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State Supreme Court Denies Writ in Senior Status Judge Case

CHARLESTON — The West Virginia Supreme Court of Appeals, in denying a writ brought by the State Treasurer, said Wednesday it has no plans to continue a practice of paying certain senior status judge more than what is allowed by law.

The decision, written by Chief Justice Beth Walker, denied a request for a writ of prohibition brought by State Treasurer John Perdue to prohibit the State Auditor’s Office from paying senior status judges, retired judges who fill temporary vacancies or are appointed to oversee certain cases, from issuing checks to any senior status judge for more than the $126,000 per-year cap on compensation when on assignment.

State law sets the cap at the same amount that elected circuit court judges receive annually.

If the senior status judge’s combined compensation and retirement reaches the cap, they either have to forego receiving their retirement annuity or forego additional assignments.

Senate Bill 398, signed into law March 20, re-established the $126,000 cap for senior status judge compensation. It also required the State Treasurer’s Office file for a writ of prohibition with the state Supreme Court prohibiting the State Auditor’s Office from paying senior status judges above the cap.

In her written opinion, Walker said the writ was denied because the State Treasurer’s Office was seeking an advisory opinion from the court on a hypothetical matter: whether the court planned to violate state law in the future and pay senior status judges above the cap. Walker also pointed out that there didn’t appear to be any disagreement between the State Treasurer and State Auditor.

“While we cannot say that the parties agree, … we can say with certainty that they do not disagree,” Walker said. “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.”

Walker said that the Supreme Court has no intentions of violating SB 398, and while previous courts had paid some senior status judges more than allowed, this would no longer continue to happen.

“The court’s past practices are just that: past,” Walker said. “The treasurer’s forecast overlooks the fact that since (SB 398) took effect, the chief justice of this court has not directed the auditor to cause the treasurer to pay a senior-status judge a per diem amount greater than the limit specified … and may never do so. The treasurer’s petition presents a hypothetical controversy that we will not resolve with an advisory opinion.”

Four supreme court justices — current Justices Walker and Margaret Workman, and former Justices Robin Davis and Allen Loughry — were impeached Aug. 13, 2018 on 11 articles by the House of Delegates. Four of the articles of impeachment were for overpayment of senior status judges. Auditors found that the justices converted 10 senior status judges from employees to independent contractors to get around the cap.

Article four named both Workman and Davis, article five singled out Davis, article six singled out Workman and article seven accused Loughry, as chief justice, of crafting a 2017 administrative order to allow overpayment of senior status judges to get around the law. Davis resigned Aug. 14, 2018, while Loughry resigned Nov. 10, 2018.

He was convicted in federal court on Oct. 13, 2018, on 11 felonies related to his misuse of court resources for personal use.

Workman filed suit against the Senate to halt her impeachment trial. An all-appointed state Supreme Court in a 3-2 decision on Oct. 12, 2018 ruled the House did not follow its own impeachment rules used to impeach Workman and the other justices.

The court also said the House violated the separation of powers by citing the Canons of Judicial Ethics in several of the impeachment charges. As part of the decision, the judges ruled the original law governing the compensation of senior status judges passed by the legislature in 1991 violated the separation of powers. SB 398 was passed to fix the constitutional issues.

“That statute seeks to regulate judicial appointment matters that are regulated exclusively by this court,” the acting justices wrote in their decision.

With the Supreme Court’s decision, the State Treasurer’s Office said it has followed the mandate of the Legislature and is satisfied by the response.

“We believe our office has fulfilled our obligation as required by SB 398 to file the writ of prohibition,” said Deputy Treasurer Gina Joynes. “With the Supreme Court’s denial of the writ, we feel this matter is now closed.”

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