In the Matter of: Grubb
Annotate this Case
January 1992 Term
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No. 20978
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IN THE MATTER OF J. NED GRUBB, JUDGE,
CIRCUIT COURT OF LOGAN COUNTY
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DISCIPLINARY PROCEEDING
SUSPENDED WITHOUT PAY
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Submitted: April 7, 1992
Filed: May 7, 1992
David R. Janes
Fairmont, West Virginia
Attorney for Judicial Investigation Commission
Robert P. Martin
Meyer, Darragh, Buckler, Bebenek, Eck & Hall
Charleston, West Virginia
Attorney for J. Ned Grubb
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
SYLLABUS BY THE COURT
Under the authority of article VIII, sections 3 and 8 of
the West Virginia Constitution and Rule II(J)(2) of the Rules of
Procedure for the Handling of Complaints Against Justices, Judges,
Magistrates and Family Law Masters, the Supreme Court of Appeals of
West Virginia may suspend a judge, who has been indicted for or
convicted of serious crimes, without pay, pending the final
disposition of the criminal charges against the particular judge or
until the underlying disciplinary proceeding before the Judicial
Investigation Commission has been completed.
McHugh, Chief Justice:
This judicial disciplinary proceeding was initiated
pursuant to Rule II(J)(1) and (2) of the Rules of Procedure for the
Handling of Complaints Against Justices, Judges, Magistrates and
Family Law Masters, in response to a five-count indictment and a
later superseding eight-count indictment returned by a federal
grand jury of the United States District Court, Southern District
of West Virginia, against J. Ned Grubb, Judge of the Seventh
Judicial Circuit.
I
On February 27, 1992, a federal grand jury indicted Judge
J. Ned Grubb on the charges of bribery, mail fraud, conspiracy,
witness tampering and obstruction of justice.
The indictment alleges that, prior to the Democratic
primary election in the spring of 1988, Judge Grubb met with Earl
Tomblin in the judicial chambers at the Logan County courthouse.
During that meeting, Judge Grubb allegedly proposed that Mr.
Tomblin give a $10,000 campaign contribution to Oval Adams, a
candidate for the office of Sheriff of Logan County, in return for
which Mr. Adams would create a job for Mr. Tomblin after his
election. Judge Grubb, Mr. Tomblin and Mr. Adams later agreed to
the arrangement.See footnote 1 Thereafter, Mr. Tomblin made the $10,000
contribution to Mr. Adams' campaign.See footnote 2 Upon his election to the
sheriff's office, Mr. Adams created a new position for Mr. Tomblin
and added him to the payroll of the Logan County Sheriff's
Department.See footnote 3
The indictment further charges that Judge Grubb, upon
learning of the grand jury's investigation of this matter,
encouraged Mr. Adams to provide false information to federal
investigators and prosecutors, and to provide false testimony to
the grand jury. Judge Grubb also allegedly recommended methods by
which Mr. Adams could mislead the federal investigators,
prosecutors and grand jury concerning the $10,000 campaign
contribution, and suggested a false story Mr. Adams could use to
explain the hiring of Mr. Tomblin.
Judge Grubb is further charged in the indictment with
giving false statements to special agents of the Federal Bureau of
Investigation regarding the exchange of money between Mr. Tomblin
and Mr. Adams. Judge Grubb denied having any knowledge of illegal
cash being used by anyone during the 1988 campaign.
Following the indictment, the Administrative Director of
the Supreme Court of Appeals filed a complaint with the Judicial
Investigation Commission of West Virginia (hereinafter Commission)
advising the Commission of the charges against Judge Grubb. In
response to the complaint, the Commission immediately initiated an
investigation. The Commission also filed a report with this Court
advising us of the indictment against Judge Grubb, and petitioning
us to take such action as provided in Rule II(J)(1) and (2) of the
Rules of Procedure for the Handling of Complaints Against Justices,
Judges, Magistrates and Family Law Masters.
