In the matter of Atkinson
Annotate this Case
January 1995 Term
___________
No. 22636
___________
IN THE MATTER OF: IRA W. ATKINSON, JR.,
MAGISTRATE FOR WOOD COUNTY
___________________________________________________
Judicial Disciplinary Proceeding
SUSPENSION WITHOUT PAY
___________________________________________________
Submitted: January 10, 1995
Filed: March 3, 1995
Charles R. Garten
Charleston, West Virginia
Judicial Disciplinary Counsel
J. Michael Benninger
Clark B. Frame
Wilson, Frame & Metheney
Morgantown, West Virginia
Attorneys for Ira W. Atkinson, Jr.
This Opinion was delivered PER CURIAM.
Justice Brotherton did not participate.
Judge Fox sitting by temporary assignment.
Chief Justice Neely and Justice Cleckley dissent and reserve the
right to file a dissenting opinion.
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." Syllabus, In the
Matter of Grubb, 187 W. Va. 228, 417 S.E.2d 919 (1992).
Per Curiam:
This matter is before this Court as an extraordinary
proceeding under Rule 2.14 of the West Virginia Rules of Judicial
Disciplinary Procedure. The proceeding was instituted by the
Judicial Disciplinary Counsel and concerns the West Virginia
indictment of the respondent, Ira W. Atkinson, Jr., for various
felony and misdemeanor offenses. The sole issue before us is
whether the suspension of the respondent from his office as
Magistrate for Wood County, West Virginia, pending the disposition
of the charges and concomitant disciplinary proceedings, should be
without pay. For the reasons stated below, this Court holds that
the suspension is to be without pay.
I
On November 10, 1994, an eighteen-count indictment, No.
94-F-166-W, was returned against the respondent in the Circuit
Court of Wood County. The indictment charges offenses under
article 5A, "Bribery and Corrupt Practices," of chapter 61 of the
West Virginia Code, and, in particular, charges felony violations
under W. Va. Code, 61-5A-3 [1970], concerning bribery in official
matters, and misdemeanor offenses under W. Va. Code, 61-5A-4
[1970], and W. Va. Code, 61-5A-6 [1970], concerning unlawful
rewarding for past behavior and gifts or gratuities to public
servants. The indictment also charges a felony violation of W. Va.
Code, 11-9-10 [1984], concerning state tax evasion. According to
the respondent's brief, trial upon the indictment is scheduled for
April, 1995.
Specifically, the eighteen-count indictment charges
violations in four circumstances. Counts one through six allege
the construction of an in-ground swimming pool at the respondent's
home. Counts seven through eleven allege that roofing work was
done upon the respondent's home. Counts twelve and thirteen allege
the acceptance by the respondent of $500 in cash. Counts fourteen
through eighteen allege the construction of a fish pond at the
respondent's home. Each of the four circumstances suggests
violations of the respondent's "legal duty as a public servant" and
each draws into question the respondent's actions "as a public
servant in a judicial proceeding."
On November 15, 1994, an unrelated indictment, No. 6:94-
00159, was returned against the respondent in the United States
District Court for the Southern District of West Virginia. That
indictment charged the respondent with obstructing the federal
investigation of a third party. 18 U.S.C. 1503. That indictment,
however, was dismissed in February, 1995, and will not be
considered herein.
Citing the Wood County indictment, the Administrative
Director of the Courts filed a complaint with the Judicial
Disciplinary Counsel, pursuant to Rule 2.14 of the Rules of
Judicial Disciplinary Procedure, and with the Judicial
Investigation Commission. Upon an investigation, the Judicial
Disciplinary Counsel filed a report with this Court stating that
"the integrity of the legal system has been placed into question"
by virtue of the charges against the respondent.
By administrative order entered on November 16, 1994, the
Acting Chief Justice of this Court suspended the respondent from
hearing "any further civil or criminal matters while under
indictment . . . ." See Rule 2.14(d). Subsequently, this Court
issued a rule to show cause directing the respondent to appear
before this Court.
II
Pursuant to the Constitution of West Virginia, this Court
has "general supervisory control" over the circuit courts. W. Va.
