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State ex rel. Perdue v. McCuskey

Supreme Court of Appeals of West Virginia

November 20, 2019

STATE OF WEST VIRGINIA ex. rel. JOHN D. PERDUE, In his official capacity as STATE TREASURER OF WEST VIRGINIA, Petitioner
v.
JOHN B. McCUSKEY, In his official capacity as WEST VIRGINIA STATE AUDITOR, Respondent

          Submitted: October 30, 2019

          ORIGINAL PROCEEDING IN PROHIBITION

          J. Mark Adkins, Esq. Richard R. Heath, Jr., Esq. Gabriele Wohl, Esq. BOWLES RICE LLP Charleston, West Virginia Special Assistant Attorneys General Counsel for Petitioner

          Stephen R. Connolly, Esq. General Counsel & Deputy State Auditor Charleston, West Virginia Counsel for Respondent

          JUSTICE WORKMAN and JUSTICE ARMSTEAD, deeming themselves disqualified, did not participate.

          JUDGE MICHAEL D. LORENSEN and MICHAEL J. OLEJASZ, sitting by temporary assignment.

         SYLLABUS BY THE COURT

         1. "'Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes. The pleadings and evidence must present a claim of legal right asserted by one party and denied by the other before jurisdiction of a suit may be taken.' Mainella v. Board of Trustees of Policemen's Pension or Relief Fund of City of Fairmont, 126 W.Va. 183');">126 W.Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943)." Syllabus Point 2, Harshbarger v. Gainer, 184 W.Va. 656');">184 W.Va. 656, 403 S.E.2d 399 (1991).

         2. "Statutory 'judicial review' provisions-that make implementation of a statute contingent upon judicial construction, review, or approval of the statute; that attempt to mandate judicial construction, review, or approval of a statute prior to its effectiveness; or that have the purpose of creating a 'test case'-may violate the separation of powers doctrine contained in Article V, Section 1 of the West Virginia Constitution. Such statutory provisions are disfavored and courts are not obliged to accept and/or rule in proceedings that arise as a result of such provisions." Syllabus Point 1, State ex rel. West Virginia Deputy Sheriffs' Association, Inc. v. Sims, 204 W.Va. 442');">204 W.Va. 442, 513 S.E.2d 669 (1998).

          OPINION

          WALKER CHIEF JUSTICE

         From time to time, the Chief Justice of this Court temporarily assigns former judicial officers, who are designated by the Court as senior-status judges, to fill judicial vacancies that arise as a result of retirement, suspension, disability, or other circumstances. In 2018, this Court addressed West Virginia Code § 51-9-10 (1991), which authorized per diem payment to senior-status judges and placed an annual limit on a senior-status judge's combined per diem compensation and retirement income. The following year, the West Virginia Legislature amended that statute to specify a rate of per diem payment to senior-status judges on assignment and to create an exception to the annual limit on compensation in extraordinary circumstances. Now, as directed by amended § 51-9-10(f) (2019), John D. Perdue, State Treasurer of West Virginia (the Treasurer), seeks a writ from this Court prohibiting John B. McCuskey, West Virginia State Auditor (the Auditor), from processing payments to senior-status judges that exceed the per diem rate allowed in § 51-9-10 (2019). Because the Treasurer seeks an advisory opinion from the Court, we deny the writ.

          I. FACTUAL AND PROCEDURAL HISTORY

         In 1991, the West Virginia Legislature amended and reenacted West Virginia Code § 51-9-10[1] authorizing payment on a per diem basis to senior-status judges on temporary assignment at the direction of the Chief Justice of this Court. Section 51-9-10 (1991) also stated that the per diem payment plus the senior-status judge's retirement income was not to exceed the salary of a sitting circuit court judge.[2] In 2017, this Court issued an Administrative Order that acknowledged § 51-9-10 (1991) and also declared that "the chief justice has authority to determine in certain exigent circumstances that a senior judicial officer may continue in an appointment beyond the limitations set forth in W.Va. Code § 51-9-10, to avoid the interruption in statewide continuity of judicial services."

