State of West Virginia ex rel. John Perdue v. John B. McCuskey, State Auditor

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2019 Term
_______________ FILED
November 20, 2019
released at 3:00 p.m.
No. 19-0532 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

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

____________________________________________________________

ORIGINAL PROCEEDING IN PROHIBITION

WRIT DENIED
____________________________________________________________

Submitted: October 30, 2019
Filed: November 20, 2019

J. Mark Adkins, Esq. Stephen R. Connolly, Esq.
Richard R. Heath, Jr., Esq. General Counsel & Deputy State Auditor
Gabriele Wohl, Esq. Charleston, West Virginia
BOWLES RICE LLP Counsel for Respondent
Charleston, West Virginia
Special Assistant Attorneys General
Counsel for Petitioner

CHIEF JUSTICE WALKER delivered the Opinion of the Court.

JUSTICE WORKMAN and JUSTICE ARMSTEAD, deeming themselves disqualified, did
not participate.

JUDGE MICHAEL D. LORENSEN and MICHAEL J. OLEJASZ, sitting by temporary
assignment.
 SYLLABUS BY THE COURT

1. “‘Courts are not constituted for the purpose of making advisory

decrees or resolving academic disputes. The pleadings and evidence must present a claim

of legal right asserted by one party and denied by the other before jurisdiction of a suit may

be taken.’ Mainella v. Board of Trustees of Policemen’s Pension or Relief Fund of City of

Fairmont, 126 W. Va. 183, 185–86, 27 S.E.2d 486, 487–88 (1943).” Syllabus Point 2,

Harshbarger v. Gainer, 184 W. Va. 656, 403 S.E.2d 399 (1991).

2. “Statutory ‘judicial review’ provisions—that make implementation of

a statute contingent upon judicial construction, review, or approval of the statute; that

attempt to mandate judicial construction, review, or approval of a statute prior to its

effectiveness; or that have the purpose of creating a ‘test case’—may violate the separation

of powers doctrine contained in Article V, Section 1 of the West Virginia Constitution.

Such statutory provisions are disfavored and courts are not obliged to accept and/or rule in

proceedings that arise as a result of such provisions.” Syllabus Point 1, State ex rel. West

Virginia Deputy Sheriffs’ Association, Inc. v. Sims, 204 W. Va. 442, 513 S.E.2d 669 (1998).

i
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.

1
 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.”

1
1991 W. Va. Acts Ch. 34 (“The West Virginia supreme court of appeals is
authorized and empowered to create a panel of senior judges to utilize the talent and
experience of former circuit court judges and supreme court justices of this state. The
supreme court of appeals shall promulgate rules providing for said judges and justices to
be assigned duties as needed and as feasible toward the objective of reducing caseloads
and providing speedier trials to litigants throughout the state: Provided, That reasonable
payment shall be made to said judges and justices on a per diem basis: Provided, however,
That the per diem and retirement compensation of a senior judge shall not exceed the salary
of a sitting judge, and allowances shall also be made for necessary expenses as provided
for special judges under articles two and nine of this chapter.”).
2
In 1991, the annual salary of a sitting circuit court judge was $65,000. 1989 W.
Va. Acts c. 183 (codified at W. Va. Code § 51-2-13 (1994)). Effective July 1, 2011, the
annual salary of a sitting circuit court judge rose to $126,000. 2011 W. Va. Acts c. 154
(codified at § 51-2-13 (2016)).

2
 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

3
State ex rel. Workman v. Carmichael, 241 W. Va. 105, 819 S.E.2d 251 (2018),
cert. denied sub nom. W. Va. House of Delegates v. W. Va., ex rel. Workman, ___ S.Ct.
___ (U.S. Oct. 7, 2019) (No. 18-893), and cert. denied sub nom. Carmichael v. W. Va. ex
rel. Workman, ___ S.Ct. ___ (U.S. Oct. 7, 2019) (No. 18-1189).
4
Syl. Pt. 4, State ex rel. Workman, 241 W. Va. at 105, 819 S.E.2d at 251.
5
2019 W. Va. Acts Ch. 67.

