James B. McIntyre, Esq.
Michael T. Clifford, Esq.
McIntyre & Collias Clifford, Mann & Swisher
Charleston, West Virginia Charleston, West Virginia
Attorney for Petitioner Attorney for George B. W.
William C. Forbes, Esq,
Ancil G. Ramey, Esq.
Prosecuting Attorney Steptoe & Johnson
Charleston, West Virginia Charleston, West Virginia
Attorney for Kanawha County Commission Attorney for Amicus Curiae
The West Virginia Judicial Association
JUSTICE McGRAW delivered the Opinion of the Court.
JUSTICE DAVIS, deeming herself disqualified, did not participate
in the decision in this case.
JUDGE JOHN A. HUTCHISON, sitting by temporary assignment.
2. A writ of prohibition is available to correct a clear legal error resulting
from a trial court's substantial abuse of its discretion in regard to discovery orders. Syl. pt.
1, State Farm v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992).
3. Judicial officers may not be compelled to testify concerning their mental
processes employed in formulating official judgments or the reasons that motivated them in
their official acts.
In December of that same year, Sharon B. W. moved the circuit court to allow her visitation with her son, and to require that the child undergo an expert evaluation regarding the allegations of sexual abuse; the court granted her motion. George B. W. then requested a writ of prohibition from this Court. In State ex rel. George B. W. v. Kaufman, 199 W. Va. 269, 483 S.E.2d 852 (1997) (George B. W. I), this Court granted the writ as moulded and required Judge Kaufman to hold a hearing to determine custody of the child, among other issues.See footnote 2 2
Pursuant to this Court's opinion in George B. W. I, in March of 1997, Judge Kaufman held a hearing at which both parties presented expert testimony regarding the allegations of sexual abuse. During this multi-day hearing, George B. W.'s expert, psychologist Timothy J. Freeman, Ph.D., testified that he had interviewed the child, and in his expert opinion, the alleged sexual abuse had indeed occurred. Judge Kaufman refused to qualify Dr. Freeman as an expert, but did allow him to testify. Sharon B. W.'s expert, William Bernet, M.D., who was the medical director of the psychiatric hospital at Vanderbilt University, testified that, in his expert opinion, the abuse had not occurred, and that George B. W. and his expert, Dr. Freeman, had induced the allegations of abuse by asking suggestive questions of the four-year-old child.
Judge Kaufman entered a final order on June 4, 1997, in which he awarded permanent custody to Sharon B. W. This prompted an appeal by George B. W. to this Court, which resulted in our opinion in Sharon B. W. v. George B. W., 203 W. Va. 300, 507 S.E.2d 401 (1998) (George B. W. II). In that case, this Court found that Judge Kaufman had used the proper evidentiary standard and had not abused his discretion. Although ruling that the judge should have qualified Dr. Freeman as an expert, we found this to be harmless error. Finally we ordered that the lower court establish a meaningful visitation plan for the parties and the child. 203 W. Va. at 305, 507 S.E.2d at 406.See footnote 3 3
Subsequent to the ruling in George B. W. II, Judge Kaufman directed Dr.
Bernet to prepare a plan for reuniting mother and child, and for visitation by George B. W.
Pursuant to this order, Dr. Bernet filed numerous reports with the lower court regarding how
this reunification and visitation might best be accomplished.
In November 1997, the family law master assigned to the case conducted a
hearing and made findings regarding the assets of the parties and the payment of attorney
fees. Specifically, the family law master concluded that Sharon B. W. was not entitled to any
share of certain stock that George B. W. held in his medical practice, and that Sharon B. W.
should reimburse George B. W. for the attorney fees he incurred while contesting this issue.
Judge Kaufman did not agree with this finding, and instead found that Sharon
B. W. was entitled to one half of the stock held by George B. W. in his medical practice, and
furthermore, that George B. W. should reimburse Sharon B. W. for all of her litigation
expenses. Again the dispute came before this Court, and on July 14, 1999, in Sharon B. W.
v. George B. W., 205 W. Va. 594, 519 S.E.2d 877 (1999) (George B. W. III), we reversed
Judge Kaufman's finding regarding the stock, but upheld the award of attorney fees to
Sharon B. W.See footnote 4
Finally, on June 18, 1999, George B. W. filed the instant lawsuit, also in the
Circuit Court of Kanawha County, but this time before Judge Paul Zakaib. George B. W.
filed suit against Thomas J. Gillooly (the attorney who represented Sharon B. W.), Dr. Bernet
(her expert), and Vanderbilt University, alleging, inter alia, that attorney Gillooly and Dr.
