State ex rel. Simms v. Simmons

ALMA WILSON, Presiding Judge: This is an appeal to the Court on the Judiciary, Appellate Division, from an order of the Trial Division. The Trial Division found that the Appellant, Paul E. Simmons, should be compulsorily removed from the office of Associate District Judge of Wagoner County, Oklahoma and that 20 O.S. 1984 Supp. § 1102 creates a threshold retirement tenure of eight years. The Trial Division, therefore, ordered the removal of Appellant from judicial office, without retirement compensation. The order of removal was entered pursuant to an amended petition calling for Simmons’ compulsory retirement. On appeal, Simmons’ counsel protests the Trial Division’s refusal to grant Simmons benefits as a judge compulsorily retired by reason of medical infirmity, with six years and four months judicial service. At issue are the applicable judicial retirement and removal laws of this State. We find Art. 7-A, § 4(d), of the Oklahoma Constitution dispositive of this appeal and reverse the order of the court below accordingly. Appellant was elected Associate District Judge of Wagoner County, Oklahoma, on January 8, 1979 and served continuously through May 8, 1985. A petition was filed in the Court on the Judiciary, Trial Division, on December 4, 1984, seeking the removal of Appellant from his judicial office. Trial of this matter commenced on May 6, 1985, at which time the petition was amended, with leave of the Trial Division, to request that Appellant be compulsorily retired, rather than removed from office. Appellant agreed to the amendment, joined in the request and asked that he be granted such retirement compensation as allowed by law. Thereafter, evidence was presented, and later stipulated to by the parties, that Appellant had performed his duties [951] well as an Associate District Judge until he had become seriously ill during approximately the preceding year. Medical evidence established that Appellant was 70 years of age and had cancer of the bladder and cancer of the prostate, along with certain other physical maladies, and had undergone surgery and radiation therapy during the time in question. By reason of these medical infirmities Appellant progressively became unable to competently perform his duties as an Associate District Judge. Witnesses testified that after becoming ill, Appellant’s personality changed. His judicial ability and temperament eroded as evidenced by an increasing lack of patience, dignity and courtesy with those he came in contact with on and off the bench. As his cancerous condition worsened, Appellant exhibited erratic, and occasionally bizarre, behavior according to the witnesses. The Appellees characterized Appellant’s behavior as contrary to good order and decorum, prejudicial to the administration of justice, and oppressive. Upon this basis, the Appellees requested the compulsory retirement of Appellant. At the conclusion of the evidence Appellant ultimately joined in the Appellees’ prayer for compulsory retirement and asked that he be given such retirement compensation as is allowed by law. The Trial Division of the Court on the Judiciary, however, erroneously perceived that it was without authority to grant any retirement compensation to a judicial officer with a tenure of service less than eight years. Consequently, the Trial Division ordered that Appellant be compulsorily removed from office without compensation. In pertinent part, Article 7-A, Section 4(d) of our state constitution provides: A Judicial Officer who is a member of the retirement compensation system prescribed by this Article and is compulsorily retired shall receive the retirement compensation to which his term of service entitled him. If he is not qualified for full retirement compensation he may receive such compensation as the Court may decree, in proportion to time served and in accordance with principles of justice and equity alike as to amount, commencement of payment, terms of payment or other relevant conditions or limitations. [Emphasis added.] The above constitutional provision controls the instant case involving a judge who is not qualified for full retirement compensation, but who, according to the stipulations and the evidence, must be compulsorily retired. It is undisputed that Appellant, after being elected by the voters of Wagoner County, served well in his judicial capacity until such time that ill health and age rendered him incapable of competently performing his judicial function. Under these circumstances, we find the above constitutional provision no less compelling in view of 20 O.S. 1981 § 1102.1 The threshhold requirements of § 1102 govern non-compulsory eligibility for full judicial retirement compensation, and thus are inapplicable to the facts now before us. Otherwise, Article 7-A, § 4(d) of our Constitution would be meaningless. It is a cardinal rule of constitutional construction that the sections of our State Constitution are to be construed so as to give effect to every part thereof. State v. Freeman, 440 P.2d 744, 756 (Okl.1968). Legislatures must function within constitutional limitations, and it is to be presumed that a legislature acts with a conscious regard thereof. State ex rel Kerr v. Grand River Dam Authority, 195 Okl. 8, 154 P.2d 946 (1945). The Legislature has no power to abridge or extend a provision of the Constitution when the same, is self952 executing. Kiowa County Excise Bd. v. St. Louis-San Francisco Ry. Co., 301 P.2d 677 (Okl.1956). The Constitution of the State of Oklahoma leaves with the Court on the Judiciary in cases of compulsory retirement, discretion to grant a judicial officer under appropriate circumstances “such compensation as the Court may decree in proportion to time served and in accordance with the principles of justice and equity”. This is not, of course, intended to imply that every compulsorily retired judicial officer should or should not receive compensation, but only that compensation, if any, must be based on the particular facts of the case and in accordance with the principles enunciated in Article 7-A, § 4(d), supra, which should be judiciously applied. From our review of the record in the present case, including the evidence and the stipulations, we find the trial court erred in removing Appellant from judicial office without compensation. The petition as amended, seeking compulsory retirement only, as well as the evidence, supports compulsory retirement only, not removal. An amended petition constitutes an abandonment of the original petition and all prior averments not made a part of the amended petition. See, Edwards v. Andrews, Davis, Legg, Bixler, etc., 650 P.2d 857, 859 (Okl.1982); Scott v. Price, 123 Okl. 172, 247 P. 103 (1926). The record additionally supports a compulsory retirement compensation of $700 per month. Appellant may, at his option, accept $700 per month as compulsory retirement compensation or alternatively elect to receive all the contributions retained from his salary by the Oklahoma Judicial Retirement Fund. For the reasons stated herein the order of the Trial Division of the Court on the Judiciary is REVERSED. KAUGER, V.P.J., and PARKS, HAMPTON and BROCK, JJ.,. concur. PARR, MALEY, JENNINGS and BICK-FORD, JJ., concur in part, dissent in part. Footnotes [1] Title 20 O.S. 1984 Supp. § 1102, governing non-compulsory eligibility for full judicial retirement compensation, provides in part: “Any Justice or judge of the Supreme Court, Court of Criminal Appeals, State Industrial Court, Intermediate Appellate Court or district court who serves as Justice or judge of any of said courts in the State of Oklahoma for a period of eight (8) years or longer and upon reaching or passing the age of seventy (70) years, or who serves for a period of ten (10) years or longer and upon reaching or passing the age of sixty-five (65) years, or who serves for a period of twenty (20) years or longer and upon reaching or passing the age of sixty (60) years, shall receive the retirement benefits herein provided, ...