In The Matter of: Judge William M. Watkins, III , 233 W. Va. 170 ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
_______________ FILED
March 26, 2013
No. 12-1008 released at 3:00 p.m.
RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN THE MATTER OF:
JUDGE WILLIAM M. WATKINS, III,
Putnam County Family Court Judge
____________________________________________________________
DISCIPLINARY PROCEEDING
SUSPENSION WITHOUT PAY
AND OTHER SANCTIONS
____________________________________________________________
Submitted: February 5, 2013
Filed: March 26, 2013
Rachel L. Fletcher Cipoletti, Esq. Robert P. Martin, Esq.
Judicial Investigation Commission Charleston, West Virginia
Charleston, West Virginia Counsel for Judge Watkins
Special Judicial Disciplinary Counsel
JUSTICE KETCHUM delivered the Opinion of the Court.
CHIEF JUSTICE BENJAMIN concurs, and reserves the right to file a separate opinion
SYLLABUS BY THE COURT
1. “The Supreme Court of Appeals will make an independent
evaluation of the record and recommendations of the Judicial [Hearing] Board in
disciplinary proceedings.” Syllabus Point 1, West Virginia Judicial Inquiry Commission
v. Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980).
2. “Under [Rule 4.5 of the West Virginia Rules of Disciplinary
Procedure], the allegations of a complaint in a judicial disciplinary proceeding ‘must be
proved by clear and convincing evidence.’” Syllabus Point 4, In Re Pauley, 173 W.Va.
228, 314 S.E.2d 391 (1983).
3. “In a disciplinary proceeding against a judge, in which the burden of
proof is by clear and convincing evidence, where the parties enter into stipulations of
fact, the facts so stipulated will be considered to have been proven as if the party bearing
the burden of proof has produced clear and convincing evidence to prove the facts so
stipulated.” Syllabus Point 4, Matter of Starcher, 202 W.Va. 55, 501 S.E.2d 772 (1998).
4. “The purpose of judicial disciplinary proceedings is the preservation
and enhancement of public confidence in the honor, integrity, dignity, and efficiency of
the members of the judiciary and the system of justice.” Syllabus, In the Matter of
Gorby, 176 W.Va. 16, 339 S.E.2d 702 (1985).
5. “Pursuant to article VIII, section 8 of the West Virginia Constitution,
this Court has the inherent and express authority to ‘prescribe, adopt, promulgate and
amend rules prescribing a judicial code of ethics, and a code of regulations and standards
i
of conduct and performances for justices, judges and magistrates, along with sanctions
and penalties for any violation thereof[.]’” Syllabus Point 5, Committee on Legal Ethics
v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994).
6. Under Rule 4.12 of the Rules of Judicial Disciplinary Procedure
[1998] the Judicial Hearing Board may recommend, or this Court may impose, one or
more of the following sanctions for each violation by a justice, judge, or magistrate of the
Code of Judicial Conduct: (1) admonishment; (2) reprimand; (3) censure; (4) suspension
without pay for up to one year; (5) a fine of up to $5,000; or (6) involuntary retirement in
limited circumstances. Additionally, this Court can assess the cost of the disciplinary
proceedings against a justice, judge, or magistrate.
7. “Pursuant to Article VIII, Sections 3 and 8 of the West Virginia
Constitution and Rule 4.12 of the Rules of Judicial Disciplinary Procedure, it is clearly
within this Court’s power and discretion to impose multiple sanctions against any justice,
judge or magistrate for separate and distinct violations of the Code of Judicial Conduct
and to order that such sanctions be imposed consecutively.” Syllabus Point 5, In re
Toler, 218 W.Va. 653, 625 S.E.2d 731 (2005).
8. This Court has the inherent power to inquire into the conduct of
justices, judges and magistrates, and to impose any disciplinary measures short of
impeachment that it deems necessary to preserve and enhance public confidence in the
judiciary.
ii
Ketchum, Justice:
In the instant case, a family court judge concedes that he was repeatedly
intemperate with litigants, showed disrespect for authority, and was unable to properly
manage his office and staff. The Judicial Hearing Board determined that the family court
judge committed 24 separate violations of nine Canons of the Code of Judicial Conduct,
and recommended that the judge be suspended for the next four years, until the end of his
term in December 2016. The family court judge challenges the Board’s recommended
sanction, and argues that this Court does not have the constitutional authority to impose
such a lengthy suspension.
We disagree with the judge and adopt the Board’s recommended sanctions
in toto.
I.
FACTUAL AND PROCEDURAL BACKGROUND
William M. Watkins, III, became a family court judge in Putnam County in
2002. Judge Watkins was reelected as a family court judge in 2008, and his present term
ends on December 31, 2016.
Beginning in 2011, Judge Watkins became the subject of numerous
complaints filed with the Judicial Investigation Commission. These complaints were
condensed into seven discrete counts alleging at least 24 violations of the Code of
Judicial Conduct. We discuss these violations in detail below.
1
Judge Watkins, through his attorney and in conjunction with judicial
disciplinary counsel, agreed and stipulated that his conduct as alleged in the seven counts
was true and that his actions violated the Code of Judicial Conduct.
On November 27, 2012, a Judicial Hearing Board for the Commission
(“Hearing Board”) conducted a hearing. At the hearing, Judge Watkins testified that he
was remorseful and would attempt in the future to conform to the requirements of the
Code of Judicial Conduct. The Hearing Board assessed Judge Watkins’s demeanor and
concluded that he “was less than sincere.”
