*1 743 concerning bond determination comply with the adverse brokers who Mortgage of notice and who also waiver. requirements collection and remit- fulfill sales tax them proceed under the Appellant did not Since going-forward responsibilities on a tance waiver, statutory seeking a alternative of basis, any periods will not be assessed guidance or to Frantz provides no resolution tax July for sales collection prior to us. matter before brokering. activity mortgage of on the statutory pursuit possible Absent * Hi * alternatives, filing statutory of a bond is requirements for to these Failure fulfill mandatory so and the failure to do compliance will in the im- tax result sales See, e.g. Frantz v. grounds dismissal. Department compli- plementation of Tax Palmer, at at 404 211 W.Va. 564 S.E.2d ance measures. (“[TJhis (2001) generally Court has viewed face the letter to It is clear from the statutorily-imposed dead compliance with to of the amended notice mort-
Appellant and prosecute to an posting for the of bonds lines generally Depart- that the Tax gage brokers perfect appeal jurisdictional or an action authority to unequivocally ment retained Saunders, nature.”); Stevens v. involving sales and use enforce assessments (1975) (“[Stat 179, 183, periods preceding taxes for giving require which of bond as a utes mortgage Appellant or other brokers appeal prerequisite prosecution an “going forward comply with the basis” strictly requirements and their are construed agreement. The letter and amended notice mandatory and An jurisdictional. un stated terms and conditions timely filing of such a bond dictates the extinguish repayment did not serve omitted). case.”) (citations of a dismissal and enforceable debt. withdraw the assessed sought judicial Appellant review Thus when IV. Conclusion Appeals decision in the of the Office of Tax required Finding appeal an bond was below, part remained court assessment the circumstances perfect appeal under Appellant appealed order and was sub- ease, affirm the March of this we ject statutory requirement. bond Circuit Court of Kanawha Coun- order of the argues that the lower Appellant also ty directing dismissal of administrative appeal not have dismissed court should appeal. post doing because so for failure to bond Affirmed. Palmer, in Frantz v. contradicts our decision We 211 W.Va. Appellant’s reliance on Frantz mis
find
placed. In Frantz taxpayer we held that if a posting an statutory alternative to
follows the the Tax Com
appeal requesting that bond upon showing waive the bond missioner assets, aggrieved party then sufficient of: William Matter decision to the appeal an adverse waiver can TOLER, Magistrate for Tom holding precise in this courts. Our circuit syllabus point regard forth in five is set Frantz as follows: No. 31797. proceed un- taxpayer who chooses Appeals of Supreme statutory appeal for an der the alternative Virginia. West § Virginia Code 11-10-
bond under West 10(d) (1986) and who oth- (Repl.Vol.1999), April 2005. Submitted statutory complies require- erwise June Decided requesting ap- ments for waiver requirement, apply peal entitled bond for a review of circuit court *2 Jarrell, Esq., Wayne,
Donald R. for the Petitioner. Garten, Esq.,
Charles R. Judicial Investi- Charleston, gation Commission for the Re- spondent. I.
