The West Virginia Supreme Court won’t weigh in on how the state treasurer and state auditor should handle the issue of possible senior status judge pay over what’s allowed by law.
The court handed down its opinion Wednesday, saying the case was missing a “necessary conflict” of law and the court “disfavors” laws that require it to rule on a given issue.
In the opinion, Chief Justice Beth Walker noted that such laws are challenging to the separation of powers doctrine in the state constitution.
West Virginia Treasurer John Perdue petitioned the court, asking justices to guide his office, and that of Auditor J.B. McCuskey, in how they should respond to requests to pay senior status judges when it might be in violation of state law.
Perdue’s office filed the petition with the court as mandated by the West Virginia Legislature, which passed a bill earlier this year that forced Perdue, in his role as treasurer, to file the petition with the Supreme Court.
“The Treasurer has not petitioned this Court for relief because the Auditor has or has threatened to deny him a legal right,” Walker wrote in the court’s opinion. “Instead, the Treasurer petitions for relief because that is what the Legislature mandated.”
The law, established in Senate Bill 398, acknowledged the payment cap for senior status judges but also acknowledged that there might be circumstances when those judges might need to work for extended periods of time, earning them more pay than law allows.
To that end, legislators required Perdue to petition the high court.
Walker said the court previously stated that such provisions of law were a violation of separation of powers among the legislative, judicial and executive branches of government.
“That concern is compounded in this instance because the Legislature has directed the Treasurer, a member of the Executive Department, to invoke this Court’s original jurisdiction for a writ against the Auditor, another member of the Executive Department,” Walker said.
Senate Judiciary Committee Chairman Charles Trump, R-Jefferson, the lead sponsor of SB 398, said he wasn’t critical of the court’s opinion, saying that, in the big picture, it was “a pretty conservative judicial view.”
“I’m not going to be critical of the court because the court declined to accept the invitation to review this,” Trump said Thursday. “They decided that they would not like to address the merits of the question unless it comes up in a live case or controversy, and I understand that.”
Walker also said the court would not issue an opinion because there was no specific issue in controversy, and the court does not issue opinions on hypothetical issues.
Walker noted that the court has, in the past, issued advisory opinions in very specific cases, those involving elections and cases wherein the court permits the marketing of bonds for public authorities due to interest of certainty in elections and the human effort and sums of money involved in the sale of bonds.
Walker noted that, since SB 398 became law, there had been no circumstances in which a senior status judge was approaching being paid in excess of state law, nor did she anticipate any such situation.
“In sum, the Treasurer asks us to issue a writ to resolve a conflict that has not — and may never — arise,” Walker wrote.
For this case, Justices Margaret Workman and Tim Armstead disqualified themselves, and Berkeley County Circuit Judge Michael Lorensen and Ohio County Circuit Judge Michael Olejasz sat on temporary assignment.
Senior status judges and magistrates are retired from full-time judicial work but remain available to fill in on cases when a full-time judge can’t work for any number of reasons, including a conflict of interest or an extended illness.
Those senior status judges and magistrates receive their retirement payments on a regular basis. When they are appointed to substitute for existing judges, senior status judges receive payment per each day they serve.
Under state law, senior status judges and magistrates are not permitted to have their retirement payment, plus their senior status pay, add up to more money than the annual salary of their full-time counterparts.
Circuit court judges are paid $126,000 per year. Family court judges make $94,500 each year and magistrates are paid $57,500 each year.
The House of Delegates, in August 2018, impeached four of the Supreme Court justices, with the fifth, Menis Ketchum, resigning just before the House Judiciary Committee began its impeachment inquiry.
Among the actions for which Workman and former justices Allen Loughry and Robin Davis were impeached was their authorization of payments of senior status judges in excess of what was allowed by state law.
Although Walker stood trial in the Senate and was admonished in October 2018, the other impeachment trials were stopped when the Supreme Court, then comprised of justices appointed especially for that case, held that the House’s impeachment resolution wasn’t valid because the House did not properly adopt the resolution after voting on individual articles of impeachment against the justices.
The House and Senate each appealed that ruling to the U.S. Supreme Court, saying the state court’s overturning of the impeachments was a violation of the separation of powers doctrines in the West Virginia Constitution and the U.S. Constitution.
In October, the U.S. court declined to hear arguments for those appeals. House Speaker Roger Hanshaw, R-Clay, responded to that denial by saying lawmakers would consider proposing an amendment to the state constitution to further clarify the separation of government powers when it comes to impeachment, specifically that impeachment is a legislative process.