Dostert, In re

• Decision Date: 07 November 1984
• Docket Number: No. 26-84,26-84
• Court: West Virginia Supreme Court
• Parties: In re Pierre E. DOSTERT, Judge.

Page 402

324 S.E.2d 402

174 W.Va. 258

In re Pierre E. DOSTERT, Judge.

No. 26-84.

Supreme Court of Appeals of West Virginia.

Nov. 7, 1984.

Statement on Disqualification

Nov. 8, 1984.

Dissenting Opinion Nov. 15, 1984.

Syllabus by the Court

1. In a judicial disciplinary proceeding in which a claim of ill health or disability appears on the face of the record, article VIII, § 8 of the West Virginia Constitution must be considered, which provides, in pertinent part, that:

[T]he supreme court of appeals is authorized to ... retire any ... judge ... who is eligible for retirement under the West Virginia judges' retirement system (or any successor or substituted retirement system for ... judges ...) and who, because of advancing years and attendant physical or mental incapacity, should not, in the opinion of the supreme court of appeals, continue to serve as a ... judge ....

2. The language in West Virginia Code § 51-9-6 (1981 Replacement Vol.), "any portion of the term of office of any judge of a court of record," which is so specially drawn as to mandate dual officeholding, is unconstitutional under West Virginia Constitution art. VIII, § 7, which provides that, "No ... judge ... shall hold any other office, or accept any appointment or public trust, under this or any other government ... and the violation of any of these provisions shall vacate his judicial office."

3. The language in West Virginia Code § 51-9-6 (1981 Replacement Vol.), "as prosecuting attorney in any county," violates the constitutional prohibition against special legislation found in West Virginia Constitution art. VI, § 39, which provides that "in no case shall a special act be passed, where a general law would be proper."

4. West Virginia Constitution art. IV, § 1; art. V, § 1; and art. VIII, §§ 7 and 8, express a fundamental constitutional interest in attracting and retaining professional talent in order to maintain the integrity of an independent judiciary.

5. The West Virginia Constitution in art. VIII, § 8 constitutionalizes judicial retirement.

6. West Virginia Code § 51-9-16 (1981 Replacement Vol.) is a severability section contained in the judicial retirement system statute which provides that:

If any section, subsection, clause, phrase or requirement of this article is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions. The legislature hereby declares that it would have passed this article, and each section, subsection, sentence, clause or phrase and requirement thereof, irrespective of the fact that any one or more sections, subsections, clauses, phrases or requirements be declared unconstitutional.

7. The public employees retirement system is a "substituted" retirement system for Article VIII judicial officers under West Virginia Constitution art. VIII, § 8.

8. "The West Virginia Retirement System for Judges creates contractually vested property rights for retired and active participating plan members, and these rights are enforceable and cannot be impaired or diminished by the State." Syl. pt. 1, Wagoner v. Gainer, 279 S.E.2d 636 (W.Va.1981).

9. Under West Virginia Constitution art. VIII, § 8, any judge "who ... should not, in the opinion of the supreme court of appeals, continue to serve as a ... judge [because of advancing years and attendant physical or mental incapacity]," may be involuntarily retired due to disability, irrespective of which retirement system such judge is a member.

Rice, Hannis & Douglas and Richard L. Douglas, Martinsvurg, for Dostert.

Charles R. Garten, Charleston, for Judicial Hearing Board.

McGRAW, Justice:

This extraordinary judicial disciplinary proceeding arises under Rule II(J) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates (Supp.1984). The initiation of this disciplinary proceeding was precipitated by the criminal contempt conviction of Judge Pierre E. Dostert of the Thirty-first Judicial Circuit on April 27, 1984. We address several issues presented by this disciplinary action. First, whether Judge Dostert should be suspended pending final disposition of the judicial disciplinary proceeding against him. Second, whether two retroactive service credit provisions contained within our judicial retirement system are unconstitutional violations of two separate constitutional prohibitions. Third, whether judicial members of the public employees retirement system are entitled to retroactive service credit on the same terms as members of the judicial retirement system. Finally, whether the constitutional standard for judicial disability applies in disciplinary disability retirement proceedings involving judges who are members of the public employees retirement system. Prior to our discussion of these issues, some procedural and factual background is in order.

