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In the matter of Atkinson
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 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
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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,

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