Malone v. State Employees' Retirement System

VAN DYKE, P. J.

Appellants herein petitioned the superior court for a writ of mandate compelling respondents to pay certain retirement benefits to them after the deaths of their respective husbands, who had been employed by the state as fish and game wardens and had retired from service. The court issued an alternative writ of mandate. From a judgment

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discharging the writ, petitioners have appealed. The issue presented is the proper interpretation of controlling statutes.

The pertinent legislation is found in chapter 9, part 3, division 5, title 2 of the Government Code. Chapter 9 is entitled “Benefits” and follows legislation implementing constitutional permission to the Legislature to provide a state retirement system. Section 21208, the salient statute in this case, provides: “The provisions of this chapter applicable to patrol members are applicable to warden members. ‘ Highway patrol service’ means ‘warden service’ as applied to warden members.” Like provisions are made as to forestry members. (§ 21209.) The next section, the first section of article 2 of chapter 9 entitled ‘ ‘ Service Retirement, ’ ’ defines the elements of allowance on retirement for service and contains a special provision that patrol members’ widows, or minor children, or dependent parents, in that order, shall receive one-half the member’s annuity allowances after death of the member. Sections 21252.1, 21252.2 and 21252.3 are special sections addressed to benefits to patrol, warden and forestry members which are alike, save that the normal retirement age for patrol members is fixed at age 55, but for warden and forestry members is fixed at age 60. Sections 21256, 21256.1, and 21256.2 again are special sections devoted to patrol, warden, and forestry members, alike, save for normal retirement age. What has just been said is true also of sections 21257 and 21257.1.

Section 21263, which is the specific section on which appellants ground their claims for continuing benefits after death of their husbands, provides:

“Upon the death of a patrol member after the effective date of this section and after retirement for service or for industrial disability, including such members heretofore and hereafter retired, one-half of his retirement allowance as it was at his death, excluding the portion of said allowance derived from accumulated additional contributions of the member, shall be continued throughout life or until remarriage, to his surviving wife. ...”