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2006-06-01-03

The Supreme Court of South Carolina

Nancy S. Layman, David M. Fitzgerald, Vicki K. Zelenko, Wyman M. Looney and Nancy Ahrens, on behalf of themselves and all others similarly situated, Petitioners,

v.

The State of South Carolina and The South Carolina Retirement System, Respondents


AMENDED ORDER


On May 4, 2006, this Court issued an opinion holding that respondents breached their contract with TERI participants who joined the TERI program, originally enacted in 2001, prior to July 1, 2005 (old TERI participants), by forcing them to make retirement system contributions. Layman v. State of South Carolina, Op. No. 26146 (S.C. Sup. Ct. filed May 4, 2006). We further ordered that all retirement system contributions withheld from those TERI participants be returned to them with interest and that no further contributions from them shall be required. Id. Finally, we remanded the issue of breach of contract as it relates to working retirees to the trial court because the record before us does not allow us to make the factual or legal inquiry necessary to determine if a binding contract existed between the State and the working retirees regarding the making of further retirement system contributions. Id.

The parties have now filed several motions. We will address respondents’ petition for rehearing first. We deny the petition with regard to Arguments I and II.

We also deny the petition as to Argument III, but will analyze the arguments made therein. Respondents contend this Court impugned the integrity of counsel by labeling as a complete misrepresentation the assertion that the growing number of TERI participants was part of the reason for requiring contributions from previously enrolled TERI participants. At page 26 of their brief respondents state, “Act 153 was adopted in the face of increasing liabilities in the Retirement System.” The sentence is accompanied by a reference to pages 754 and 755 of the record. Those pages in the record contain a portion of the Milliman study describing the increase in the number of participants corresponding to the increase in the liabilities of the retirement system. The numbers are reflected in chart form, depicting the liabilities increasing significantly, almost off the charts. We did not intend to impugn the character of counsel, but we did find fault in the analysis used with respect to the entire Milliman report. Respondent’s reliance on the report was inaccurate because by the time respondents prepared the briefs for presentation before this Court, we had previously certified the plaintiff class to include only those retirees enrolled prior to July 1, 2005. The Milliman report included both current and future TERI participants.

Further, this Court pointed to flawed analysis by stating that 100 percent of eligible retirees were used in arriving at the figures in the report. This sentence, when taken out of context, is incorrect. To clarify, the Milliman report did assume that only 80 percent of all eligible retirees (as opposed to 100 percent of eligible retirees) would participate in TERI. 1

In Arguments IVA and IVB, respondents maintain the Court should amend the class definition to exclude working retirees or, in the alternative, decertify the entire class. Respondents state that class treatment is not necessary because “if the Court lets its decision stand, respondents will comply with the law as declared and provide appropriate relief to all persons entitled to it.” Respondents also point out that if the class is not decertified, class notice will be required.2 We are persuaded by this argument. Accordingly, we grant respondents’ request to decertify the classes in this matter. Thus, petitioners’ Motion for Approval of Notice to Class is denied as moot.

In Argument IVC, respondents maintain the Court failed to prescribe the procedures for making refunds pursuant to the opinion, specifically, how or when such refunds will be made.3 Respondents state, “This is one of the reasons that the class definition must be amended to prevent confusion regarding who is entitled to relief, should the Court maintain the same result in this case.” Finally, respondents maintain, as they have in the past, that there is a delay in collecting the contributions and in allocating them to specific persons who are members of the class.

We find there should be no confusion as to who is entitled to relief in this matter – all TERI participants who joined the TERI program, originally enacted in 2001, prior to July 1, 2005, from whom retirement system contributions have been collected since the effective date of Act 153. As to when such refunds are to be made, we hereby order that all retirement system contributions withheld from the old TERI participants shall be returned to them, with interest at the rate of 4%, within thirty (30) days of the date of this order. Specifically how this refund will be effectuated is to be decided by respondents, not this Court. The post judgment interest on the amounts to be returned shall begin to accrue at the rate of 11.25%, set forth by order of this Court dated January 4, 2006, for post-judgment interest, if not returned within this thirty (30) day period.

