CHARLESTON -- The West Virginia Supreme Court says it will not order state Auditor Glen Gainer to stop paying Acting Gov. Earl Ray Tomblin a governor's salary.
The Court entered its order on Wednesday, days after New Martinsville lawyer H. John Rogers filed a lawsuit arguing that it is unconstitutional for Tomblin to receive the governor's $150,000 salary and other perks of the office.
The lawyer, on behalf of The Christian Patriotic Front, petitioned the Court to bar Gainer from paying Tomblin in a filing received by the state's high court on Friday.
"At most, Mr. Tomblin might be entitled to compensation at an hourly rate" for time spent acting as governor, Rogers said in the filing. "The State Auditor has no legal authority to determine on his own who the employees of the State are and what is the correct rate of pay."
Rogers also argued that Tomblin can't draw the governor's salary, occupy the office in the Capitol or live in the Governor's Mansion without an act of the Legislature allowing him to do so.
"His 'day job,' as it were, is to serve as Senate president, and that is the only salary to which he is legally entitled," the lawyer said in his filing.
The Court, in its one-page order, says it "retains the discretion to refuse" Rogers' "extraordinary remedy of prohibition."
"After carefully studying the petition, the Court is of the opinion to and does hereby refuse to issue a rule to show cause in this matter," it wrote. "The petitioner has presented nothing other than hyperbole and conjecture to support the assertion that the Auditor is improperly paying a state worker for services rendered.
"We therefore find that the petition lacks sufficient legal authority, is inadequate and conclusory, and it is hereby dismissed from the docket of this Court."
Rogers, in a handwritten motion to reconsider, asked the Court to reassess its decision on the grounds that the judicial pay increase bill "was -- and continues to be -- on the Senate President/'Actor-as-Governor' 's desk."
The raises include $7,500 for magistrates, $15,000 for Supreme Court justices, $10,000 for circuit judges and $12,000 for family court judges.
"Consequently, it would appear that this honorable Court may have the 'appearance' of conflict," Rogers wrote.
Tomblin, a Democrat from Logan County, took over for now-U.S. Sen. Joe Manchin, who resigned in November with more than a year left in his term. Tomblin has served as Senate president for 15 years. Sen. Jeff Kessler, D-Marshall, is now serving as acting Senate president in his place.
The state Supreme Court ruled in January that Tomblin had to issue a proclamation calling for a special gubernatorial election sometime this year.
According to the Court's opinion, West Virginia code states that no one can serve as acting governor for more than one year. The Court said a governor must be elected by Nov. 15.
In February, Tomblin signed House Bill 2853 into law, setting this year's special primary and gubernatorial election dates for May 14 and Oct. 4, respectively.