CHARLESTON – The West Virginia Supreme Court of Appeals denied a writ of prohibition in an appeal involving per-diem payments to senior status judges.
Chief Justice Beth Walker authored the majority opinion, while Justices Margaret Workman and Tim Armstead did not participate. Judges Michael D. Lorensen and Michael J. Olejasz sat on a temporary assignment.
"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," the opinion states. "In 2018, this court addressed West Virginia Code Section 51-9-10 (1991), which authorized per diem payment to senior-status judges and placed an annual limit on a senior-status judges' 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, the opinion states.
John D. Perdue, the state treasurer, sought a writ from the Supreme Court prohibiting John B. McCuskey, the state auditor, from processing payments to senior-status judges that exceed the per diem rate allowed in Section 51-9-10 (2019).
"Because the treasurer seeks an advisory opinion from the court, we deny the writ," the opinion states.
Perdue argues that Section 51-9-10 (2019) cures the constitutional infirmities found in the prior version of Section 51-9-10, as identified in Syllabus Point 4 of the Workman decision. He reasons that because amended Section 51-9-10 passes constitutional muster, it controls the payment of senior-status judges rather than the 2017 Administrative Order.
Perdue contends that he is entitled to the requested writ of prohibition because McCuskey will necessarily violate Section 51-9-10 (2019) when he issues a warrant for per diem payment to a senior-status judge that is greater than the daily rate of per diem compensation set in Section 51-9-10(c).
"The auditor neither endorses nor counters the treasurer’s argument," Walker wrote. "Instead, he responds by asking us to 'resolve this controversy forthwith by announcing a new Syllabus Point or Points of West Virginia law interpreting Section 51-9-10 [(2019)] in the circumstances of a senior-status judge receiving excess in compensation and retirement benefits.'"
Notably, neither Perdue or McCuskey alleges that the Supreme Court chief justice has directed the auditor to pay a senior-status judge per diem compensation greater than the daily rate of per diem compensation set in Section 51-9-10(c). The appendix record is silent on that point, too, according to the opinion.
The requirement of a justiciable controversy and the prohibition against advisory opinions are two sides of the same coin, Walker wrote.
To cause a West Virginia court to exercise its authority over parties to a suit, the parties must plead and then prove that there is an actual conflict between them that is redressable under the law, she wrote.
"That necessary conflict is missing in this proceeding," Walker wrote. "The treasurer contends, and the auditor does not disagree, that Section 51-9-10 (2019) and the 2017 Administrative Order conflict. The treasurer likewise contends, and the auditor does not disagree, that Section 51-9-10 (2019) is constitutional and controlling. So, while we cannot say that the parties agree on either of those issues, we can say with certainty that they do not disagree."
Walker wrote that that observation, which is apparent from the parties’ briefing, shows that there is no actual dispute or controversy between the parties that demands this court to act.
"The treasurer argues that the past actions of this court, the 2017 administrative order, and the Workman decision show this court’s intent to someday direct the auditor to cause the treasurer to pay a senior-status judge a per diem amount greater than the limit specified in Section 51-9-10(c) (2019)," Walker wrote. "That possibility, the treasurer contends, will require the auditor to violate either Section 51-9-10 (2019) or the 2017 Administrative Order and to direct the treasurer to make an illegal payment, too, if the auditor chooses incorrectly."
The Supreme Court found that Perdue's writ of prohibition is not one of the rare proceedings in which the court must undertake something in the nature of an advisory opinion.
"There is no actual controversy between the parties," Walker wrote. "The treasurer has not petitioned this court for relief because the auditor has or has threatened to deny him a legal right. Instead, the treasurer petitions for relief because that is what the Legislature mandated in West Virginia Code Section 51-9-10(f) (2019)."
For that reason, the court denied the writ.
West Virginia Supreme Court of Appeals Case number 19-0532