WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has upheld the suspension without pay of an Upshur County magistrate accused of inappropriate sexual conduct.

Clarence McCourt Jr. 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.

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.

On March 25, a domestic violence proceeding between Barbara and Jackie Baire was held before McCourt at 4 a.m. As a result of the hearing, the woman's husband was incarcerated.

A representative of Women's Aid in Crisis took Baire into a restroom at the magistrate court building and photographed her bruises. She then left the magistrate court, but she did not return home because she was in fear for her life. Instead, she went to the Colonial Motel, which is located about 200 yards from the magistrate court building.

"In the meantime, deputies from the Sheriff's office went to the Baire house to serve the DVP order and the arrest warrant on Mr. Baire," the court filing states. "Magistrate McCourt contacted the 9-1-1 communication center several times to keep abreast of the situation, inquiring as to whether the deputies had entered the home and, at times, speaking directly to the deputies and offering them advice on how to proceed. Mr. Baire was finally taken into custody around 3:00 am on March 26, 2006. The recordings from the 9-1-1 communications center reflect that Magistrate McCourt was made aware of the arrest by one of the deputies, who also informed Magistrate McCourt that he had already contacted Mrs. Baire to let her know that her husband had been arrested and was in jail."

After the hearing, McCourt allegedly had asked Barbara Baire where she was staying.

At 6 a.m., he allegedly called the motel where Baire was staying and asked her if he could come over to see the bruises she had received.

"Magistrate McCourt called Mrs. Baire at the motel to tell her of her husband's arrest.," the opinion states. "Mrs. Baire allegedly had some questions about the legal process, which Magistrate McCourt attempted to answer. However, Magistrate McCourt asserts that he did not believe that Mrs. Baire really understood the process, so he asked if he could come by her motel room to talk to her about it some more. Mrs. Baire agreed, and Magistrate McCourt walked over to the motel."

McCourt allegedly told Baire how pretty she was, asked to see her bruises and suggested it might help her case.

When Baire couldn't pull her pants up high enough to show him bruises on her leg, McCourt allegedly had her pull her pants down and asked if there were any bruises on the inside of her thighs. The formal charges also state that he asked her to turn around while her pants were down.

It is also alleged that McCourt asked to see bruises on Baire's chest, touched the woman's breast before going into the bathroom for a few minutes and informed her to keep the meeting a secret.

"Magistrate McCourt maintains that he was only briefly at the motel (ten minutes by his account) and that he stood in the doorway the entire time he was at the motel," the opinion states. "He asserts that he did not enter the motel room or otherwise act inappropriately."

Baire, however, says McCourt did enter the room and began asking questions about the case.

"She alleges that Magistrate McCourt asked specifically to see her bruises, which were covered by her clothing," the opinion states. "Mrs. Baire allegedly asked if it would help her case, and Magistrate McCourt allegedly responded that it would. Mrs. Baire asserts that she tried to pull her pants leg up to show him the bruises on her legs, but was unable to do so. She then allegedly lowered her pants to her knees to show Magistrate McCourt the bruises. Magistrate McCourt allegedly told Mrs. Baire to turn around so he could check the backs of her legs. Magistrate McCourt also allegedly asked Mrs. Baire whether she had any bruising on her inner thighs and bent down to take a closer look.

"Magistrate McCourt next allegedly asked whether Mrs. Baire had any bruising on her chest, and she answered affirmatively. He allegedly asked to see those bruises as well, and Mrs. Baire lifted her shirt. Magistrate McCourt then allegedly touched a bruise on the top of Mrs. Baire's breast as well as an area below her nipple. Mrs. Baire asserts that Respondent then went into the bathroom for several minutes before coming back out and sitting next to her on the bed."

Baire said she was "very uncomfortable" and that McCourt left soon after that.

"On his way out, though, he allegedly asked to see the bruise on Mrs. Baire's breast again," the opinion states. "She declined to show him the bruise again. Magistrate McCourt then allegedly instructed Mrs. Baire not to tell anyone that he had come to the room."

The next day, Baire told a Women's Aid in Crisis worker what had happened. She then filed her complaint with the Judicial Investigation Commission on April 10.

McCourt was suspended without pay April 12. Formal charges were filed April 18, following which McCourt filed a written request for a hearing on the issue of his temporary suspension without pay.

In its opinion, the Supreme Court referenced the recent case involving Wayne County Magistrate Tommy Toler, who was accused of similar actions.

"In Toler, a magistrate had been suspended without pay following his indictment on criminal charges," the Court wrote. "Though he was subsequently acquitted of those charges, this Court declined to lift his suspension without pay pending the completion of an investigation by the Judicial Investigation Commission.

"There can be no doubt that this Court has the power to suspend a magistrate without pay based upon an allegation that he or she has acted in violation of the Code of Judicial Conduct."

McCourt contends that the Disciplinary Counsel didn't conduct a complete investigation into the allegations and that he was not afforded an opportunity to defend himself prior to his suspension. He also points out that he has not yet been charged criminally and that "it is his very suspension without pay that casts doubt upon the 'honor, integrity, dignity, and efficiency of the judiciary.'"

The court disagreed.

"McCourt's uncontested actions in this matter raise profound question which directly implicate the issue of public confidence in the judicial process," the court wrote. "Indeed, as he admits, Magistrate McCourt is also now currently under criminal investigation by the West Virginia State Police and may well face criminal charges for his alleged actions. Both investigations (both disciplinary and criminal) into his alleged behavior and the underlying uncontested matters present herein directly implicate the 'honor, integrity, dignity, and efficiency of the members of the judiciary and the system of justice.'

"We are satisfied that sufficient evidence currently exists in this matter to believe that Magistrate McCourt has engaged in a serious violation of the Code of Judicial Conduct and that the suspension of Magistrate McCourt without pay is justified."

Justices Larry Starcher and Joseph Albright concurred in part and dissented in part and reserved the right to file separate opinions.

West Virginia Supreme Court of Appeals case number: 33068