3
 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.
4
 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

6
The Treasurer and the Auditor are members of the Executive Department. See
W. Va. CONST. art. 7, § 1.
7
W. Va. Code § 51-9-10(f) (2019) (emphasis added).

5
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

8
Syl. Pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979),
superseded by statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v.
King, 233 W. Va. 564, 570, 759 S.E.2d 795, 801 (2014).
9
State ex rel. Am. Elec. Power Co. v. Nibert, 237 W. Va. 14, 19, 784 S.E.2d 713,
718 (2016) (internal quotation omitted).

6
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 found in
cases arising under the declaratory judgment act (even though
the declaratory judgment act does not mandate an actual

10
See Kanawha Cty. Pub. Library Bd. v. Bd. of Educ. of Cty. of Kanawha, 231 W.
Va. 386, 403 n.22, 745 S.E.2d 424, 441 n.22 (2013) (recognizing that West Virginia as one
of the large majority of state courts that will not render advisory opinions on pending
legislation).

7
 dispute or controversy), but the actual dispute or controversy
rule applies to all West Virginia judicial proceedings.[11]

The requirement of a justiciable controversy and the prohibition against

advisory opinions are two sides of the same coin. We explained this in Syllabus Point 2 of

Harshbarger v. Gainer when we held that “‘[c]ourts are not constituted for the purpose of

making advisory decrees or resolving academic disputes. The pleadings and evidence must

present a claim of legal right asserted by one party and denied by the other before

jurisdiction of a suit may be taken.’”12 In other words, 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. That necessary conflict

is missing in this proceeding. The Treasurer contends, and the Auditor does not disagree,

that § 51-9-10 (2019) and the 2017 Administrative Order conflict. The Treasurer likewise

contends, and the Auditor does not disagree, that § 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. 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.

11
Harshbarger v. Gainer, 184 W. Va. 656, 659, 403 S.E.2d 399, 402 (1991)
(internal notes and quotations omitted).
12
Syl. Pt. 2, id. at 656, 403 S.E.2d at 399 (quoting Mainella v. Bd. of Trustees of
Policemen’s Pension or Relief Fund of City of Fairmont, 126 W. Va. 183, 185–86, 27
S.E.2d 486, 487–88 (1943)).

8
 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 § 51-9-10(c) (2019). That possibility, the Treasurer

contends, will require the Auditor to violate either § 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 Court’s past practices are just that: past. The Treasurer’s

forecast overlooks the fact that since amended § 51-9-10 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 in § 51-9-10(c) (2019)—and may never

do so. The Treasurer’s petition presents a hypothetical controversy that we will not resolve

with an advisory opinion.13

We recently faced a similar non-controversy in City of Martinsburg v.

Berkeley County Council.14 There, the City of Martinsburg claimed that properties owned

by Berkeley County, but located within City limits, were subject to the City’s zoning

13
See State ex rel. ACF Indus., Inc. v. Vieweg, 204 W. Va. 525, 533 n.13, 514 S.E.2d
176, 184 n.13 (1999) (“As we frequently have said before, this Court cannot issue an
advisory opinion with respect to a hypothetical controversy. . . . Thus, we conclude that
we cannot entertain the petitioners’ request for a writ of prohibition.”).
14
City of Martinsburg v. Berkeley Cty. Cnc’l., 241 W. Va. 385, 825 S.E.2d 332
(2019).

9
code.15 The County took the opposite position and filed for a declaration to that effect.16

The circuit court granted the County summary judgment, and the City appealed.17 We

concluded that the circuit court lacked jurisdiction over the parties’ dispute because the

complaint did not

allege any proposed or potential project that might implicate
an analysis of the County’s apparent authority to acquire real
estate as it relates to the City’s apparent authority to zone land
within its jurisdiction. There has been no legal right claimed by
the County to acquire particular real estate for or to construct a
particular type of public building—or any building for that
matter—and, consequently, there has been no right denied by
the City based on one or more of its zoning ordinances. We are
therefore asked to resolve an issue that has not, and indeed may
not, ever arise.[18]

