David R. Janes
Fairmont, West Virginia
Attorney for Judicial Investigation Commission
Robert P. Martin
Meyer, Darragh, Buckler, Bebenek, Eck & Hall
Charleston, West Virginia
Attorney for J. Ned Grubb
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
Under the authority of article VIII, sections 3 and 8 of the West Virginia Constitution and Rule II(J)(2) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges, Magistrates and Family Law Masters, the Supreme Court of Appeals of West Virginia may suspend a judge, who has been indicted for or convicted of serious crimes, without pay, pending the final disposition of the criminal charges against the particular judge or until the underlying disciplinary proceeding before the Judicial Investigation Commission has been completed.
contribution to Mr. Adams' campaign.See footnote 2 Upon his election to the
sheriff's office, Mr. Adams created a new position for Mr. Tomblin
and added him to the payroll of the Logan County Sheriff's
Department.See footnote 3
The indictment further charges that Judge Grubb, upon learning of the grand jury's investigation of this matter, encouraged Mr. Adams to provide false information to federal investigators and prosecutors, and to provide false testimony to the grand jury. Judge Grubb also allegedly recommended methods by which Mr. Adams could mislead the federal investigators, prosecutors and grand jury concerning the $10,000 campaign contribution, and suggested a false story Mr. Adams could use to explain the hiring of Mr. Tomblin.
Judge Grubb is further charged in the indictment with giving false statements to special agents of the Federal Bureau of Investigation regarding the exchange of money between Mr. Tomblin and Mr. Adams. Judge Grubb denied having any knowledge of illegal cash being used by anyone during the 1988 campaign.
Following the indictment, the Administrative Director of the Supreme Court of Appeals filed a complaint with the Judicial Investigation Commission of West Virginia (hereinafter Commission) advising the Commission of the charges against Judge Grubb. In
response to the complaint, the Commission immediately initiated an
investigation. The Commission also filed a report with this Court
advising us of the indictment against Judge Grubb, and petitioning
us to take such action as provided in Rule II(J)(1) and (2) of the
Rules of Procedure for the Handling of Complaints Against Justices,
Judges, Magistrates and Family Law Masters.
On February 28, 1992, the Chief Justice of the Supreme Court of Appeals entered an administrative order prohibiting Judge Grubb from hearing any further civil or criminal matters while under indictment, and providing him the opportunity to petition this Court for a hearing with regard to the administrative order.
A rule to show cause why Judge Grubb should not be suspended, with or without pay, was issued by this Court on March 4, 1992, and Judge Grubb was directed to appear before us for oral argument on April 7, 1992. On March 16, 1992, Judge Grubb filed a motion to continue the oral argument set in this case until after the conclusion of the federal criminal trial on the charges against him. We refused that motion, and advised Judge Grubb that the issue of his salary pending the resolution of the federal indictment against him would be addressed during the oral argument scheduled for April 7, 1992.
At the oral argument held on April 7, 1992, this Court was advised that a superseding indictment had been filed against Judge Grubb charging him, in addition to the five counts stated in the original indictment, with interference with commerce by threats
or violence,See footnote 4 fraudSee footnote 5 and racketeering activity.See footnote 6 The Commission
also made a copy of the superseding indictment part of the record
Following the submission of this case, the United States District Court of the Southern District of West Virginia entered an order on May 7, 1992, reflecting that Judge Grubb was found guilty by a jury of seven of the eight counts in the indictment. He was found not guilty of the count alleging that he attempted to affect commerce by extortion in unlawfully obtaining $4,000 from an attorney from the proceeds of a lawsuit pending before him.
The sole issue in the proceeding now before us is whether Judge Grubb should be suspended with or without pay pending the final disposition of the criminal charges against him.See footnote 7 Judge
Grubb argues that a suspension without pay would deprive him of his
property without due process of the law. The Commission asserts
that this Court has authority to suspend Judge Grubb without pay,
and that he may be able to recover the salary withheld during his
suspension if the charges against him are not proven and cause for
his removal is not established.
Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980). In accordance with
the directives of article VIII, section 8 of the West Virginia
Constitution and our inherent obligation to sustain the probity of
the judiciary, this Court promulgated the Rules of Procedure for
the Handling of Complaints Against Justices, Judges, Magistrates
and Family Law Masters.
When the integrity of the judiciary is placed into question by the action or conduct of any judge, this Court is authorized to impose an interim suspension pending the disposition of the charges against the judge or until the underlying judicial disciplinary proceeding is completed. This Court's authority to suspend a judge, with or without pay, following the criminal indictment or conviction of that judge or the completion of judicial disciplinary proceedings initiated against that judge is stated in Rule II(J)(2) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges, Magistrates and Family Law Masters. Rule II(J)(2) provides, in relevant part:
[T]he Supreme Court, upon determining that cause exists, shall provide notice of the charges to the Judge with the right to hearing in not less than twenty (20) days before the Supreme Court. After such hearing, the Supreme Court may suspend the Judge with or without pay until the underlying disciplinary proceeding before the Judicial Investigation Commission has been completed; provided, however, that the Chief Justice of the Supreme Court may order that a Judge not hear any further civil or criminal matters while under indictment for a felony or misdemeanor without application to the Judicial Investigation Commission, in which event the Judge may petition the Supreme Court for a hearing.
In the present case, as stated previously, Judge Grubb
has been indicted for and convicted of very serious crimes. First,
the federal grand jury returned a five-count indictment against
Judge Grubb. Then the grand jury later returned a superseding
indictment charging Judge Grubb with bribery, mail fraud,
conspiracy, witness tampering, obstruction of justice, interference
with commerce, fraud and racketeering activity. Although this
Court, by administrative order, ordered Judge Grubb not to hear any
further civil or criminal matters while under indictment, we have
not determined whether, as an interim measure, he should be
suspended with or without pay pending the final resolution of the
criminal charges against him and the completion of the judicial
disciplinary proceeding by the Judicial Investigation Commission.
We recognize that some courts have held that the public confidence and the integrity of the judiciary will best be served by suspending the judge with pay pending the outcome of judicial disciplinary proceedings against the particular judge. Gruenburg v. Kavanagh, 413 F. Supp. 1132 (E.D. Mich. 1976); In re Inquiry Concerning a Judge, 333 So. 2d 22 (Fla. 1976);See footnote 9 In re Del Rio, 256 N.W.2d 727 (Mich. 1977), appeal dismissed, 434 U.S. 1029, 98 S. Ct. 759, 54 L. Ed. 2d 777 (1978);See footnote 10 In re Kirby, 350 N.W.2d 344 (Minn.
1984);See footnote 11 State ex rel. Green v. Tilton, 437 N.E.2d 1174 (Ohio
1982).See footnote 12 However, we have also found authority for suspending a
judge, who has been indicted or charged with a criminal offense,
without pay, pending final disposition of the charges against the
judge. In re Coruzzi, 472 A.2d 546 (N.J.), appeal dismissed, 469
U.S. 802, 105 S. Ct. 56, 83 L. Ed. 2d 8 (1984); In re Brennan, 483
N.E.2d 484 (N.Y. 1985);See footnote 13 In re Ferguson, 403 S.E.2d 628 (S.C.
