. Ferguson III, and the Honorable H. Harvey Oakley. Calculations of level of contribution necessary to transform such creditable service into credited service prepared by the court administrator were validated in Oakley v. Gainer, 175 W.Va. at 120-24, 331 S.E.2d at 851-55.

Although both stability and efficiency are promoted and preserved by this procedure, it fails to satisfy fundamental concerns of predictability. For example, despite certification of sufficient creditable service prepared by the court administrator, and subsequent execution of a gubernatorial order, the respondent refused to execute the warrants necessary for payment of benefits to the Honorable Arthur R. Kingdon and then to his widow Mrs. Elsa Kingdon. See Oakley v. Gainer, 175 W.Va. at 120-24, 331 S.E.2d at 851-55. Furthermore, granted the requirement, under West Virginia Code § 3-5-7 (Supp. 1985), that certificates of candidacy “shall be filed ... not later than the first Saturday of February next preceding the primary election day ...,” judges who are weighing possible retirement against possible candidacy for reelection need absolute certainty with respect to their eligibility for judicial retirement system benefits. Otherwise, a judge could forego an effort at reelection in reliance upon representations of sufficient creditable service by the court administrator only to have his or her subsequent attempt to secure retirement benefits rebuffed by the chief executive or the auditor. Therefore, we hold that the administrative director of the supreme court of appeals has a duty to progressively certify creditable service for all members of the judges’ retirement system to the auditor on at least an annual basis.²⁵

West Virginia Code § 51-9-3 (1981 Replacement Vol.) provides, in relevant part, that, “The state auditor shall be the fiscal officer responsible for the records and administration of the [judges’ retirement] fund¹....” With respect to deductions for required contributions to the judges’ retirement fund, West Virginia Code § 51-9-4 (1981 Replacement Vol.) provides that, “In drawing warrants for the salary checks of said judges, the state auditor shall deduct from the amount of each salary check six percent thereof....” With respect to the actual payment of benefits, West Virginia Code § 51-9-11 (1981 Replacement Vol.) provides that, “The retirement benefits and retirement pay, as herein provided, shall be paid in equal monthly installments upon the warrant of the state auditor drawn on the judges’ retirement fund.” Obviously, all of the auditor’s duties under the judges’ retirement statute are directly a function of his role as “fiscal officer” of the judges’ retirement fund. It is apparent that the auditor has, by his own actions in this role, defined the procedure which has been followed over the years.

The respondent aptly describes himself as “bookkeeper” of the judges’ retirement fund. His certification is necessary to establish that contributions are commensurate with the amount of creditable service certified by the administrative director of the supreme court of appeals. It is this certification by the auditor that transforms “creditable service” into “credited service.” In order to avoid unnecessary uncertainty inherent in the postponement of the auditor’s certification of contributions corresponding to the amount of creditable service claimed, we hold that the auditor, upon annual receipt of certification of creditable service for members of the judges’ retirement system from the administrative director of the supreme court of appeals, has a duty to acknowledge that contributions corresponding to the amount of creditable service certified have been made and to forward, to each member of the judges’ retirement system, a letter certifying credited service.

Eventually, under West Virginia Code § 51-9-4 (1981 Replacement Vol.), which provides that “when a judge becomes eligible to receive benefits ..." the auditor has a duty to forward to the judge the original and one certified copy of a letter of certification of eligibility for benefits in the judges’ retirement system. The original letter of certification of eligibility for benefits in the judges’ retirement system may be retained for the personal records of each judge and the certified copy should accompany the judge’s letter of conditional resignation and request for benefits in the judges’ retirement system to the chief executive. Additionally, the auditor must forward a certified copy of the letter of certification of eligibility for benefits in the judges’ retirement system to the administrative director of the supreme court of appeals and must retain two certified copies, one for the judge’s permanent file and one to be attached to the proposed gubernatorial order to be transmitted upon the judge’s retirement. Files reveal that a significant number of retired judges received a form letter from the auditor which informed them of their immediate eligibility for benefits.²⁶ We suggest that designation of this letter as a certification of eligibility for benefits in the judges’ retirement system would be commensurate with its actual function.²⁷

Once a member of the judges’ retirement system has received a “certification of eligibility for benefits in the judges’ retirement system,” the process for securing benefits becomes quite simple. Following receipt of a “certification of eligibility for benefits in the judges’ retirement system” from the auditor, a member of the judges’ retirement system may notify the governor, by letter and certified copy of the “certification of eligibility for benefits in the judges’ retirement system,” of an intention to retire, and, concomitantly with a copy of the letter to the governor, request the auditor to prepare and forward to the governor forthwith a proposed gubernatorial order and a certified copy of the “certification of eligibility for benefits in the judges’ retirement system.”²⁸

Historically, the records reveal no exercise of gubernatorial discretion with respect to the acceptance of judicial resignation and the award of judicial retirement. As previously discussed, ' this understanding is consistent both with the language of the statute and with separation of powers considerations.

The ministerial duty of the chief executive to certify to the constitutional office of “retired justice or judge” under West Virginia Constitution art. VIII, § 8 upon eligibility for retirement is analogous to the ministerial duty of the chief executive to certify the constitutional office of active justice or judge under West Virginia Constitution art. VIII §§ 2 and 5 upon election. No one would seriously assert gubernatorial discretion with respect to the certification of eligibility of a qualified judge elected to assume judicial office. Likewise, no one should, in good faith, assert gubernatorial discretion with respect to the certification of eligibility of a judge properly qualified for the constitutional office of “retired justice or judge,”²⁹ with entitlement to corresponding benefits in the judges’ retirement system.

As noted earlier, the average time lapse between transmittal of the auditor’s proposed order and gubernatorial signature has been 5.68 days. The longest time lapse between transmittal and signature has been 27 days. Noting our observation in State ex rel. Brotherton v. Moore, 159 W.Va. 934, 941, 230 S.E.2d 638, 642 (1976), that gubernatorial performance of ministerial duties may be enforced by way of mandamus “after passage of an unreasonable period of time,” a total time period of one month between submission of the letter of conditional resignation and proof of eligibility and execution of the gubernatorial order prepared by the auditor would seem reasonable. By their own actions and established operating procedures, the chief executives have themselves defined a reasonable time as less than one month.³⁰ We accept the chief executives’ definition.

Granted the role of the administrative director of the supreme court of appeals with respect to the maintenance, administration, and certification of judges’ retirement records, promotion and preservation of stability, predictability, and efficiency mandate that the administrative director serve as recipient and repository of proof of eligibility for spousal annuities. Following submission by a spouse to the administrative director of the supreme court of appeals of evidence of death, evidence of marriage, and a gubernatorial order for those judges who were already receiving benefits in the judges’ retirement system or a “certificate of eligibility for benefits in the judges’ retirement system” for those judges who were eligible to receive benefits in the judges’ retirement system, the administrative director has a duty to forward a letter of certification of eligibility for spousal annuity in the judges’ retirement system to the auditor, who, upon receipt, has a duty to present a proposed gubernatorial order forthwith.³¹ Again, there has historically been no exercise of gubernatorial discretion with re-spect to the approval of spousal benefits under the judges’ retirement system. This is consistent with the language of the statute and with the law of ministerial duty.

