dissenting:
I dissent because the majority’s opinion mistakes the law and effectively ignores the day to day conditions under which our magistrates work. The majority holds that Magistrate Mendez violated Canon 3 A(4) of the West Virginia Judicial Code of Ethics because he suspended Mark Crad-dock’s sentence after conferring ex parte with Mark Craddock’s father, and without affording notice or an opportunity to be heard to interested persons.
The facts in this case do not support this holding. Mark Craddock came to Magistrate Mendez and explained that jail exacerbated his son’s medical condition. Magistrate Mendez promptly notified the assistant prosecuting attorney of Logan County and related what the father had told him. The assistant prosecutor told Magistrate Mendez that there was no law that would preclude him from suspending the sentence. Magistrate Mendez suspended the sentence.
The proper way to characterize these events is as follows: 1) The father made a speaking motion to Magistrate Mendez requesting him to suspend the son’s sentence; 2) Magistrate Mendez notified the adversary party (e.g. the State in the person of the Logan County assistant prosecutor); 3) The adversary party had no objections to the motion; and 4) Magistrate Mendez granted the motion. Under this view Magistrate Mendez may well have committed a legal error in suspending the sentence, but he should not be subject to discipline for engaging in ex parte communication. Furthermore, this characterization of the facts is more consistent with the informality and openess of magistrate courts. Under the majority’s definition of ex parte communication, magistrates must duck into a bathroom each time they see a litigant coming down the hall!
Not only do I quarrel with the majority’s holding in this case, but also I must dispute the standard of review the majority casually introduces in their opinion. The majority suggests that the standard of review for a magistrate’s behavior is conduct “... sufficiently egregious to warrant public censure.” I will not try to flesh out what this somewhat novel, if nebulous, standard means. Instead, I will simply note that Canon 3 A of the West Virginia Judicial Code of Ethics mandates a different standard. A legal error by a judge does not constitute a violation of Canon 3. In re Greene, 173 W.Va. 406, 317 S.E.2d 169 (1984) (refusal to issue backfire warrants). See also Syl. Pt. 1, West Virginia Judicial Inquiry Commission v. Casto, 163 W.Va. 661, 263 S.E.2d 79 (1979) (magistrate who makes a legal error does not violate West Virginia Judicial Code of Ethics); West Virginia Judicial Inquiry Commission v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980) (absent proof of an improper motive, a circuit court judge’s exercise of discre*406tionary power, though wrong, does not violate Canon 3 A).
A Canon 3 A violation requires that the judge or magistrate intentionally disregard the law before he may be censured. The “sufficiently egregious to warrant public censure” standard that the majority appears to apply in this case presents two problems: First, it is a departure from our prior holdings and will create problems both for courts that seek to interpret this new standard and judges who seek to conform their behavior to this standard. Second, the proper remedy against a judge who in good faith, but erroneously, interprets the law is judicial review and not a collateral attack through West Virginia’s Judicial Inquiry Commission.
For the foregoing reasons I cannot join the majority in either its results or its analysis.