In a written order dated December 3, 2012, the Hearing Board concluded
that Judge Watkins’s behavior exhibited a pattern and practice of failing to maintain
honorable, high standards of conduct and integrity; failing to act in a manner that
promotes public confidence in the integrity of the judiciary; failing to treat litigants in his
courtroom with respect and dignity; and failing to maintain and require decorum and
order in his courtroom. The Hearing Board found that Judge Watkins lacked control over
his emotions and conduct, that he had a pattern of disrespect for authority, and that he
lacked self-awareness. It further determined that he had an inability to properly manage
his office and staff, and to manage his caseload. The Hearing Board was also troubled
that Judge Watkins did not cooperate with judicial disciplinary counsel in the
investigation of the various complaints against him.
The Hearing Board concluded that Judge Watkins had committed 24
separate violations of nine separate Canons of the Code of Judicial Conduct. Under the
Rules of Judicial Disciplinary Procedure, the Hearing Board noted that for each violation
2
it could recommend that this Court impose a maximum penalty of suspension for one
year and a fine of up to $5,000, and that it could impose the penalties consecutively. See
Rule 4.12(4) and (5), Rules of Judicial Disciplinary Procedure; Syllabus Point 5, In re
Toler, 218 W.Va. 653, 625 S.E.2d 731 (2005). Hence, the Board could have
recommended a maximum sanction against Judge Watkins of a 24-year suspension
without pay plus a fine of $120,000.
In weighing the sanctions to recommend, the Board considered the number,
nature, severity, and duration of the violations against Judge Watkins, the adverse effect
of the violations upon various litigants, and the general public’s perception of the
judiciary as a result of the violations. The Board also considered Judge Watkins’s
“apparent failure to take meaningful responsibility for his misconduct.” Finally, the
Board considered “the unlikelihood that [Judge Watkins] will be able to conform his
conduct to the requirements of the Code of Judicial Conduct.” Accordingly, the Hearing
Board recommended that this Court impose the following sanctions:
1. Judge Watkins should be censured on each of his twenty-four violations
of the Code of Judicial Conduct;
2. Judge Watkins should be suspended, without pay, until his present term
of office ends on December 31, 2016; and,
3. Judge Watkins should pay the costs associated with the investigation
and prosecution of these proceedings.
As set forth below, we adopt the Hearing Board’s recommended sanctions.
3
II.
STANDARD OF REVIEW
In reviewing a recommendation of the Judicial Hearing Board, this Court is
required to make an independent evaluation of the Board’s findings of fact and
recommended sanctions in order to determine whether the allegations have been proven
by clear and convincing evidence. Syllabus Point 1, West Virginia Judicial Inquiry
Comm’n v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980); Syllabus Point 4, In re
Pauley, 173 W.Va. 228, 314 S.E.2d 391 (1983). However, in a disciplinary proceeding
against a judge, “where the parties enter into stipulations of fact, the facts so stipulated
will be considered to have been proven as if the party bearing the burden of proof has
produced clear and convincing evidence to prove the fact so stipulated.” Syllabus Point
4, Matter of Starcher, 202 W.Va. 55, 501 S.E.2d 772 (1998).
III.
ANALYSIS
Judge Watkins stipulated to all of the misconduct alleged before the
Judicial Hearing Board, and we accept the allegations as true. He disagrees, however,
with the Hearing Board’s recommended sanctions.
Judge Watkins argues that the recommendation that he be suspended from
his office without pay until his present term ends in 2016 violates article VIII, section 8
of the West Virginia Constitution. That provision of the Constitution states that a “judge
may be removed only by impeachment” by the Legislature. Judge Watkins argues that
4
the Constitution only permits this Court to “temporarily suspend” a judge, and not
effectively impeach and remove a judge from office for the duration of his or her term.
As we discuss below, we reject Judge Watkins’s argument for two reasons.
First, under the West Virginia Constitution, suspending a judge carries substantially
different consequences than impeaching and removing a judge from office. Second, the
Constitution explicitly and inherently empowers this Court to impose all disciplinary
measures short of removal from the bench in order to foster public confidence in the
judiciary, and to preserve its integrity.
A. Suspension vs. Impeachment and Removal
Judge Watkins argues that the recommendation that he be suspended by
this Court from office for a period commensurate with the remainder of his term is akin
to impeachment, and therefore constitutionally prohibited.
Under our Constitution, only the Legislature has the power to remove a
family court judge from office, and it may do so only by impeachment. The West
Virginia Constitution, article VIII, section 8, states, “A justice or judge may be removed
only by impeachment[.]”1 The Constitution specifically extends this provision to family
1
Article IV, section 9 of the West Virginia Constitution sets forth the process of
impeachment of a State officer by the Legislature “for maladministration, corruption,
incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.”
See also W.Va. Code, § 6-6-3 [1931] (“Any officer of the State or any judge may be
impeached and removed from office . . . in the manner prescribed in section 9 of article
IV of the constitution of this state.”); Matter of Troisi, 202 W.Va. 390, 395 n.6, 504
S.E.2d 625, 630 n.6 (1998) (“The Judicial Hearing Board does not have the authority to
(continued . . .)