As noted earlier, the average time lapse between transmittal of the auditor’s prepared spousal order and gubernatorial signature has been 7.60 days. The longest time lapse between transmittal and signature has been 20 days. This is consistent with West Virginia Code § 51-9-6b (1981 Replacement Vol.), which provides that, with respect to spousal benefits, “The annuity granted hereunder shall accrue monthly and shall be due and payable in monthly installments on the first business day of the month following the month for which the annuity shall have accrued. Such annuity shall commence on the first day of the month in which said judge dies.... ” As noted earlier, the average time lapse between the death of a judge and gubernatorial signature of the spousal order has been 26.41 days. Ideally, the gubernatorial order should be executed pri- or to the annuity becoming due and payable on the first business day of the month following the month of the judge’s death. Obviously, however, if a judge dies on the last day of the month, preparation and execution of the gubernatorial order would be difficult, if not impossible, by the first business day of the next month. Therefore, as with the execution of gubernatorial orders for judges’ retirement benefits, a total time period of one month between submission of the letter of request and supporting documentation and execution of the gubernatorial order prepared by the auditor would be reasonable. Perhaps more than for judges, time is often of the essence for the spouse of deceased judges. For example, in a letter to the auditor from a lawyer representing a widow whose husband had died following a long illness, he states, “I would personally appreciate it if you would expedite this application so that [she] will start receiving her checks. [The] Judge[’s] illness was very expensive and this is a very trying time for [her] from a financial standpoint.” The legislature obviously' recognized this need for alacrity in its mandate that payments commence on the first business day of the month following death.

As previously noted, the petitioner’s eligibility to receive an annuity under the judges’ retirement system is contingent upon her late husband’s eligibility to receive benefits at the time of his death. See West Virginia Code § 51-9-6b (1981 Replacement Vol.). A member of the judges’ retirement system with twenty-four years of credited service is immediately eligible for retirement benefits. See West Virginia Code § 51-9-6 (1981 Replacement Vol.). Creditable service in the judges’ retirement system includes military, other governmental, and judicial service. See West Virginia Code § 51-9-6 (1981 Replacement Vol.). Military service, or its equivalent, rendered during a period of compulsory military service, “shall be considered as served” under West Virginia Code § 51-9-6 (1981 Replacement Vol.) for the purpose of determining eligibility for disability and retirement benefits in the judges’ retirement system. See Oakley v. Gainer, 175 W.Va. at 121, 331 S.E.2d at 852; In re Dostert, 174 W.Va. at 273, 324 S.E.2d at 417. Service to this State or any of its political subdivisions “shall qualify as years of service” under West Virginia Code § 51-9-6 (1981 Replacement Vol.) for the purpose of determining eligibility for disability and retirement benefits in the judges’ retirement system. See Oakley v. Gainer, 175 W.Va. at 121, 331 S.E.2d at 852; In re Dostert, 174 W.Va. at 274, 324 S.E.2d at 418. Finally, governmental service in this State in the judges’ retirement system includes full or part-time service, whether by employment, election, or appointment, to the State of West Virginia or any of its political subdivisions. See Oakley v. Gainer, 175 W.Va. at 121, 331 S.E.2d at 852; In re Dostert, 174 W.Va. at 274 n. 33, 324 S.E.2d at 418 n. 33. Clearly, under these criteria, Judge-DePond accumulated twenty-eight years of creditable service under West Virginia Code § 51-9-6 (1981 Replacement Vol.) for which he made corresponding contribution. Consequently, his twenty-eight years of credited service exceeded the twenty-four year requirement for immediate eligibility for retirement benefits at the time of his death by four years. Thus, the petitioner was entitled to a spousal annuity under West Virginia Code § 51-9-6b (1981 Replacement Vol.) of the judges’ retirement system statute commencing on September 1, 1985.

As noted by this Court in Syllabus Point 1 of Wagoner v. Gainer, supra, “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.” See also Olson v. Cory, 27 Cal.3d 532, 538-42, 636 P.2d 532, 536-38, 178 Cal.Rptr. 568, 572-74 (1980); Campbell v. Michigan Judges Retirement Board, 378 Mich. 169, 180-81, 143 N.W.2d 755, 757 (1966); Sylvester v. State, 298 Minn. 142, 154-55, 214 N.W.2d 658, 666 (1973); McKenna v. State Employees’Retirement Board, 495 Pa. 324, 331-35, 433 A.2d 871, 875-76 (1981); Miles v. Tennessee Consolidated Retirement System, 548 S.W.2d 299, 304 (Tenn.1976). The terms of the retirement contract between members of the judiciary who participate in the judges’ retirement system and the State of West Virginia are embodied in the provisions of the judges’ retirement system statute. When an officer of the State fails to perform ministerial duties in contravention of the statute, a breach of that retirement contract occurs, and a mandamus action may be brought to secure, in effect, specific performance. See, e.g., Krucker v. Goddard, 99 Ariz. 227, 232, 408 P.2d 20, 23 (1965) (judge awarded writ of mandamus compelling governor to transfer to treasurer an application for withdrawal of percentage of contributions to judicial retirement system); Gorman v. Cranston, 64 Cal.2d 441, 446-47, 413 P.2d 133, 137-38, 50 Cal.Rptr. 533, 537-38 (1966) (widow of judge awarded writ of mandate compelling state controller to approve her application for benefits under judicial retirement system).

The respondent’s effort to shift the focus of this litigation is, in effect, an assertion that an adequate alternative remedy exists which precludes the availability of mandamus. As this Court, however, has frequently held, “Mandamus will not be denied on the ground that there is another remedy unless such other remedy is equally convenient, beneficial, and effective.” Syl. pt. 5, Hardin v. Foglesong, 117 W.Va. 544, 186 S.E. 308 (1936); see also West Virginia Citizens Action Group v. Daley, 174 W.Va. 299, 324 S.E.2d 713, 716 (1984); Allen v. Human Rights Commission, 174 W.Va. 139, 324 S.E.2d 99, 106 n. 5 (1984), and numerous cases cited therein. Unquestionably, mandamus will lie to compel gubernatorial performance of a ministerial duty. See, e.g., State ex rel. Brotherton v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976); State ex rel. Kelly v. Moore, 156 W.Va. 780, 197 S.E.2d 106 (1973). Obviously, this would include gubernatorial performance of ministerial duties under the judges’ retirement statute. See, e.g., Krucker v. Goddard, supra. In the instant proceeding, however, the petitioner does not seek gubernatorial certification of her eligibility to receive an annuity under the judges’ retirement system, but rather seeks issuance of warrants necessary for the payment of those benefits from the auditor.³² Having previously noted the contractual nature of judicial retirement, we further observe this Court’s recognition in State ex rel. C & D Equipment Co. v. Gainer, 154 W.Va. 83, 90, 174 S.E.2d 729, 733 (1970), of the auditor’s amenability to compulsion, by way of mandamus, to issue warrants for the payment of completed contracts. Certainly, after submission of proof of eligibility, an individual, whether as judge or spouse, seeking benefits in the judges’ retirement system, has completed the obligations under the contract, and is entitled to specific performance of the remainder of the State’s obligations, the payment of benefits.

