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W.Va. Guard still waiting for ruling on benefits

CHARLESTON, W.Va. - Kanawha Circuit Judge Carrie Webster has sat on a case important to some state National Guard members for more than eight months.

The former head of the West Virginia National Guard was in Webster's courtroom last May to argue the state is illegally denying retirement money to public employees who are also members of the Guard.

At a May 14 hearing, Webster told Maj. Gen. Allen Tackett's lawyer and an attorney for the state Consolidated Public Retirement Board that she would rule soon.

It's been eight months. Webster, a Democrat, has previously been chided by the state Supreme Court for taking too long to issue rulings.

Tackett's attorney, Ray Shepard, asked Webster in a Dec. 3 letter if the court needed any additional information.

"That was a polite way to say, 'Hey, would you please pay attention to this case,' " Shepard said.

The response? "Crickets," Shepard said Friday.

Following a reporter's phone call about the case on Friday, Webster said she was prepared to rule on the case, but her staff was trying to get additional information from Shepard's office.

The judge said she could rule as soon as Tuesday if she obtained the documents. Webster called Shepard on Friday afternoon, Tackett said.

"I am unable to rule until I secure these additional documents that I have sought," Webster said.

She said the departure of her law clerk around Christmas has complicated her efforts.

"When you lose a law clerk, you lose their knowledge," Webster said.

Tackett said he would like a ruling for several reasons.

"There's several guardsmen who are state employees who are getting ready to retire and they are waiting on my decision to see how all this turns out," Tackett said.

State law gives public employees extra pension benefits because of their "active duty" military service. But Tackett argued the state's retirement board is unfairly denying credit to members of the state National Guard for time they spend training during times of war. The state does not consider that work "active duty."

If he loses in Webster's court, Tackett plans to keep pressing his case. He will appeal to the state Supreme Court, he said. And, if Tackett loses there, he will appeal to the state Legislature to change the law to make sure Guard members can get credit for their service.

Tackett has been wondering what happened to the case. Tackett said he and Shepard had talked about sending the letter in October and in November but waited.

The state Supreme Court has previously told Webster to rule on cases in a timely manner.

The high court told Webster in February 2012 that she had 10 days to rule on a motion that had been pending in her court since January 2011.

In April 2012, the court ordered Webster to rule on a petition from a convicted murderer that had been pending since September 2009. The justices said a ruling was "long overdue."

Shepard said he was considering going to the Supreme Court if Webster does not rule soon.

He said he was surprised to hear that Webster was seeking documents from him on Friday because she did not reply to his Dec. 3 letter.

"I haven't heard anything from the court since then, so it's surprising to me that they would say that to you," Shepard said.

Webster said her staff had called his office on Friday.

The judge said there was a "formatting issue" and she needs another copy of a document.

She said a reporter's question about the case's status did not prompt her office to swing into action.

"You're asking if today is what prompted this?" Webster said Friday. "No."

She could not say for sure the last time her office had been in contact with Shepard's office.

Tackett sued the state in Kanawha County Circuit Court in March 2012. He was appealing an administrative judge's ruling.

Right now, the pension board can grant up to five years of service credits to members of the armed forces of the United States during times of conflict - a potentially lucrative addition to a state worker's retirement plan. The question is whether a member of the state Guard counts.

The state Guard operates under a section of federal code different from the one under which active duty federal troops operate, so the state has said it does not have to grant Guard members pension credits.

Lenna Chambers, an attorney at Bowles Rice who is representing the state retirement board, said during last May's hearing that the law may be unfair but it is what it is.

Chambers did not return a phone call seeking comment on the case's status.

Contact writer Ry Rivard at or 304-348-1796. Follow him at



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