5
court judges. See article VIII, section 16.2 The Legislature reaffirmed this power by
statute, stating in W.Va. Code § 51-2A-17 [2001] that a “family court judge may be
removed from office only by impeachment[.]”
Semantically, the Constitution equates the removal of a judge to
impeachment by the Legislature. And we discern that impeachment carries significant
consequences. For one, a state official who is impeached is not only removed from office
but is also disqualified from holding any future “office of honor, trust or profit, under the
State[.]” Article IV, section 9. For another, a state official who is impeached forfeits all
rights to a state pension.3
recommend the removal of a circuit court judge, and this Court does not have the
authority to remove a circuit court judge. Rather, Article VI, 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.”).
2
Article VIII, section 16 of the Constitution states in part,
Family court judges shall be elected by the voters for a
term prescribed by law not to exceed eight years, unless
sooner removed or retired as authorized in this article. . . .
The provisions of section . . . eight of this article
applicable to circuit judges shall also apply to family court
judges.
3
The Legislature has declared that “honorable service is a condition to receiving
any pension, annuity, disability payment or any other benefit under a retirement plan.”
W.Va. Code, § 5-10A-1 [1976]. Retirement plans covered by the statute include the
Public Employees Retirement System and the Judges’ Retirement System. W.Va. Code,
§ 5-10A-2(a) [2008]. The pension statutes require the termination of membership in any
retirement plan, and the prohibition against payment of any benefits, if a participant
“rendered less than honorable service.” W.Va. Code, § 5-10A-5(a) [2008]. “Less than
honorable service” includes “[i]mpeachment and conviction . . . under the provisions of
(continued . . .)
6
The Judicial Hearing Board did not recommend that Judge Watkins be
impeached by the Legislature.4 The sanctions recommended by the Board come nowhere
close to the sanctions that would result from a Legislative impeachment and removal of
Judge Watkins from office, such as a forfeiture of his rights to a pension and rights to
hold a future office.
Furthermore, the Board’s recommendation equates to an approximate four-
year suspension from office, those years falling at the end of Judge Watkins’s term.
Judge Watkins concedes that this Court has the authority to impose a four-year
suspension. See Syllabus Point 5, In re Toler, 218 W.Va. 653, 625 S.E.2d 731 (2005)
(“[I]t is clearly within this Court’s power and discretion to impose multiple sanctions . . .
and to order that such sanctions be imposed consecutively.”) But it is incongruous for
Judge Watkins to suggest that a suspension – whether for four days, four months, or four
years – commensurate with the end of a judge’s term is unconstitutional, while accepting
that such a suspension in the beginning or middle of a judge’s term would be
constitutionally acceptable.
We therefore conclude that the Judicial Hearing Board’s recommendation
that Judge Watkins be suspended from office until the end of his term of office in
section nine, article four of the Constitution of West Virginia[.]” W.Va. Code, § 5-10A­
2(f)(1).
4
Nothing in this opinion prohibits the Legislature from exercising its power to
remove a family court judge by impeachment. See W.Va. Constitution, Article VIII,
sections 8 and 16.
7
December 2016 is not akin to an impeachment and removal under the West Virginia
Constitution.
B. This Court’s Explicit and Implicit Power
to Impose Any Sanction Short of Removal
Judge Watkins concedes that while the Constitution permits this Court to
suspend a judge for misconduct, he asserts that article VIII, section 8 limits the Court to
“temporarily suspending” a judge. Judge Watkins does not suggest a definition for the
term “temporary,” other than to argue that we are not constitutionally permitted to
suspend a judge from office for an extended period, such as for the remainder of his or
her term. We reject this challenge to the fundamental authority of this Court to
administer and preserve the judiciary.
The overriding goal of judicial discipline is to preserve public confidence in
the integrity and impartiality of the judiciary. “The purpose of judicial disciplinary
proceedings is the preservation and enhancement of public confidence in the honor,
integrity, dignity, and efficiency of the members of the judiciary and the system of
justice.” Syllabus, In the Matter of Gorby, 176 W.Va. 16, 339 S.E.2d 702 (1985).
Article VIII, section 8 of the Constitution authorizes this Court – both
expressly and inherently – to adopt whatever rules of conduct and discipline are
necessary to preserve public confidence in the judicial branch. As we recognized in
Syllabus Point 5 of Committee on Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277(1994),
8
Pursuant to article VIII, section 8 of the West Virginia
Constitution, this Court has the inherent and express authority
to “prescribe, adopt, 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, along with sanctions and penalties for any
violation thereof[.]”
This Court’s express constitutional authority to adopt rules of judicial
conduct and discipline is obvious from the language of the aforementioned article VIII,
section 8 of the Constitution.5 Pursuant to this express authority, we have adopted the
Code of Judicial Conduct and the Rules of Judicial Disciplinary Procedure. Under Rule
4.12 of the Rules of Judicial Disciplinary Procedure [1998] the Judicial Hearing Board
may recommend, or this Court may impose, one or more of the following sanctions for
each violation by a justice, judge, or magistrate of the Code of Judicial Conduct: (1)
admonishment; (2) reprimand; (3) censure; (4) suspension without pay for up to one year;
(5) a fine of up to $5,000; or (6) involuntary retirement in limited circumstances.
