Eligibility is continuing concept ‑ continuity of marriage status for 10 consecutive years prior to retirement satisfies requirement of RCW 2.12.030.
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February 23, 1956
Honorable Charles R. Maybury State Treasurer Legislative Building Olympia, Washington Cite as: AGO 55-57 No. 210
In your letter of February 17, 1956, you have requested our opinion as to the right of Mrs. Garnette M. Jeffers to receive a widow's pension under the provisions of the judges' retirement statutes.
After an examination of the facts and the law, we advise that Mrs. Jeffers is eligible to receive a pension under the provisions of RCW 2.12.030.
The facts, which are undisputed, show Judge Jeffers was a member of the superior court bench from October 29, 1923, to January 8, 1939, and a member of the supreme court from January 9, 1939, to September 6, 1949, the year of his retirement. The judge and the applicant for pension under the act were married August 17, 1935, and remained so until the date of Judge Jeffers' death.
The provision of the judges' retirement act governing the right to widow's pension is set forth in RCW 2.12.030 and reads as follows:
[[Orig. Op. Page 2]]
"Every judge of the supreme or superior court of the state who retires from office under the provisions of this chapter shall be entitled to receive monthly during the period of his natural life, out of the fund hereinafter created, an amount equal to one‑half of the monthly salary he was receiving as a judge at the time of his retirement, or at the end of the term immediately prior to his retirement if his retirement is made after expiration of his term. The widow of any judge who shall have heretofore retired or may hereafter retire, or of a judge who was heretofore or may hereafter be eligible for retirement at the time of his death, if she had been his wife continuously for ten years prior to his being eligible for retirement, shall be paid an amount equal to one‑half of the retirement pay for her husband, as long as she remains unmarried. Payments to any widow shall be reduced by any amount received by her subsequent to her husband's death under social security, old age assistance, or other grant in aid under state and federal law. The retirement pay shall be paid monthly by the state treasurer on or before the tenth day of each month." (Emphasis supplied.)
The only question arises in interpretation of the phrase "for ten years prior to his being eligible for retirement." The act uses the term "being," not becoming or first being. Being eligible in the sense here employed must be a continuing condition. There is nothing in the act which requires a judge to retire after eighteen years of service, and failure to so elect does not destroy his eligibility so to do.
The legislature, had it thought it advisable, could have used "becoming" or other language that would have restricted the fixing of the time of eligibility to a single day. It did not see fit to do so.
At the date of Judge Jeffers' election to retire the applicant had been married to Judge Jeffers in excess of fourteen years, and said applicant had been [[Orig. Op. Page 3]] contributing to said pension fund since the date of its founding.
We hope this information will be of assistance to you.