State ex rel. Kaufman v. Zakaib

• Decision Date: 14 July 2000
• Docket Number: No. 27327.,27327.
• Citation: 535 S.E.2d 727,207 W.Va. 662
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, Petitioner, v. Honorable Paul ZAKAIB, Judge of the Circuit Court of Kanawha County, the Kanawha County Commission, and George B.W., Respondents.

535 S.E.2d 727

207 W.Va. 662

STATE of West Virginia ex rel. Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, Petitioner, v. Honorable Paul ZAKAIB, Judge of the Circuit Court of Kanawha County, the Kanawha County Commission, and George B.W., Respondents.

No. 27327.

Supreme Court of Appeals of West Virginia.

Submitted April 11, 2000.

Decided July 14, 2000.

James B. McIntyre, Esq., McIntyre & Collias, Charleston, West Virginia, Attorney for Petitioner.

William C. Forbes, Esq., Prosecuting Attorney, Charleston, West Virginia, Attorney for Kanawha County Commission.

Michael T. Clifford, Esq., Clifford, Mann & Swisher, Charleston, West Virginia, Attorney for George B.W.

Ancil G. Ramey, Esq., Steptoe & Johnson, Charleston, West Virginia, Attorney for Amicus Curiae The West Virginia Judicial Association. McGRAW, Justice:

I.

BACKGROUND

The present request by Judge Kaufman for a writ of prohibition comes to us from a medical malpractice case filed in the Circuit Court of Kanawha County, but in truth it is the most recent incarnation of a divorce proceeding that has thrice found its way to this Court. We note some of the facts of the earlier cases because they provide a frame of reference for the instant dispute. On August 10, 1995, Sharon B.W. filed for divorce against her then husband George B.W.¹ At that time, the couple's young son was approximately four years old. The normal order of case assignment deposited this case on the docket of Kanawha County Circuit Court Judge Tod J. Kaufman. In December of that year, Judge Kaufman awarded temporary custody of the son to Sharon B.W. Subsequently, George B.W. moved for an emergency order to retain custody of the son based on allegations that the then boyfriend of Sharon B.W. had sexually abused the child. Judge Kaufman granted this emergency order and George B.W. retained custody of the son.

In December of that same year, Sharon B.W. moved the circuit court to allow her visitation with her son, and to require that the child undergo an expert evaluation regarding the allegations of sexual abuse; the court granted her motion. George B.W. then requested a writ of prohibition from this Court. In State ex rel. George B. W. v. Kaufman, 199 W.Va. 269, 483 S.E.2d 852 (1997) ("George B.W.I"). this Court granted the writ as moulded and required Judge Kaufman to hold a hearing to determine custody of the child, among other issues.²

Pursuant to this Court's opinion in George B.W. I, in March of 1997, Judge Kaufman held a hearing at which both parties presented expert testimony regarding the allegations of sexual abuse. During this multi-day hearing, George B.W.'s expert, psychologist Timothy J. Freeman, Ph.D., testified that he had interviewed the child, and in his expert opinion, the alleged sexual abuse had indeed occurred. Judge Kaufman refused to qualify Dr. Freeman as an expert, but did allow him to testify. Sharon B.W.'s expert, William Bernet, M.D., who was the medical director of the psychiatric hospital at Vanderbilt University, testified that, in his expert opinion, the abuse had not occurred, and that George B.W. and his expert, Dr. Freeman, had induced the allegations of abuse by asking suggestive questions of the child.

Judge Kaufman entered a final order on June 4, 1997, in which he awarded permanent custody to Sharon B.W. This prompted an appeal by George B.W. to this Court, which resulted in our opinion in Sharon B.W. v. George B.W., 203 W.Va. 300, 507 S.E.2d 401 (1998) ("George B.W. II "). In that case, this Court found that Judge Kaufman had used the proper evidentiary standard and had not abused his discretion. Although ruling that the judge should have qualified Dr. Freeman as an expert, we found this to be harmless error. Finally we ordered that the lower court "establish a meaningful visitation plan for the parties and the child." 203 W.Va. at 305,507 S.E.2d at 406.³

Subsequent to the ruling in George B.W. II, Judge Kaufman directed Dr. Bernet to prepare a plan for reuniting mother and child, and for visitation by George B.W. Pursuant to this order, Dr. Bernet filed numerous reports with the lower court regarding how this reunification and visitation might best be accomplished.