On February 28, 1992, the Chief Justice of the Supreme
Court of Appeals entered an administrative order prohibiting Judge
Grubb from hearing any further civil or criminal matters while
under indictment, and providing him the opportunity to petition
this Court for a hearing with regard to the administrative order.
A rule to show cause why Judge Grubb should not be
suspended, with or without pay, was issued by this Court on March
4, 1992, and Judge Grubb was directed to appear before us for oral
argument on April 7, 1992. On March 16, 1992, Judge Grubb filed a
motion to continue the oral argument set in this case until after
the conclusion of the federal criminal trial on the charges against
him. We refused that motion, and advised Judge Grubb that the
issue of his salary pending the resolution of the federal
indictment against him would be addressed during the oral argument
scheduled for April 7, 1992.
At the oral argument held on April 7, 1992, this Court
was advised that a superseding indictment had been filed against
Judge Grubb charging him, in addition to the five counts stated in
the original indictment, with interference with commerce by threats
or violence,See footnote 4 fraudSee footnote 5 and racketeering activity.See footnote 6 The Commission
also made a copy of the superseding indictment part of the record
before us.
Following the submission of this case, the United States
District Court of the Southern District of West Virginia entered an
order on May 7, 1992, reflecting that Judge Grubb was found guilty
by a jury of seven of the eight counts in the indictment. He was
found not guilty of the count alleging that he attempted to affect
commerce by extortion in unlawfully obtaining $4,000 from an
attorney from the proceeds of a lawsuit pending before him.
The sole issue in the proceeding now before us is whether
Judge Grubb should be suspended with or without pay pending the
final disposition of the criminal charges against him.See footnote 7 Judge
Grubb argues that a suspension without pay would deprive him of his
property without due process of the law. The Commission asserts
that this Court has authority to suspend Judge Grubb without pay,
and that he may be able to recover the salary withheld during his
suspension if the charges against him are not proven and cause for
his removal is not established.
II
The judicial power of this Court is grounded in the West
Virginia Constitution. Article VIII, section 3 of our Constitution
bestows upon this Court general supervisory control over all
intermediate appellate courts, circuit courts and magistrate
courts. We have an inherent responsibility under our general
supervisory powers to preserve the integrity of the judiciary and
to maintain the public confidence in our court system.
Article VIII, section 8 of the West Virginia Constitution
mandates that we promulgate rules prescribing a judicial code of
ethics, and standards of conduct and performance. Furthermore,
that section empowers this Court to censure or temporarily suspend
any judge, justice, or magistrate for any violation of the Judicial
Code of Ethics.See footnote 8 West Virginia Judicial Inquiry Commission v.
Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980). In accordance with
the directives of article VIII, section 8 of the West Virginia
Constitution and our inherent obligation to sustain the probity of
the judiciary, this Court promulgated the Rules of Procedure for
the Handling of Complaints Against Justices, Judges, Magistrates
and Family Law Masters.
When the integrity of the judiciary is placed into
question by the action or conduct of any judge, this Court is
authorized to impose an interim suspension pending the disposition
of the charges against the judge or until the underlying judicial
disciplinary proceeding is completed. This Court's authority to
suspend a judge, with or without pay, following the criminal
indictment or conviction of that judge or the completion of
judicial disciplinary proceedings initiated against that judge is
stated in Rule II(J)(2) of the Rules of Procedure for the Handling
of Complaints Against Justices, Judges, Magistrates and Family Law
Masters. Rule II(J)(2) provides, in relevant part:
[T]he Supreme Court, upon determining that
cause exists, shall provide notice of the
charges to the Judge with the right to hearing
in not less than twenty (20) days before the
Supreme Court. After such hearing, the
Supreme Court may suspend the Judge with or
without pay until the underlying disciplinary
proceeding before the Judicial Investigation
Commission has been completed; provided,
however, that the Chief Justice of the Supreme
Court may order that a Judge not hear any
further civil or criminal matters while under
indictment for a felony or misdemeanor without
application to the Judicial Investigation
Commission, in which event the Judge may
petition the Supreme Court for a hearing.