Const. art. VIII, § 3. The Constitution of West Virginia further
provides this Court with the inherent power to "promulgate and
amend rules prescribing a judicial code of ethics, and a code of
regulations and standards of conduct and performances for justices,
judges and magistrates . . . ." W. Va. Const. art. VIII, § 8.
Under the latter provision, temporary suspensions by this Court are
authorized.
Although those constitutional provisions are silent upon
the issue of pay during a temporary suspension, Rule 2.14(c) of the
Rules of Judicial Disciplinary Procedure states that "the Supreme
Court may suspend the judge with or without pay until the
underlying disciplinary proceeding before the Judicial Hearing
Board has been completed." That language of Rule 2.14(c) is
comparable to language found in the former West Virginia Rules of
Procedure for the Handling of Complaints Against Justices, Judges,
Magistrates and Family Law Masters.
In In the Matter of Grubb, 187 W. Va. 228, 417 S.E.2d 919
(1992), we held in the syllabus:
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.
The Grubb case involved a circuit judge indicted in
federal court for a number of offenses including bribery,
conspiracy and obstruction of justice. The sole issue before this
Court was whether the circuit judge's suspension, pending the
disposition of the charges and disciplinary proceedings, should be
without pay. As discussed in Grubb, although several case
decisions from foreign jurisdictions indicated that such a
suspension from judicial duties should be with pay, other case
decisions indicated that such a suspension should be without pay.
Recognizing this Court's responsibility to preserve the integrity
of the judiciary and to maintain public confidence in our court
system, we held in Grubb, as the above syllabus suggests, that the
suspension, pending the disposition of the charges and disciplinary
proceedings, should be without pay.
Importantly, although the circuit judge in Grubb was
convicted of some of the federal charges while the matter
concerning suspension with or without pay was under submission before this Court, our holding in Grubb was "based solely upon the
indictment and not [the circuit judge's] subsequent conviction."
187 W. Va. at 233 n. 21, 417 S.E.2d at 924 n. 21.
In the matter before us, the respondent does not question
the validity of his suspension. Indeed, we noted in Committee on
Legal Ethics v. Ikner, 190 W. Va. 433, 438 S.E.2d 613 (1993), that,
where a serious crime is pending, this Court has "the authority to
suspend a judge before a disciplinary proceeding has been
completed." 190 W. Va. at 436, 438 S.E.2d at 616. Rather, the
respondent contends that his suspension should be with pay because,
inter alia, he is presumed innocent of the Wood County charges
until convicted and, in addition, a suspension without pay would
result in an unjust financial burden upon the respondent.
Similar assertions, however, were rejected in the Grubb
case. As the opinion in Grubb concludes:
In the event that [the circuit judge] is
successful in having his conviction reversed
following an appeal, he may maintain a cause
of action for back pay. See Pfingst v. State,
85 Misc. 2d 689, 381 N.Y.S.2d 201 (Ct. Cl.
1976), aff'd, 57 A.D.2d 163, 393 N.Y.S.2d 803
(1977). However, we find that the overriding
public interest in preserving the integrity of
the judiciary demands that we subordinate the
personal interests of [the circuit judge] and
suspend him without pay pending the outcome of
an appeal of his conviction and the judicial
disciplinary proceeding initiated against him.
187 W. Va. at 234, 417 S.E.2d at 925.
The principles enunciated in the Grubb opinion are
dispositive of this matter. Furthermore, the charges set forth in
the Wood County indictment involve the same compelling qualities which, in Grubb, resulted in a suspension without pay. The
eighteen-count Wood County indictment, charging several felony
offenses, plentifully establishes that serious charges are pending,
and, although the respondent contends that he has meritorious
defenses to the indictment, his interests, under the circumstances
of this case, must be subordinate to this Court's responsibility to
preserve the integrity of the judiciary and to maintain public
confidence in our court system. Indeed, each of the four
circumstances resulting in the charges suggests violations of the
respondent's legal duty as a public servant, and each draws into
question the respondent's actions as a public servant in a judicial
proceeding.
Accordingly, upon all of the above, the respondent, Ira
W. Atkinson, Jr., is hereby suspended without pay, pending the
final disposition of the Wood County charges against him or until
the underlying disciplinary proceeding has been completed.
Suspension Without Pay.
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