Sommerville, Matter of

• Decision Date: 09 December 1987
• Docket Number: No. 17592,17592
• Citation: 364 S.E.2d 20,178 W.Va. 694
• Court: West Virginia Supreme Court
• Parties: In the Matter of A.L. SOMMERVILLE, Jr., Judge Fourteenth Judicial Circuit.

Page 20

364 S.E.2d 20

178 W.Va. 694

In the Matter of A.L. SOMMERVILLE, Jr., Judge Fourteenth

Judicial Circuit.

No. 17592.

Supreme Court of Appeals of

West Virginia.

Dec. 9, 1987.

Syllabus by the court.

1. "Under article III, § 17 of the West Virginia Constitution, which provides that 'justice 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).

2. Canon 3A(5) of the West Virginia Judicial Code of Ethics, as well as the principle contained within its admonition, is often utilized as a foundation for the imposition of judicial discipline for unreasonable delays in the disposition of court business.

3. Among the factors to be considered in determining whether there has been an unreasonable delay in disposing of a case are the following: the amount of delay from the date the case was ripe for decision; the complexity of the case; the administrative and judicial workload of the judge; the number of special assignments given to the judge; the amount of vacation time taken; and other complaints involving delayed decisions made against the judge.

4. When we are confronted with an inadequate record from an administrative agency subject to the supervision of this Court, such that we are unable to make a proper determination of the merits of the case, we will remand the case for additional factual development.

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

A.L. Sommerville, Webster Springs, for respondent.

MILLER, Justice:

This judicial disciplinary proceeding arises from a complaint filed with the Judicial Hearing Board (Board) by the Judicial Investigation Commission (Commission) charging Circuit Judge A.L. Sommerville, Jr., with a violation of Canon 3A(5) of the Judicial Code of Ethics. ¹ At the hearing, the Board dismissed the complaint based on a previous per curiam order issued by this Court in In the Matter of: C. Reeves Taylor, No. 66-83 (Feb. 15, 1985). It interpreted this order to mean that an unreasonable delay in deciding a case could not be brought into the judicial disciplinary procedure. The only recourse was to bring a writ of mandamus before this Court. Finding the Board erred as a matter of law in its interpretation of the Taylor order, we remand this case to the Board for the development of a proper record.

On April 3, 1986, the Commission filed a complaint with the Board alleging that on October 27, 1979, Ms. Patricia A. Monteith, a teacher in the Webster County school system, filed a petition for a writ of certiorari to review her dismissal by the Webster County Board of Education. On November 6, 1979, a response to the petition was filed on behalf of the Webster County Board of Education. On December 7, 1979, Judge Sommerville ordered the parties to submit their briefs. Ms. Monteith filed a motion on August 10, 1981, seeking leave to amend her complaint which was granted by an order dated September 8, 1981.

Thereafter, on October 11, 1985, Ms. Monteith filed her complaint with the Commission against Judge Sommerville. At that time, no decision had been rendered in the Webster County Circuit Court civil action. ²

We believe the Board misunderstood our ruling in Taylor where we referred to our earlier case of State ex rel. Patterson v. Aldredge, 173 W.Va. 446, 317 S.E.2d 805 (1984). In that case which was an original mandamus, we ordered the judge to make a ruling, stating in Syllabus Point 1:

"Under article III, § 17 of the West Virginia Constitution, which provides that 'justice 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."

However, we pointed out in Patterson that an unreasonable delay in disposition of cases had been found by a number of courts to be grounds for disciplinary sanctions.

"Canon 3A(5) of the West Virginia Judicial Code of Ethics, as well as the principle contained within its admonition, is often utilized as a foundation for the imposition of judicial discipline for unreasonable delays in the disposition of court business. See, e.g., In re Weeks, 134 Ariz. 521, 524-25, 658 P.2d 174, 177-78 (1983); In re Heideman, 387 Mich. 630, 631-32, 198 N.W.2d 291, 291-92 (1972); In re Anderson, 312 Minn. 442, 447, 252 N.W.2d 592, 594 (1977); In the Matter of Kohn, 568 S.W.2d 255, 260-62 (Mo.1978); In re Corning, 538 S.W.2d 46, 48-50 (Mo.1976); In the Matter of MacDowell, 57 A.D.2d 169, 174, 393 N.Y.S.2d 748, 751 (1977); Judicial Qualifications Commission v. Cieminski, 326 N.W.2d 883, 886 (N.D.1982); Matter of Cieminski, 270 N.W.2d 321, 324 (N.D.1978)." State ex rel. Patterson v. Aldredge, 173 W.Va. at 447, 317 S.E.2d at 807.

We elaborated on this law in Taylor, by citing additional cases that recognized judicial disciplinary sanctions could be warranted for an unreasonable delay in disposing of a case:

"Additionally, in Patterson we cited cases from other jurisdictions where unreasonable delays in the disposition of court business constituted all or part of the basis for the imposition of judicial discipline. 173 W.Va. at 447, 317 S.E.2d at 807. See also Powers v. Board of Control, 434 So.2d 745, 750 (Ala.1983); In Re Jensen, 24 Cal.3d 72, 593 P.2d 200, 154 Cal.Rptr. 503 (1978); McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 526 P.2d 268, 116 Cal.Rptr. 260 (1974), overruled on other grounds, Spruance v. Commission on Judicial Qualifications, 13 Cal.3d 778, 532 P.2d 1209, 119 Cal.Rptr. 841 (1975); In Re Complaint Against Van Susteren, 118 Wis.2d 806, 348 N.W.2d 579 (1984); In Re Complaint Against Grady, 118 Wis.2d 762, 348 N.W.2d 559 (1984)."

This was followed by a summary of the general principles extracted from the various cases which we had earlier cited:

"A review of the decisions involving judge-caused delay evidences various categories of conduct which have been found to rise to the level of an ethical violation. Violations have been found where there was: (1) a substantial number of delayed decisions; (2) a small number of delayed decisions involving particularly long delays; and (3) proof of vindictive or other malicious motive behind an instance of delay."

In the last section of the Taylor order, we made an individual analysis of a number of the cases that dealt with judicial disciplinary proceedings arising from unreasonable delay in the disposition of cases. ³

In Taylor we agreed with the Board's conclusion that the complaint against Judge Taylor should be dismissed because the factual record showed a history of substantial diligence. Among the factors we considered in determining whether there has been an unreasonable delay in disposing of a case were the following: the amount of delay from the date the case was ripe for decision; the complexity of the case; the administrative and judicial workload of the judge, the number of special assignments given to the judge; the amount of vacation time taken; and other complaints involving delayed decisions made against the judge. ⁴

In this case the problem is that the Board made no factual record, but merely held as a matter of law that a disciplinary charge could not be sustained based on an unreasonable delay by a judge in disposing of a case. As both Patterson and Taylor demonstrate, this is a clear misunderstanding of our law.

In the past, when we have been confronted with an inadequate record from an administrative agency subject to the supervision of this Court, such that we are unable to make a proper determination of the merits of the case, we have remanded the case for additional factual development as indicated by Syllabus Point 2 of In re Brown, 164 W.Va. 234, 262 S.E.2d 444 (1980):

"In cases involving reinstatement proceedings, we require, under this Court's supervisory powers, that the Committee on Legal Ethics of The West Virginia State Bar shall hold an evidentiary hearing to enable a record to be made on the issues relating to the petitioner's qualifications to have his license reinstated."

Much the same rule has been applied to appeals when we cannot determine from the record what judgment should be rendered, as illustrated by Syllabus Point 2...