Additionally, this Court can assess the cost of the disciplinary proceedings against the
justice, judge, or magistrate. “[I]t is clearly within this Court’s power and discretion to
5
Article VIII, Section 8 states:
Under its inherent rule-making power, which is hereby
declared, the supreme court of appeals shall, from time to
time, prescribe, adopt, 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, along with sanctions and penalties for
any violation thereof, and the supreme court of appeals is
authorized to censure or temporarily suspend any justice,
judge or magistrate having the judicial power of the state,
including one of its own members, for any violation of any
such code of ethics, code of regulations and standards[.]
9
impose multiple sanctions against any justice, judge or magistrate for separate and
distinct violations of the Code of Judicial Conduct and to order that such sanctions be
imposed consecutively.” Syllabus Point 5, In re Toler, 218 W.Va. 653, 625 S.E.2d 731(2005).
This Court’s authority to supervise and discipline justices, judges and
magistrates is also inherent in the Constitution. An inherent power of a court –
“sometimes described as implied, essential, incidental, or necessary” – is one that is
“essential to the existence, dignity and operation of a court, particularly the state’s
highest court. Such power is impliedly given when a court is created.” James Duke
Cameron, “The Inherent Power of a State’s Highest Court to Discipline the Judiciary,” 54
Chicago Kent L.Rev. 45, 46 (1977) (citations omitted). “[A] state’s highest court, as the
court most concerned with the operation of a state’s judicial system, has the inherent
power to supervise the conduct of judges both on and off the bench when such conduct
affects the administration of justice.” Id. at 47. This Court’s inherent power has its
source in at least three places: (1) in the constitutional separation of powers of the three
branches of government; (2) in the general supervisory power of this Court; and (3) in the
power of the Court over the conduct of members of the State Bar.
The first inherent source arises in the separation of powers doctrine. Article
V of the West Virginia Constitution says that “[t]he legislative, executive and judicial
departments shall be separate and distinct, so that neither shall exercise the powers
properly belonging to either of the others[.]” The Constitution goes on to state that “[t]he
judicial power of the State shall be vested solely in a supreme court of appeals and in the
10
circuit courts . . . and in the justices, judges and magistrates of such courts.” Article VIII,
section 1.
The separation of powers doctrine implies that each
branch of government has inherent power to “keep its own
house in order,” absent a specific grant of power to another
branch, such as the power to impeach. This theory recognizes
that each branch of government must have sufficient power to
carry out its assigned tasks and that these constitutionally
assigned tasks will be performed properly within the
governmental branch itself.
Cameron, supra at 49.
Just as the legislative branch has the power to examine the qualifications of
its own members and to discipline them,6 this Court has the implicit power to discipline
members of the judicial branch. The Court has this power because it is solely responsible
for the protection of the judicial branch, and because the power has not been
constitutionally granted to either of the other two branches. “The inherent power of this
court is shaped, not by prior usage, but by the continuing necessity that this court carry
out its function as a supreme court.” In re Kading, 70 Wis.2d 508, 519, 235 N.W.2d 409,
413 (1975)
Second, the Constitution gives this Court the power to oversee the
administration of justice in the courts of this State. The Constitution grants to the
Supreme Court “general supervisory control” over all circuit courts, family courts and
6
Article VI, section 24 of the Constitution permits each house of the Legislature
to “be the judge of the elections, returns and qualifications of its own members.” Article
VI, section 25 permits each house to “punish its own members for disorderly behavior”
and to “expel a member.”
11
magistrate courts, and makes the chief justice “the administrative head of all the courts.”
See article VIII, sections 3 and 16. Inherent in this power is the authority to “supervise
the actions of the officers and personnel of the judicial system in order to protect the
integrity of the judicial system.” Cameron, supra at 51-52.
Furthermore, the Constitution’s designation of the chief justice as the
administrative head of the court system “clearly implies inherent power to take actions
reasonably necessary to administer justice efficiently, fairly and economically.”
Halverson v. Hardcastle, 123 Nev. 245, 260, 163 P.3d 428, 439 (2007). As the highest
constitutional court, the Court “has the responsibility to protect and preserve the judicial
system. Even in the absence of specific constitutional or statutory authority, we have the
inherent authority to take whatever action is necessary to effectuate this responsibility.”
Matter of Ferguson, 304 S.C. 216, 218, 403 S.E.2d 628, 630 (1991). See also Matter of
Almeida, 611 A.2d 1375, 1382-83 (R.I. 1992) (“The inherent supervisory power includes
the ability to remove and discipline judges, to safeguard and restore public confidence in
the Judiciary, and to deter petitioner and all others in public service from engaging in
unethical, violative conduct, abusive of the very positions they hold.”).
Third, this Court’s inherent authority to discipline judges arises from the
Court’s exclusive power to control who may be admitted to the bar. In West Virginia
State Bar v. Earley, 144 W.Va. 504, 518-19, 109 S.E.2d 420, 430-31 (1959), we found
that because attorneys are officers of the court, they are “in effect a part of the judicial
system of the State” and “bear an intimate relation to the administration of justice by the
courts.” We therefore concluded, in Syllabus Point 7 of Earley, that “[t]he judicial
12
department of the government has the inherent power to define, supervise, regulate and
control the practice of law and the Legislature can not restrict or impair this power of the
courts or permit or authorize laymen to engage in the practice of law.”7
Our Constitution requires that judges and justices be members of the bar.8
“A judge does not cease to be a lawyer when he or she is elected to office; a judge is a
lawyer whose duties are performed behind the bench rather than in front of or before the
bench.” Committee on Legal Ethics v. Karl, 192 W.Va. at 33, 449 S.E.2d 277 at 287.