Bernet conspired to provide the court with false information, and that by so doing they
caused George B. W. a variety of damages, including emotional distress and interference
with his custodial relationship with his son. On November 30, 1999, counsel for George
B. W. served a Notice of Deposition upon Judge Kaufman, declaring that the judge should
report to counsel's office for a deposition on December 20, 1999.
Judge Kaufman, by counsel, moved on December 8, 1999 for a protective
order, arguing that any information regarding the divorce proceedings would be privileged,
and that there was no discoverable information to be had by deposing him. By order dated
January 28, 2000, Judge Zakaib found that Judge Kaufman was indeed subject to deposition.
In the order, Judge Zakaib first held that circuit court judges were not highly
placed public officials deserving of special consideration, as set forth in State ex rel. Paige
v. Canady, 197 W. Va. 154, 475 S.E.2d 154 (1996); Judge Zakaib then found that, even if
one did apply the test set forth in Paige, that the plaintiff had satisfied the first, second and
fourth prongs of the test, and by setting some limits on the deposition, that the third prong
could also be satisfied.See footnote 5
In conclusion, Judge Zakaib found that Judge Kaufman was a
material witness in the instant case, and that the plaintiff could depose him, subject to certain
limitations on time, place, and conduct of the parties during the deposition.
On February 14, 2000, Judge Kaufman petitioned this Court for a Writ of
Prohibition against Judge Zakaib to prevent him from enforcing the order requiring the
deposition of Judge Kaufman.See footnote 6
On February 17, 2000, we issued a rule to show cause. For
the reasons set forth below, we grant petitioner's writ, as moulded.
We are asked to consider the award of a writ of prohibition. As an aspect of our original jurisdiction, we have often addressed the standard for such an award:
Where the court, although having jurisdiction of the cause,
during the trial of it, exceeds its powers in some matter
pertaining thereto, for which there is no adequate remedy by the
ordinary course of proceeding, the writ of prohibition lies, under
the general principles of law . . . .
State ex rel. Noll v. Dailey, 72 W. Va. 520, 523, 79 S.E. 668, 669-71 (1913). This same idea
is codified in W. Va. Code § 53-1-1 (1923),
[t]he writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.
This Court has also held that:
Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of powers is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue.
Syl. pt. 2, Woodall v. Laurita, 156 W. Va. 707, 195 S.E.2d 717 (1973). Finally, when
addressing a question somewhat like the instant dispute, this Court in Paige, supra, noted:
This Court has previously determined that erroneous discovery orders may be subject to a writ of prohibition. A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders. Syllabus point 1, State Farm v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992).
State ex rel. Paige v. Canady, 197 W. Va. 154, 158, 475 S.E.2d 154, 158 (1996). However,
because this petition concerns a discovery order demanding the deposition of a judge, rather
than a cabinet official, this Court faces a different question today.
Respondent George B. W. argues that this matter is not property decided via
a writ of prohibition, and that an appeal would serve as an adequate remedy. This argument
is not persuasive. Judge Kaufman still presides over the underlying divorce proceeding. If
forced to testify, Judge Kaufman might find it necessary to remove himself from that case,
and might not find it possible to return to the case if he were to prevail upon the instant issue
on an appeal. Furthermore, if George B. W. were to prevail in his trial and then have this
Court reverse that verdict by excluding the testimony of Judge Kaufman, George B. W. could
be put to the difficulty and expense of a new trial. Having decided that the question is
properly before the Court, we turn to the other arguments of the parties.
George B. W. argues that circuit court judges are not highly placed public
officials under Paige, and that Judge Kaufman has no special privilege to avoid being
deposed in a case in which he is not presiding. While recognizing that judges are subject to
the rule of law as much as anyone else, this Court cannot ignore the special status that judges
have in our judicial system, and the effect this difference has on the process.
Because, in the context of the courtroom, a judge holds a special status, this
Court has recognized that it is not appropriate for a judge to be a witness in a case in which
he or she presides: The judge presiding at the trial shall not testify in that trial as a witness.
No objection need be made in order to preserve the point. W. Va. R. Evid., Rule 605.
Accord, State v. Kelley, 192 W. Va. 124, 451 S.E.2d 425 (1994).