In the present case, as stated previously, Judge Grubb
has been indicted for and convicted of very serious crimes. First,
the federal grand jury returned a five-count indictment against
Judge Grubb. Then the grand jury later returned a superseding
indictment charging Judge Grubb with bribery, mail fraud,
conspiracy, witness tampering, obstruction of justice, interference
with commerce, fraud and racketeering activity. Although this
Court, by administrative order, ordered Judge Grubb not to hear any
further civil or criminal matters while under indictment, we have
not determined whether, as an interim measure, he should be
suspended with or without pay pending the final resolution of the
criminal charges against him and the completion of the judicial
disciplinary proceeding by the Judicial Investigation Commission.
We recognize that some courts have held that the public
confidence and the integrity of the judiciary will best be served
by suspending the judge with pay pending the outcome of judicial
disciplinary proceedings against the particular judge. Gruenburg
v. Kavanagh, 413 F. Supp. 1132 (E.D. Mich. 1976); In re Inquiry
Concerning a Judge, 333 So. 2d 22 (Fla. 1976);See footnote 9 In re Del Rio, 256 N.W.2d 727 (Mich. 1977), appeal dismissed, 434 U.S. 1029, 98 S. Ct. 759, 54 L. Ed. 2d 777 (1978);See footnote 10 In re Kirby, 350 N.W.2d 344 (Minn.
1984);See footnote 11 State ex rel. Green v. Tilton, 437 N.E.2d 1174 (Ohio
1982).See footnote 12 However, we have also found authority for suspending a
judge, who has been indicted or charged with a criminal offense,
without pay, pending final disposition of the charges against the
judge. In re Coruzzi, 472 A.2d 546 (N.J.), appeal dismissed, 469 U.S. 802, 105 S. Ct. 56, 83 L. Ed. 2d 8 (1984); In re Brennan, 483 N.E.2d 484 (N.Y. 1985);See footnote 13 In re Ferguson, 403 S.E.2d 628 (S.C.
1991); see 46 Am. Jur. 2d Judges § 62 (1969); 48A C.J.S. Judges §
76 (1981).
The statutory amendmentSee footnote 14 enabling the New Jersey Supreme
Court to indefinitely suspend a judge without pay pending removal
proceedings was challenged in In re Coruzzi, supra. Judge Coruzzi
was arrested immediately after accepting a bribe from an attorney
who was fitted with electronic surveillance equipment so that law
enforcement personnel could monitor the conversation. Judge
Coruzzi was immediately relieved of all of his duties, and the
Supreme Court filed a complaint for his removal and suspended him
without pay.See footnote 15 Following his conviction, Judge Coruzzi challenged
the amendment allowing his indefinite suspension without pay
pending the outcome of the removal proceedings asserting, among
other grounds, that it impairs an obligation of contract. The
court stated that the regulatory purpose of the amendment was to
enable "the Supreme Court to preserve public confidence in the
judiciary by not allocating public funds to pay salary to members
of the judiciary who have conducted themselves in a manner that
warrants suspension." 472 A.2d at 557. The Court found that the
"amendment is instrumental to preserve public confidence regardless
of whether the judge is ultimately found fit for office."See footnote 16 472 A.2d at 557-58. The court further recognized that public officers
do not have "contractual" rights to specific terms of compensation
and employment within the meaning of the Contract Clause. Id. The
court concluded that the law does not unconstitutionally impair any
contractual right of the judge.
In Brennan, supra, the judge was charged in a federal
indictment with bribe receiving. The Court of Appeals of New York
reasoned that "[t]he issue before us is not of his innocence (which
is presumed) or guilt, but whether in the face of the cloud created
by the number and seriousness of the charges against him his pay
should be continued during the period of his suspension." 483 N.E.2d at 484. The court concluded that the judge's salary should
be suspended.
