Thursday, April 23, 2020

Gone Fishing (And Caught Over The Limit)

The West Virginia Supreme Court of Appeals sanctioned a county magistrate for his violation of fishing laws, attitude when cited for the offense and subsequent testimony in the judicial misconduct proceedings. 

This matter arises from a judicial disciplinary Statement of Charges issued against the respondent, David E. Ferguson, Magistrate of Wayne County (hereinafter “the respondent”). The issues in the case surround the respondent’s violation of a state fishing law and, far more importantly, the belligerent and coercive behavior that he exhibited when Department of Natural Resources (“DNR”) officers issued him a citation. After holding an evidentiary hearing, the West Virginia Judicial Hearing Board (hereinafter “the Board”) concluded that the respondent violated several provisions of the West Virginia Code of Judicial Conduct and recommended that he be suspended for thirty days without pay, be issued a reprimand, pay a total fine of $2,000, and pay the costs of this disciplinary proceeding. Although he denied several of the charges when appearing before the Board, the respondent now indicates his willingness to accept the Board’s findings and the recommended punishment. The Office of Judicial Disciplinary Counsel (“JDC”) objects to some of the Board’s findings and the recommended sanction.

After considering the record and the parties’ written and oral arguments, we adopt the Board’s conclusions of law regarding the respondent’s rule violations with one modification. Specifically, we conclude that the respondent committed an additional violation of Rule 1.1 of the Code of Judicial Conduct. Furthermore, because of the respondent’s flagrant attempt to intimidate law enforcement officers, we find that a harsher sanction than that recommended by the Board is warranted. Therefore, we suspend the respondent for ninety days without pay, reprimand him, order him to pay a total fine of $2,000, and order him to pay the costs of this disciplinary proceeding.

The story

On February 21, 2017, the respondent went fishing with his father at the East Lynn Lake spillway. Many people were fishing at the spillway because the DNR had stocked it with trout earlier that day. Also present were two undercover DNR officers, Corporal Larry Harvey and Officer Jacob Miller, who were watching for any violation of state fishing laws. At the time, the respondent did not know these DNR officers, and the officers did not know him.

Corporal Harvey testified that he was standing on the bank at a vantage point where he could observe the respondent, the respondent’s father, and a third man fishing for trout and conversing with one another. Pursuant to state regulation, the daily creel limit was six trout per person. See W.Va. C.S.R. § 58-60-5.2 (2017). Corporal Harvey explained that although the respondent had already caught six trout, the respondent then caught two additional fish and gave one to his father and one to the third man. Officer Miller testified that after being alerted to the situation by Corporal Harvey, he also witnessed the respondent catch extra fish. Corporal Harvey testified that as the men were packing up to leave, he saw that the respondent had six fish for himself that he carried on a stick, the respondent’s father had six fish on a stringer, and the third man had six fish on a stringer. The officers determined that the respondent’s actions were contrary to state regulation, so Corporal Harvey instructed Officer Miller to intercede and write a citation.

While Corporal Harvey remained on the bank of the spillway, Officer Miller followed the respondent up a hill to a parking lot. When they reached the respondent’s vehicle, Officer Miller identified himself as a DNR officer and displayed his DNR badge and identification card, saying this is “just to show you, I’m not lying about who I am.” The officer requested the respondent’s photo identification, fishing license, and trout stamp. Officer Miller testified that the respondent dropped the tailgate of his truck, threw a card down on the tailgate in an “arrogant manner,” and said “well, I’m not lying about who I am, either.” The officer testified that the card the respondent threw down was a West Virginia Supreme Court photo identification card. According to Officer Miller, the impression that the respondent gave during this exchange was that he “was telling me he was somebody, some type of . . . whether it be attorney, judge, magistrate, [I] didn’t know at the time. That he’s somebody above the law. That it wouldn’t apply to him. That I – I couldn’t enforce the law.” Upon the officer’s second request, the respondent produced his driver’s license, fishing license, and trout stamp.

When the father and other person got involved, the officer testified that "things [were] starting to get a little bit of of hand."

The corporal explained that the men finally calmed down and he was able to issue each of them a citation for violating the state fishing law. Corporal Harvey testified that as he handed the citation to the respondent, the respondent named two of the corporal’s supervisors at the DNR and indicated that he would be contacting them.

Corporal Harvey testified that while it usually takes him just five minutes to write and issue a citation, this encounter with the respondent and his father lasted between thirty and forty-five minutes because of the men’s behavior. He summed up the encounter by noting that “[i]n my 19 years of experience, I have wrote [sic] many fish citations, exceeding the limit citations. I’ve never had anything close to this happen, not – I mean, this was terrible over a fishing violation.” During the exchange, the respondent’s father mentioned that he was a former magistrate, but the officers did not learn until later that the respondent was a sitting magistrate.