PER CURIAM. upon the This case is before FACTUAL AND PROCEDURAL to Reinstate March Motion HISTORY Toler, Back William Tom Acting Administrative *3 County. Magistrate Magistrate Wayne for Virginia Supreme the Court Director of West suspended without previously Toler was filed with the Judicial Appeals of a by position Magistrate this from his as (“the Investigation Commis- Commission Court, on following criminal indictment his sion”) Magistrate Tom Toler against William 2.14(d)(1) counts, of pursuant t'o Rule several Toler”) 7, following July (“Magistrate Virginia Disciplin- the Rules of Judicial West of indictment in the Circuit Court ary Toler has since Magistrate Procedure.1 felony County eight of sex- Wayne on counts and acquitted charges of criminal been all bribe, abuse, demanding one a ual count of pay to to be now seeks reinstated expo- count of and one misdemeanor indecent position Magistrate, position a to which as en- sure. On Order was of The he re-elected in November 2004. was by finding probable cause tered Investigation objects to Commission Judicial suspending Magistrate from hear- and Toler undertaken, but the because it has Motion any further or criminal matters or ing civil of yet completed, investigation its own not any performing judicial functions dur- other Magis- sit Magistrate Toler’s fitness to pendency Magistrate per- Toler’s ing the of trate. specified criminal The Court sonal matters. suspended to Magistrate Toler was be that has it the This Court before Motion pay. remanded without The Court further the Reply with Back the of Reinstate the back the the matter Commission Commission, Investigation briefs Judicial the charges with filing of formal the instruction record. parties of and all matters of the in charges then held that those formal be parties a Following arguments of the and the Magistrate outcome abeyance pending the of herein, the this Court finds review of record Toler’s criminal case. existing supports Judicial that case law the that it Investigation contention investigation the Judi- An was launched investiga- Commission, allowed its Investigation should be to conclude and formal cial tion this Court decides whether the of the charges before were filed with Clerk Accordingly, Specifically, the Magistrate August Toler. 2004. reinstate on Court Court, subject charges time Toler alleged limitation that formal herein, Canon engaged hold the March Motion in conduct which violated will B(2) B, abeyance 3A of the 2A and Canon and Reinstate with Back Canon Judicial Conduct.2 investigation. Code of the West outcome 2.14(d)(1) pro- 2A of of Judicial Conduct Disci- Canon the Code 1. of the Rules of Judicial Rule plinary judge “If has vides that: Procedure that: the states law, comply judge respect with the A shall and of offense or has been been convicted a serious appearance of charged impropriety and the serious shall avoid or with a indicted offense, otherwise activities, judge's impropriety and may in all of the Chief that the the Justice order pro- in a that mat- act at all times manner judge hear civil or criminal shall motes impartiality not further integrity public and judicial confidence the perform functions while ters or other judiciary. pay.” pending, with or without matter pro- 2B of the Code of Judicial Conduct Canon Conduct 1 of the Code of Judicial Cannon vides that: provides social, that: family, political, judge A shall not allow judiciary independent judge's is in- relationships and honorable An to influence or other justice society. judge judgment. judge dispensable A A shall in our conduct or establishing, maintaining, participate to ad- prestige lend the of office not conduct, private judge or enforcing high and interests of the and standards vance others; knowingly convey judge personally so nor shall a or those standards shall observe convey judi- impression integrity independence permit others to and that ciary position provisions they special a influence preserved. are in The will testify voluntarily judge. judge applied shall and to fur- construed Code objective. character witness. ther that response denying filed Handling Complaints Toler cedwre Justices, charges September Against Judges, Magistrates the formal on Masters, charges Family Supreme Law requesting that be dis- Appeals Virginia may suspend West missed. judge, who has been indicted for convicted indictment November second crimes, pay, pending serious without against Magistrate Toler in was returned disposition charges final of the criminal Court of This indict- Circuit against particular judge or the un- until charges original ment restated all of the derlying disciplinary proceeding before charges felony more added two sexual Investigation has Commission been charges alleged abuse. new Grubb, completed.” Syl., Matter activity during period felonious occurred *4 (1992); Syl., W.Va. S.E.2d 919 Mat- suspension. prior Magistrate In Toler’s Atkinson, ter 193 W.Va. meantime, Magistrate the Toler was re-elect- Grubb, judge a circuit court position Magistrate Wayne to his ed as by grand jury was indicted federal on five County. counts, fraud, including bribery, conspir- mail Disciplinary reported The Judicial Counsel acy, tampering witness obstruction Magistrate the new indictment justice. as well He superced- was later indicted in a ing Toler’s re-election to this Court on Novem- alleging eight indictment additional counts, including ber This Court issued Order on interference with commerce violence, 12, 2004, by fraud, probable threats or finding November cause and racketeer- activity. ing suspending Magistrate The indictments pay Toler without led judge’s suspension pay without immediately upon taking pending the oath the of of- outcome his criminal trial. fice. February Magistrate Toler Magistrate sup Toler cites Grubb to acquitted on all of the port argument