The South Carolina Supreme Court recently decided a case
which is also similar to the case before us. In In re Ferguson,
supra, the Court held that it had the inherent authority to protect
itself and the public by suspending a judge, who was indicted for
serious crimes,See footnote 17 without pay, under the constitutional article
charging the supreme court with administering the courts in the
state.See footnote 18 The Court further held that withholding the judge's pay
did not constitute a diminution of his salary in contravention of
article V, section 16 of the South Carolina Constitution. 403 S.E.2d at 630. The Court recognized that although article V,
section 16 limits the ability of the General Assembly to diminish
the salary of members of the judiciary during their terms of office
with the intent to keep the judiciary independent from the General
Assembly, it was not intended to give any judge "judicial
independence" from the supreme court of the state.See footnote 19 Id.
Upon a review of the above, we conclude that under the
authority of article VIII, sections 3 and 8 of the West Virginia
Constitution and Rule II(J)(2) of the Rules of Procedure for the
Handling of Complaints Against Justices, Judges, Magistrates and
Family Law Masters, the Supreme Court of Appeals may suspend a
judge, who has been indicted for or convicted of serious crimes,
without pay, pending the final disposition of the criminal charges
against the particular judge or until the underlying disciplinary
proceeding before the Judicial Investigation Commission has been
completed.See footnote 20
In the case before us, the public Judge Grubb has been
elected to serve has knowledge of the serious criminal charges
filed against him and now is aware that he has been convicted of
those charges.See footnote 21 His effectiveness as a judge and the integrity
of the judiciary have been called into question. Given our
obligation to preserve the integrity of the judiciary and the
public confidence, we have determined that Judge Grubb should be
temporarily suspended without pay pending the final disposition of
the criminal charges against him and the completion of the
underlying judicial disciplinary proceeding before the Judicial
Investigation Commission.
In the event that Judge Grubb is successful in having his
conviction reversed following an appeal, he may maintain a cause of
action for back pay.See footnote 22 See Pfingst v. State, 381 N.Y.S.2d 201 (Ct.
Cl. 1976), aff'd, 393 N.Y.S.2d 803 (App. Div. 1977). However, we
find that the overriding public interest in preserving the
integrity of the judiciary demands that we subordinate the personal
interests of Judge Grubb and suspend him without pay pending the
outcome of an appeal of his conviction and the judicial
disciplinary proceeding initiated against him.
Therefore, we conclude that Judge Grubb should be
temporarily suspended without pay pending the final disposition of
the criminal charges filed against him, and the completion of the
judicial disciplinary proceeding initiated by the Judicial
Investigation Commission.
Suspended without pay.
Footnote: 1 Mr. Adams and Mr. Tomblin allegedly had a telephone
conversation during which Mr. Tomblin advised Mr. Adams that the
contribution to be paid in exchange for a job would be disguised as
a loan. In the event Mr. Adams lost the election or failed to
create a job for Mr. Tomblin, he was to return the $10,000 to Mr.
Tomblin.
Footnote: 2 It is also alleged in the indictment that Judge Grubb
gave Mr. Adams an illegal campaign contribution in the amount of
$3,000.
Footnote: 3 Mr. Tomblin was added to the payroll of the Sheriff's
Department as an "investigator."
Footnote: 4 The superseding indictment alleges that Judge Grubb and
his wife attempted to affect commerce by extortion in that they
unlawfully obtained $4000 cash from an attorney, Mark Hobbs, from
the proceeds of a lawsuit pending before Judge Grubb.
Footnote: 5 Judge Grubb allegedly obtained a $10,000 campaign
contribution from James V. Burgess, Jr., a candidate for state
senate, as payment for inclusion on Judge Grubb's slate of
candidates. Judge Grubb allegedly filed false and fraudulent
campaign financial statements with the Secretary of State of West
Virginia in that he failed to report the $10,000 contribution from
Mr. Burgess.