For similar reasons, it is not appropriate for a judge to serve as a character
witness. Canon 2B of the Judicial Canons of Ethics provides that: A judge shall not testify
voluntarily as a character witness. See, Reese, Matter of, 201 W. Va. 177, 179 n.5, 495
S.E.2d 548, 550 n.5.(1997); In the Matter of Phalen, 197 W. Va. 235, 241 n. 10, 475 S.E.2d
327, 333 n. 10 (1996).See footnote 7
Bearing in mind the special role the judge plays in our legal system,
we consider the question of whether or not a judge is a highly placed public official.
We decline to adopt petitioner's argument that we should declare judges to be
highly placed public officials. However, a brief examination of Paige is still helpful to our
analysis. In that case, the Court determined that high ranking public officials may be
deposed, but only under special circumstances. We developed a four part test, and found that
the party seeking the deposition had to demonstrate its necessity.See footnote 8
In order to reach our conclusion in that case, this Court conducted an extensive
review of national precedent regarding the deposing of government officials. In so doing,
we discovered that:
It has been recognized that a member of the Cabinet or the head of a large executive department should not be called upon to give his deposition if such deposition is taken in order to probe the mind of the official to determine why he exercised his discretion as he did in regard to a particular matter. De Cambra v. Rogers, 189 U.S. 119, 122, 23 S.Ct. 519 [520-21], 47 L.Ed. 734 (1903) and United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999 [1004-05], 85 L.Ed. 1429 (1941).
Paige, 197 W. Va. at 160, 475 S.E.2d at 160 (quoting United States v. Northside Realty
Associates, 324 F.Supp. 287 (N.D.Ga.1971)). Although we do not equate judges with so-
called highly placed public officials, we still find useful a renewed investigation into the
history of this protection.
One of the cases relied upon in Paige was the case of United States v. Morgan,
313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). One of a series of cases, this fourth and
final case, Morgan IV, concerned an appeal by the U.S. Secretary of Agriculture. The
Secretary had issued an order setting rates for stockyard services. Affected parties sued to
set aside this order and called the Secretary as a witness, which the lower court allowed. On
appeal, the U.S. Supreme Court addressed the propriety of having the Secretary testify:
But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary has a quality resembling that of a judicial proceeding. Morgan v. United States, 298 U.S. 468, 480. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that it was not the function of the court to probe the mental processes of the Secretary. 304 U.S. 1, 18. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306, 307, so the integrity of the administrative process must be equally respected.
United States v. Morgan, 313 U.S. at 422, 61 S.Ct. at 1004-05, 85 L.Ed. at 1435 (some
citations omitted). The main impact of Morgan has been to create a concept known as the
deliberative process privilege, and sprouting from Morgan is a family of cases, like the
Paige decision, concerning when administrative decision makers may be deposed or have
their records subpoenaed. See, e.g., Redland Soccer Club, Inc. v. Department of the Army
of the United States, 55 F.3d 827 (3d Cir.1995); In re Grand Jury, 821 F.2d 946 (3d
Cir.1987); NLRB v. Sears Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29
(1975); see also, Kirk D. Jensen, The Reasonable Government Official Test: A Proposal for
the Treatment of Factual Information Under the Federal Deliberative Process Privilege, 49
Duke L. J.561 (1999).
However, this particular aspect of Morgan's progeny is not applicable to the
instant case, which concerns the propriety of demanding a judge's deposition. Judges, and
other judicial officers, are in a different position, and are deserving of special protections.
Of central importance to our instant analysis, is the analogy drawn by Justice
Frankfurter, and the implicit assumptions underpinning it, expressed in the following
language: The proceeding before the Secretary 'has a quality resembling that of a judicial
proceeding.' Such an examination of a judge would be destructive of judicial responsibility.
Morgan, supra (citation omitted) (emphasis added). It is clear that Justice Frankfurter felt
no need to explain that one may not probe the mental processes of a judge. For the Court
at that time, it simply went without saying.
Since that time, a number of jurisdictions have used the basic rationale of
Morgan to exclude the testimony of judges, or prohibit, outright, their testifying. In an action
against the Secretary of the U.S. Department of Health and Human Services, a plaintiff who
had been denied social security benefits asserted that an administrative law judge was biased
against claimants. Rejecting the plaintiff's attempt to probe the mind of the ALJ, the Third
Circuit Court of Appeals declared: It has long been recognized that attempts to probe the
thought and decision making processes of judges and administrators are generally improper.