This Court has “recognized that it is sometimes appropriate to discipline a judge both as a
judge and as a lawyer for the same misconduct.” Matter of Troisi, 202 W.Va. 390, 397,
504 S.E.2d 625, 632 (1998). See also, Frank D. Wagner, Annotation, “Misconduct in
Capacity As Judge As Basis for Disciplinary Action Against Attorney,” 57 A.L.R.3d
1150 (1974). We have determined that, if a judge’s law license is suspended, then that
7
The West Virginia Constitution was amended in 1974 to give the Court authority
to establish rules of “practice and procedure.” Article VIII, section 3. We interpreted
this amendment as giving the Court express authority to regulate the practice of law. See
Syllabus Point 1, Lane v. West Virginia State Board of Law Examiners, 170 W.Va. 583,
295 S.E.2d 670 (1982) (“Article eight, section one et seq. of the West Virginia
Constitution vests in the Supreme Court of Appeals the authority to define, regulate and
control the practice of law in West Virginia.”); Syllabus Point 1, State ex rel. Askin v.
Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982) (“The exclusive authority to define,
regulate and control the practice of law in West Virginia is vested in the Supreme Court
of Appeals.”).
8
Article VIII, section 7 states that a justice of the Supreme Court of Appeals must
have been admitted to practice law for at least 10 years prior to election, while a circuit
judge must have been admitted for at least 5 years. Article VIII, section 16 similarly
states that family court judges must have been admitted to practice law in this state for at
least 5 years prior to election. The By-Laws of the State Bar, article II, section 4, state,
“Every judge of a court of record of this State shall be enrolled as an inactive member [of
the bar] during his or her continuance in such office[.]”
13
lawyer is no longer qualified to “assume or hold judicial office.” Syllabus Point 6,
Committee on Legal Ethics v. Karl, supra.We conclude, based upon the West Virginia Constitution, that the
constitutional power of the Legislature to remove a judicial officer by impeachment does
not preclude this Court from exercising its inherent power to protect itself and the public
by suspending that officer. This Court has the inherent power to inquire into the conduct
of justices, judges and magistrates, and to impose any disciplinary measures short of
impeachment that it deems necessary to preserve and enhance public confidence in the
judiciary.9
C. The Charges Against Judge Watkins
The Judicial Hearing Board’s recommendation that Judge Watkins be
suspended from office is not to punish the judge for his extensive wrongdoing, but to
relieve from the bench a person whose further service will be detrimental to the judicial
branch of government. The Board identified numerous reasons for this recommendation.
First, the Judicial Hearing Board determined that Judge Watkins
demonstrated contempt for the authority of this Court, for the Circuit Court of Putnam
9
For examples of other courts finding an inherent and exclusive power of the
judicial branch to discipline judges, see In re Petition of Judicial Conduct Committee,
855 A.2d 535, 538 (N.H. 2004); In re Anderson, 82 P.3d 1134, 1139 n.2 (Utah 2004); In
re Dunleavy, 838 A.2d 338 (Me. 2003); In the Matter of Ferguson, 403 S.E.2d 628 (S.C.
1991); In re Kirby, 350 N.W.2d 344, 347-48 (Minn. 1984); In re Franciscus, 369 A.2d
1191 (Pa. 1977); In re DeSaulnier, 274 N.E.2d 454, 456 (Mass. 1971).
14
County, for the Office of the Administrative Director of the Courts, and for the Judicial
Investigation Commission.
For example, in 2008, Judge Watkins entered a divorce decree for a
husband and wife. When a dispute arose over equitable distribution of a pension, the
parties asked Judge Watkins for a hearing on the dispute. When the judge refused to hold
a hearing, one party petitioned the circuit court for a writ of mandamus. On February 7,
2011, the circuit court ordered Judge Watkins to hold a hearing within 30 days. He did
not hold a hearing until four months later, and thereafter failed to enter any order.
After five months and three letters by counsel asking Judge Watkins for an
order, the parties sought a second writ of mandamus. On December 20, 2011, the circuit
court ordered Judge Watkins to issue a decision within 60 days. On April 20, 2012, the
circuit court entered a third writ of mandamus ordering Judge Watkins to issue a decision
within 15 days. When he failed to respond, a party filed a petition for a writ of
mandamus from this Court, which was granted on July 5, 2012. A day later, on July 6th,
Judge Watkins issued an order. Judge Watkins explained his 13-month delay in entering
an order by saying that the circuit court had no authority over the family court, and had
no authority to “compel me to do anything.”
Second, the Judicial Hearing Board concluded that Judge Watkins was
unable to properly manage his office and his staff as required by the Code of Judicial
Conduct. The Hearing Board found that Judge Watkins and his staff repeatedly failed to
conform to the statutes, rules, and regulations governing the family courts. Rather than
take corrective action, Judge Watkins supported the misconduct of his staff.
