West Virginia Judicial Inquiry Commission v. Allamong

• Decision Date: 13 February 1979
• Docket Number: No. 14313,14313
• Citation: 252 S.E.2d 159,162 W.Va. 652
• Parties: WEST VIRGINIA JUDICIAL INQUIRY COMMISSION v. Elden ALLAMONG.
• Court: West Virginia Supreme Court

Page 159

252 S.E.2d 159

162 W.Va. 652

WEST VIRGINIA JUDICIAL INQUIRY COMMISSION v. Elden ALLAMONG.

No. 14313.

Supreme Court of Appeals of West Virginia.

Feb. 13, 1979.

Syllabus by the Court

1. Notwithstanding this Court's inherent power to regulate attorneys in the practice of law and its express constitutional power under Article VIII, Section 8 of this State's Constitution to adopt a code of judicial ethics, such powers may only be exercised in a manner not inconsistent with other constitutional provisions.

2. The provision of Article VIII, Section 7 of our Constitution, which permits attorneys who are magistrates to practice law except to the extent prohibited by the Legislature, precludes this Court from prohibiting such magistrates from practicing law as has been done under Canon 5(F) of the Judicial Code of Ethics of this State.

3. Nothing within the terms of W.Va.Code, 50-1-4 and -12, can be read as a total legislative prohibition against practicing law by a magistrate.

4. Because a magistrate is a judicial officer, he is subject to all of the Canons of the Judicial Code of Ethics, except Canon 5(F). He must not, through his activities as an attorney, jeopardize his magistrate office or its integrity, propriety or impartiality.

Charlotte R. Lane, Fowler, Paterno & Lane, Charleston, for complainant.

Elden Allamong, pro se.

MILLER, Justice.

This case presents the question whether, or to what extent, a West Virginia magistrate who is also a duly licensed attorney may engage in the private practice of law.

These proceedings began when the Judicial Inquiry Commission, a body charged with the duty to investigate alleged judicial misconduct, filed a complaint with the Judicial Review Board against Magistrate Elden Allamong. The Board is vested with the duty to hear complaints filed by the Commission and make recommendations to this Court as to their disposition. ¹ The complaint charged Magistrate Allamong, a licensed attorney, with practicing law while serving as magistrate, and with another violation which the Board found to be groundless. ²

The Judicial Inquiry Commission is empowered to charge a judge ³ with "violation of the Judicial Code of Ethics, Code of Regulations or Standards of Conduct and Performances," or to charge that he should no longer serve "because of advancing years and attendant physical or mental incapacity." Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates, W.Va.Code, Rule I(A)(2)(a), (b) (hereinafter Rules of Procedure). Here, the specific charge was that Magistrate Allamong, by practicing law while serving as magistrate, had violated Canon 5(F) of the Judicial Code of Ethics, which provides: "A judge should not practice law."

The Judicial Review Board is authorized to hear the complaint, take evidence, and hear argument. It must enter on the record its written recommendation, "which shall contain findings of fact, conclusions of law and proposed disposition." Rules of Procedure, Rule II(A)(2). In the case at bar, the Board found as fact, which Magistrate Allamong admitted, that he "continued to practice law after becoming a Magistrate in Mineral County." Rejecting the Magistrate's contention that his practice did not actually interfere with his judicial duties, the Board concluded as a matter of law that Canon 5(F) absolutely prohibits the practice of law by an attorney who is a magistrate, and thus ruled that Magistrate Allamong had violated the Canon. The Board recommended that the Magistrate be "prohibit(ed) and restrain(ed) . . . from any further practice of law while holding the office of Magistrate of Mineral County."

On review to this Court, ⁴ the Judicial Inquiry Commission rests its argument upon two contentions: First, a magistrate cannot "devote Full time to his public duties," (emphasis supplied) within the meaning of W.Va.Code, 50-1-4, ⁵ if he engages to any extent in the practice of law. Second, the broad statutory command that a magistrate "shall be subject to and shall abide by the code of judicial ethics as adopted and amended by the supreme court of appeals," in W.Va.Code, 50-1-12, constitutes a legislative prohibition against law practice by magistrates by virtue of the prohibition in Canon 5(F) against a judge practicing law.

Magistrate Allamong contends, on the other hand, that the "full time" provision means that a magistrate must not take time out from a regular magistrate workday to practice law, but that he may practice in his spare time. In his brief he asserts:

"The Respondent has devoted more than full time to his public duties, having to work days, nights, weekends, and holidays. Many over-time hours have been accumulated. . . ."