In Gorman v. Cranston, 64 Cal.2d at 443, 413 P.2d at 135, 50 Cal.Rptr. at 535, the Governor of the State of California had withheld the requisite approval of judges’ retirement benefits to the widow of a judge who had executed conditional consent to his retirement in anticipation of serious surgery and who eventually died shortly thereafter. Mandamus was sought, however, not against the governor, whose approval was statutorily mandated prior to the payment of judges’ retirement benefits, but rather against the state controller, who refused to act upon her application for benefits because of the absence of gubernatorial approval. 64 Cal.2d at 442, 413 P.2d at 134, 60 Cal.Rptr. at 534. In its award of relief, the California Supreme Court did not order the governor to certify the widow’s eligibility to receive judges’ retirement benefits, but ordered the state controller to pay her benefits. 64 Cal.2d at 447, 413 P.2d at 137-38, 50 Cal.Rptr. at 537-38.

Therefore, upon gubernatorial failure to certify eligibility for the receipt of judges’ retirement system benefits, mandamus will lie against the auditor to ascertain eligibility and to order the issuance of warrants necessary for the payment of those benefits. Furthermore, noting the observation in State ex rel. Brotherton v. Moore, 159 W.Va. at 941, 230 S.E.2d at 642, that gubernatorial performance of ministerial duties may be enforced by way of mandamus “after the passage of an unreasonable period of time,” we hold that where, following submission of a request for benefits and proof of eligibility, the governor fails to certify eligibility for the receipt of judges’ retirement system benefits within one month, the auditor has a mandatory ministerial duty to order the issuance of warrants necessary for the payment of those benefits.

It is of no consequence to those seeking benefits under the judges’ retirement system whether a gubernatorial order has issued. Issuance of a gubernatorial order is for the benefit of the executive branch as a matter of proper recordkeeping and commencement of the process of replacement for judges who are retiring in term. The absence of a gubernatorial order cannot be relied upon to deny judges’ retirement system benefits to eligible recipients. To hold otherwise would be to place form over substance and to frustrate the legislative purpose in creating a judges’ retirement system in the first place.

If the auditor deems a gubernatorial order essential to the records of the judges’ retirement fund, he may bring a mandamus proceeding against the chief executive for that purpose. Certainly, proper record-keeping is a legitimate concern of the auditor as fiscal officer of the judges’ retirement fund. By calling upon the attorney general for provision of legal representation in furtherance of such action, the in-currence of legal fees by the auditor may be avoided. Moreover, prosecution of such action by the auditor, instead of by the individual beneficiary in the judges’ retirement system, will avoid the award of attorney fees, payable from the state treasury, to a private party.³³ It is hardly a persuasive defense by a state officer charged with performing ministerial duties that failure to perform is excused by another state officer’s failure to perform other related ministerial duties.

Until the respondent had forwarded proper certification of eligibility to the petitioner, the application process was at an impasse. Unquestionably, the auditor, as “fiscal officer” of the judges’ retirement fund, acts as trustee, and owes a fiduciary duty to assist potential beneficiaries of the judges’ retirement system in their efforts to secure benefits to which they are entitled by law. Historically, the auditor, as trustee, performed this duty admirably, particularly in the preparation of the gubernatorial order for signature. Recently, however, the respondent trustee’s allegiance has been to something other than his duty to attend to the rights of potential beneficiaries, under law, to the payment of their benefits in the judges’ retirement system. Thus, a return to standard operating procedures to promote and preserve the fundamental considerations of stability, predictability, and efficiency is in order.

While we do not favor form over substance, we believe that proper documentation should be presented to the chief executive in order that he may properly discharge his lawful ministerial duties under West Virginia Constitution art. VII, § 5. Therefore, in moulding relief, we observe the technical requirements of the statute.

The administrative director of the supreme court of appeals fulfilled his duty by certification of creditable service for Judge DePond to the respondent. The record indicates that Judge DePond made the required contribution which was deposited to his account. It was the respondent trustee’s duty to then forward to Judge De-Pond, and later to his widow, certification of eligibility for benefits in the judges’ retirement system. Thereafter, the petitioner would have been able to secure her spousal annuity by the submission of the respondent’s certification of eligibility to the administrative director of the supreme court of appeals, and accompanied by evidence of death and evidence of marriage, for certification of eligibility for spousal annuity in the judges’ retirement system to be forwarded to the respondent, who, upon receipt, would have had a duty to present a proposed gubernatorial order forthwith.

The respondent trustee admits the status of the petitioner as widow of Judge De-Pond.³⁴ The administrative director of the supreme court of appeals has certified proof of creditable service in excess of twenty-four years for Judge DePond to the governor and the auditor. The respondent trustee has deposited contributions corresponding to the creditable service claimed by Judge DePond into the judges’ retirement fund. We therefore find that Mrs. Gloria DePond became the widow of the Honorable Frank J. DePond, Chief Judge of the Seventeenth Judicial Circuit on September 2, 1985; that the Honorable Frank J. DePond, Chief Judge of the Seventeenth Judicial Circuit had in excess of twenty-four years of creditable service in the judges’ retirement system at the time of his death; that the Honorable Frank J. DePond, Chief Judge of the Seventeenth Judicial Circuit had made the required contributions corresponding to in excess of twenty-four years of creditable service into the judges’ retirement fund at the time of his death; that the Honorable Frank J. DePond, Chief Judge of the Seventeenth Judicial Circuit was eligible to receive benefits in the judges’ retirement system at the time of his death; that Mrs. Gloria DePond has neither died nor remarried; and, that Mrs. Gloria DePond is entitled to a spousal annuity amounting to forty percent (40%) of the annual salary of the office of Chief Judge of a West Virginia Judicial Circuit.

Accordingly, a writ of mandamus is issued against the respondent to prepare his letter of “certification of eligibility for benefits in the judges’ retirement system” for Judge DePond;³⁵ to forward the original and one certified copy of this certification to the petitioner; to forward one certified copy of this certification to the administrative director of the supreme court of appeals; to retain one certified copy of the certification in his office for Judge DePond’s permanent retirement file; and, to present forthwith a proposed gubernatorial order and a certified copy of Judge DePond’s “certification of eligibility for benefits in the judges’ retirement system.”³⁶

Ordinarily, if no order certifying receipt of judges’ retirement system benefits is filed in the office of secretary of state within one month following submission of a request for benefits, proof of eligibility, and a copy of the letter requesting benefits, mandamus will lie against the auditor to order the issuance of warrants necessary for the payment of those benefits. This one month period is defined by prior executive administrative practice and by the clear purpose of the statute. We note that the average month is just over thirty days. Therefore, the auditor trustee has a lawful duty to commence processing for payment benefits from the judges’ retirement system on the thirty-first day following an applicant’s request of the chief executive for certification of benefits from the judges’ retirement system. The Court notices the petitioner’s representation that she has made application to the governor. Thus, the one month time period will begin to run upon service of this opinion on the respondent. This provides a sufficient amount of time for execution of the ministerial duties mandated. By the Governor’s definition, the longest time lapse between an auditor’s transmittal and execution of an order for judges’ benefits has been 27 days and the average time lapse between death and gubernatorial execution of an order for widows’ annuities has been 26.41 days. Thus, time is available for preparation and presentation of the proposed order by the respondent at the beginning of the thirty day period.³⁷

