
    
      Opinion issued December 15, 1983
    
    MARY CATHERINE WATERS vs. SUPREME COURT OF APPEALS
    (CC-82-228)
    No appearance on behalf of the claimant.
    Henry C. Bias, Jr., Deputy Attorney General, for respondent.
   WALLACE, JUDGE:

The claimant, a magistrate assistant in Boone County, has filed this action to recover wages not paid to her (in accordance with a salary scale based upon the 1980 decennial census) for the 1981-82 fiscal year.

The respondent contends that the claim should be denied based upon the West Virginia Supreme Court opinion in Ruth A. Donaldson, Magistrate, etc., et al. v. Gainer, Jr., Auditor et al. (June 30, 1982).

Salaries for magistrates and their support staff members are funded by appropriation for the judicial branch of government. The Legislature approves such funding for the next ensuing fiscal year. In the Donaldson opinion, the W.Va. Supreme Court of Appeals determined that because of this funding scheme, which requires that the budget bill be prepared in advance of the fiscal year to which it applies, salary increases for magistrates and staff members could not be appropriated until the next ensuing fiscal year after publication of the new census figures. The Donaldson opinion states that magistrates have recourse to this Court in order to recover such amounts as may be due for that period prior to the new fiscal year.

However, the Donaldson opinion draws a distinction between magistrates’ salaries, which are fixed by statute, and the salaries of supporting staff members. The salary of a clerk is fixed by the Judge of the Circuit Court of the county within a maximum limit allowable (W.Va. Code 50-1-8). The salaries of deputy clerks and assistants are fixed by the magistrate within a maximum limit allowable (W.Va. Code 50-1-9 and 50-l-9a). The salaries of deputy clerks and assistants not being fixed by statute, there appears to be no retroactive entitlement to salary.

Claim disallowed.  