Justice Joseph Albright

Justice Larry Starcher

CHARLESTON – Two state Supreme Court justices say an Upshur County magistrate accused of inappropriate sexual conduct should have been suspended, but they think he should have continued to have been paid.

Justice Joseph Albright wrote a concurring opinion regarding Magistrate Clarence W. "Charlie" McCourt Jr., and Justice Larry Starcher joined him.

McCourt is said to have ordered a woman, a victim of domestic violence, to remove her clothing so he could see her bruises and suggested it would help her case. He allegedly was visiting the woman in a motel near the magistrate court building.

The Supreme Court issued its opinion per curiam June 14 after being presented to the court on April 21. The formal charges were filed April 18 with the West Virginia Judicial Hearing board.

In his concurring opinion, filed June 26, Albright writes that the Court's power to suspend a judicial officer often is used without fully considering each case.

"In the absence of such full consideration, unjust consequences might well follow from an unwavering practice of always suspending accused judicial officers without pay," Albright writes.

He says in such cases, he generally votes for suspension with pay, especially when material facts are disputed.

"As the majority acknowledges, we have little information before us when we are called upon to make the probable cause determination on complaints alleging serious transgression of the Code of Judicial Conduct," Albright writes. "When such complaints involve significant factual disputes, I believe that justice is best served by allowing the trier of fact, the Judicial Hearing Board, to do its job of hearing evidence before such harsh action as withholding pay is taken by summary action of this Court."

Albright acknowledges that McCourt acted inappropriately when he visited the woman's motel room.

"Nevertheless, what occurred during that visit is highly contested by the parties to the disciplinary proceeding," Albright writes. "Indeed, the factual dispute begins with whether the magistrate actually entered the room and continues through what transpired between the parties after that point and extends to how long the encounter lasted.

"To routinely deprive an accused judicial officer of a source of income while defending a judicial misconduct charge under such contested factual circumstances is hardly representative of the hallmark of the judiciary _ fairness."

Albright also notes that McCourt has said he has no other source of income to fight the charges.

"Under such circumstances, fairness dictates that suspension from duty must occur to preserve public confidence in the judicial system because of the serious misbehavior which has been alleged," he writes. "I believe fairness also demands that the magistrate should not be summarily denied pay by this Court without full and fair consideration of the particular facts and circumstances of his case."

While concurring with the right of the Court to suspend judicial officials without pay, Albright's agreement with the decision apparently ends there.

"I dissent generally with the majority's indiscriminate manner of deciding to indefinitely suspend judicial officers without pay whenever a transgression of judicial conduct rules is alleged," he writes. "I also dissent from the specific decision to suspend the magistrate named in this case without pay."

West Virginia Supreme Court of Appeals case number: 33068

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