As in Oakley v. Gainer, 175 W.Va. at 124, 331 S.E.2d at 855, the petitioner is entitled to reasonable attorney fees and costs expended in the prosecution of her claim for judges’ retirement benefits under Syllabus Point 4 of Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982), which provides that, “In mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded.” In connection with this award, we note with dismay the unnecessary diminution in the state treasury, in this case with reference to the budget of the respondent’s office, caused by the perplexing hesitancy to perform legal obligations when judges’ retirement benefits, particularly involving spouses’ benefits, are concerned. In Oakley v. Gainer, 175 W.Va. at 120-24, 331 S.E.2d at 851-55, the respondent violated his mandatory duties despite the existence of gubernatorial approval of the receipt of retirement benefits. In the present case, the respondent violated his mandatory duties because of the nonexistence of gubernatorial approval of the receipt of retirement benefits. It is difficult to speculate to what sophistry the respondent will next resort. Hopefully, articulation and refinement of the established operating procedure will avoid future conflict.

Accordingly, the petitioner’s request for writ of mandamus against the respondent trustee is hereby granted as moulded.

Writ, as moulded, granted.

APPENDIX I

Honorable_

Governor of West Virginia State Capitol Building Charleston, West Virginia 25305

Dear Governor_:

Chapter 51, Article 9, Section 9, Code of West Virginia, 1931, as amended, dealing with the Judges’ Retirement System provides that:

*Before any person shall be entitled to retirement benefits under the provisions hereof, he shall submit proof of his eligibility for such benefits to the governor, and if such judge be then in office, he shall at the same time tender to the governor his resignation as a judge upon condition that, if such resignation be accepted he be paid retirement benefits as herein provided. Thereupon the governor shall make such investigation as he shall deem advisable and, if the governor shall determine that such person is entitled to retirement benefits under the provision hereof, the governor shall accept the resignation and certify said facts and the amount of retirement benefits to be paid to said retired judges by a written order to be filed in the office of the secretary of state. The secretary of state shall thereupon file a copy of said order with the state auditor. The resignation so accepted shall create a vacancy in said office of judge which shall be filled by appointment or election as provided by law.’

I am enclosing herewith a certified copy of the birth certificate of Judge _and his letter of resignation, all of said documents being submitted for the purpose of enabling Judge_to receive benefits from the Judges’ Retirement Fund.

At the time of his retirement, Judge_has been receiving an annual salary of_($_,_) as Judge of the_ Judicial Circuit of West Virginia.

Under the provisions of Section [6, 6a, or 8], Article 9, Chapter 61, of the aforementioned Code, Judge_will be entitled to an annuity equal to seventy-five percent of salary of the Judge holding office in the_ Judicial Circuit of West Virginia, as long as he lives, such benefits to begin with the month of_, 19_, at a rate of _per annum. This rate may be subject to change due to the Judicial Reorganization Amendment

I have prepared an Order for your consideration in certifying these facts as provided by statute, in order that Judge_may begin receiving the benefits provided thereunder.

Sincerely yours, .

State Auditor Fiscal Officer for Judges’ Retirement Fund

Honorable__ Judge

_Judicial Circuit

State of West Virginia _, West Virginia 2_

Dear Judge_:

This will acknowledge receipt of your letter requesting judicial retirement benefits pursuant to the provisions of Code, 1931, Chapter 51, Article 9, as amended, effective__ 19_

In order that your retirement benefits may be processed properly, I am forwarding a copy of your letter and Certificate to_in the Auditor’s Office, so

that [s]he may prepare an Order for me as Governor to direct the Secretary of State, malting you eligible for retirement benefits.

Judge_, I want to commend you on the great service you have performed for the State of West Virginia and wish you good health and happiness in your years of retirement

With kindest regards,

Sincerely,

GOVERNOR

STATE OP WEST VIRGINIA EXECUTIVE DEPARTMENT CHARLESTON

ORDER

By the Governor

I,_, Governor of the State of West Virginia, by virtue of Chapter 34, ActB of the Legislature, Regular Session, 1949, as amended, do hereby certify that the Honorable_,_,_County, West Virginia, Judge of the_Judicial Circuit, has fulfilled the eligibility requirements as provided by Section [6 or 6a], Article 9, Chapter 61, of the Code of West Virginia, 1931, as amended, in that he has served as Judge of a Court of Record of this State for a period of not less than_years [after the age of sixty-five years] or [and has reached the age of sixty-five years]. According to the provisions of Section_of the aforesaid Act, said-is eligible to receive from the Judge’s Retirement Fund an amount equal to seventy-five (76%) percent of the salary of the Judge of the_Judicial Circuit, West Virginia -), so long as he lives, such benefits to begin with the month of --, 19 — , at the rate of-($ — --) per annum.

The letter by which he submitted his resignation and request for benefits is attached and made a part of this Order along with the certification of birth and other certification.

I hereby direct_, Secretary of State, to certify a copy of this Order to__ Auditor of the State of West Virginia, for payment.

IN WITNESS, I have hereunto set my hand and caused the Great Seal of the State to be affixed. -■

DONE at the Capitol, in the City of Charleston, State of WeBt Virginia, this the_day of_, in the year of Our Lord, One Thousand Nine Hundred_and in the One Hundred_year of the State.

GOVERNOR

BY THE GOVERNOR

SECRETARY OF STATE

AFFIDAVIT, IN RE, JUDGE’S RETIREMENT SYSTEM,_, WIDOW.

State of West Virginia,

County of__ to-wit:

-, being first duly sworn, deposes and says:

(1) That she was married to___on the_day of_, 19 — , a copy of the marriage certificate being attached hereto as a part hereof.

(2) That-- departed this life on the_day of_,19_, a copy of the death certificate being attached hereto as a part hereof.

(3) That said-and-, husband and wife, lived together as husband and wife from the date of their said marriage until the date of his death on the-day of-, 19_, and that the said_has not remarried.

(4) That Bald-- was elected, qualified, and served as Judge of the Circuit Court of the — —.Judicial Circuit of West Virginia, those courts being courts of record, for a continuous period of_years.

(6) That said-was receiving a salary of f , per year at the time of his decease, as Judge of said Courts, and that the said undersigned -- as the surviving unmarried widow of the said decedent Judge, is entitled to receive benefits equal to forty percent (40%) of the said annual salary of $ , ■ per year, and hereby makes application for the same.

Given under my hand this_day of_, 19_

Affiant

Taken, subscribed, and sworn to before me by_, and given under my hand, this_day of_, 19_

Notary Public

My Commission expires

Honorable_

Governor of West Virginia State Capitol Building Charleston, West Virginia 26305

Dear Governor_:

Chapter 61, Article 9, Section 9, Code of West Virginia, 1931, as amended, dealing with the Judges’ Retirement System provides that*

"Before any person shall be entitled to retirement benefits under the provisions hereof, he shall submit proof of his eligibility for such benefits to the governor, and if such judge be then in office, he shall at the same time tender to the governor his resignation as a judge upon condition that, if such resignation be accepted he be paid retirement benefits as herein provided. Thereupon the . governor shall make such investigation as he shall deem advisable and, if the governor shall determine that such person is entitled to retirement benefits under the provisions hereof, the governor shall accept the resignation and certify said facts and the amount of retirement benefits to be paid to said retired judges by a written order to be filed in the office of the secretary of state. The secretary of state shall thereupon file a certified copy of said order with the state auditor. The resignation so accepted shall create a vacancy in said office of judge which Bhall be filled by appointment or election as provided by law.”