City of Martinsburg was an appeal in the context of a declaratory judgment

action. Here, the Treasurer invokes this Court’s original jurisdiction in prohibition. But

that procedural difference is irrelevant because “[t]he writ of prohibition cannot be invoked

to secure from this Court an advisory opinion.”19 For example, in F.S.T., Inc. v. Hancock

County Commission, petitioner F.S.T. anticipated that a Hancock County ordinance would

15
Id. at 387, 825 S.E.2d at 334.
16
Id.
17
Id.at 388, 825 S.E.2d at 355.
18
Id. at 389, 825 S.E.2d at 336.
19
State ex rel. Morrisey v. W. Va. Off. of Disciplinary Counsel, 234 W. Va. 238,
246, 764 S.E.2d 769, 764 (2014) (cleaned up).

10
force the closure of its business.20 Rather than seek a formal determination from the

County, F.S.T. petitioned the circuit court for a writ “prohibiting the Hancock County

Commissioners from prohibiting [petitioner] from operating the establishment in the same

manner as it had been previously operated . . . .”21 The circuit court denied the writ and

F.S.T. appealed. We, too, denied the writ because F.S.T. had not applied to the County

Commission for a determination as to the ordinance’s effect or been blocked from

reopening its business.22 We reasoned that without a true clash of interests between F.S.T.

and the County, we could not grant the relief sought by F.S.T.—a writ of prohibition—

without also “‘issuing an advisory opinion . . . to a situation that has not occurred.’”23

The rationale behind City of Martinsburg v. Berkeley County Council and

F.S.T., Inc. v. Hancock County Commission applies equally to the Treasurer’s petition. In

those cases, a party, or parties, sought an opinion from this Court regarding a hypothetical

conflict. The County and City’s conflict was hypothetical because there was no legal right

claimed by the County to purchase certain real estate or to construct a certain building that

the City had denied. And, F.S.T.’s conflict was hypothetical because the County had not

20
F.S.T., Inc. v. Hancock Cty. Comm’n, No. 17-0016, 2017 WL 4711427, at *1
(W. Va. Oct. 20, 2017).
21
Id., 2017 WL 4711427, at *1.
22
Id. at *2.
23
Id. (internal quotations omitted) (quoting State ex rel. Morrisey, 234 W. Va. at
246, 764 S.E.2d at 777).

11
yet prevented F.S.T. from reopening its business or demonstrated, concretely, its intent to

do so in the future. The conflict between the Treasurer and Auditor is similarly theoretical

because the Auditor has not denied a legal right claimed by the Treasurer nor has the

inverse occurred. In sum, the Treasurer asks us to issue a writ to resolve a conflict that has

not—and may never—arise. So, in these circumstances, we cannot grant the Treasurer the

requested writ because it would be an advisory opinion.

B. This Court Disfavors Judicial Review Statutes and Is Not Obligated to Accept or
Rule in Proceedings that Arise from Them.

The Treasurer has petitioned this Court to issue a writ against the Auditor

because that is what the Legislature directed him to do in § 51-9-10(f) (2019). That statute

required the Treasurer to petition this Court for a writ of prohibition against the Auditor to

stop him from issuing a warrant for payment to the Treasurer directing him to pay a senior-

status judge in excess of the limitation imposed by the Legislature in

§ 51-9-10(c) (2019). So, an actual dispute or controversy between the Treasurer and

Auditor did not precipitate the Treasurer’s petition. Section 51-9-10(f) did.

We disfavor “judicial review” provisions like § 51-9-10(f) (2019) and said

so twenty-one years ago in Syllabus Point 1 of State ex rel. West Virginia Deputy Sheriffs’

Association, Inc. v. Sims:

Statutory “judicial review” provisions—that make
implementation of a statute contingent upon judicial
construction, review, or approval of the statute; that attempt to
mandate judicial construction, review, or approval of a statute
prior to its effectiveness; or that have the purpose of creating a

12
 “test case”—may violate the separation of powers doctrine
contained in Article V, Section 1 of the West Virginia
Constitution.[24] Such statutory provisions are disfavored and
courts are not obliged to accept and/or rule in proceedings that
arise as a result of such provisions.[25]

We explained in Sims that statutes like § 51-9-10(f) (2019) raise a wide range

of possible objections and concerns. These include constitutional separation of power

concerns, “insofar as the Legislature is attempting to direct the judiciary to rule on a

case[.]”26 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.

