Saturday, November 20, 2021

Home Search Gets Judge Censured

A judicial discipline matter has led to a censure by the West Virginia Supreme Court of Appeals.

In this judicial disciplinary proceeding, a family court judge searched a selfrepresented party’s home for marital property. When the homeowner protested, the judge responded to the homeowner’s resistance by threatening to jail him for contempt. This interaction was recorded, and the recording soon appeared on the internet.

The judge was reported to the West Virginia Judicial Investigation Commission, and after investigation, the Judicial Investigation Commission charged the judge with violating the West Virginia Code of Judicial Conduct (“Code of Judicial Conduct”). The judge professed remorse and entered into a settlement agreement with Judicial Disciplinary Counsel. Under the agreement, the judge admitted to both the conduct in question and to the fact that it violated the Code of Judicial Conduct; both parties agreed to recommend that the judge be censured and fined $5,000. The Judicial Hearing Board, however, rejected the parties’ recommendation. The Hearing Board recommended that the judge be admonished and fined $1,000, and—believing that a judge’s “inherent authority” to conduct “judicial views” is “uncertain”—requested guidance from this Court.

Both Judicial Disciplinary Counsel and the judge object to the Judicial Hearing Board’s recommendation. Seizing on the Judicial Hearing Board’s uncertainty about “judicial views,” the judge now attempts to persuade us that her search of the residence was lawful—even as she professes to remain bound by the settlement agreement. After considering the record and the parties’ written1 and oral arguments, we reject the judge’s attempt to reframe her conduct. We find that she led a search of the homeowner’s residence, not a “judicial view,” and that, in so doing, she exercised executive powers forbidden to her under the West Virginia Constitution. We find, further, that the judge compounded her error by the manner in which she conducted the search. Accordingly, we disagree with the Judicial Hearing Board and publicly censure the judge for her serious misconduct. In addition, we order the judge to pay a total fine of $1,000.

The conduct took place in a contempt proceeding

The search that led to this disciplinary matter happened on March 4, 2020, in the context of a contempt hearing. One of the parties, an ex-wife, claimed that her former husband had damaged items of property and had refused to turn over other items of sentimental value that she was entitled to receive.

For this proceeding the ex-wife was represented by counsel. The ex-husband was not represented by counsel. During the ex-wife’s testimony, Judge Goldston asked the ex-husband for his address. Upon learning his address, Judge Goldston stopped the hearing, sua sponte, and ordered the parties to meet her in ten minutes at the ex-husband’s house. Judge Goldston admits that she failed to tell the ex-husband why the parties were going to his home and that she gave the ex-husband no opportunity to object.

At the ex-husband's home

Faced with these threats, the ex-husband relented, and Judge Goldston agrees that the ex-husband felt he had no choice to do otherwise. Judge Goldston brought with her into the house the bailiff, the ex-wife, and the ex-wife’s attorney and personally supervised the search for and recovery of items. Several items were located and recovered, including photographs, yearbooks, DVDs, recipes, and a chainsaw. While the home was being searched, a dispute emerged about an umbrella stand. After a brief colloquy with the ex-husband, the judge awarded the stand to the ex-wife, who removed it from the home with the other items.

Judge Goldston, herself, made no arrangement to record what went on inside the home (or outside the home). Indeed, when she found out afterward that her bailiff had made his own cell-phone recording of the search inside the home, she believed that making the recording was improper and told him not to do it again.

After the search, the parties reconvened in the courtroom. On the record, Judge Goldston listed the items that had been recovered and some items that remained to be exchanged. However, no written order was entered regarding either the search of the home or the items recovered.

It was a search, not a view

As we have stated herein, Judge Goldston’s conduct constituted a search, rather than a mere view, of the ex-husband’s home. The parties appeared in court for a hearing before Judge Goldston. Undoubtedly, the ex-husband could not have anticipated that the hearing would proceed to an unannounced invasion of the sanctity and privacy of his home. Regardless of whether the ex-husband had failed to provide belongings he was previously directed to provide, Judge Goldston failed to use the appropriate tools available to her under the law to address such failure because she felt such procedures were ineffective. Instead, she, along with her bailiff, the ex-wife, and the ex-wife’s attorney, proceeded to enter the ex-husband’s home, over his strenuous objections, directed that he stop recording the incident, and began searching for items on the list of items he was to produce. Such an invasion of the ex-husband’s home was an egregious abuse of process.

Moreover, Judge Goldston clearly left her role as an impartial judicial officer and participated in an executive function when she entered the ex-husband’s home to oversee the search.

Justice Wooton dissented and  would admonish

I reiterate the foregoing to explain my reluctance to assent to the majority’s full-throated condemnation of Judge Goldston’s actions on the whole. I do not disagree that her entry into Mr. Gibson’s home creates obvious Fourth Amendment issues which any judicial officer should have recognized, if not beforehand, at least when Mr. Gibson demanded a search warrant. Her response to Mr. Gibson’s Fourth Amendment objection— to repeatedly threaten to jail him unless he relented in the warrantless entry and search— plainly warrants discipline. And while her conduct demands reproach, one cannot turn a blind eye to what was clearly Judge Goldston’s good faith belief in her authority to undertake the “home visit” in the first instance.

In this regard, I believe the majority has unfortunately squandered an opportunity to clarify the precise legal errors committed under the contempt statute and provide much-needed guidance as to the authority of a family court judge to conduct proceedings outside of his or her courtroom. To hold merely that judges cannot perform “searches” is too blunt a tool to be useful...

Further, as to Judge Goldston’s position that the “home visit” was a mere continuation of the proceedings, her failure—and refusal to allow Mr. Gibson—to record the proceedings was fatal to her effort. There is nothing which prohibits Judge Goldston from conducting proceedings outside of her courtroom; however, those proceedings must still comply with the applicable procedural rules.

The dissent would defer to the Hearing Panel's proposed sanction. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/11/a-judicial-discipline-matter-has-led-to-a-censure-by-the-west-virginia-supreme-court-of-appeals-justice-x-would-admonish-i.html

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