Grant v. Shalala, 989 F.2d 1332, 1344 (3rd Cir.1993). Accord, Commonwealth v. Vartan,
557 Pa. 390, 733 A.2d 1258 (Pa. 1999).
In a Virginia case, a judge held a hearing regarding a government motion to
disqualify defense counsel. At that hearing, the defendant refused to answer certain
questions and the judge found her in contempt. Subsequent to that hearing, the defendant
then testified before a grand jury. Later charged with lying to the grand jury, the defendant
subpoenaed the judge to somehow establish that the contempt finding in the unrelated
hearing had coerced her into lying to the grand jury. On appeal, another judge noted:
Should a judge be vulnerable to subpoena as to the basis of every action taken by him, the
judiciary would be open to 'frivolous attacks upon its dignity and integrity, and . . .
interruption of its ordinary and proper functioning.' United States v. Dowdy, 440 F.Supp.
894, 896 (W.D.Va.1977) (citing United States v. Valenti, 120 F.Supp. 80 (D.N.J. 1954)).
In a Georgia case where a criminal defendant sought to dismiss the indictment
against him on the basis that the system for the selection of juries was biased against
minorities, the defendant declared his intention to call several judges as witnesses because
they had participated in this allegedly biased process by selecting jury foremen in trials.
Because he intended to call them, the defendant argued that the judges should also be recused
from any consideration of his case. One of the judges in question ruled upon the case, and
found that the defendant's theory was flawed: Even assuming judges are not immune from
service of process, the cases seem to be in agreement that judges are under no obligation to
divulge the reasons that motivated them in their official acts; the mental processes employed
in formulating the decision may not be probed. United States v. Cross, 516 F.Supp. 700,
707 (M.D.Ga.1981).See footnote 9
Finally, a Louisiana case points out one of the dangers in forcing a judge to
testify. In a case concerning former Louisiana Governor Edwards, in which the former
governor had declared his intent to call the judge sitting on the case as a witness, the judge
noted that this would be an improper method of forcing the judge to recuse himself. Neither
counsel nor a party may seek recusal of a judge by announcing that they intend to call the
judge as a witness. United States v. Edwards, 39 F.Supp.2d 692, 705 (M.D.La. 1999)
(citing United States v. Diana, 605 F.2d 1307 (4th Cir.1979); United States v. Cross, 516
F.Supp. 700 (M.D.Ga.1981)).
It is clear that many jurisdictions have come to the same conclusion. Therefore
we hold that, judicial officers may not be compelled to testify concerning their mental
processes employed in formulating official judgments or the reasons that motivated them in
their official acts.
The Court is mindful that this protection from discovery proceedings has its
limits, and those limits are that a judge must be acting as a judge, and that it is information
regarding his or her role as a judge that is sought. Although this concept of protecting a
judge from deposition is not equivalent to judicial immunity, some parallels exist. Of course
judicial immunity protects a judge from suit for any of his or her official actions as a judge.
However, the U.S. Supreme Court has pointed out that there are limits to that immunity.
In Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), the
United States Supreme Court reviewed a decision of the Court of Appeals for the Seventh
Circuit, which affirmed the grant of summary judgment in favor of an Illinois state court
judge who was sued by a court employee whom he had discharged. The judge had asserted
that he was entitled to judicial immunity from civil suit. The Supreme Court ruled:
When applied to the paradigmatic judicial acts involved in resolving disputes between parties who have invoked the jurisdiction of a court, the doctrine of absolute immunity has not been particularly controversial. Difficulties have arisen primarily in attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges. Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.
484 U.S. at 227, 108 S.Ct. at 544, 98 L.Ed.2d at 565 (emphasis in original). We attempt to
draw that same line in this case.
Clearly, courts will face situations where people, who happen to be judges,
witness events that are material to a given case. A judge might be driving to work and
witness a car wreck or be involved in one himself. A judge might find it necessary to sue her
contractor over inadequate repairs to her house. In such cases, these should be considered
acts that simply happen to have been done by judges. But such is not the situation we face
in the instant case. George B. W. wishes to depose Judge Kaufman and ask him questions
about the way he conducted an official proceeding. This Court cannot allow such an inquiry.
