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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2004 Term __________ No. 31749 __________

FILED December 1, 2004
released at 10:00 a.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

THE HONORABLE JOHN D. PERDUE, TREASURER OF THE STATE OF WEST VIRGINIA, AND THE HONORABLE GLEN B. GAINER, III, AUDITOR OF THE STATE OF WEST VIRGINIA, Plaintiffs Below, Appellants v. THE HONORABLE BOB WISE,
GOVERNOR OF THE STATE OF WEST VIRGINIA,
AND TOM SUSMAN, AS ACTING SECRETARY
OF THE DEPARTMENT OF ADMINISTRATION
OF THE STATE OF WEST VIRGINIA,
Defendants Below, Appellees
__________________________________________________ Appeal from the Circuit Court of Kanawha County The Honorable Irene C. Berger, Judge Civil Action No. 03-C-1651 REVERSED __________________________________________________ Submitted: September 1, 2004 Filed: December 1, 2004 Darrell V. McGraw, Jr. Attorney General Silas B. Taylor Senior Deputy Attorney General Charleston, West Virginia Attorneys for the Appellants Charleston, West Virginia

Stephen P. Goodwin Carte P. Goodwin Raymond S. Franks, II Goodwin & Goodwin Charleston, West Virginia Attorneys for the Appellees William B. McGinley Charleston, West Virginia Attorney for Amicus Curiae, West Virginia Education Association and West Virginia Association of Retired School Employees

JUSTICE ALBRIGHT delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. "Because pensions are a lawful debt of the State, the proper remedy for any
failure to pay a pension is a mandamus action against the state treasurer and auditor. The funding of any pension program is the legislature's problem

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