In Argument IVD, respondents maintain the Court must clarify its ruling as to the working retirees and provide for appropriate procedures on remand to deal with whatever claims are permitted. Our opinion orders that the issue of breach of contract as it relates to the working retirees is remanded to the trial court. Because we have now decertified the class, only petitioner Ahrens’ case is remanded to the circuit court, specifically, to the Honorable John L. Breeden. Judge Breeden shall have full authority to decide whether to certify a class or deal with the cases individually. Judge Breeden has the authority to fully explore the issue of whether the working retirees entered into a binding contract and all other issues involved in the working retiree action(s).

Finally, respondents assert in Argument IVE that this Court must prescribe procedures for determining petitioners’ request for fees and costs. We consider petitioners’ Petition for Costs to Include S.C. Code § 15-77-300 Attorney’s Fees and Motion for Attorney’s Fees (Common Fund Doctrine) in conjunction with Argument IVE of respondents’ petition for rehearing. We deny petitioners’ Motion for Attorney’s Fees (Common Fund Doctrine), as we find attorney’s fees in this matter should not come from the retirement contributions made by the old TERI participants, or the interest accumulated thereon. However, we remand petitioners’ request for costs, to include attorneys’ fees pursuant to section 15-77-300, to Judge Breeden to determine if petitioners are entitled to recover reasonable attorneys’ fees to be taxed as court costs against the State of South Carolina and the South Carolina Retirement System, and if so, the amount of attorneys’ fees they are entitled to based on the actual amount of work performed, expenses incurred, and the benefit obtained for all of the old TERI participants.

IT IS SO ORDERED.

s/Jean H. Toal                                    C.J.

s/James E. Moore                             J.

s/John H. Waller, Jr.                           J.

s/Perry M. Buckner                             J.

s/Deadra L. Jefferson                        J.

Columbia, South Carolina
June 1, 2006

[Note: By order dated June 6, 2006, the Supreme Court of South Carolina amended this order to substitute the phrase “interest at the rate of 4%” for the phrase “interest at the rate of 6%” in the seventh paragraph of the order. This order reflects the language as amended.]


1 Respondents contend in their Introduction, that “[t]his case represents a dramatic departure from ordinary procedural and substantive standards” and that [i]t is doubtful that there is another case in the history of South Carolina jurisprudence with such a procedural history.” Many cases this Court has elected to entertain in its original jurisdiction, which by their very nature involve issues of public interest or special emergency, see Rule 229(a), SCACR, have taken the same efficient and expeditious path as the case at hand, and have not included an opportunity for the parties to engage in discovery. See e.g. South Carolina State Ports Authority v. Jasper County, Op. No. 26132 (S.C. Sup. Ct. filed April 3, 2006)(order accepting matter in Court’s original jurisdiction filed March 2, 2005; opinion issued April 3, 2006); Sloan v. Wilkins, 362 S.C. 430, 608 S.E.2d 579 (2005)(order accepting matter in Court’s original jurisdiction filed May 14, 2004; opinion issued January 28, 2005); Sloan v. Sanford, 357 S.C. 431, 593 S.E.2d 470 (2004)(order accepting matter in Court’s original jurisdiction filed May 30, 2003; opinion issued February 9, 2004). The case at hand was certified to this Court by order dated August 4, 2005. The opinion was issued on May 4, 2006, nine months later. Accordingly, this case does not mark a dramatic departure from procedures and time periods in other similar cases before this Court.

2 By order dated November 3, 2005, this Court deferred the issue of class notice until after a decision was rendered in the case.

3 Respondents take issue with this Court’s statements in its opinion that the amounts contributed by old TERI participants have been escrowed in a separate interest-bearing account. By order dated August 31, 2005, this Court granted respondents’ request for the escrowed funds to be held within the Retirement Trust Fund, but subject to separate accounting for individual contributions, and also ordered that the escrowed funds bear interest at the current rate established by the State Budget and Control Board pursuant to S.C. Code Ann. § 9-1-280 (1986). Further, we note that the description of the interest bearing escrow account was borrowed in large part from pages 2-3 of respondents’ brief.