State ex rel. McGraw v. West Virginia Judicial Review Bd., 14749

• Decision Date: 14 October 1980
• Docket Number: No. 14749,14749
• Citation: 271 S.E.2d 344,165 W.Va. 704
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Justice Darrell V. McGRAW, Jr. v. WEST VIRGINIA JUDICIAL REVIEW BOARD et al.

Page 344

271 S.E.2d 344

165 W.Va. 704

STATE ex rel. Justice Darrell V. McGRAW, Jr. v. WEST VIRGINIA JUDICIAL REVIEW BOARD et al.

No. 14749.

Supreme Court of Appeals of West Virginia.

Oct. 14, 1980.

Syllabus by the Court

1. "Proceedings of the West Virginia Judicial Review Board are governed by the West Virginia Rules of Civil Procedure; consequently, the Board must permit appropriate discovery of Judicial Inquiry Commission members upon proper motion by a party subject to investigation by the Judicial Review Board." Syl. Pt. 2, State ex rel. McGraw v. West Virginia Judicial Review Board, W.Va., 264 S.E.2d 168 (1980).

2. It is the obligation of the Judicial Review Board to supervise the extent of discovery in the same manner that a trial court supervises discovery under the West Virginia Rules of Civil Procedure ; this Court will not assume original jurisdiction of discovery matters.

McCamic & McCamic and Jeremy C. McCamic, Wheeling, for relator.

Fowler & Paterno and John R. Fowler, Charleston, for respondents.

NEELY, Chief Justice:

This is an original action in prohibition to determine the proper discovery procedure to be used before the Judicial Review Board. The petitioner, Justice Darrell V. McGraw, Jr. seeks to prohibit the Judicial Review Board from proceeding further against him because the Board has not required members of the Judicial Inquiry Commission to respond to his questions during discovery.

On 25 March 1980 this Court issued an opinion in this same matter. In that proceeding, Justice Darrell V. McGraw, Jr. sought to prohibit the West Virginia Judicial Review Board from enforcing its order protecting the Chairman of the Inquiry Commission from being deposed by him. We held that a broad protective order by the Review Board which forbids the taking of the Inquiry Commission Chairman's deposition on the grounds of blanket privilege is improper. State ex rel. McGraw v. Judicial Review Board, W.Va., 264 S.E.2d 168 (1980).

Syllabus Point 2 states:

Proceedings of the West Virginia Judicial Review Board are governed by the West Virginia Rules of Civil Procedure; consequently, the Board must permit appropriate discovery of Judicial Inquiry Commission members upon proper motion by a party subject to investigation by the Judicial Review Board.

Pursuant to this opinion, petitioner served a Notice of Depositions upon members of the Inquiry Commission. At the time of the depositions, counsel for the Inquiry Commission members instructed each of them not to answer questions of petitioner's counsel which attempted to elicit information from the members about the circumstances surrounding the filing of the complaint against petitioner. Petitioner's counsel then came to this Court requesting a rule to show cause why respondents should not be prohibited from proceeding further in this matter for failure to comply with our earlier decision concerning discovery in State ex rel. McGraw v. Judicial Review Board, supra.

At the outset it should be made clear that the Judicial Review Board, under the rules promulgated by this Court, acts as a hearing body once a complaint has been filed with it by the Judicial Inquiry Commission. In this situation the Review Board is in the position of a trial court. While we have accorded a party charged by the Judicial Inquiry Commission discovery under the Rules of Civil Procedure, it is the obligation of the Judicial Review Board to supervise the extent of discovery in the same manner that a trial court is empowered to do so under the West Virginia Rules of Civil Procedure. This function is facilitated by Rule II of the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates which provides that the Senior Circuit Judge on the Review Board shall be Chairman.

In our former case, McGraw, supra, we did accept an original prohibition to settle a matter of first impression, namely the extent of confidentiality of the matters handled by the Judicial Inquiry Commission. In our former case we did not determine the exact nature of the discovery that could be obtained against the Judicial Inquiry Commission by a party who has been charged by it. This was because we had no record of the matters upon which inquiry was sought. We did, however, make it clear that: "(e)ach area of inquiry should be scrutinized, as contemplated in Rule 26(c), W.Va.R.C.P., and a narrowly drawn protective order, if appropriate, entered." (Footnote omitted) 264 S.E.2d at 171.

The Judicial Inquiry Commission made no attempt, after our last order, to use the provisions of Rule 26(c) for a protective order. We are at a loss to understand why no effort in this regard was made. Once the depositions were initiated by the petitioner the Judicial Inquiry Commission members were advised by counsel not to answer certain questions. At that point the petitioner had a right under Rule 37(a)(2) to move the Judicial Review Board to compel answers. ¹ This would have squarely joined the issues and resulted in an appropriate order from the Judicial Review Board. If the Board found that answers should have been made, it could have required expenses to be paid to petitioner's counsel under Rule 37(a)(4) ².

Petitioner is not entitled to have us dismiss the complaint under Rule 37(b) ³ because this action can be taken only after a party refuses to comply with a lawful discovery order. ⁴ Here there was no order from the Judicial Review Board requiring the Judicial Inquiry Commission members to answer the challenged questions. Certainly our mandate in the previous case cannot be construed to mean a specific order to answer such questions because no specific questions were ever before us.

It is regrettable that much time has been consumed on this discovery issue, yet it is an important matter of first impression which this Court would eventually have been required to address. We now hold, however, that control over discovery is a function of the Judicial Review Board and this Court will not assume original jurisdiction; improper discovery procedures are a fit subject for an appeal.

Writ granted as molded.

1 Rule 37(a)(2) reads as follows: (a) Motion for order compelling discovery.-A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(2) Motion.-If a deponent fails to answer a question propounded or submitted under Rule...