The prohibition against compelling the testimony of a judge is reflected in a long-standing principal of our jurisprudence, namely, that a court speaks only through its orders. See, State v. White, 188 W. Va. 534, 536 n. 2, 425 S.E.2d 210, 212 n. 2 (1992) ([H]aving held that a court speaks through its orders, we are left to decide this case within the parameters of the circuit court's order. (citations omitted)); State ex rel. Erlewine v. Thompson, 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973) (A court of record speaks only through its orders[.] (citations omitted)).
This Court has adhered to this principal when presented with conflicting signals from a circuit court. Always, the law favors written orders or records:
As an initial matter, it is clear that where a circuit court's written order conflicts with its oral statement, the written order controls. Therefore, we are left to decide this case within the parameters of the circuit court's order. State v. White, 188 W. Va. 534, 536 n. 2, 425 S.E.2d 210, 212 n. 2 (1992). See also Harvey v. Harvey, 171 W. Va. 237, 241, 298 S.E.2d 467, 471 (1982) ([t]hat a court of record speaks only through its records or orders has been generally affirmed by this Court in subsequent cases). Considering the above authority, we believe it is necessary to give greater credence to the circuit court's order. Thus, we find in this case that the defendants' concerns of the difference between the circuit court's ruling from the bench and the subsequent written order have no merit.
Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 107 n.5, 459 S.E.2d 374,
384 n.5 (1995). And if the record does not reveal an error, a court will conclude that one
does not exist: It will be presumed, where the record is silent, that a court of competent
jurisdiction performed its duty in all respects as required by law. State ex rel. Scott v. Boles,
150 W. Va. 453, 457, 147 S.E.2d 486, 489 (1966); see also, 2 Franklin D. Cleckley,
Handbook on West Virginia Criminal Procedure 497-98 (2d ed. 1993).
Finally, this Court notes that George B. W. has made no fewer than three
attempts to have Judge Kaufman removed from this case. In September 1997, he alleged that
Judge Kaufman had failed to remain impartial and had made improper ex parte contacts with
opposing counsel. This Court examined this motion and denied it. Thereafter, in October
1997 and August 1998, George B. W. again asked this Court to remove Judge Kaufman from
the case for the same reasons. After consideration, these motions were also denied.
This Court cannot, and does not in this opinion, say that George B. W. has any
improper motive behind his request to depose Judge Kaufman. However, we are aware of
the temptation that some litigants may feel to engage in a form of judicial sabotage. We
are adamant that litigants should not be able to cast the sabot of a deposition notice into
the judicial machinery, forcing it to grind to a halt simply to suit their own ends.See footnote 10
As the Judge from the Middle District of Louisiana (probably no stranger to the attempted monkey-wrenching of court process via the abuse of standard discovery procedures) noted with regard to a former governor's attempt to force him off a case by calling him as a witness: Attempts to disqualify judges by indicating that the judge will be called as a witness are not favored and are rarely granted. Such an easy method of disqualifying a judge should not be encouraged or allowed. United States v. Edwards, 39 F.Supp.2d 692, 706 (M.D.La. 1999). We agree.See footnote 11 11
Footnote: 1 1This Court continues to follow the practice of using initials to identify the parties in cases with sensitive facts. Although the instant case is not technically part of a divorce proceeding, it is still necessary to use initials, so as not to undermine previous efforts to protect the identity of the parties, particularly the child in this case. See In re Jeffrey R. L., 190 W. Va. 24, 26 n.1, 435 S.E.2d 162, 164 n. 1 (1993).
Footnote: 2 2For details of the hearing, see Sharon B. W. v. George B. W., 203 W. Va. 300, 507 S.E.2d 401 (1998) (George B. W. II).
Footnote: 3 3Specifically we held:
In conclusion, we find that the circuit court did not err in
using the preponderance of evidence standard in determining the
issue of whether there had been sexual abuse of the child, and
that the circuit court was not clearly erroneous on the issue of
sexual abuse. We do find that the court erred in not qualifying
Dr. Freeman as an expert witness, but we find this not to be
reversible error. Finally, we remand this matter to the circuit
court with instructions to forthwith address the matter of
visitation to establish a meaningful visitation plan for the parties
and the child.
Sharon B. W. v. George B. W., 203 W. Va. 300, 305, 507 S.E.2d 401, 406 (1998).
Footnote: 4 4At some date, not available to us in the current record, George B. W. filed a Chapter 13 bankruptcy petition. The bankruptcy judge dismissed this action in November 1999.
