Swift v. State

342 So. 2d 191
Supreme Court of Louisiana·Decided January 24, 1977·No. 59106·Published·Cited by 36 cases

Opinion

342 So.2d 191 (1977)

Goulding William SWIFT, Jr., et al.
v.
STATE of Louisiana.

No. 59106.

Supreme Court of Louisiana.

January 24, 1977.

*192 William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Barbara S. Bruckner, Donald C. Davis, Staff Atty., New Orleans, for defendant-applicant.

Arthur G. Kingsmill, Gretna, for plaintiffs-applicants.

DIXON, Justice.

Plaintiffs, five district judges, seek a declaratory judgment concerning their rights under R.S. 13:8 (Act 305 of 1974). The matter was tried in the district court on the pleadings, and judgment was rendered in favor of the plaintiffs declaring that R.S. 13:8 applies to them; that R.S. 13:8 constitutes retirement benefits and judicial service rights of a judge and is available to the plaintiffs by virtue of Article 5, § 23 of the Louisiana Constitution of 1974; that upon serving eighteen years as a judge of a court of record, plaintiffs will be entitled to retirement benefits under R.S. 13:8, by virtue of at least three years previous military service and the failure to qualify for retirement benefits under any other retirement plan for judges.

Both plaintiffs and defendant joined in an application to this court for writs under our supervisory jurisdiction, citing the urgency of the matter as sufficient reason for expediting a final determination of the issues and justifying the departure from the normal appellate review in such cases (which would require action by the Court of Appeal before application to this court). The urgency is occasioned by R.S. 13:14 which, the applicants allege, fixes January 29, 1977 as the final day on which judges may exercise the option given by the statute to become members of the Louisiana State Employees Retirement System (under Act 518 of 1976, which established a new judicial retirement system, pursuant to the mandate of Article 5, § 23 of the Constitution of 1974).

Prior to the effective date of the Constitution of 1974, judicial retirement was provided for by Article 7, § 8 of the Constitution of 1921, in addition to certain statutory provisions of the Revised Statutes Title 13. The Constitution of 1974 contained only the following provision for judicial retirement:

"Within two years after the effective date of this constitution, the legislature shall provide for a retirement system for judges which shall apply to a judge taking office after the effective date of the law enacting the system and in which a *193 judge in office at that time may elect to become a member, with credit for all prior years of judicial service and without contribution therefor. The retirement benefits and judicial service rights of a judge in office or retired on the effective date of this constitution shall not be diminished, nor shall the benefits to which a surviving spouse is entitled be reduced."

The statutory provisions under which plaintiffs seek a declaratory judgment are contained in R.S. 13:8.[1] That section of the Revised Statutes was enacted as Act 305 of 1974:

ACT No. 305.

House Bill No. 738.

By: Mr. Brinkhaus.

AN ACT

To amend Title 13 of the Louisiana Revised Statutes of 1950, by adding thereto a new section, to be designated as R.S. 13:8, to provide a pension for any person who served as a judge of a court of record for at least eighteen years, who has three years of military service and who does not qualify for retirement benefits under the retirement plan for judges; to provide this pension shall equal two-thirds of the persons salary at the time he ceased to be a judge; to provide a survivor benefit; to provide the pension terminates if the person again assumes the office of judge; to provide another pension when this office ceases; to provide the pension shall be paid from the same source as his salary, and to provide with respect to matters related thereto.
Notice of intention to apply for the passage of this Act has been published and evidence of such publication exhibited to the legislature, both as required by Article XIX, Section 25 of the constitution of Louisiana.

Be it enacted by the Legislature of Louisiana;

Section 1. Section 8 of Title 13 of the Louisiana Revised Statutes of 1950 is hereby enacted to read as follows:

§ 8. Pension for former judges not eligible for retirement benefits

Any person who has served as the judge of a court of record in this state for a period of at least eighteen years and who has at least three years of military service in the armed forces of the United States and who does not, upon the effective date of the section, qualify for retirement benefits under the retirement plan for judges of this state, shall be paid a monthly pension equal to two-thirds of the monthly salary he was receiving at the time he ceased to be a judge. Upon the death of any such person, his surviving spouse shall be entitled to receive the same pension for the remainder of her life. In the event any such person again assumes the office of judge of a court of record in this state, either by election or appointment, his pension authorized hereunder shall terminate. However, after he ceases to occupy such office of judge, he shall be entitled to receive a monthly pension equal to two-thirds of his monthly salary at the time he ceased to occupy such office. The payment of the pension herein authorized shall be made monthly on the warrant of the person and shall be paid from the same source from which the person received his salary as judge.
*194 Section 2. All laws or parts of laws in conflict herewith are hereby repealed. Approved by the Governor: July 12,1974. A true copy:

WADE O. MARTIN, JR.

Secretary of State.

Plaintiffs argue that Act 305 of 1974 constituted "retirement benefits and judicial service rights of a judge in office . . . on the effective date" of the Constitution of 1974, which could not be diminished under the provisions of Article 5, § 23 of the Constitution of 1974. Plaintiffs further argue that they will be eligible for retirement under Act 305 of 1974 when they complete eighteen years of service, because they have already completed three years of military service, but did not, upon the effective date of Act 305 of 1974, qualify for retirement benefits under any other provisions of law.

The State argues that Act 305 of 1974 was unconstitutional, and, further, that it does not apply to the plaintiffs.

The sole argument concerning the constitutionality of Act 305 of 1974 is that it was not within the power of the legislature to enact a statute creating a judicial retirement system different from the one in the Constitution. The position is not well taken. There is no prohibition in the 1921 Constitution against enlarging the retirement benefits for judges. (The 1974 Constitution specifically requires legislation which does not diminish retirement rights of judges). Unless restricted by constitutional provisions, the Constitution of 1921 provided that the legislature was vested with full legislative power (Article 3, § 1, Louisiana Constitution of 1921; see also Article 3, § 1, Louisiana Constitution of 1974), which was limited only by the State and Federal Constitutions. Stovall v. City of Monroe, 199 La. 195, 5 So.2d 547 (1941); Ward v. Leche, 189 La. 113, 179 So. 52 (1938); State v. Toon, 172 La. 631, 135 So. 7 (193

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