State ex rel. Perdue v. McCuskey (Signed Opinion)
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The Supreme Court denied the writ sought by the State Treasurer prohibiting the State Auditor from processing payments to senior-status judges that exceed the per diem rate allowed in W. Va. Code 51-9-10, holding that because there was no actual controversy between the parties the Treasurer was seeking an advisory opinion from the Court.
In 2018, the Supreme Court addressed W. Va. Code 51-9-10, which authorized per diem payment to senior-status judges and places an annual limit on a senior-status judge's combined per diem compensation and retirement income. In 2019, the legislature amended the 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. In the instant action, the Treasurer argued that he was entitled to the requested writ of prohibition because the Auditor will violate section 51-9-10 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 forth in the statute. The Supreme Court denied the writ, holding that the petition was not one of the rare proceedings in which this Court must undertake something in the nature of an advisory opinion.
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