State ex rel. Perdue v. McCuskey

242 W.Va. 474

836 S.E.2d 441

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

No. 19-0532

Supreme Court of Appeals of West Virginia.

Submitted: October 30, 2019

Filed: November 20, 2019

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

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 § 51-9-10¹ 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 disputed facts ...."⁸ In short, prohibition is an extraordinary remedy that is reserved for "really extraordinary causes."⁹

III. DISCUSSION

The Treasurer argues that § 51-9-10 (2019) cures the constitutional infirmities found in the prior version of § 51-9-10, as identified in Syllabus Point 4 of the Workman decision. He reasons that because amended § 51-9-10 passes constitutional muster, it controls the payment of senior-status judges rather than the 2017 Administrative Order. He is entitled to the requested writ of prohibition, he concludes, because the Auditor will necessarily violate § 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 § 51-9-10(c).

The Auditor neither endorses nor counters the Treasurer’s argument. Instead, he responds by asking us to "resolve this controversy forthwith by announcing a new Syllabus Point or Points of West Virginia law interpreting § 51-9-10 [ (2019) ] in the circumstances of a senior-status judge receiving excess in compensation and retirement benefits." Notably, neither the Treasurer nor the Auditor alleges that the Chief Justice of this Court has directed the Auditor to pay a senior-status judge per diem compensation greater than the daily rate of per diem compensation set in § 51-9-10(c). The appendix record is silent on that point, too.

A. The Treasurer Seeks an Advisory Opinion.

The Treasurer’s petition raises numerous questions, but we only have to consider one—the presence of a justiciable case or controversy—to conclude that we must deny the requested writ. West Virginia courts do not issue advisory opinions.¹⁰ That rule exists for a very good reason:

Since President Washington, in 1793, sought and was refused legal advice from the Justices of the United States Supreme Court, courts—state and federal—have continuously maintained that they will not give advisory opinions. And it is also well settled that litigants may challenge the constitutionality of a statute only insofar as it affects them.

Art. III of the Constitution of the United States is sometimes cited as the source of the limitations of the "judicial power" to "cases and controversies." The "justiciable controversy" requirement in West Virginia is usually

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