The 1961 Legislature amended this article by adding thereto Section 6(b) which provides for an annuity to the widow of a judge; the 1967 Legislature amended Section 6(b) to read, in part, as follows:

"There shall be paid, from the fund created by section two of this article, an annuity to the widow of a judge, who, at death, is eligible for the retirement benefits, provided by section six, six-a, or eight of this article, or ... a judge of any court of record of this State . . . .”

Section 9 was not repealed and apparently applies to any person entitled to retirement benefits under this Article.

I am enclosing herewith a certified copy of the death certificate of __ a certified copy of the marriage license certificate of-and__ and an affidavit outlining all certain pertinent information, all of said documents being submitted for the purpose of enabling Mrs._to receive benefits from the Judges’ Retirement Fund.

At the time of his death, Judge_was receiving an annual salary of _(f , ) as judge [retirant] of the_Judicial Circuit of West Virginia.

Under the provisions of Chapter 51, Article 9, Section 6(b), of the aforementioned Code, Mrs._will be entitled to an annuity equal to forty percent of the salary of the Judge of the_Judicial Circuit of West Virginia, as long as she lives or remains the widow of Judge__ such benefits to begin with the month of —__ 19 — , at the rate of per annum.

I have prepared an ORDER for your consideration in certifying these facts as provided by statute, in order that Mrs._may begin receiving the benefits nrovided thereunder.

Sincerely yours,

State Auditor Fiscal Officer for Judges’ Retirement Fund

STATE OF WEST VIRGINIA EXECUTIVE DEPARTMENT CHARLESTON

ORDER

By the Governor

I,__ Governor of the State of West Virginia, by virtue of Chapter 84, Acts of Legislature, Regular Session, 1949, as amended, do hereby certify that _of_,_County, West Virginia, widow of the Honorable_, deceased, has fulfilled the eligibility requirements, as provided by Chapter 51, Article 9, Section 9 of the Code of West Virginia, 1931, as amended, in that she was married to_on the_day of_, 19_; that she and_lived together since their marriage until the death of_on ___ 19_; that she is now the widow of _; that proof has been furnished showing the date and cause of death of said_; that said_was at the time of his death receiving [entitled to receive] benefits from the Judges’ Retirement Fund pursuant to the provisions of Chapter 51, Article 9, Section [6,6a, or 8], Code of West Virginia, 1931, as amended; and according to the provisions of Section [6, 6a, or 8] of the aforesaid Act, as amended by the Acts of the Legislature of 1967 (Chapter 44), which became effective on the 24th day of February, 1967, said_is eligible to receive an amount equal to forty percent (40%) of the salary of the Judge of the _Judicial Circuit, West Virginia, ff , ), so long as she lives or remains the widow of__ such benefits to begin with the month of __ 19_, at the rate of_(|_, ,. ) per annum; that said Judge_served as Judge of the Circuit Courts of the__ Judicial Circuit of West Virginia, these courts being courts of record, for a continuous period from__ 19_to__ 19__ constituting_years.

A certified copy of the death certificate, the marriage license certificate and an affidavit outlining all necessary information are hereto attached and made a part of this Order.

I hereby direct-- Secretary of State, to certify a copy of this Order to-- Auditor of the State of West Virginia, for payment

IN WITNESS WHEREOF, I have herewith set my hand and caused the Great Seal of the State to be affixed.

Done at the Capitol, in the City of Charleston, State of West Virginia, this the — day of__ in the year of our Lord, One Thousand Nine Hundred and_and in the One Hundred and_year of the State.

GOVERNOR

By the Governor

Secretary of State

STATE OF WEST VIRGINIA EXECUTIVE DEPARTMENT CHARLESTON «,

CERTIFICATION OF ELIGIBILITY FOR BENEFITS IN JUDGES’ RETIREMENT SYSTEM

By the Auditor

The Auditor of the State of West Virginia, by virtue of Chapter 84, Acts of the Legislature, Regular Session, 1949, as amended, hereby certifies that the Honorable _____County, West Virginia, [Chief Judge or Judge of the_Judicial Circuit] or [Chief Justice or Justice of the Supreme Court of Appeals], has fulfilled the eligibility requirements as provided by Section [6 or 6a], Article 9, Chapter 61, of the Code of West Virginia, 1931, as amended, in that [he or she] has creditable service in the Judges’ Retirement System of [twenty-four years] or [sixteen years and has reached the age of sixty-five years] or [eight years after the age of sixty-five years] and has deposited required contributions corresponding to such service in the Judges’ Retirement Fund. According to the provisions of Section Four of the aforesaid Act,_is now eligible to receive from the Judges’ Retirement Fund an amount equal to seventy-five percent (75%) of the salary óf a [Chief Circuit Judge or Circuit Judge] or [Chief Justice or Justice of the Supreme Court of Appeals], so long as [he or she] lives.

IN WITNESS, I have hereunto set my hand and caused the Great Seal of the State to be affixed.

DONE at the Capitol, in the City of Charleston, State of West Virginia, this the_day of_, in the year of Our Lord, One Thousand Nine Hundred_and in the One Hundred_year of the State.

AUDITOR

BY THE AUDITOR

SECRETARY OF STATE

STATE OF WEST VIRGINIA EXECUTIVE DEPARTMENT CHARLESTON

ORDER

By the Governor

The Governor of the State of West Virginia, by virtue of Chapter 84, Acts of the Legislature, Regular Session, 1949, as amended, hereby certifies that the Honorable _¡_,_,_County, West Virginia, [Chief Judge or Judge of the_Judicial Circuit] or [Chief Justice or Justice of the Supreme Court of Appeals], has fulfilled the eligibility requirements as provided by Section [6 or 6a], Article 9, Chapter 61, of the Code of West Virginia, 1931, as amended, in that [he or she] has credited service in the Judges’ Retirement System of [twenty-four years] or [sixteen years and has reached the age of sixty-five years] or [eight years after reaching the age of sixty-five years]. According to the provisions of Section [Six or Six-a] of the aforesaid Act,_is eligible to receive from the Judges’ Retirement Fund an amount equal to seventy-five percent (75%) of the salary of a [Chief Circuit Judge or Circuit Judge] or [Chief Justice or Justice of the Supreme Court of Appeals], so long as [he or she] lives, such benefits to begin with the month of_, 19_

I hereby direct the Secretary of State to certify a copy of this Order to the Auditor of the State of West Virginia for payment

IN WITNESS, I have hereunto set my hand and caused the Great Seal of the State to be affixed.

DONE at the Capitol, in the City of Charleston, State of West Virginia, this _day of__ in the year of Our Lord, One Thousand Nine Hundred _and in the One Hundred_year of the State.

