1

Nos. 12-1008 & 12-0925– In the Matter of: Judge William M. Watkins, III

Benjamin, Chief Justice, concurring:

I completely agree with the Majority’s decision to suspend Judge Watkins through the end of his current term. The acts givi ng rise to this case are egregious and fully justify this sanction. I likewise believe th at the mandate should issue immediately.

While I agree with the result herein, I write separ ately to underscore my disagreement with the Majority’s resort to and reli ance upon a highly questionable

invocation of inherent

judicial powers—a recourse as unnecessary as it is unprecedented. More troubling, the Majority’s new syllabus point, syllabus point 8, places no limitation absent impeachment on this Court’s assertion of inh erent power despite an express constitutional limitation to the contrary. 1 While I have the utmost respect for my colleagues and the professionalism of our current C ourt and share their belief that the admittedly harsh sanction in this case is fully jus tified, I fear how a highly partisan or polarized future Court might misuse this expansive new precedent.

The Majority’s resort to inherent powers is unneces sary. Our decision, In

re Toler , 218 W. Va. 653, 625 S.E.2d 731 (2005), already pr ovides the basis for

1 It is within the Legislature’s power to consider im peachment at any time during which Judge Watkins is actively serving his suspens ions. 

### FILED March 26, 2013 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA2

suspending Judge Watkins, through consecutive one-y ear suspensions, until the end of

his current term of office. In Toler , the Court imposed sanctions against Magistrate To ler including four consecutive one-year suspensions for four violations of the Code of Judicial Conduct. In concluding that the Court had the authority to order consecutive oneyear suspensions, the Court said,

It is clear to us that Rule 4.12 of the Rules of Disciplinary Procedure sets forth available sanctio ns for “a” violation of the Code of Judicial Conduct. It is eq ually apparent that W.Va. Const., Art. VIII, § 8 provides authorization for this Court to sanction a judicial officer for “any” violation of the Code. In this case, the Judi cial Hearing Board recommended sanctions against Mr. Toler for e ach of the four separate violations against each of the fo ur victims in this case. Having found that Mr. Toler did, in fact , violate the Code of Judicial Conduct on at least four different occasions, in four completely separate and distinct situations , and against four separate individuals, it simply would make lit tle or no sense to find in any other manner than to impose sa nctions against Mr. Toler for each of the separate violatio ns and to impose such sanctions consecutively. Given the natu re and extent of the misconduct in this case, to rule othe rwise would diminish public confidence in the judiciary, impugn the judicial disciplinary process, and would have a chi lling effect on the willingness of victims of domestic violence to seek help from the judicial system.

Toler , 218 W. Va. at 661, 625 S.E.2d at 739.

Article VIII, Section 8 of the Constitution of We st Virginia provides that

this Court “. . . is authorized to censure or temporarily suspend any justice, judge or magistrate . . . for any violation of any . . . code of ethics . . . .” (Emphasis ad ded). As3

noted by the Majority, Judge Watkins committed 24 s eparate such violations of the

Canons of the Code of Judicial Conduct. In Toler , we established that a one-year suspension for an individual ethical violation full y comports with the constitutional term, “temporarily.” We furthermore held in Toler that temporary suspensions for separate ethical violations may run consecutively. Here we have 24 separate violations. A suspension of four total years extending to the end of Judge Watkins’s current term is therefore fully consistent both with the express la nguage of our constitutional limitation of authority and with our existing precedent.

The Majority’s tortuous venture into the realm of “implied power” seems more a pretext to expand judicial power than a logi cal and necessary application of solid, existing legal principles. 2 This case does not raise issues typical of those t raditionally considered for “implied powers,” such as where the Court is seeking to protect a judicial proceeding or a judgment made in the course of its traditional responsibilities. Rather, it is a case in which the Court is expansively interpr eting an express constitutional limitation restraint on its power involving a publi cly-elected judicial official, i.e. , the limitation set forth in Article VIII, Section 8 tha t the Court may suspend a judicial officer only temporarily for each ethical violation. The M ajority’s rationale is not persuasive.

2 The Majority’s argument overlooks the “any violatio n” language of Article VIII, Section 8. Since there is no limitation on the num ber of violations which this Court may find from a given judicial officer’s ongoing course of ethical misconduct, there likewise is no limitation on the number of temporary suspens ions which may be aggregated together for multiple violations.4

Our courts were not intended to operate with unli mited powers. A system that gives to the Court the unfettered ability to t ransform an express constitutional limitation on its powers into an inherent elimination of any such limitation on its powers is at odds with the most basic tenet of limited gov ernment—a principle of restraint necessary for our judiciary as for other branches. Our duty to be mindful of the limitations of governmental power under our Constit ution begins at home. This vigilance is every bit as important in our own actions as in our review of the actions of the other

branches.

When the judicial branch undertakes to define its own authority, selfrestraint is imperative. “Principles of deference counsel restraint in resorting to inherent power . . . and require its use to be a reasonable response to the problems and needs that provoke it . . . .” Degen v. United States , 517 U.S. 820, 823–24 (1996) (internal citations omitted). “Because inherent powers are shielded fr om direct democratic controls, they

must be exercised with restraint and discretion.” Roadway Express, Inc. v. Piper , 447 U.S. 752, 764 (1980). See also Gompers v. Bucks Stove & Range Co. , 221 U.S. 418, 451 (1911) (“[T]he very amplitude of [inherent] power i s a warning to use it with discretion,

and a command never to exert it where it is not nec essary or proper.”).

If the judiciary’s only boundary is the boundary it provides for itself, is there any boundary at all?