In November 1997, the family law master assigned to the case conducted a hearing and made findings regarding the assets of the parties and the payment of attorney fees. Specifically, the family law master concluded that Sharon B.W. was not entitled to any share of certain stock that George B.W. held in his medical practice, and that Sharon B.W. should reimburse George B.W. for the attorney fees he incurred while contesting this issue.

Judge Kaufman did not agree with this finding, and instead found that Sharon B.W. was entitled to one half of the stock held by George B.W. in his medical practice, and furthermore, that George B.W. should reimburse Sharon B.W. for all of her litigation expenses. Again the dispute came before this Court, and on July 14, 1999, in Sharon B.W. v. George B.W., 205 W.Va. 594, 519 S.E.2d 877 (1999) ("George B.W. III"), we reversed Judge Kaufman's finding regarding the stock, but upheld the award of attorney fees to Sharon B.W.⁴

Finally, on June 18, 1999, George B.W. filed the instant lawsuit, also in the Circuit Court of Kanawha County, but this time before Judge Paul Zakaib. George B.W. filed suit against Thomas J. Gillooly (the attorney who represented Sharon B.W.), Dr. Bernet (her expert), and Vanderbilt University, alleging, inter alia, that attorney Gillooly and Dr. Bernet conspired to provide the court with false information, and that by so doing they caused George B.W. a variety of damages, including emotional distress and interference with his custodial relationship with his son. On November 30, 1999, counsel for George B.W. served a Notice of Deposition upon Judge Kaufman, declaring that the judge should report to counsel's office for a deposition on December 20, 1999.

Judge Kaufman, by counsel, moved on December 8, 1999 for a protective order, arguing that any information regarding the divorce proceedings would be privileged, and that there was no discoverable information to be had by deposing him. By order dated January 28, 2000, Judge Zakaib found that Judge Kaufman was indeed subject to deposition.

In the order, Judge Zakaib first held that circuit court judges were not "highly placed public officials" deserving of special consideration, as set forth in State ex rel. Paige v. Canady, 197 W.Va. 154, 475 S.E.2d 154 (1996); Judge Zakaib then found that, even if one did apply the test set forth in Paige, that the plaintiff had satisfied the first, second and fourth prongs of the test, and by setting some limits on the deposition, that the third prong could also be satisfied.⁵ In conclusion, Judge Zakaib found that Judge Kaufman was a material witness in the instant case, and that the plaintiff could depose him, subject to certain limitations on time, place, and conduct of the parties during the deposition.

On February 14, 2000, Judge Kaufman petitioned this Court for a Writ of Prohibition against Judge Zakaib to prevent him from enforcing the order requiring the deposition of Judge Kaufman.⁶ On February 17, 2000, we issued a rule to show cause. For the reasons set forth below, we grant petitioner's writ, as moulded.

II.

STANDARD OF REVIEW

We are asked to consider the award of a writ of prohibition. As an aspect of our original jurisdiction, we have often addressed the standard for such an award:

Where the court, although having jurisdiction of the cause, during the trial of it, exceeds its powers in some matter pertaining thereto, for which there is no adequate remedy by the ordinary course of proceeding, the writ of prohibition lies, under the general principles of law....

State ex rel. Noll v. Dailey, 72 W.Va. 520, 523, 79 S.E. 668, 669-70 (1913). This same idea is codified in W. Va.Code § 53-1-1 (1923),

[t]he writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.

This Court has also held that:

Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of powers is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue.

Syl. pt. 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973). Finally, when addressing a question somewhat like the instant dispute, this Court in Paige, supra, noted:

This Court has previously determined that erroneous discovery orders may be subject to a writ of prohibition. "A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders." Syllabus point 1, State Farm v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

State ex rel. Paige v. Canady, 197 W.Va. 154, 158, 475 S.E.2d 154, 158 (1996). However, because this petition concerns a discovery order demanding the deposition of a judge, rather than a cabinet official, this Court faces a different question today.

Respondent George B.W. argues that this matter is not property decided via a writ of prohibition, and that an appeal would serve as an adequate remedy. This argument is not persuasive. Judge Kaufman still presides over the underlying divorce proceeding. If forced to testify, Judge Kaufman might find it necessary to remove himself from that case, and might not find it possible to return to the case if he were to prevail upon the instant issue on an appeal. Furthermore, if George B.W. were to prevail in...