*1 261 Department equivocal, of Labor. Not noted in been or safety States unclear dissenting however, opinion, fact coal miners at the Harris 1No. Mine could that, beyond the admonition of Thus, above compromised. have based Philyaw point could employer, to no overt Court, the rеcord before this Eastern was supportive of his claim. conduct Eastern judgment entitled to as a matter of law. dissenting opinion Nor does note that Accordingly, respectfully concur alternatives, Philyaw violating other than majority opinion of the Court. regulations, federal control the dust Minе, through such levels as en- plan.
forcement of Eastern’s dust ventilation regulations
The federal and the ventilation
plan protect safety were created to
coal miners. Travis,
Finally,
as stated
the third ele-
ment of a cause of
action for
intentional
plaintiff to suffer emotional (Matthew Co.2005) § 2. M.J. Torts Bender & June Decided: (liability attaches when emotional dis- Concurring Opinion Dissenting by tress is caused the extreme and outra- Albright Justice June conduct); geous § 86 C.J.S. Torts (there be proximate must “actual and causa-
tion” the emotional distress the defen- conduct). generally,
dant’s See Sara L. Annotation, Johnson, Liability employer,
supervisor, manager intentionally or or recklessly causing employee emotional dis-
tress,
majority
opinion regarding raises issue causation
by suggesting regulations the federal
themselves and inconsistent their enforce- Department
ment the United States
Labor, alone, may rather than Eastern Philyaw’s
contributed mental breakdown.
Although concerning such an issue causation ostensibly for determination jury, preclude entry it would not
summary judgment in this case in view of
Philyaw’s failure to the first ele- establish of a
ment cause of action for intentional distress, reckless infliction emotional
discussed above. admonition Eastern’s “atrоcious, intolerable,
Philyaw outrageous
so extreme and to exceed the decency.”
bounds of Had admonition *2 arguments parties Following
ord. of the herein, this and a of the record review finds that the Rules of Judicial Conduct Magistrate existing support law suspension without Accord- McCourt’s ingly, this Court affirms the with- I.
FACTS 25, 2006, Baire came On March Barbara Magistrate request a do- before McCourt (hereinafter, protection mestic violence order order”) allegedly “DVP after she was beaten husband, by Magistrate her Jackie Baire.1 DVP well McCourt issued the order as representa- for arrest warrant Mr. Baire. tive took Mrs. Baire of Women’s Aid Crisis magistrate into at court a restroom the build- ing photographed bruises. Mrs. Baire’s court, magistrate but Mrs. Baire then left the she did return home because she was Instead, fear for her life. she went Motel, Colonial located about yards building. from the court meantime, deputies from Sher- iffs office the Baire house serve went on the DVP order and arrest warrant Magistrate Mr. Baire. MсCourt contacted Garten, “Skip” Judicial Investi- Charles R. center Charleston, 9-1-1 communication several Commission, for Petition- situation, keep inquir- times abreast er. ing deputies as to whether the had entered L.C., Willett, Willett, & Dennis J. Nanners and, times, speaking directly to the home at Buckhannon, Respondent. for deputies offering how them advice on proceed. finally Mr. Baire was taken PER CURIAM. custody am 2006. around 3:00 on March upon the this Court This case before recordings The from the 9-1-1 communica- 21, 2006, Hearing Mag- April Request for Magistrate tions reflect that McCourt center Jr., McCourt, Clarence W. “Charliе” istrate was made aware of the arrest one of County. By Magistrate Upshur our or- deputies, Magistrate also informed who 12, 2006, April Magistrate der McCourt already Mrs. McCourt that had contacted position suspended from his that her Baire let know husband pursuant Rule Magistrate in jail. been arrested and was 2.14(d)(2) Rules of Judi- of the West Nonetheless, following Disciplinary Procedure a find- around 6:00 am on March ing McCourt called at the motel to her of her hus- McCourt had serious violation Baire tell allegedly had This Court band’s arrest. Mrs. Baire the Code of Judicial Conduct. questions legal process, Request Hearing, has it the some about attempted rec- which to an- parties and all matters of briefs beating apparently place on March took However, Magistrate uncomfortable, very swer. McCourt asserts states she was really that he did that Mrs. Baire left soon thereafter. process, so he if way out, understood asked though, allegedly On his asked to could come her motel room to talk to her *3 again. see the bruise Mrs. Baire’s on breast agreed, about it some more. Baire Mrs. and again. She declined to show him the bruise Magistrate McCourt walked over to the mo- Magistrate allegedly then McCourt instruct- tel. anyone ed Mrs. Baire not to tell that he had to the come room.