I

Following Judge Dostert's criminal contempt conviction, the Administrative Director of the Supreme Court of Appeals filed a complaint against Judge Dostert with Counsel for the Judicial Investigation Commission on May 10, 1984, pursuant to Rule II(J)(1) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates (Supp.1984). ¹ After completing an investigation, the Judicial Investigation Commission determined that probable cause existed to file a complaint with this Court against Judge Dostert on June 22, 1984, pursuant to Rule II(J)(2) of the Rules of Procedure for the Handling of Complaints Against Justices Judges and Magistrates (Supp.1984). ² The complaint charged Judge Dostert with violations of Canons 1, 2A, 3A(1), 3A(3), and 3B(1) of the Judicial Code of Ethics. ³

On June 26, 1984, this Court entered an order, pursuant to Rule II(J)(2) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates (Supp.1984), ⁴ scheduling a July 16, 1984, hearing on the complaint. Additionally, it having come to the Court's attention through administrative channels ⁵ and through the public record ⁶ that Judge Dostert claimed ill health, the Court ordered the Administrative Director of the Supreme Court of Appeals, the constitutional judicial officer charged under article VIII, § 3 of the West Virginia Constitution with preparation and submission of the judicial budget, and whose duties include the maintenance, administration, and certification of records relating to the judicial retirement system, to intervene as a party in interest.

On July 10, 1984, Judge Dostert filed a motion to continue the scheduled hearing due to poor health, agreeing to refrain from conducting his judicial duties until final resolution of the complaint. Specifically, Judge Dostert stated that he was suffering from "vaso-spastic Coronary Artery Disease." This motion was granted, and the hearing was rescheduled for September 5, 1984.

On August 10, 1984, Judge Dostert again moved to continue the scheduled hearing due to continuing health problems. In addition, on August 28, 1984, the Administrative Director petitioned for clarification of the retirement statutes implicated in Judge Dostert's disciplinary proceeding. On August 31, 1984, Judge Dostert's motion to continue was granted and, because of their statutory duties, copies of the intervenor's petition were ordered to be transmitted to the Governor, ⁷ the Auditor, ⁸ the Treasurer, ⁹ and the Attorney General, ¹⁰ with a request that they file memoranda setting forth their positions with respect to the issues raised therein. ¹¹ Because of Judge Dostert's voluntary agreement to refrain from exercising the powers of his judicial office, the issues in this proceeding were bifurcated into the suspension matter and the disability retirement matter. A final hearing was held regarding the disability retirement matter on September 12, 1984.

II

Under Rule II(J)(2) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates (Supp.1984), we must first address the issue of Judge Dostert's suspension pending final disposition of the underlying disciplinary proceeding against him. We note that Judge Dostert has voluntarily agreed to refrain from judicial exercise until final resolution of the complaint against him and that he has filed a disability claim with the Workers' Compensation Commission due to his continuing medical problems. In accord with Judge Dostert's voluntary agreement to refrain from exercising the judicial power of the State, the Chief Justice entered an order on July 11, 1984, relieving Judge Dostert of all judicial duties until further notice. This order remains in effect. Accordingly, we will not conduct, as unnecessary, a suspension hearing pursuant to Rule II(J)(2) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates (Supp.1984) pending final disposition of the disciplinary complaint against Judge Dostert.

III

In a judicial disciplinary proceeding in which a claim of ill health or disability appears on the face of the record, article VIII, § 8 of the West Virginia Constitution must be considered, which provides, in pertinent part, that:

[T]he supreme court of appeals is authorized to ... retire any ... judge ... who is eligible for retirement under the West Virginia judges' retirement system (or any successor or substituted retirement system for ... judges ...) and who, because of advancing years and attendant physical or mental incapacity, should not, in the opinion of the supreme court of appeals, continue to serve as a ... judge ....

As previously noted, Judge Dostert's deteriorating physical condition has resulted in a claim for workers' compensation disability benefits and recusal from the exercise of his judicial duties. Therefore, issues involving the interpretation of our judicial retirement statutes and West Virginia Constitution art. VIII, § 8 are raised.

IV

There are two different retirement systems in which members...