15
Take, for example, Judge Watkins and his staff’s demonstrated contempt
toward the Domestic Violence Registry. West Virginia Code § 48-27-802(b) [2009]
requires that any court entering a domestic violence protective order “shall immediately
register such an order in the domestic violence database.” This database – the Registry –
is a matter of public safety, as it permits law enforcement officers in any jurisdiction to
instantly ascertain whether a protective order is in effect, enhancing the safety of both the
officer and the potential victim. Rule 21(b) of the Rules of Practice and Procedure for
Domestic Violence Civil Proceedings [2011] requires a family court judge to
“immediately enter all domestic violence-related orders on the West Virginia domestic
violence database.”
The Administrative Office of this Court has given multiple training sessions
for judges and their staff on the operation of the Domestic Violence Registry. However,
Judge Watkins and his staff repeatedly refused to comply with the requirements of the
Registry. In a memo sent to the Court’s Director of Family Court Services, Judge
Watkins stated that his staff simply did not have time for the “project.” While virtually
every other judicial officer in the State assisted in promptly supplying information to the
Registry, Judge Watkins and his staff did not. Putnam County 911 staff advised the
Administrative Office that Judge Watkins’s orders were posted to the Registry several
days late, if at all. Several times Administrative Office employees had to make repeated
requests that Judge Watkins and his staff upload orders to the Registry. In one instance
when an order was not uploaded, Judge Watkins had to be told that a domestic violence
respondent was in the possession of a firearm, and then later told that the respondent had
16
been arrested following the victim with a loaded firearm, before the order was uploaded.
In another, the Administrative Office made requests for nine months asking that Judge
Watkins and his staff upload an order, to no avail.
The Hearing Board further found that Judge Watkins demonstrated a lack
of diligence in the performance of his official duties.
Next, the Hearing Board concluded that Judge Watkins demonstrated a lack
of courtesy, civility, decorum, and judicial comportment in the conduct of hearings. He
also demonstrated intemperance in the case of correspondence where he had time for
more careful reflection. Additionally, the Hearing Board determined that Judge Watkins
demonstrated a preference for using threats, intimidation, profanity, and shouting rather
than the tools available to judges, including civil and criminal contempt, to deal with
admittedly difficult litigants in a manner that conforms to the requirements of the Code of
Judicial Conduct. Judge Watkins demonstrated a failure to control his anger and
emotions. Lastly, he demonstrated a failure to properly and promptly disqualify himself
even after acknowledging, on the record, that he could not continue to preside in an
impartial and unbiased manner.
For example, in a divorce case, Judge Watkins yelled at Complainant 1 in
several hearings, which prompted Complainant 1 to file ethics complaints alleging Judge
Watkins was prejudiced against him. On May 23, 2012, Judge Watkins convened a
hearing that began with the following dialogue with Complainant 1:
Judge: Before we get started . . . , if you say one word out of
turn you’re going to jail . . . do you understand me? Yes or
no?
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Complainant 1: Yes.
Judge: After we closed here you went out there talked to a
reporter . . . five seconds after you left here. . . . This morning
I now see an article from your little buddy Smith with a
picture of my home . . . my home on the front page.
Complainant 1: [inaudible]
Judge: SHUT UP! [sound distortion] Did I tell you to speak?
My wife is disabled, she is there alone . . . and you, you
disgusting piece of . . . you put our picture of my house . . .
because of you . . . my house has been vandalized four times
you realize that of course because I’m sure you’re probably in
on it laughing about it.
I swear to you.
You’re responsible. You are responsible. I am holding you
personally responsible for anything that happens at my house.
...
It’s disgraceful that you and your little buddies do not have
the guts, the integrity, just the human decency, but no you
gotta threaten my family now, well buddy, its personal . . . it
is personal. You have threatened my family and I promise
you you will not hear the end of it from me.
In fact.
I’m going to recuse . . . I tell you I’m too angry to even be
appropriate in this case.
Moments after acknowledging that he was too angry to properly hear the
case, Judge Watkins apologized to Complainant 1’s ex-wife and her counsel, and then
decided not to recuse himself from the case. Judge Watkins continued the hearing, later
accusing Complainant 1 of telling “a damn lie and you know it’s a damn lie.” Several
18
times when Complainant 1 attempted to speak, the judge cut him off and told him to
“shut up.”
In a hearing involving Complainant 2, a female, Judge Watkins offered
numerous vulgar interjections during the one proceeding, including saying “oh, shit,”
referring to Complainant 2’s child as “the little stinker,” and saying, “okay, we’ve
crapped around enough on this thing.” He referred to the child’s father by saying he “got
into some dumb shit,” that he was “the biggest jackass in the whole operation,” and the
father “knows if he screws up it’s his ass.” When the judge snapped at Complainant 2
about the father, saying she “picked him to have a child with,” she said:
Complainant 2: No, actually I didn’t. It was an accident.
Judge: Well, honey. It ain’t an accident. You don’t get ‘em
off of toilet seats. Okay?
Upset by the judge’s comments, Complainant 2 filed a complaint with
judicial disciplinary counsel. Judge Watkins replied to the complaint in a letter to
disciplinary counsel, admitting that he likes to “use earthy language at times to make a
point.” However, the judge said,
There is nothing that even remotely alleges an ethics
violation. The sad thing is that in the time I’ve had to take to
respond to this nonsense means that four hearings now have
to be postponed. Inasmuch as I now have over 2600 hearings
per year, that means at least 8 people will have to wait an
additional 3 or 4 months to have their case resolved. I would
appreciate it in the future that you keep this in mind and
perhaps do a little investigation on your own before you
waste more valuable court time.