GOVERNOR

BY THE GOVERNOR SECRETARY OF STATE

STATE OF WEST VIRGINIA EXECUTIVE DEPARTMENT

CHARLESTON

ORDER

By the Governor

The Governor of the State of West Virginia, by virtue of Chapter 34, Acts of the Legislature, Regular Session, 1949, as amended, hereby certifies that_ of -- - County, West Virginia, surviving spouse of the Honorable__ deceased, has fulfilled the eligibility requirements, as provided by Chapter 61, Article 9, Section 6b of the Code of West Virginia, 1931, as amended, in that [he or she] was married to_on the_day of -, 19 — ; that_died on the_day of_,19 ; that [he or she] is the surviving spouse of_and has not remarried; and, that, at the time of [his or her] death,_was [receiving] or [entitled to receive] benefits from the Judges’ Retirement Fund pursuant to the provisions of Chapter 51, Article 9, Section [6, 6a, or 8] Code of West Virginia, 1931, as amended. According to the provision of Section 6b of the aforesaid Act, as amended by the Acts of the Legislature of 1967 (Chapter 44), which became effective on the 24th day of February, 1967, said-is eligible to receive an amount equal to forty percent (40%) of the salary of a [Chief Circuit Judge or Circuit Judge] or [Chief Justice or Justice of the Supreme Court of Appeals], so long as [he or she] lives and remains the surviving spouse of__ such benefits to begin with the month of __ 19_

I hereby direct the Secretary of State to certify a copy of this Order to the Auditor of the State of West Virginia for payment

IN WITNESS, I have hereunto set my hand and caused the Great Seal of the State to be affixed.

DONE at the Capitol, in the City of Charleston, State of West Virginia, this _day of_*_, in the year of Our Lord, One Thousand Nine Hundred _and in the One Hundred_year of the State.

GOVERNOR

BY THE GOVERNOR

SECRETARY OF STATE

STATE OF WEST VIRGINIA EXECUTIVE DEPARTMENT CHARLESTON

CERTIFICATION OF ELIGIBILITY FOR BENEFITS IN THE JUDGES’ RETIREMENT SYSTEM

By the Auditor

The Auditor of the State of West Virginia, by virtue of Chapter 84, Acts of the Legislature, Regular Session, 1949, as amended, hereby certifies that the Honorable Frank J. DePond, Morgantown, Monongalia County, West Virginia, Chief Judge of the Seventeenth Judicial Circuit, has fulfilled the eligibility requirements as provided by Section 6, Article 9, Chapter 51, of the Code of West Virginia, 1931, as amended, in that he has creditable service in the Judges’ Retirement System of twenty-four years and has deposited required contributions corresponding to such service in the Judges’ Retirement Fund. According to the provisions of Section Four of the aforesaid Act, Frank J. DePond is now eligible to receive benefits from the Judges’ Retirement Fund an amount equal to seventy-five percent (75%) of the salary of a Chief Circuit Judge, so long as he lives.

IN WITNESS, I have hereunto set my hand and caused the Great Seal of the State to be affixed.

DONE at the Capitol, in the City of Charleston, State of West Virginia, this _day of March, in the year of Our Lord, One Thousand Nine Hundred Eighty-Six and in the One Hundred Twenty-Third year of the State.

AUDITOR

BY THE AUDITOR SECRETARY OF STATE

STATE OF WEST VIRGINIA EXECUTIVE DEPARTMENT CHARLESTON

ORDER

By the Governor

The Governor of the State of West Virginia, by virtue of Chapter 84, Acts of the Legislature, Regular Session, 1949, as amended, hereby certifies that Gloria DePond of Morgantown, Monongalia County, West Virginia, surviving spouse of the Honorable Frank J. DePond, deceased, has fulfilled the eligibility requirements, as provided by Chapter 51, Article 9, Section 6b of the Code of West Virginia, 1981, as amended. According to the provisions of Section 6b of the aforesaid Act, as amended by. the Acts of the Legislature of 1967 (Chapter 44), which became effective on the 24th day of February, 1967, said Gloria DePond is eligible to receive an amount equal to forty percent (40%) of the salary of a Chief Circuit Judge, so long as she lives and remains the surviving spouse of Frank J. DePond, such benefits to begin with the month of September, 1985.

I hereby direct the Secretary of State to certify a copy of this Order to the Auditor of the State of West Virginia for payment

IN WITNESS, I have hereunto set my hand and caused the Great Seal of the State to be affixed.

DONE at the Capitol, in the City of Charleston, State of West Virginia, this - — day of March, in the year of Our Lord, One Thousand Nine Hundred Eighty-Six and in the One Hundred Twenty-Third year of the State.

GOVERNOR

BY THE GOVERNOR

SECRETARY OF STATE

1 . As was noted in footnote thirty-seven of In re Dostert, 174 W.Va. 258, 324 S.E.2d 402, 419 (1984), many legislative officers and employees who participate in public employees’ retirement pursuant to a proviso in West Virginia Code § 5-10-2(6) (Supp.1985) receive full-time credit for part-time service. For example, a legislator who serves a sixty day session receives service credit of one full year in the public employees’ retirement system. Additional beneficiaries of this practice include county commissioners, city councilmen, county board of education members, and other "members of the legislative body of any political subdivision” under West Virginia Code § 5-10-2(6) (Supp.1985). This occurs administratively despite language to the contrary in West Virginia Code § 5-10-14(a) (1979 Replacement Vol.), which provides, ”[I]n no case shall less than ... ten months of service rendered in any calendar year be credited as a year of service_” Similarly, in footnote eighteen of In re Dostert, 174 W.Va. at 268, 324 S.E.2d at 411, this Court observed that prosecuting attorneys, to whom service credit is later granted in the judicial retirement system under West Virginia Code § 51-9-6 (1981 Replacement Vol.), are more often than not part-time officers. Therefore, under both the public employees’ and judges’ retirement systems, full-time credit has traditionally been granted for part-time service. For this reason, we held in In re Dostert, 174 W.Va. at 274, 324 S.E.2d at 418 n. 33, that other “government service in this State includes full or part time service_” (Emphasis added).

2 . We must not fault Hamilton for failure to foresee legislative creation of a system that would raise the spectre of executive control of judicial compensation.

3 . See, e.g., Queen v. Moore, 176 W.Va. 27, 340 S.E.2d 838 (1986); Jones v. Rockefeller, 172 W.Va. 30, 303 S.E.2d 668 (1983); State ex rel. Board of Education v. Rockefeller, 167 W.Va. 72, 281 S.E.2d 131 (1981); State ex rel. Brotherton v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976); State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976); State ex rel. Moore v. Blankenship, 158 W.Va. 939, 217 S.E.2d 232 (1975); Russell Transfer, Inc. v. Moore, 158 W.Va. 534, 212 S.E.2d 433 (1975); State ex rel. Kelly v. Moore, 156 W.Va. 780, 197 S.E.2d 106 (1973); State ex rel. State Building Commission v. Moore, 155 W.Va. 212, 184 S.E.2d 94 (1971); State ex rel. State Building Commission v. Bailey, 151 W.Va. 79, 150 S.E.2d 449 (1966); State ex rel. Smith v. Gore, 150 W.Va. 71, 143 S.E.2d 791 (1965); State ex rel. Smith v. Kelly, 149 W.Va. 381, 141 S.E.2d 142 (1965); State ex rel. Neal v. Barron, 146 W.Va. 602, 120 S.E.2d 702 (1961).