Footnote: 6 The racketeering charges stem from the other counts of
the indictment.
Footnote: 7 We note that W. Va. Code, 6-5-5 [1931] provides:
No person convicted of treason, felony, or bribery in any election, before any court in or out of this state, shall, while such conviction remains unreversed, be elected or appointed to any office under the laws of this state; and, if any person, while holding such
office, be so convicted, the office shall be
thereby vacated.
That issue, however, is not before us. Footnote: 8 Article IV, section 9 of the West Virginia Constitution provides that the house of delegates shall have the sole power of impeachment of officials, and that the senate shall have the sole power to try impeachment of officials. Footnote: 9 Article V, section 12(f) of the Florida Constitution allows suspension, with or without pay, pending final determination of the inquiry. Footnote: 10 Mich. Const. art. VI, § 30 allows the supreme court to suspend a judge with or without pay for conviction of a felony. Footnote: 11 We note that Rule 7(a) of Minnesota's Rules of Board on Judicial Standards provides that the supreme court shall immediately suspend with pay and without a hearing any judge charged with a felony. Unlike our Rule II(J)(2), those rules do not authorize the Minnesota Supreme Court to suspend a judge, without pay, upon indictment. Footnote: 12 Rule III(1)(b) of the Rules for the Government of the Judiciary of Ohio provides that a judge is disqualified from acting as a judge while there is pending an indictment against him charging him with a felony. Footnote: 13 Article VI, section 22(g) of the New York Constitution allows a suspended judge to receive his judicial salary during the period of suspension unless otherwise directed by the court. Footnote: 14 N.J. Stat. Ann. § 2A:1B-5 (West 1982) provides: "The Supreme Court may suspend a judge from office, with or without pay, pending the determination of the proceeding." The statute previously limited that power to 90 days. The legislature, aware of Judge Coruzzi's arrest and the initiation of removal proceedings, amended the statute to allow for the indefinite withholding of pay pending the removal proceedings. 472 A.2d at 555. The amendment by the legislature was done so before the expiration of the 90-day suspension in that case. Footnote: 15 The New Jersey Supreme Court withheld further proceedings pending the outcome of the criminal action. Footnote: 16 The New Jersey Supreme Court noted that if the removal proceedings were not sustained, the judge would presumably be entitled to back pay. 472 A.2d at 558 n. 15. Footnote: 17 In In re Ferguson, the judge was charged under federal indictment with one count of conspiracy to commit extortion, two counts of extortion under color of official right, one count of conspiracy to possess cocaine and five counts of intentional possession of cocaine. Footnote: 18 We note that the South Carolina Supreme Court does not have any specific constitutional authority to suspend judges. As we have already pointed out, W. Va. Const. art. VIII, § 8 empowers this Court to temporarily suspend judges. Footnote: 19 The South Carolina Supreme Court also held that the salary pertaining to an office is an incident to the office itself and not to the person discharging the duties of the office. 403 S.E.2d at 630-31. The court cited the common law rule that the officer's right to compensation arises out of his performance of his duties. Id. Footnote: 20 We note that Rule III(C)(13)(a) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges, Magistrates and Family Law Masters only allows the Judicial Hearing Board to recommend suspending a judge temporarily for up to one year. That issue, however, has not been presented in this case. Footnote: 21 Our decision today is based solely upon the indictment and not Judge Grubb's subsequent conviction. Footnote: 22 We note that, independent of a conviction, there are potential ethics violations. Thus, even if Judge Grubb is ultimately acquitted after an appeal, judicial disciplinary proceedings will not be precluded. This Court has authority to suspend a judge without pay under Rule II(J)(2) "until the underlying disciplinary proceeding before the Judicial Investigation Commission has been completed[.]"
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