STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 20, 1972

J. Bruce Blake
Deputy States Attorney, Minnehaha County
Sioux Falls, South Dakota 57102

OFFICIAL OPINION NO. 72-55

District County and Municipal Judges, Members of prior existing public retirement system who do not elect to be exempt from membership in District County and Municipal Judges' Retirement System created by Ch. 127, Laws of 1972 (SDCL 16-11A remain members and must participate in each of such retirement systems.

Dear Mr. Blake:

You have requested my official opinion in answer to the following questions:

Maya municipal judge Or a district county judge be a member of the Public Employees' Retirement System, existing in pursuance to SDCL 3-12, the City Retirement System, existing by virtue of SDCL 9-16, and the District County and Municipal Judges' Retirement System, created by Ch. 127, Laws of 1972, and now designated SDCL 16-11A Or any plurality of such publi9 retirement systems at the same time?

Conversely stated, your question may be summarized, for practical purposes, as follows:

If a district county judge or a municipal judge is a member of a pre-existing public retirement system, on the effective date of Ch. 127, Laws of 1972 (now SDCL 16-11A), and who does not elect to be exempt therefrom, as provided in SDCL 16-11A-2 and 16- llA-3, is he automatically removed from the previously existing public retirement system, with his contributions thereto transferred to the newly created retirement system?

I can appreciate that while no district county or municipal judge may be enrolled as a member of all of the retirement systems mentioned, there are some judges who are enrolled as members of pre-existing public retirement systems, who are now members of the District County and Municipal Judges' Retirement System because of the language of the 1972 Act.

All of the existing public retirement systems are the result of legislative action. Without such action no system could be considered as public retirement system. It is settled in South Dakota by Tait v. Freeman, 74 S.D. 620, 57 N.W. 2d 520, that while there is a contractual relationship between the system, as such, and its members, the rights of such members until all requisites have occurred are "inchoate" and not vested. As a result, as to those holders of inchoate rights in a public retirement system, the Legislature has the lawful right to amend, repeal, or otherwise modify such retirement system. Upon an outright repeal of such system, the Legislature would have to make a refund to each participant of that amount of money he, the participant, had contributed thereto.

Each of the aforementioned public retirement systems existing at the time of the adoption of the District County and Municipal Judges' Retirement System are predicted upon the fact that certain designated officials are members of such system and must make contributions to the same, as long as they remain in public employment. Each presumably is based upon sound actuarial practices, so that the retirement of any given number of its members will not cause a deficit in the system funds.

The Legislature, when enacting the District County and Municipal Judges' Retirement System, could have provided for the automatic withdrawal of those eligible for, and not seeking exemption from such judicial retirement system, from any pre-existing retirement system of which such person was a member. This it did not see fit to provide. Nor has the Legislature provided for the transfer of membership, and contributions to such new system.

In this situation, eligibility to belong, and the mandatory requirement to become a member in such District County and Municipal Judges' Retirement System does not automatically revoke membership in a preexisting public retirement system.

I must answer your specific question, YES.

Respectfully submitted,

Gordon Mydland
Attorney General