Footnote: 5 5This opinion addresses the test, infra.
Footnote: 6 6Judge Kaufman also asks that this Court prohibit Judge Zakaib from enforcing a Freedom of Information Act request made by George B. W. and his counsel. As we are not aware of any order in which Judge Zakaib has ruled upon the request, this opinion does not address that issue. Nevertheless, this court would look with disfavor upon any attempt to do indirectly what this opinion prevents a party from doing directly. However labeled, any attempt to invade the thought processes of a judge, would be destructive of judicial responsibility United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004-05, 85 L.Ed. 1429, 1435 (1941), and will not be permitted.
7Canon 2B, in its entirety, provides:
A judge shall not allow family, social, political, or other
relationships to influence the judge's judicial conduct or
judgment. A judge shall not lend the prestige of judicial office
to advance the private interests of the judge or others; nor shall
a judge convey or knowingly permit others to convey the
impression that they are in a special position to influence the
judge. A judge shall not testify voluntarily as a character
Code of Judicial Conduct, Canon 2B (2000).
8We fashioned three syllabus points to explain this process:
3. Highly placed public officials are not subject to a
deposition absent a showing that the testimony of the official is
necessary to prevent injustice to the party requesting it.
4. When determining whether to allow the deposition of
a highly placed public official, the trial court should weigh the
necessity to depose or examine an executive official against,
among other factors, (1) the substantiality of the case in which
the deposition is requested; (2) the degree to which the witness
has first-hand knowledge or direct involvement; (3) the
probable length of the deposition and the effect on government
business if the official must attend the deposition; and (4)
whether less onerous discovery procedures provide the
5. The burden is upon the proponent of the deposition to
show the necessity of taking an oral deposition of a
highly-placed government official.
Syl. pts. 3,4,5, State ex rel. Paige v. Canady, supra. We extended these protections to a
former governor in a more recent case, holding:
The standard enunciated in Syllabus points 3 and 4 of State ex
rel. Paige v. Canady, 197 W. Va. 154, 475 S.E.2d 154 (1996),
continues to apply in instances where a party seeks to orally
depose a former high-ranking government official pursuant to
W. Va. R. Civ. P. 30.
Syl. pt. 15, Arnold Agency v. West Virginia Lottery Comm'n, _W. Va._, 526 S.E.2d 814 (1999).
9Courts have also applied this concept to quasi-judicial officials. In a case
concerning a patent dispute, one party wished to call as a witness a former patent examiner,
who had worked for the United States Patent Office. In deciding to allow the questioning,
the court explained:
The essential line of demarcation appearing from the cases is
that judicial and quasi-judicial officers may be compelled to
testify only as to relevant matters of fact that do not probe into
or compromise the mental processes employed in formulating
the judgment in question. . . . Thus, even though a particular
inquiry may be factually directed, it may still be objectionable
if it invades upon an official's good-faith decision-making
Standard Packaging Corp. v. Curwood, Inc., 365 F.Supp. 134, 135 (N.D.Ill.1973).
Footnote: 10 10Although one popular origin of the word sabotage is that striking workers cast their wooden clogs (a sabot in French) into machinery to stop work at a factory, we recognize that this remains subject to dispute by etymologists.
Footnote: 11 11As this Court noted in Paige, the purpose of shielding highly placed public officials from discovery is actually designed to protect the public more than the official. This is just as true when applied to judges, for judges could not do their jobs if their internal thought
processes were subject to examination. It is the public that elected Judge Kaufman to the
bench, and he should be permitted to do the job that the public has chosen him to do.
However, this Court has not lost sight of the fact that all officials, even those highly placed
are still servants of the people:
All power is vested in, and consequently derived from, the
people. Magistrates are their trustees and servants, and at all
times amenable to them.
W. Va. Const. art. III, § 2. Accord, Graf v. Frame, 177 W. Va. 282, 352 S.E.2d 31 (1986);
Ralston v. Town of Weston, 46 W. Va. 544, 33 S.E. 326 (1899). Members of this Court have
The public is entitled to know how its government operates in order to secure it against the danger of maladministration spoken of in article 3, section 3 and to ensure that officials, even judges, remain true to their trust as servants of the people. W. Va. Const. art. 3, § 2, § 3.
State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 119, 267 S.E.2d 544, 552 (1980) (D. McGraw, J., concurring).