was counts indict- that this Court should lift ments; and on March he moved for suspension acquitted the now as he has been Court time, this to reinstate him to his former in his criminal trial. At the same position with arguing back that all the Commission cites argue Grubb to that this delay judicial suspen matters raised in the ethics Court should decision on the litigated in sion judicial were the criminal action for which outcome of the dis Magistrate ciplinary proceeding. Certainly, acquitted. Toler was The Com- either read ing of is a fair initially interpretation Grubb mission informed the Court that it holding. However, reinstate, Court’s objection had no this Court must the motion important also consider other objected aspects but later to this pointing out that the Judi- case, public’s as the such confidence in the Hearing cial investigating Board is still honor, integrity, dignity, efficiency Accordingly, matter. the Court now consid- justice system. Magistrate ers Toler’s motion reinstate- ment back and the Commission’s Magistrate credibility Toler’s and fit objection to the motion. ness to serve an officer of the court were question by
called into when he was indicted II. grand jury This agrees with that Commission DISCUSSION those concerns do not disappear now VIII, authority of article Magistrate acquitted Toler has in been “Under sections 3 and 8 of the West Consti proceeding. contrary, a criminal On the II(J)(2) tution and Rule Rules very Pro- Toler’s indictment raised 3B(2) pro- 3A of the Canon Code of Judicial Conduct Canon of the Code of Judicial Conduct vides that: provides that: judge precedence The judge take duties of a A shall be faithful to the law and main- judge's over all professional competence judge activities. other tain in it. judge’s interests, swayed by partisan pub- duties include all the duties of be shall not clamor, judge's prescribed by office law. or fear lic of criticism. charges. deter- investigated drop all If Commission yet be that have concerns further, shall independent proceed mines to it seek investi cause the hearing by scheduling before the Judicial this this matter was ordered gation of Hearing 2005. The Judi- abeyance pending in Board June be held Court to Hearing Board’s recommendation Toler’s criminal trial. cial outcome Therefore, yet present in no has been Court should follow accordance with Rule evidence Disciplinary for this Pro- proper to make a record 4.8 of the Rules ed order Magistrate Toler evaluate whether cedure. Court to now returned his duties. The Clerk of the Court directed to issue in an action or suit such the record “When ease forthwith. the mandate justice appellate can not that an court held in Motion to reinstate judgment that should be final determine abeyance. rendered, case should be remanded to ly development.”
the trial court for further STARCHER, J., dissenting. v. Syl. South Side Lumber Co. Stone Pt. duly and our magistrate This was elected Co., 439, 152 151 W.Va. Construction clearly says people who law most (1967); Syl., May, v. Blevins services, right have to his elected him (1975); Syl. Hey Pt. *5 finding a his conduct bars absent Adkins, 178 dinger v. 360 W.Va. service. (1987). case, In this that trial court is Board, Hearing develop the Judicial now before Ju- a come from full ment of record must magis- Hearing dicial Board states hearing before that Board. charged in commission of trate “had been that was serious criminal offenses.” Once held, hearing a is Until full no longer. true. But it is true There no make properly cannot a determination charges. He has been determined criminal merits Toler’s Motion and legally guilty crime. not is, objection to it. That until Now, for he be removed from office can then, properly determine this Court cannot Possibly. a But conduct that is not crime? fit return to Toler is whether done, ease must move before that can be position Magistrate disciplinary procedures through judicial disciplinary proceed purpose “The Rules provided the West preservation enhancement of ings is the And, Disciplinary Procedure. honor, dig integrity, in the public confidence suspension from such a there can case efficiency nity, of the members to exceed one office without but not system justice.” Syl., judiciary and the ease, duty year. In there such Gorby, 176 339 S.E.2d Matter W.Va. prove degree as to override conduct such Phalen, (1985); Syl. Pt. Matter of That rights people his services. (1996); Syl., Mat W.Va. quite burden. Reese, ter from its This Court will not retreat meanwhile, magis- paying In the duty justice system. wrong. He met the serious trate is charges acquitted. Fur- criminal and was thermore, charges IV. no criminal there are at time. He should pending against him this CONCLUSION the investi- while be reinstated Accordingly, this Court holds the March gation continues. with Back Motion to Reinstate I Accordingly, dissent. development of the abeyance pending the full through record in this matter addition, process.
investigation Com- immediately hereby
mission is directed proceed further
determine whether