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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 giving rise to this case are egregious and 

fully justify this sanction. I likewise believe that the mandate should issue immediately. 

While I agree with the result herein, I write separately to underscore my 

disagreement with the Majority’s resort to and reliance 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 inherent 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 Court and share their belief that the 

admittedly harsh sanction in this case is fully justified, I fear how a highly partisan or 

polarized future Court might misuse this expansive new precedent. 

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

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

 

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It is within the Legislature’s power to consider impeachment at any time during 

which Judge Watkins is actively serving his suspensions.

FILED

March 26, 2013 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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suspending Judge Watkins, through consecutive one-year suspensions, until the end of 

his current term of office. In Toler, the Court imposed sanctions against Magistrate Toler 

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 sanctions for “a” 

violation of the Code of Judicial Conduct. It is equally 

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 Judicial Hearing 

Board recommended sanctions against Mr. Toler for each of 

the four separate violations against each of the four 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 little or no 

sense to find in any other manner than to impose sanctions 

against Mr. Toler for each of the separate violations and to 

impose such sanctions consecutively. Given the nature and 

extent of the misconduct in this case, to rule otherwise would 

diminish public confidence in the judiciary, impugn the 

judicial disciplinary process, and would have a chilling 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 West 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 added). As 
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noted by the Majority, Judge Watkins committed 24 separate 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 fully 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 language 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 logical and necessary application of solid, 

existing legal principles.2

 This case does not raise issues typical of those traditionally 

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 interpreting an express constitutional 

limitation restraint on its power involving a publicly-elected judicial official, i.e., the 

limitation set forth in Article VIII, Section 8 that the Court may suspend a judicial officer 

only temporarily for each ethical violation. The Majority’s rationale is not persuasive. 

 

2 The Majority’s argument overlooks the “any violation” language of Article VIII, 

Section 8. Since there is no limitation on the number 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 suspensions which may be aggregated 

together for multiple violations. 
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 Our courts were not intended to operate with unlimited powers. A system 

that gives to the Court the unfettered ability to transform 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 government—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 Constitution 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 from 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 is a warning to use it with discretion, 

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

 If the judiciary’s only boundary is the boundary it provides for itself, is 

there any boundary at all?