Magistrate McCourt maintains that he was (ten briefly at the motel minutes his day, following The Mrs. Baire told a Wom- account) doorway and that he stood en’s Aid in Crisis worker what had occurred he the entire time the motel. He subsequently in the motel room. She filed a asserts that did not enter the motel room complaint against Magistrate McCourt with act inappropriately. otherwise Mrs. Investigation the Judicial Commission on however, Baire, Magistrate that asserts 10, April 2006.2 began McCourt came the roоm and 2006, 10, April On the Administrative Di- questions alleg- ask her about the She case. rector of complaint against the Courts filed a Magistrate specifical- es that McCourt asked Magistrate alleging McCourt that the magis- bruises, ly her see which were covered trate had engaged a serious violation of clothing. allegedly her Mrs. if Baire asked it 2A of Canon the Code of Judicial Conduct.3 help Magistrate her would and 12, 2006, April On entered allegedly responded McCourt it that would. finding probable Magistrate Order cause that pull Mrs. Baire that asserts she tried to her McCourt had violation serious pants leg up to show him the on braises her suspend- the Code of Judicial Conduct and legs, but was unable do She so. then ed a magistrate him from duties as his with- allegedly pants lowered her to her knees to charges April Formal were on filed Magistrate Mag- show bruises. 18, 2006, following allegedly istrate McCourt told Mrs. Baire to request hearing McCourt filed a written turn around check so could the backs of temporary suspension on the issue of his her legs. Magistrate allegedly McCourt also pay.4 request It is that brings any asked Mrs. Baire she whether had bruis- today. us here ing thighs on her and inner bent down to take a closer look. II. allegedly McCourt next asked any bruising
whether
Baire
had
on her
DISCUSSION
chest,
affirmatively.
and she answered
He
well,
allegedly
to see
long
asked
those bruises as
We have
ascribed
belief
and Mrs. Baire lifted
shirt.
purpose
judicial disciplinary
her
“[t]he
allegedly
then
proceedings
preservation
touched a braise on
and enhance
honor,
top
public
integ
Mrs. Baire’s breast as
as an ment of
in the
well
confidence
nipple.
rity, dignity,
efficiency
area below her
Mrs. Baire asserts
and
of the members
Respondent
then
judiciary
system justice.”
went into the bath-
and
Syl.,
16,
room for
coming
Gorby,
several minutes befоre
back
176 W.Va.
sitting
out and
next to
on
recently
the bed. She S.E.2d 702
We
reiterated
currently
public
2. The West
State Police
motes
confidence
investigating
charges
yet
judiciary.
impartiality
the matter. No
filed.
been
5, 2006,
May
4.On
McCourt moved
Hearing
Board
continue its own
2A
Canon
Code
Judicial Conduct
heаring
this matter
criminal investi-
states:
possible filing
and the
of further com-
law,
judge
respect
comply
plaints against Magistrate
shall
McCourt.
Judi-
impropriety
granted
appearance
May
shall avoid
Board
the motion on
activities,
judge’s
impropriety
all
and set the matter for
on
25,
pro-
Seрtember
act
shall
at all times in a manner that
231,
Grubb,
228,
919,
re
417 S.E.2d
principle
to that
in In
our commitment
added).
(emphasis
stated,
(2005),
“This
wherein
Magistrate McCourt contends
duty
from its
will
retreat
failed to
a com-
Disciplinary Counsel
system.”
plete
allegations
investigation into the
against him
he was
afforded an
and that
Toler, magistrate
suspended
opportunity
prior
himself
defend
his
following
indictment on crim-
his
suspension. Though
recognizes
that a
Though
subsequently
he was
charges.
inal
interest,6
public
property
Mag-
office is not a
charges,
those
this Court de-
acquitted of
argues
istrate McCourt
his constitution-
clined to lift
*4
аlly protected
ignored
rights
been
inas-
investigation
an
completion of
pending the
in
enjoys pecuniary
much
interest
his
as
Investigation Commission.
the Judicial
publicly-elected
position.
no doubt that this Court has
There can be
points
that,
McCourt also
out
unlike the re-
power
suspend a
without
tо
spondents
yet
in
and
he has not
Grubb
that
pay
upon
allegation
an
he or she
based
that,
charged criminally;
argues
and
of the Code of Judicial
has acted in violation
accordingly,
very
it
suspension
is his
without
2.14(d)(2)
Rule
of
Rules of
Conduct.
“honor,
integ-
that casts doubt
that:
Disciplinary
Judicial
Procedure stаtes
rity, dignity,
efficiency
judiciary.”
and
of the
disagree.
We
probable
pursuant
If the
finds
cause
Court
2.14(c)5
judge
that a
to
has
to Rule
Magistrate MeCourt’s uncontested actions
currently engaging in a
engaged or
seri-
is
profound
matter
in this
raise
which
of the
of Judicial Con-
ous violation
Code
directly implicate
public
the issue
confi-
of
unwilling
or
to
become unable
duct or has
Indeed,
judicial process.7
in
dence
duties,
may
di-
perform official
Court
admits, Magistrate McCourt is also now cur-
judge
any
hear
further
rect that the
not
rently
investigation
under criminal
perform
civil
or
other
or criminal mattеrs
may
State Police and
well face
judicial
pend-
functions while the matter is
charges
alleged
for his
criminal
actions.
ing,
pay.