Similarly, if left unchecked, the Legislature may routinely include a judicial review

provision in statutes “whenever [it] has constitutional or other uncertainties about [its]

enactments[.] . . . [I]t appears to us that such a development would constitute an

undesirable and probably impermissible alteration of our tri-partite constitutional scheme

24
Article V, Section 1 of the West Virginia Constitution states:

The legislative, executive and judicial departments shall
be separate and distinct, so that neither shall exercise the
powers properly belonging to either of the others; nor shall any
person exercise the powers of more than one of them at the
same time, except that justices of the peace shall be eligible to
the legislature.

25
Syl. Pt. 1, State ex rel. W. Virginia Deputy Sheriffs’ Ass’n, Inc. v. Sims, 204 W.
Va. 442, 513 S.E.2d 669 (1998).
26
Id. at 446, 513 S.E.2d at 673.

13
of government.”27 For those same reasons, our dislike of judicial review statutes and the

resulting test cases remains.

Admittedly, Sims recognizes that “in exceptional circumstances . . . it may

be this Court’s proper role to entertain an occasional friendly, ‘test case’ lawsuit—albeit

cautiously.”28 Quoting our earlier decision in State ex rel. Alsop v. McCartney,29 we

explained in Sims that:

“[e]xperience dictates that there are occasions on which
courts must undertake something in the nature of advisory
opinions. We have done this in cases involving elections
because of the expense attendant upon campaigns and the
deleterious effect on representative government which
uncertainty in elections causes. Similarly we have rendered
essentially advisory opinions when it was necessary to permit
bond counsel to authorize the marketing of bonds for public
authorities. The need for certainty before the investment of
enormous amounts of human effort and before the investment
of vast sums of money has led us to an ad hoc reappraisal of
the common law requirement of a true adversary ‘case or
controversy’ as a condition precedent to court review.”[30]

27
Id. at 447, 513 S.E.2d at 674. See also State ex rel. Morrisey, 234 W. Va. at 245,
764 S.E.2d at 776 (“The writ of prohibition is not a revolving door.”).
28
Sims at 447, 513 S.E.2d at 674.
29
State ex rel. Alsop, 159 W. Va. 829, 834–35, 228 S.E.2d 278, 281 (1976) (denying
writ of mandamus to strike down procedure adopted to nominate candidates for seven new
circuit court judgeships).
30
Sims at 446, 513 S.E.2d at 673 (quoting Alsop, 159 W. Va. at 834–35, 228 S.E.2d
at 281 (internal citations omitted)).

14
 The Treasurer’s petition does not present any of those exceptional

circumstances. The legal questions raised by the Treasurer at the Legislature’s direction

do not involve elections or the marketing of bonds for public authorities. And, they do not

otherwise implicate “‘enormous amounts of human effort . . . [or] vast sums of money’”31

that might lead a court to reassess the necessity of a justiciable case or controversy before

reviewing a particular issue. Moreover, as we recognized in Sims,

Additionally and importantly, neither Alsop (nor any
other case that our research has found, in West Virginia or
elsewhere) gives us guidance regarding cases where a
legislature has directed in a statutory provision that an agency
of government must take action—including refusal to comply
with other duly enacted provisions of the law—so that a “test
case” will result.[32]

For all of those reasons, we conclude that the Treasurer’s petition is not one of the rare

proceedings in which this Court must undertake something in the nature of an advisory

opinion.

IV. CONCLUSION

There is no actual controversy between the parties. 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 § 51-9-10(f) (2019). For all of the reasons stated in Sims,

31
Id.
32
Sims at 446, 513 S.E.2d at 673.

15
we disfavor judicial review provisions like § 51-9-10(f). And as we held in Sims, we are

“not obliged to accept and/or rule in proceedings that arise as a result of such provisions.”33

We see no reason to depart from that holding now. For those reasons, we deny the writ.

WRIT DENIED.

33
Syl. Pt. 1, in part, id. at 442, 513 S.E.2d at 669.

16