19
In a third case, Complainant 3 – who was ordered to pay his ex-wife back
child support – filed a medical malpractice action. Judge Watkins ordered Complainant 3
to notify the family court of any settlement. After Complainant 3 entered into a
confidential settlement agreement, Complainant 3 told the family court he could not
disclose the amount of the settlement. Judge Watkins demanded to know where the
money was:
Judge: Where is it?
Complainant 3: Well, contact my lawyer. . . .
Judge: No, God damn it.
Complainant 3: Don’t cuss me, sir . . .
Judge: I’m gonna cuss you cause you came into my
courtroom and lied. . . . Well, why hasn’t she been paid?
Complainant 3: Well, contact my lawyer, sir. I don’t . . .
Judge: I don’t (slammed something down hard). . . . It’s not
my job. . . . Okay. Take his ass into custody. I’m tired of it.
Now you call up your lawyer and you find out how to get
your butt out and that’s to sign over the money. Got me?
Great.
At a later hearing (after Complainant 3 was released from jail), Judge Watkins cut off
Complainant 3 by saying,
Oh be quiet. That is a bunch of crap. You know by
the way sir, I’m very familiar with . . . all the choice things
and threats you had to make about me. You aren’t man
enough to say it to me in court but you’re really good about
talking about me behind my back. I know about you
accosting somebody so I don’t much care for your freaking
attitude.
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In all of the hearings at issue involving Complainant 3, Judge Watkins admitted that he
“spoke in a raised voice and at times yelled.”
In a fourth case, Complainant 4 sought a domestic violence protective order
against her then-husband. Judge Watkins criticized Complainant 4 for “shooting off your
fat mouth about what happened. Shut up!” The judge then asked Complainant 4 if she
thought he was “a funny guy,” and said,
Shut up! You stupid woman. Can’t even act properly.
One more word out of you that you aren’t asked a question
you’re out of here and you will be found in direct contempt of
court and I will fine you appropriately. So, shut your mouth.
You know I hate it when people are just acting out of sheer
spite and stupidity.
As a final example, Complainant 5 asked Judge Watkins to recuse himself
from a divorce case because he once represented Complainant 5’s wife in a bankruptcy
matter. Judge Watkins wrote a letter to Complainant 5 stating:
I cannot speak to litigants. Period. If you think I should
recuse myself, please file the appropriate pleadings and I will
review it. I was not aware that I had filed a bankruptcy
petition on behalf of your wife.
I have reviewed your complaint, and your perspective seems
to be held by you. Every other witness describes you as rude,
obnoxious, loud, unprofessional and generally acting like the
south end of a north-bound horse. I choose to believe them.
Judge Watkins admitted, and the Judicial Hearing Board concluded, that he
committed twenty-four separate violations of nine separate Canons of the Code of
Judicial Conduct. Those nine Canons are:
21
1. Canon 1(A)
An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in
establishing, maintaining, and enforcing high standards of
conduct, and shall personally observe those standards so that
the integrity and independence of the judiciary will be
preserved. The provisions of this Code are to be construed
and applied to further that objective.
2. Canon 2(A)
A judge shall respect and comply with the law, shall avoid
impropriety and the appearance of impropriety in all of the
judge’s activities, and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality
of the judiciary.
3. Canon 2(B)
A judge shall not allow family, social, political, or other
relationships to influence the judge’s judicial conduct or
judgment.
4. Canon 3(B)(1)
A judge shall hear and decide matters assigned to the judge
except those in which disqualification is required.
5. Canon 3(B)(3)
A judge shall require order and decorum in proceedings
before the judge.
6. Canon 3(B)(4)
A judge shall be patient, dignified, and courteous to litigants,
jurors, witnesses, lawyers, and others with whom the judge
deals in an official capacity, and shall require similar conduct
of lawyers, and of staff, court officials, and others subject to
the judge’s direction and control.
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7. Canon 3(B)(5)
A judge shall perform judicial duties without bias or
prejudice. A judge shall not, in the performance of judicial
duties, by words or conduct manifest bias or prejudice. . . .
8. Canon 3(B)(8)
A judge shall dispose of all judicial matters promptly,
efficiently, and fairly.
9. Canon 3(C)(1)
A judge shall diligently discharge the judge’s administrative
responsibilities without bias or prejudice and maintain
professional competence in judicial administration, and
should cooperate with other judges and court officials in the
administration of court business.
A Clarksburg lawyer (who rose to be chief counsel for the IRS) once wrote,
“A judge is a leader whether he wants to be or not. He cannot escape responsibility in his
jurisdiction, for setting the level of the administration of justice and of the practice of
law.”10 Citizens judge the law by what they see and hear in courts, and by the character
and manners of judges and lawyers.11 “The law should provide an exemplar of correct
behavior. When the judge presides in court, he personifies the law, he represents the
sovereign administering justice and his conduct must be worthy of the majesty and honor
of that position.” Matter of Ross, 428 A.2d 858, 866 (Me. 1981). Hence, a judge must
10
Arch M. Cantrall, “The Judge as a Leader: The Embodiment of the Ideal of
Justice,” 45 ABA Journal 339, 340 (April 1959).
11
Or, as Justice Brandeis once said, “Our Government is the potent, the
omnipresent teacher. For good or for ill, it teaches the whole people by its example.”
Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
23
be more than independent and honest; equally important, a judge must be perceived by
the public to be independent and honest. Not only must justice be done, it also must
appear to be done.
