W. Va. Code » §51-9-5. Election not to participate, contribute, or be a member; authorized transfers of service credit by a judge; duplicate use of service credit prohi
West Virginia Code

W. Va. Code § 51-9-5 (2026)

Election not to participate, contribute, or be a member; authorized transfers of service credit by a judge; duplicate use of service credit prohibited

✓ current as of May 2026
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ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.

§51-9-5. Election not to participate, contribute, or be a member; authorized transfers of service credit by a judge; duplicate use of service credit prohibited.

(a) Notwithstanding any provisions of this article, any judge may in writing notify the Auditor within thirty days after he or she takes office, or, if he or she is in office, on the date this article becomes effective, then within thirty days from such latter date, that such judge elects not to become a member or make any payments or contributions to the trust fund, in which event every judge, so electing, shall not thereafter at any time be entitled to receive any retirement pay or benefits under provisions of this article, and any deduction that may have theretofore been made from the salary of such judge and paid into the fund shall be refunded without interest, to him or her by the Auditor by warrant drawn on the trust fund. Any judge who has so elected not to become a member or not to contribute, shall nevertheless thereafter be permitted to become such member, contribute and become eligible for retirement benefits by paying into the Judges' Retirement Fund all contributions such judge would have been required to pay into the fund, together with interest thereon at a rate to be determined by the State Auditor as reasonable for such prior periods, as if such judge had not previously elected not to be a member and not to contribute.

(b) There may be transfers of service credit on proper basis between the judges' retirement system and the Public Employees Retirement System, where such service credit constitutes qualified and eligible credit under the recipient system's statutes, in order to allow full flexibility of choice of option by a judge or judicial member; but in no case shall benefits be receivable from more than one of such state retirement systems, nor shall any service credit be usable more than once and then only in the finally chosen state retirement system.

Notes of Decisions
Cited in 6 cases, 1971–2017 · leading case: DePond v. Gainer, 351 S.E.2d 358 (W. Va. 1986).
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DePond v. Gainer, 351 S.E.2d 358 (W. Va. 1986). · cites it 14× “Dostert relies on W.Va.Code § 51-9-5 (1981) for the authority for the payment into the Judicial Retirement System, but the legislature never intended the per diem compensation of special judges to be the basis for contributions to the Judicial Retirement System.”
In Re Dostert, 324 S.E.2d 402 (W. Va. 1984). · cites it 9× “” Under West Virginia Code § 51-9-5 (1981 Replacement Vol), “[A]ny judge .”
Oakley v. Gainer, 331 S.E.2d 846 (W. Va. 1985). · cites it 2× “Under West Virginia Code § 51-9-5 (1981 Replacement Vol.), the sole requirement for transfer between the public employees retirement system and the judicial retirement system is that, "[A]ny judge who has [previously] elected not to contribute shall .”
Matter of Hey, 457 S.E.2d 509 (W. Va. 1995). “Code, 51-9-8 [1987], which provides, in part: (a) Whenever a judge of a court of record of this state, who is not disqualified from participation herein as provided by section five [§ 51-9-5] of this article, who shall have served for ten full years .”
Davis v. United States, 323 F. Supp. 858 (S.D.W. Va 1971). “A participating judge is required to contribute six percent of his salary (§ 51-9-4), although any judge may elect not to participate (§ 51-9-5). Eligible participating judges receive annual retirement benefits from the Fund equal to seventy-five percent of the highest annual…”
Dale W. Steager, State Tax Comm. v. James & Elaine Dawson (W. Va. 2017). · cites it 2× “See W.Va. Code § 51-9-5 [1987] (permitting circuit judges and justices to elect PERS coverage); W.”
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