4 .Under West Virginia Code § 5-10-2(6) (Supp. 1984), the term "Employee," as used in the West Virginia Public Employees Retirement Act, "means any person who serves regularly as an officer ... and whose compensation is payable in whole or in part by any political subdivision. ..." As this Court noted in In re Dostert, 174 W.Va. at 265-66, 324 S.E.2d at 409, "This definition includes Article VIII judicial officers.” The formula for calculating the retirement annuity for a member of the public employees’ retirement system under West Virginia Code § 5-10-22 (1979 Replacement Vol.) is "two percent of his final average salary multiplied by the number of years, and fraction of a year, of his credited service in force at the time of his retirement.” Under West Virginia Code § 5-10-2(15) (Supp.1985), the term "final average salary,” for nonlegislators with more than five years of credited service, means “the average of the highest annual compensation received ... during any period of three consecutive years of his credited service contained within his ten years of credited service immediately preceding the date of his employment with a participating public employer last terminated_’’ L

Therefore, a member of the judiciary who chose to participate in the public employees’ retirement system would be eligible to receive,. at age sixty, under West Virginia Code § 5-10-20 (Supp.1985), a full retirement annuity ranging from between ten percent of his final average salary after five years of credited service, three of which could be judicial service along with two years of military or other governmen-. tal service, to more than seventy-five percent of his final average salary after more than thirty-seven and one-half years of governmental service, three of which could be judicial service along with thirty-three and one-half years of military or other governmental service. Thus, the potential full benefit under the public employees’ retirement system is (1) greater than the benefit available under the judges’ retirement system; (2) available five years earlier than the benefit for judges with less than twenty-four years of credited service in the judges’ retirement system; and, (3) less expensive because contributions of between three and five-tenths and four and five-tenths percent of salary earned under the public employees’ retirement system, see West Virginia Code § 5-10-29 (1979 Replacement Vol.) are required, as opposed to mandatory contributions of six percent under the judges’ retirement system, see West Virginia Code § 51-9-4 (1981 Replacement Vol.).

In addition, deferred retirement and early retirement plans available under the public employees' retirement system are not available under the judges’ retirement system. Under West Virginia Code § 5-10-21(a) (Supp.1985), a member of the public employees’ retirement system with five years of credited service who leaves the system prior to the age of sixty is entitled to an annuity at age sixty-two. Under West Virginia Code § 5-10-21(b) (Supp.1985), a member of the public employees' retirement system with ten years of credited service is entitled, at age fifty-five, to the actuarial equivalent of his deferred retirement at age fifty-five. Under West Virginia Code § 5-10-21(c) (Supp.1985), a member of the public employees' retirement system with twenty years of credited service is entitled, regardless of age, to the actuarial equivalent of his deferred retirement at age fifty-five. Finally, under West Virginia Code § 5-10-21(d) (Supp.1985), a member of the public employees’ retirement system with thirty years of credited service is entitled, regardless of age, to the actuarial equivalent of the benefit which would have been received at the age of sixty when entitlement to full benefits would have commenced. Therefore, a member of the judiciary who chose to participate in the public employees’ retirement system would be eligible to receive full deferred retirement benefits at age sixty-two with five years of credited service; immediate actuarial equivalent retirement benefits at age fifty-five with ten years of credited service; deferred actuarial retirement benefits commencing at age fifty-five with twenty years of credited service; or, immediate actuarial equivalent retirement benefits at any age after thirty years of credited service. Obviously, the options under the public employees' retirement system are more numerous than the options under the judges' retirement system. Under the judges’ retirement system, a member is either immediately eligible for full benefits or ineligible for any benefits.

5 . See West Virginia Code § 51-9-3 (1981 Replacement Vol.) (“The governor shall fix the amount of [the state treasurer’s bond as custodian of the fund and any investment securities of the retirement system]”); West Virginia Code § 51-9-3 (1981 Replacement Vol.) ("[T]he board of public works [of which the governor is a member] shall have authority to invest said [judges’ retirement] fund in interest-bearing securities of the United States of America, of the State of West Virginia and of any political subdivision thereof.”); West Virginia Code § 51-9-8 (1981 Replacement Vol.) ("Whenever a judge ... shall become physically or mentally incapacitated to perform the duties of his office as judge ... and shall make a written application to the governor ... the governor shall make such investigation as he shall deem advisable and, if he shall determine that such disability exists ... he shall thereupon accept the resignation and ... direct the retirement of the judge_”); West Virginia Code § 51-9-9(1981 Replacement Vol.) (”[T]he governor shall make such investigation as he shall deem advisable and, if the governor shall determine that such person is entitled to benefits ..., the governor shall accept the resignation and certify said facts and the amount of retirement benefits to be paid_").

6 . See West Virginia Code § 51-9-3 (1981 Replacement Vol.) ("The state auditor shall be the fiscal officer responsible for the records and administration of the fund....”); West Virginia Code§ 51-9-3 (1981 Replacement Vol.) (”[T]he board of public works [of which the state auditor is a member] shall have authority to invest said fund_’’); West Virginia Code § 51-9-4 (1981 Replacement Vol.) (”[T]he state auditor shall deduct from the amount of each ... salary check six percent thereof_’’); West Virginia Code § 51-9-5 (1981 Replacement Vol.) ("[A]ny judge may in writing notify the auditor ... that he elects not to make payments or contributions to the fund.... If such notice in writing be given, any deductions theretofore made ... shall be refunded ... by the auditor ”); West Virginia Code § 51-9-8 (1981 Replacement Vol.) ("The secretary of state shall thereupon file a certified copy of [the gubernatorial order of disability] with the state auditor.”); West Virginia Code § 51-9-9 (1981 Replacement Vol.) ("The secretary of state shall thereupon file a certified copy of [the gubernatorial order of retirement] with the State auditor.’’); West Virginia Code § 51-9-11 (1981 Replacement Vol.) ("The retirement benefits ... shall be paid in equal monthly installments upon the warrant of the state auditor drawn on the judges' retirement fund.”); West Virginia Code § 51-9-12 (1981 Replacement Vol.) (“Any judge ... whose services have terminated, otherwise than by retirement ... shall, upon ... written demand ... filed with the state auditor, by a proper warrant of the state auditor drawn on the fund, be refunded ... any and all money paid_”); West Virginia Code § 51-9-12 (1981 Replacement Vol.) ("[Sjhould a retired judge die ... before he has received from the judges' retirement fund an amount equal to ... sums paid by him into such fund, or should the widow ... die or remarry ... before she and her husband have received from the judges’ retirement fund an amount equal to ... sums contributed by him ... the auditor shall ... refund ... an amount equal to the difference _”).

