State Ex Rel. Mantz v. Zakaib , 216 W. Va. 609 ( 2004 )

STARCHER, J.,

dissenting:

(Filed Dec. 23, 2004)

I wholeheartedly agree with the majority opinion’s holding that a special master must comply with the Code of Judicial Conduct. But I feel compelled to dissent to express my dissatisfaction with the outcome of this case.

The attorneys that the circuit judge chose to employ as special masters in this ease had a tight, attorney-client relationship with the primary defendant, St. Paul Fire and Marine Insurance Company, both before and during the petitioners’ lawsuit. There is simply no way that a person could get a paycheck from a client one day as a lawyer, and the next day be expected to act as a fair and impartial judge in a case where that very same client is a litigant. I do not say this to impugn the integrity of the lawyers in the instant ease, but there is no sidestepping the fact that there is a strong appearance of impropriety at work. The lawyers should have had the courage to see this, abided by the spirit of the Code of Judicial Conduct, and stepped aside a long time ago.

What compels me to dissent is this: the majority opinion’s command to send this case back to the circuit court for further proceedings to reconsider the petitioners’ motion to disqualify the special masters is, in my mind, a formal legal exercise that borders on the absurd. It is downright wasteful of the litigants’ and taxpayers’ money to force the judge to hold more hearings to answer a question with an obvious answer. I would have granted the writ of prohibition outright because the lawyers chosen by the circuit court plainly should have been disqualified from acting as special masters.

I therefore respectfully dissent.