Socrates said, “Four things belong to a judge: to hear courteously, to
answer wisely, to consider soberly, and to decide impartially.” We recognize that
regulating the demeanor of a judge is a difficult task, because judges are human and may
occasionally display anger or annoyance, and lawyers and litigants sometimes incite
judges. Judges must also be allowed some flexibility in criticizing the performance of
lawyers who appear before them. But a judge owes a duty to treat lawyers and litigants
courteously, to hear them patiently, to study their arguments and evidence
conscientiously, and to decide their cases promptly.
Judges wield an immense power over the liberty and property of their
fellow citizens, so that power must be exercised with caution. “For every litigation at
least one-half of those involved are likely to come away sorely dissatisfied, and every
citizen has reason to apprehend that one day he may be on the losing side of our exercise
of judgment.” Matter of Brown, 427 Mass. 146, 149, 691 N.E.2d 573, 576 (1998).
Accordingly, there exists
an exacting compact between judges and the citizenry. It is
not enough that we know ourselves to be fair and impartial or
that we believe this of our colleagues. Our power over our
fellow citizens requires that we appear to be so as well. How
else are ordinary citizens to have the faith in us . . . ? An
impartial manner, courtesy, and dignity are the outward sign
of that fairness and impartiality we ask our fellow citizens,
often in the most trying of circumstances, to believe we in
fact possess. Surely it is arrogance for us to say to them that
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we may not seem impartial, but we know we are, and so they
must submit. Precisely because the public cannot witness, but
instead must trust, what happens when a judge retires to the
privacy of his chambers, the judiciary must behave with
circumspection when in the public eye.
Id.When a judge insults, ridicules, or disparages counsel, the parties, jurors, or
witnesses, it is clearly misconduct. Judges may be “appropriately disciplined for using
abusive, insulting, intemperate, obscene, profane, threatening, vulgar, or other offensive
language.” In re Pauley, 173 W.Va. 228, 235, 314 S.E.2d 391, 398 (1983). The excuse
by Judge Watkins that he likes to “use earthy language at times to make a point” with
certain litigants does not excuse his use of profanity and threats, but rather demonstrates
his lack of impartiality. As one court said, “We reject as unacceptable the suggestion that
an individual’s lack of education authorizes a court to deal with him differently. All
persons are equal before the law. The poor and uneducated are entitled to the same
treatment as the rich and learned.” Matter of Ross, 428 A.2d at 866. Furthermore,
“judicial intemperance invariably conveys the message of a closed mind. It is never
appropriate for a judge to become a ‘combatant with a party.’ Participants will never
accept that a decision rendered by a combatant is fair.” In re O’Dea, 159 Vt. 590, 605,
622 A.2d 507, 516 (1993). A pattern of judicial discourtesy like that exhibited by Judge
Watkins represents a profound threat to the integrity of the judiciary, and consequently
demands a strong response.
It is also misconduct for a judge to unreasonably delay resolving a case.
“Under article III, § 17 of the West Virginia Constitution, which provides that ‘justice
25
shall be administered without sale, denial or delay,’ and under Canon 3A(5) of the West
Virginia Judicial Code of Ethics (1982 Replacement Vol.), which provides that ‘A judge
should dispose promptly of the business of the court,’ judges have an affirmative duty to
render timely decisions on matters properly submitted within a reasonable time following
their submission.” Syllabus Point 1, State ex rel. Patterson v. Aldredge, 173 W.Va. 446,
317 S.E.2d 805 (1984). In Syllabus Point 2 of Matter of Sommerville, 178 W.Va. 694,
364 S.E.2d 20 (1987), we established the right to impose “judicial discipline for
unreasonable delays in the disposition of court business.” The refusal by Judge Watkins
to promptly issue orders or hold hearings, even when ordered to do so by the circuit
court, likewise represents a profound threat to the integrity of the judiciary.
Additionally, it should go without saying that “[d]omestic violence cases
are among those that our courts must give priority status.” Syllabus Point 6, In re
Browning, 192 W.Va. 321, 452 S.E.2d 34 (1994). Yet Judge Watkins and his staff
repeatedly disregarded their duty to promptly post orders to the Domestic Violence
Registry, thereby endangering both victims of domestic violence and police officers
charged with enforcing those orders. Judge Watkins characterized the statutorily-
mandated database as a “project” he was too busy to comply with. His failure to comply
with the law, and his failure to supervise his staff, represents a repeated and profound
threat to the integrity of the judiciary.
The overriding goal of judicial discipline is to preserve public confidence in
the integrity and impartiality of the judiciary. That confidence was plainly sullied by the
actions of Judge Watkins.
26
Accordingly, we adopt the sanctions recommended by the Judicial Hearing
Board.
IV.
CONCLUSION
This Court imposes the following discipline upon the respondent, Judge
William M. Watkins, III:
1. Judge Watkins is censured on each of his twenty-four violations of the
Code of Judicial Conduct.
2. Judge Watkins is forthwith suspended, without pay, from his office as
judge of the Family Court of Putnam County until his present term of office ends on
December 31, 2016; and
3. Judge Watkins shall pay all of the costs associated with the investigation
and prosecution of these proceedings.
The Clerk of this Court is ordered to issue the mandate forthwith.
Suspension without pay and other sanctions ordered.
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