dissenting:
One of the preeminent tools of judicial craftsmanship is the plausible rewriting of national and state history. As Thomas Jefferson was fond of pointing out, the world belongs to the living; thus, when there are unpleasant traditions associated with the otherwise revered dead, it is more tactful judicially simply to revise history than to confront it. The difference, then, between an historian and a judge is that the historian achieves prominence by accurately illuminating the past; a judge achieves prominence by revising the past to please the living.
The majority opinion is firmly in this judicial revising tradition, but Fm not dead yet and I know what was intended in the judicial review procedure set out in W. Va. Code 48A-4-10 [1990]. After all, I was on the supreme court when the family law master system was brought into existence. So here beginneth the true history:
It came to pass in those days that the federal government was mightily annoyed that deadbeat fathers were not paying child support and thus forcing that obligation of support onto the federal government. So the federal government mandated, as part of the conditions for receiving federal dollars for public assistance [aka “welfare”], that the states develop an expeditious and effective system for enforcing child support.
After much debate and compromise, the family law master system was devised1, and it simply institutionalized the system that had existed in this State since the memory of man runneth not to the contrary of the “divorce commissioner.” The divorce commissioner was (and is) a master in chancellery whose only job was (and is) to make a record for the circuit judge in a contested divorce case, find facts, and forward a recommended ruling. NEVER, EVER, ANYWHERE IN THE LAW was it thought that any formal standard of review applied to a master’s report. The judge could do whatsoever he wanted after exceptions to the report were filed subject, of course, to appeal to this Court, where the original master’s report was (and is) part of the record and WE could (and can) choose to adopt the master’s report when in OUR review we find the master’s decision better than the judge’s.
Our statute, W.Va.Code, 48A-4-10 [1990] simply codifies that procedure and the standard of review under it. Well ... one might ask, why shouldn’t the majority rewrite history, correct the legislature’s lack of wisdom and foresight, and establish a more academically sound procedure modeled on other hierarchical systems?2 The answer, of course, is that there is nothing “academic” about real world law, and most discussion of standards of review in the reported cases emerge from law clerk watch winding; judicial staffs simply mouth platitudes because they really don’t give a healthy damn about the underlying case or the justice thereof.
*399For example, when I review a circuit court decision, notwithstanding what my young law clerks write about standards of review in my reported opinions, my first real question is: “Is the circuit judge a twit?” If the answer to that question is a resounding “yes,” then I haul out the “close scrutiny” standard of review that the old, pro-civil liberties, caring U.S. Supreme Court sent me in the early 1970’s when I became a judge and that I’ve kept ever since in the bottom drawer of my desk. Once I figure out what ought to happen, I put my clerks on autopilot to manipulate precedent to arrive at the correct result regardless of what standard of review has been consistently set forth (and just as consistently ignored whenever anyone gave a damn about the case) in a few stock paragraphs stored in everyone’s word processor.
I believe, based on real rather than imagined history, that a circuit judge has unbridled discretion to “examine the recommended order of the master, along with the findings and conclusions of the master, and may ... enter an order upon different terms, as the ends of justice may require____” Code, 48A-4-10 [1990]. Remember: it is the circuit judge’s order and not the master’s that ultimately emerges from the lower court. The enumerated reasons for which a circuit judge must overturn a master’s decision in Code 48A-4-10 [1990] are simply icing on the cake and are provided to give lawyers mechanical categories into which they may arrange their exceptions to the master’s report. But the judge is not precluded from concluding that the law master is a twit. Thus, the judge doesn’t need a specific assignment of error to change something: after all, it has always been the judge’s final order.
Furthermore, all of this makes wonderful sense politically. Judges — i.e., REAL judges — are elected in this State (thank God!) and neither the legislature nor the people were disposed to change that selection criterion when the judiciary was entirely restructured by the 1974 judicial reorganization amendment. Family law masters are not judges, and it is important to remember that. Family law masters are neither (1) elected like judges nor (2) paid like judges. Although a circuit judge earns today only $80,-000 a year, in light of the pension benefits that accrue after 16 years of service, the effective rate of pay for a circuit judge is closer to $130,000 depending, of course, on the judge’s age at the time of election, his proximity to the age of 65, and the likelihood that he will beat the standard mortality tables. But there is no lack of takers for a circuit judgeship and circuit judges are well respected, well regarded, and well trusted figures in their respective counties. Family law masters are just low paid bureaucrats!
This is not to say that law masters are not often very intelligent, very hard-working, and very concerned quasi-judicial officers. But they are not circuit judges! Family law masters have never been elected; family law masters are appointed by the governor and not the circuit judge; family law masters have only a four year term with no guarantee of “good behavior” retention; and, family law masters (as opposed to circuit judges) have no higher requirement for appointment than a law degree, membership in the bar, and friendship with a governor or county chairman.
Thus, it seems to me that to clothe a family law master with all of powers of a W.Va. Const, art. VIII, court is unconstitutional. If family law masters are simply state-paid masters in chancellery with certain broadened powers to make temporary orders and modify existing orders, then I can live with that scheme as long as at least theoretically the circuit judge is making the policy decisions. If, however, the system has become so complex that there must now be a court-like hierarchy where each level grants the one below it deference in everything (or at least pays lip service to granting deference) then I believe that we should declare the entire law master system unconstitutional again and repair to the legislature for an elected, limited-jurisdiction domestic relations court that will be adequately paid, placed under the judicial retirement system, and given such a suitably long term that good behavior will ensure a high likelihood of re*400election. See Starcher v. Crabtree, 176 W.Va. 707, 348 S.E.2d 293 (1986).
I would, therefore, affirm the circuit judge as I see no plainly erroneous decision on his part.
[Filed July 24, 1995]
. Much of this debate centered in who would get the jobs. The militant feminists who for both ideological and personal reasons were the moving force behind the bill that passed, wanted a quasi-judicial system because they understood that they would never be able to win elections in a real judicial system under W.Va. Const. Art. VIII. Governor Arch A. Moore, Jr. wanted an administrative system like workers’ compensation that he could control. The compromise was a quasi-judicial system in which the governor appointed the law masters and welfare [department of health and human services] administered the whole program. Once the bill passed, however, the governor forgot he ever met the feminists and appointed his own conservative Republican political friends who were mostly white males — thus providing one of the few recent examples of poetic justice.
. God knows, I’m not above doing exactly that from time to time in a proper case, so I’m not talking about principle but rather about wisdom. Judicial activism is one thing; stupid judicial activism quite another.