With respect to Canon 5(F), the Magistrate urges that magistrates who are attorneys have a constitutionally vested right to practice law except to the extent prohibited by the Legislature, under Article VIII, Section 7 of the West Virginia Constitution, which states in pertinent part:

"No justice of the supreme court of appeals or judge of an intermediate appellate court or of a circuit court shall practice the profession of law during the term of his office, But magistrates who are licensed to practice this profession may practice law except to the extent prohibited by the legislature." (Emphasis supplied)

The Magistrate argues that the statutory mandate that magistrates follow the Judicial Code of Ethics is too generalized to be construed as a deliberate legislative prohibition of law practice under the enabling language of Article VIII, Section 7: "except to the extent prohibited by the legislature."

I

We begin with a frank recognition that there is a conflict between Article VIII, Section 7 of the West Virginia Constitution, which permits a magistrate who is an attorney to "practice law except to the extent prohibited by the legislature," and Canon 5(F), which states "(a) judge should not practice law." This is brought about by the provision in the Compliance section of the Judicial Code of Ethics, which states the word "judge" "shall apply to all Justices of the Supreme Court, Circuit Judges and all Magistrates." ⁶

Prior to the time that the magistrate system came into existence on January 1, 1977, the Judicial Reorganization Amendment to Article VIII of our Constitution had been ratified at the General Election held on November 5, 1974. The Judicial Reorganization Amendment for the first time brought into our Constitution the critical language that "magistrates who are licensed to practice this profession may practice law except to the extent prohibited by the legislature."

Obviously, the constitutional language was designed to place in the Legislature the power to determine to what extent it would permit magistrates who are lawyers to practice law.

As a general rule, the judiciary has the inherent power to regulate attorneys in the practice of law. This proposition was discussed in some detail in West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959).

Under Article VIII, Section 8 of our Constitution, this Court was given the express power to "prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics." Our current Judicial Code of Ethics was adopted on July 16, 1976. It is substantially the same as the code recommended by the Special Committee on Standards of Judicial Conduct and adopted by unanimous vote of the House of Delegates of the American Bar Association on August 16, 1972. See E. Thode, Reporter's Notes to Code of Judicial Conduct (1973).

Notwithstanding this Court's inherent power to regulate attorneys in the practice of law and its express constitutional power under Article VIII, Section 8 to adopt a code of judicial ethics, such powers may only be exercised in a manner not inconsistent with other constitutional provisions.

Specifically, a judicial canon of ethics cannot be promulgated which would violate a constitutional provision. In the context of this case, the provisions of Article VIII, Section 7, which permit attorneys who are magistrates to practice law except to the extent prohibited by the Legislature, preclude this Court from prohibiting magistrates from practicing law as has been done under Canon 5(F) of the Judicial Code of Ethics of this State.

In other words, the voters of this State, by voting to adopt Article VIII, Section 7 of the Judicial Reorganization Amendment, have placed in the Legislature the power to limit or prohibit attorneys who are magistrates from engaging in the practice of law.

The inquiry, then, is to determine to what extent the Legislature has exercised this power in the magistrate field.

II

Initially, we are asked to hold that W.Va.Code, 50-1-4, precludes a magistrate from practicing law. This is based on the theory that this statute states that a magistrate serving more than 5,000 people "shall devote such time to his public duties." It is urged that if an attorney-magistrate has to devote full time to his public duties, then the Legislature intended he should not engage in the practice of law.

We recognize, as have other courts, that the term "full time" is ambiguous, but that it does not require service twenty-four hours a day, nor that every moment of one's waking hours must be devoted to his employment. Mobile & Kansas City Railroad v. Owen, 121 Ala. 505, 25 So. 612 (1898); Hermann v. Littlefield, 109 Cal. 430, 42 P. 443 (1895); Harrison v. Lustra Corp., 84 Idaho 320, 325, 372 P.2d 397, 399-400 (1962); Hall v. Dawson, 429 S.W.2d 366 (Ky.1968); Transamerica Insurance Co. v. Frost National Bank, 501 S.W.2d 418, 422-24 (Tex.Civ.App.1973); Johnson v. Stoughton Wagon Co., 118 Wis. 438, 95 N.W. 394 (1903); Long v. Forbes, 58 Wyo. 533, 546-47, 136 P.2d 242, 246, 158 A.L.R. 224, 230 (1943).

Some insight on the question is provided by another section of the magistrate law, W.Va.Code, 50-1-12, which sets out prohibited activities for magistrates, stating a...