1991); see 46 Am. Jur. 2d Judges § 62 (1969); 48A C.J.S. Judges §
The statutory amendmentSee footnote 14 enabling the New Jersey Supreme Court to indefinitely suspend a judge without pay pending removal proceedings was challenged in In re Coruzzi, supra. Judge Coruzzi was arrested immediately after accepting a bribe from an attorney
who was fitted with electronic surveillance equipment so that law
enforcement personnel could monitor the conversation. Judge
Coruzzi was immediately relieved of all of his duties, and the
Supreme Court filed a complaint for his removal and suspended him
without pay.See footnote 15 Following his conviction, Judge Coruzzi challenged
the amendment allowing his indefinite suspension without pay
pending the outcome of the removal proceedings asserting, among
other grounds, that it impairs an obligation of contract. The
court stated that the regulatory purpose of the amendment was to
enable "the Supreme Court to preserve public confidence in the
judiciary by not allocating public funds to pay salary to members
of the judiciary who have conducted themselves in a manner that
warrants suspension." 472 A.2d at 557. The Court found that the
"amendment is instrumental to preserve public confidence regardless
of whether the judge is ultimately found fit for office."See footnote 16 472
A.2d at 557-58. The court further recognized that public officers
do not have "contractual" rights to specific terms of compensation
and employment within the meaning of the Contract Clause. Id. The
court concluded that the law does not unconstitutionally impair any
contractual right of the judge.
In Brennan, supra, the judge was charged in a federal indictment with bribe receiving. The Court of Appeals of New York
reasoned that "[t]he issue before us is not of his innocence (which
is presumed) or guilt, but whether in the face of the cloud created
by the number and seriousness of the charges against him his pay
should be continued during the period of his suspension." 483
N.E.2d at 484. The court concluded that the judge's salary should
The South Carolina Supreme Court recently decided a case which is also similar to the case before us. In In re Ferguson, supra, the Court held that it had the inherent authority to protect itself and the public by suspending a judge, who was indicted for serious crimes,See footnote 17 without pay, under the constitutional article charging the supreme court with administering the courts in the state.See footnote 18 The Court further held that withholding the judge's pay did not constitute a diminution of his salary in contravention of article V, section 16 of the South Carolina Constitution. 403 S.E.2d at 630. The Court recognized that although article V, section 16 limits the ability of the General Assembly to diminish the salary of members of the judiciary during their terms of office with the intent to keep the judiciary independent from the General
Assembly, it was not intended to give any judge "judicial
independence" from the supreme court of the state.See footnote 19 Id.
Upon a review of the above, we conclude that under the authority of article VIII, sections 3 and 8 of the West Virginia Constitution and Rule II(J)(2) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges, Magistrates and Family Law Masters, the Supreme Court of Appeals may suspend a judge, who has been indicted for or convicted of serious crimes, without pay, pending the final disposition of the criminal charges against the particular judge or until the underlying disciplinary proceeding before the Judicial Investigation Commission has been completed.See footnote 20
In the case before us, the public Judge Grubb has been elected to serve has knowledge of the serious criminal charges filed against him and now is aware that he has been convicted of those charges.See footnote 21 His effectiveness as a judge and the integrity of the judiciary have been called into question. Given our obligation to preserve the integrity of the judiciary and the
public confidence, we have determined that Judge Grubb should be
temporarily suspended without pay pending the final disposition of
the criminal charges against him and the completion of the
underlying judicial disciplinary proceeding before the Judicial
In the event that Judge Grubb is successful in having his conviction reversed following an appeal, he may maintain a cause of action for back pay.See footnote 22 See Pfingst v. State, 381 N.Y.S.2d 201 (Ct. Cl. 1976), aff'd, 393 N.Y.S.2d 803 (App. Div. 1977). However, we find that the overriding public interest in preserving the integrity of the judiciary demands that we subordinate the personal interests of Judge Grubb and suspend him without pay pending the outcome of an appeal of his conviction and the judicial disciplinary proceeding initiated against him.
Therefore, we conclude that Judge Grubb should be temporarily suspended without pay pending the final disposition of the criminal charges filed against him, and the completion of the judicial disciplinary proceeding initiated by the Judicial Investigation Commission.
No person convicted of treason, felony, or bribery in any election, before any court in or out of this state, shall, while such conviction remains unreversed, be elected or appointed to any office under the laws of this state; and, if any person, while holding such
office, be so convicted, the office shall be
That issue, however, is not before us.