         The 2017 Administrative Order and § 51-9-10 (1991) co-existed until 2018, when a panel of five circuit court judges appointed to temporarily serve on this Court issued State ex rel. Workman v. Carmichael.[3] Syllabus Point 4 of that decision states:

West Virginia Code § 51-9-10 (1991) violates the Separation of Powers Clause of Article V, § 1 of the West Virginia Constitution, insofar as that statute seeks to regulate judicial appointment matters that are regulated exclusively by this Court pursuant to Article VIII, § 3 and § 8 of the West Virginia Constitution. Consequently, W.Va. Code § 51-9-10, in its entirety, is unconstitutional and unenforceable.[4]

         Practically, Syllabus Point 4 left the 2017 Administrative Order as the sole authority controlling the payment of senior-status judges after the panel filed the Workman decision on October 11, 2018.

         The Legislature amended § 51-9-10 in 2019.[5] The amended statute addresses the limit on the per diem payments to senior-status judges and the extraordinary circumstances in which the Chief Justice may authorize compensation over that limit, stating:

(b) The Legislature recognizes and acknowledges the authority of the West Virginia Supreme Court of Appeals to recall retired judges and justices for temporary assignment and to create a panel of senior judges and justices to utilize the talent and experience of former circuit court judges and supreme court justices of this state: Provided, That extended assignment of retired judges and justices must not be utilized in such a way as to threaten the qualified status of the Judges' Retirement System under applicable provisions of the Internal Revenue Code . . . .
(c) Senior judges and justices recalled and assigned to service shall receive per diem compensation set by the Supreme Court of Appeals, but not to exceed $430 for each day actually served: Provided, That the combined total of per diem compensation and retirement benefits paid to a senior judge or justice during a single calendar year may not exceed the annual salary of a sitting circuit judge, except as set forth in subsection (d) of this section.
(d) Notwithstanding subsection (c) of this section, for purposes of maintaining judicial efficacy and continuity in judicial decisionmaking, a senior judge or justice may continue to receive per diem compensation after the combined total of per diem compensation and retirement benefits paid to the senior judge or justice during that calendar year exceeds the annual salary of a sitting circuit judge if the Chief Justice of the Supreme Court of Appeals enters an administrative order certifying there are certain extraordinary circumstances involving the necessary absence of a sitting judicial officer because of a protracted, but temporary, illness or medical condition or a lengthy suspension which necessitate the extended assignment of the senior judge or justice. Immediately upon entering such an order, the Chief Justice shall submit copies of the order to the State Auditor and the State Treasurer.

         As § 51-9-10(d) (2019) indicates, the process of rendering payment to a senior-status judge involves the Chief Justice of this Court, the Auditor, and the Treasurer. To effect that payment, the Chief Justice directs the Auditor to issue a warrant for payment which then triggers the disbursement of funds to the particular senior-status judge by the Treasurer.

         That process is the backdrop to subsection (f) of amended § 51-9-10. In subsection (f), the Legislature mandated the Treasurer to petition this Court for a writ prohibiting the Auditor from issuing a warrant to the Treasurer to pay a senior-status judge per diem compensation greater than the limitation on the daily rate of per diem compensation in § 51-9-10(c) (2019).[6] Subsection (f) states:

[w]ithin 90 days after the effective date of [§ 51-9-10 (2019)], the Treasurer, as the chief custodian of public funds, shall petition the West Virginia Supreme Court of Appeals for a writ of prohibition pursuant to the court's original jurisdiction, naming as respondent the State Auditor and petitioning the court to prohibit the State Auditor from issuing any warrant for the payment of per diem compensation to senior judges and justices in excess of the limitation on the daily rate of per diem compensation in [§ 51-9-10(c)].[7]

         The Treasurer has satisfied that obligation by filing the petition presently before us, which we now consider in light of our enduring principles of justiciability.

         II. STANDARD OF REVIEW

         Section 51-9-10(f) (2019) requires the Treasurer to petition this Court for a writ of prohibition. Article VIII, Section 3 of the Constitution of West Virginia vests this Court with original jurisdiction over proceedings in prohibition. In cases that do not involve an alleged lack of jurisdiction (as is the case, here) this Court "will use prohibition in [a] discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any ...


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