The citation issued to respondent included two misdemeanor charges: exceeding the creel limit and illegal possession of wildlife. Another Wayne County Magistrate, Billy Runyon, testified that the respondent pled no contest to exceeding the creel limit and paid a small fine and court costs. Upon the motion of the county prosecuting attorney, the other charge was dismissed.

Respondent disputed the fishing violation and that he had acted belligerently

The respondent also disputed the allegations that he acted in a belligerent manner while receiving the citation. With regard to Corporal Harvey, the respondent testified that “I’m not going to say at the very end, that I didn’t – that I didn’t raise my voice a little bit, but I was never out of hand with Mr. Harvey.” According to the respondent, he had just two fingers in his pockets when the corporal said, “[g]et your hands out of your pockets. I don’t want f***ing shot today.” The respondent testified that this statement “frustrated” him because he would never harm a law enforcement officer, but he nonetheless apologized to the corporal. After further questioning during the Board’s evidentiary hearing, the respondent admitted that he “might’ve spoken angrily after” the statement about getting “f***ing shot,” but he denied ever waving his arms or acting belligerently. The respondent explained that his father was “pretty irate,” and “for the most part,” the respondent was trying to calm his father down. The respondent’s father testified and admitted that he swore at Corporal Harvey, and that he even demanded to be arrested, but that the respondent did not behave in this manner. Both the respondent and his father indicated that it was Corporal Harvey who was disrespectful.

Finally, the respondent admitted that he used the names of two DNR supervisors while receiving the citation, and he acknowledged that it was wrong to have done so. He emphasized that he did not follow through with contacting the supervisors, and instead, he pled no contest and paid the ticket that same day.

The court affirmed some of the board's conclusions but

The Board found that the respondent violated Rule 1.1 by breaking the fishing law, but the Statement of Charges asserted that he also violated Rule 1.1 by lying during his sworn statement to the JDC. As set forth above, the Board concluded that the respondent violated Rule 2.16(A) by falsely denying in his sworn statement that he had behaved in a disrespectful and coercive manner toward the DNR officers. The JDC argues that because the Board found that the respondent violated Rule 2.16(A), logic dictates that he also violated the provision of Rule 1.1 that prohibits a judicial officer from violating the Code of Judicial Conduct. We agree with the JDC on this issue.

Sanction

This case is about much more than catching extra fish. Certainly, we want judicial officers to obey all laws, including state fishing regulations. However, if the respondent had behaved in a professional manner when receiving the fishing citation, this matter never would have resulted in a formal disciplinary proceeding. Instead, the respondent acted in a completely inappropriate, belligerent, and coercive manner toward the DNR officers while they were engaged in law enforcement activities. He threw down his Supreme Court photo identification card in an obvious attempt to obtain special treatment based upon his status as a judicial officer. He loudly asserted that the charges “ain’t going nowhere.” He became enraged when Corporal Harvey directed him to remove his hands from his pockets. He angrily paced, waved his arms, screamed, and argued with Corporal Harvey about the citation. He suggested that he would contact the officers’ supervisors. All of this was in an effort to intimidate these officers into not doing their jobs. Finally, he lied to the JDC during his sworn statement when he denied acting in this disrespectful and coercive manner. Such behavior by a judicial official is wholly unacceptable, especially when it occurs in the context of a law enforcement matter. We conclude that the respondent’s actions were directly related to the administration of justice and demonstrated a selfish and callous disregard for our system of justice. See id. The respondent’s behavior when receiving the citation and lying to the JDC cast a pallor on the “honor, integrity, dignity, and efficiency of the judiciary and the justice system[.]” See id. Magistrates “may be ‘appropriately disciplined for using abusive, insulting, intemperate, obscene, profane, threatening, vulgar, or other offensive language.’

A mitigating factor was that he had only been a magistrate for a few months at the time. 

The JDC urges us to impose a fifteen-month suspension without pay, a censure instead of a reprimand,  plus the fine and costs recommended by the Board. However, this recommendation is based upon the JDC’s argument that the respondent repeatedly lied about multiple issues in this case. That argument is not entirely supported by the Board’s findings of fact or our independent review of the record. As set forth above, we concur with the Board’s finding that the respondent lied in his sworn statement when denying that he behaved in a disrespectful and coercive manner, but the remaining claims of providing false information were not supported by clear and convincing evidence. While we disapprove of the respondent’s actions, the sanction recommended by the JDC is too severe.

The sanction was a reprimand, a 90-day suspension without pay and a $2,000 fine. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/04/gone-fishing.html

Judicial Ethics and the Courts | Permalink

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