7 . See West Virginia Code § 51-9-3 (1981 Replacement Vol.) (”[T]he board of public works [of which the secretary of state is a member] shall have authority to invest said fund_”); West Virginia Code § 51-9-8 (1981 Replacement Vol.) ("[T]he governor shall make such investigation as he shall deem advisable and, if he shall determine that such disability exists ... he shall thereupon accept the resignation and, by written order filed in the office of secretary of state, direct the retirement of the judge.... The secretary of state shall thereupon file a certified copy of said order with the state auditor.”); West Virginia Code § 51-9-9 (1981 Replacement Vol.) ("[I]f the governor shall determine that such person is entitled to retirement benefits ... the governor shall accept the resignation and certify said facts and the amount of retirement benefits to be paid ... by a written order to be filed in the office of the secretary of state. The secretary of state shall thereupon file a certified copy of said order with the State auditor.”).

8 . See West Virginia Code § 51-9-3 (1981 Replacement Vol.) ("The state treasurer shall be the custodian of the fund and of any investment securities of the retirement system....”); West Virginia Code § 51-9-3 (1981 Replacement Vol.) ("[T]he board of public works [of which the state treasurer is a member] shall have authority to invest said fund....”); West Virginia Code § 51-9-4 (1981 Replacement Vol.) ("[T]he state auditor shall deduct from the amount of each ... salary check six percent thereof, which amount ... shall be credited by the state treasurer to said fund.”).

9 . See West Virginia Code § 51-9-3 (1981 Replacement Vol.) ("The governor shall fix the amount of [the state treasurer’s bond] which shall be approved as to sufficiency and form by the attorney general_”); West Virginia Code § 51-9-3 (1981 Replacement Vol.) (“[T]he board of public works [of which the attorney general is a member] shall have authority to invest said fund_").

10 . See West Virginia Code § 51-9-3 (1981 Replacement Vol.) ("[T]he board of public works [of which the superintendent of schools is a member] shall have authority to invest said fund_’’).

11 . See West Virginia Code § 51-9-3 (1981 Replacement Vol.) ("[T]he board of public works [of which the commissioner of agriculture is a member] shall have authority to invest said fund_’’).

12 . The necessity of interstitial development and interpretation of skeletal statutory schemes by the executive branch has been noted by this Court on several occasions. With respect to both formal and informal procedures developed in connection with the administration of the public employees' retirement system, this Court stated in In re Dostert, 174 W.Va. at 276 n. 40, 324 S.E.2d at 420 n. 40, "This administrative overlay or patchwork approach has developed as a means of filling in the interstices between the statutory provisions of the respective retirement systems.” Similarly, in State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 460, 269 S.E.2d 401, 410 (1980), this Court, observing the interrelationship between procedure and policy, noted that, “As David Dudley Field, author of the Field Code, once pointed out, substantive law can be ‘gradually secreted in the interstices of procedure.' ”

13 . The respondent's certification of these records reads:

I, Glen B. Gainer, Jr., Auditor of the State of West Virginia, being custodian of all records relating to Judicial Retirement, both judges and their widows, do hereby, certify that the reproductions provided in response to the Gloria DePond vs Glen B. Gainer, Jr. case in the West Virginia Supreme Court of Appeals are true copies of the originals and are all records as they relate to my custody for my term of office which began January 16, 1977.

14 . In addition to documentation relevant to the judges’ retirement system, the files supplied by the respondent also contain a great deal of extraneous matter, including correspondence relating to judicial expense accounts, judicial salary, income tax withholding, social security tax withholding, secretarial employment, secretarial salary, stenographic employment, stenographic salary, and the judicial budget. Inclusion of this extraneous matter in the judges' retirement records retained by the respondent significantly complicated analysis of the procedure utilized for processing applications for benefits. Moreover, several records were supplied for judges who never received benefits in the judges’ retirement system. Records for the Honorable Frank L. Taylor, Judge of the Thirteenth Judicial Circuit; the Honorable Max DeBerry, Judge of the Third Judicial Circuit; the Honorable Russell C. Dunbar, Judge of the Sixth Judicial Circuit; and, the Honorable J. Harper Meredith, Judge of the Sixteenth Judicial Circuit, although containing both retirement and nonretirement material, do not reflect the ultimate award of benefits under the judges’ retirement system.

15 . The fact that Judge Brennan did receive benefits under the judges’ retirement system is shown by the file supplied relating to the receipt of a spousal annuity by his widow. See also State ex rel. Fahey v. Brennan, 139 W.Va. 122, 79 S.E.2d 109 (1953) (retired judge who was not selected as special judge in accordance with relevant statute could not serve).

16 . A few gubernatorial orders appear on their face to have been signed prior to their transmittal by the auditor. This is most likely a function of typographical error. Therefore, these orders were not included in determining the average time lapse between transmittal and signature.

17 . Contributions to the judges’ retirement fund sufficient to credit service is certainly another eligibility criterion. Proof of this criterion is clearly within the knowledge of the auditor.

18 . See Appendix I.

19 . See Appendix II.

20 . See Appendix III.

21 . We find no statutory basis for this final requirement.

22 . A copy of a form widow’s affidavit sent to a number of widows contained in the file of Mrs. Kathryn Ann Pryor is attached as Appendix IV.

23 . The basic format of letters of transmittal for widows can be found in Appendix V.

24 . See Appendix VI.

25 . Of course, for a judge to obtain certification of proof of creditable service by the administrative director of the supreme court of appeals, proof of actual military and governmental service must be submitted under his rules.

26 . In many cases, failure of the auditor to discover the onset of eligibility of a judge to receive benefits in the judges' retirement system resulted in continued deduction of six percent of salary. Eventually, when this oversight was discovered, sometimes significant refunds of excess contributions had to be made. Annual issuance of a letter by the auditor certifying credited service and more efficient recordkeep-ing that segregates retirement materials from nonretirement materials will serve to prevent this type of unnecessary deduction in the future.

27 . A suggested format for this “certificate of eligibility for benefits in the judges’ retirement system’ is found in Appendix VII.

28 . A suggested format for the proposed gubernatorial order for judges is found in Appendix VIII.

29 . See West Virginia Constitution art. VIII, § 8.

30 . In this regard, and with respect to the standard operating procedures that have developed in the administration of the judges' retirement system, the chief executive who most influenced this development served this State in that capacity from 1969 through 1977, and is currently serving the State in that capacity.

31 .A suggested format for the proposed gubernatorial order.for surviving spouse is found in Appendix IX.

32 . In her original mandamus petition against the chief executive and the auditor, Mrs. De-Pond sought gubernatorial certification of her eligibility to receive an annuity under the judges’ retirement system pursuant to her prior request of the governor for such certification. She subsequently amended her petition, however, to name the auditor as the sole respondent.

33 . Recalcitrance in the performance of ministerial duties can result in personal liability. See 63A Am.Jur.2d Public Officers and Employees § 363 (1984).

34 . Granted this admission, it is unnecessary for the petitioner to submit evidence of death or evidence of marriage to the administrative director of the supreme court of appeals.

35 . Judge DePond’s "certification of eligibility for benefits in the judges’ retirement system” prepared by the respondent should follow the format found in Appendix X.

36 .A proposed order to guide the respondent is found in Appendix XI.

37 . It is difficult to imagine that preparation of a proposed gubernatorial order by the auditor would take longer than a small part of one day.

1 . In re Dostert, 174 W.Va. 258, 324 S.E.2d 402 (1984).