McGraw, Justice, concurring in part, and dissenting in part:
I agree with the majority
opinion in all respects except its failure to permit retroactive application
of the rule announced in this case, so as to permit appellants to obtain back
pay in the present case. The majority's stance on this issue is particularly
puzzling since the Court has otherwise determined that appellants did not
waive their right to “seek redress” for the Board's violation of
the uniformity requirement of W. Va. Code §§ 18-29-2(a)
& 18A-4-5b.
In syllabus point five of
Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879
(1979), this Court summarized the criteria which should be considered in determining
whether retroactivity is appropriate:
In
determining whether to extend full retroactivity, the following factors are
to be considered: First, the nature of the substantive issue overruled must
be determined. If the issue involves a traditionally settled area of law,
such as contracts or property as distinguished from torts, and the new rule
was not clearly foreshadowed, then retroactivity is less justified. Second,
where the overruled decision deals with procedural law rather than substantive,
retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result
in the overruling decision being given retroactive effect, since the substantive
issue usually has a narrower impact and is likely to involve fewer parties.
Fourth, where, on the other hand, substantial public issues are involved,
arising from statutory or constitutional interpretations that represent a
clear departure from prior precedent, prospective application will ordinarily
be favored. Fifth, the more radically the new decision departs from previous
substantive law, the greater the need for limiting retroactivity. Finally,
this Court will also look to the precedent of other courts which have determined
the retroactive/prospective question in the same area of the law in their
overruling decisions.
Based
upon these criteria, I see no reason why the Court should not give full retroactive
effect to the rule announced in syllabus point five of its opinion in this
case. This rule clearly does not have the effect of disturbing a previously
settled area of law. Moreover, it is not likely to have a serious financial
impact, as any award of back pay would be limited to the one year prior to
the filing of the grievance under W. Va. Code § 18-29-3(v) (
1992) (Repl. Vol. 1999). See
Breza v. Ohio County Bd. of Educ., 201 W. Va. 398, 401, 497 S.E.2d
548, 551 (1997) (per curiam). For these reasons, I respectfully
concur in part, and dissent in part from the Court's opinion in this case.