No. 22636 -- In the Matter of: Ira W. Atkinson, Jr.
Magistrate for Wood County
Neely, C. J., dissenting:
Serving in elected public office these days is a high
risk undertaking. Indeed, the ability of President Bill Clinton to
govern has been substantially undermined because of allegations
concerning land deals in Arkansas and sexual overtures to women.
In general, the old rule that where there's smoke, there's fire has
a certain empirical validity, but increasingly the criminal process
is being used for vengeance or as a substitute for the elective
process and the number of fireless smokings is going up
I have no idea whether Magistrate Atkinson is guilty of
the offenses as alleged; however, I do know that the likelihood of
totally groundless, frivolous charges being leveled against him
exclusively because he is an elected official clothed with
substantial power at the local level is a great deal higher than it
is with ordinary citizens.
Magistrate Atkinson is innocent until proven guilty. When carpenters, garage mechanics, short order cooks, doctors, or even lawyers are indicted, they are not required to stop doing their daily work pending the glacial pace of the judicial process. There is some risk that if we suspend Magistrate Atkinson as we
must, and he is convicted, that the State will then be out whatever
money we may have paid him for a year. However, the risk of loss
is much greater on Magistrate Atkinson's side: if Magistrate
Atkinson is innocent and we deprive him of his livelihood for
between six months and a year, he may be destitute!See footnote 1 But the only
reason that Magistrate Atkinson can't work pending his trial is
that higher standards of propriety are demanded of the judiciary
than are demanded of carpenters, short order cooks, etc. That's a
perennial judicial problem, but whatever loss might attend our
suspension of judicial employees with pay rather than without pay
ought to be a routine cost of doing business. I do not believe
that this Court should be party to possible schemes to destroy
elected officials until there is a jury conviction.
The provision for allowing a magistrate to be suspended
without pay was inserted into the Code of Judicial Conduct in 1980
when I was first Chief Justice. The purpose of my proposal of that
amendment was to allow this Court greater leverage with regard to
magistrates who refused to follow the direction of higher courts.
Indeed, when a magistrate fails to follow the direction of either this Court or his or her supervising circuit judge, I would NEVER
be reluctant to suspend without pay. Indeed, the availability of
that remedy in an administrative context allows us the luxury of
never needing to use the remedy.
Perhaps when a magistrate or circuit judge is caught so
much in flagrante delicto that his or her guilt is immediately
beyond doubtSee footnote 2 that suspension without pay is warranted. However,
short of such circumstances, it does not enhance the independence
or integrity of the judiciary to allow the judiciary's enemies and
detractors one more weapon that invites abuse.
I am authorized to say that Justice Cleckley joins this dissent.
Footnote: 1 It is appropriate to ask what abject poverty does to the plea bargaining process. Are we placing extraordinary pressure on Magistrate Atkinson to plead to something?
Footnote: 2 As, for example, a magistrate caught with a ski mask and a double barrel shotgun standing with two garbage bags full of money in the middle of the lobby of WesBanco Fairmont.