or
(both
with without
investigations
disciplinary
Both
criminal)
alleged
into
behavior and the
his
2.14(d)(2) mind,
recog-
we have
With Rule
present
underlying uncontested matters
judi-
nized
of the
“[w]hen
direсtly
“honor, integri-
implicate the
herein
ciary
question by the
or
placed
is
action
ty,
efficiency
dignity, and
of the members of
any judge, this Court
author-
conduct of
is
judiciary
system justice.”
and the
suspension
impose
ized to
an interim
charges against
that sufficient evidence
disposition
of the
We
satisfiеd
currently
judge
underlying judicial
exists in this matter to believe that
or until the
disci-
”
in a
has
seri-
plinary proceeding
completed.
is
fs)
alternative,
2.14(c)
complaint
Disciplinary
in the
remand the
5.Rule
Rules of
2.7(d)
proceedings pursuant
that:
Procedure states
for
Rules
Upon receipt
Justice,
report,
Rule 4.
from the Chief
Supreme
shall determine
finding
probable
exists.
Strickling,
whether
probable
probable
cause
Moore
S.E.
shall be in lieu of
cause hereunder
pursuant
finding
to Rule
cause
made
2.7(c).
exists,
If it is determined
recognize
many of
7. We
the matters raised
may:
the Court
time,
are,
allegations.
in this сase
at this
(1)
Disciplinary
file for-
direct the
Counsel to
matters,
McCourl's in-
Other
such
Supreme
charges
mal
with the Clerk of the
of the Sheriff's
volvement
the activities
investi-
Court; and,
charge
domestic violence
Baire’s
judge
right
provide
of a
to a
notice to the
trip
motel
Mrs. Baire was
where
temporary
hearing
suspension,
on the issue of
staying appear
be uncontested. The merits of
hearing
days;
be
less
said
in not
than 30
underlying
charges
currently
ethical
are not
judge provided
with the
notice of the
this
before
court.
days
proceeding;
less than
before
or
indisputable power
susрend judicial
violation of the Code of Judicial Conduct
offi-
ous
suspension
cer,
pay,
alleged
with
without
viola-
justified.
de-
We
tions of the
Code
Judicial Conduct. Nev-
proceed
further into
consideration
cline
ertheless,
separately
explain why
I write
I
underlying
of the merits of the
ethics cоm- disagree
power
with how that
is often em-
plaint
pending investigation
view
ployed
full
of the cir-
consideration
Toler;
pointed
below. As
“[w]hen
particular
cumstances of each
case
in an action or
that an
the record
suit
such
might justify suspension
In the
appellate
can not in
сourt
determine
consideration, unjust
full
absence
such
rendered,
judgment
finally
be
should
consequences might
from un-
well follow
the ease should be remanded to the trial
practice
always
wavering
suspending
ac-
development.” Syl.
court for further
Pt.
judicial
cused
officers
.
South Side Lumber Co. v. Stone Cоnstruc-
Co.,
tion
III. parties point and ex- between after long To tends how encounter lasted. CONCLUSION routinely deprive judicial officer accused Acсordingly, affirm defending source of income while suspension pay McCourt’s without charge judicial con- misconduct under such judicial proceed- disciplinary the outcome repre- hardly tested factual circumstances ings. judiciary— sentative the hallmark Reconsideration denied. fairness. ALBRIGHT, Justice, part, concurring, present ma- dissenting, part. magis- hotly facts but the terial contested (Filed 2006) June represented no trate has also that he has readily necessarily other of income portion I concur in that source with which against majority opinion upholds develop competent this Court’s which defense circumstances, Under such charges levied. duty from
fairness dictates public confidence preserve
must occur to system the serious judicial because alleged. I be- has been
misbehavior magis- that the also demands
lieve fairness summarily denied not be
trate should fair full and consideration
this Court without and circumstances facts particular
his ease. majority
Accordingly, concur authority suspend Court’s
regarding this magistrate Howev- subject majority’s
er, generally with I dissent deciding indefi- manner
indiscriminate judicial
nitely suspend officers transgression judicial
whenever spe- from the alleged, I also dissent
rules is suspend
cific decision
named in this case that Justice to state
I am authorized separate opinion. joins in this
STARCHER *6 TAWNEY, by Lela G.
Estate Garrison Executrix, Goff, Lela Ann Goff and
Ann Wife, Goff, Jan B. Husband
Vernon Cooper, Cooper Clifford R.
ice E. Parker, Larry Wife, G.
Husband Ashley, Parker, L. Richard
John W. Attorney-In-Fact, Jones, by
Myrtle Jones, Plaintiffs,
Orton A. RESOURCES, NATURAL
COLUMBIA
L.L.C., Re FKA Natural Columbia Inc., Corporation;
sources, Ni Texas Corporation; Inc.,
source, a Delaware Energy Group, a Dela
and Columbia Corporation, Defendants.
ware
No. 32966. Appeals of
Supreme Court of Virginia. May
Submitted: 15, 2006.
Decided: June