Crislip, Matter of

• Decision Date: 09 March 1990
• Docket Number: No. 19028,19028
• Citation: 182 W.Va. 637,391 S.E.2d 84
• Court: West Virginia Supreme Court
• Parties: In the Matter of Ronald L. CRISLIP, Magistrate.

Page 84

391 S.E.2d 84

182 W.Va. 637

In the Matter of Ronald L. CRISLIP, Magistrate.

No. 19028.

Supreme Court of Appeals of West Virginia.

March 9, 1990.

Syllabus by the Court

1. " 'The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial [Hearing] Board in disciplinary proceedings.' Syl. pt. 1, West Virginia Judicial Inquiry Commission v. Dostert , 271 S.E.2d 427 (W.Va.1980)." Syllabus, Matter of Gorby, 176 W.Va. 11, 339 S.E.2d 697 (1985).

2. "The purpose of judicial disciplinary proceedings is the preservation and enhancement of public confidence in the honor, integrity, dignity, and efficiency of the members of the judiciary and the system of justice." Syllabus, Matter of Gorby, --- W.Va. ----, 339 S.E.2d 702 (1985).

3. "Under Rule III(C)(2) (1983 Supp.) of the West Virginia Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates, the allegations of a complaint in a judicial disciplinary proceeding 'must be proved by clear and convincing evidence.' " Syllabus Point 4, In re Pauley, 173 W.Va. 228, 314 S.E.2d 391 (1983).

4. An ex parte dismissal by a magistrate of a criminal or civil case, without authorization by statute or rule or without other good cause shown, is a violation of Canon 3 of the Judicial Code of Ethics.

5. A magistrate's violation of court rules or related administrative procedures can result in disciplinary action.

Michael J. Aloi, Fairmont, for Magistrate Ronald L. Crislip.

Charles R. Garten, Charleston, for Judicial Hearing Bd.

MILLER, Justice:

This is a review of a judicial disciplinary proceeding initiated against Magistrate Ronald L. Crislip. The Judicial Hearing Board (Board) found Magistrate Crislip had violated Canon 3 of the Judicial Code of Ethics, requiring a judge to perform the duties of his office impartially and diligently. The Board recommended a public reprimand. On review, the Judicial Investigation Commission (Commission) requests that we impose a more severe sanction.

Our traditional role in judicial disciplinary matters is to make an independent evaluation of the record and to consider whether the sanction recommended by the Board is appropriate. See West Virginia Rules of Procedure for the Handling of Complaints Against Justices, Judges, Magistrates, and Family Law Masters, Rule III(C)(13); Rule III(D). This principle has been encapsulated in the Syllabus of Matter of Gorby, 176 W.Va. 11, 339 S.E.2d 697 (1985):

" 'The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial [Hearing] Board in disciplinary proceedings.' Syl. pt. 1, West Virginia Judicial Inquiry Commission v. Dostert , 271 S.E.2d 427 (W.Va.1980)."

See Syllabus Point 1, In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984); Syllabus Point 1, In re Pauley, 173 W.Va. 475, 318 S.E.2d 418 (1984).

Included within this independent evaluation is the right to accept or reject the disciplinary sanction recommended by the Board. For example, in In re Markle, supra, the Board had recommended that the charge be dismissed. We disagreed and set a three-month suspension without pay. Likewise, in Matter of Gorby, supra, 176 W.Va. at 11, 16, 339 S.E.2d at 697, 702, the Board recommended dismissal of the charge, but we disagreed and gave a six-month suspension without pay. This suspension was later reduced to five months without pay in Matter of Gorby, 176 W.Va. 16, 339 S.E.2d 702 (1985), where we stated in the Syllabus:

"The purpose of judicial disciplinary proceedings is the preservation and enhancement of public confidence in the honor, integrity, dignity, and efficiency of the members of the judiciary and the system of justice."

The present charges against Magistrate Crislip occurred when the Honorable Fred L. Fox, Chief Judge of the Sixteenth Judicial Circuit, wrote the Commission concerning his conduct. ¹ The Commission conducted an investigation and ultimately filed charges against the magistrate. The complaint alleged that Magistrate Crislip had violated Canons 3A(1), 3A(4), and 3A(5) OF THE JUDICIAL CODE² of Ethics by ignoring certain statutory requirements and administrative rules of the magistrate court in his handling of several cases.

At the disciplinary hearing conducted before the Board on February 9, 1989, the Marion County magistrate court clerk testified about the general procedures for filing and handling magistrate court cases. The initial step in instituting a civil action is the filing of a complaint by the complaining party with the magistrate assistant. The magistrate assistant receives the complaint, collects the filing fee, assigns the complaint a case number, and forwards the entire file to the magistrate court clerk. The magistrate court clerk's office then issues a summons.

If the complaining witness wants to file criminal charges, he must appear before a magistrate. If the magistrate finds probable cause, he issues a warrant or summons and sends the file to the magistrate court clerk's office. The clerk then forwards the warrant or summons to the sheriff for execution. If one magistrate refuses to issue criminal process, other magistrates are ordinarily precluded from doing so on the same complaint. In felony cases, once a preliminary hearing is conducted and the accused is bound over to the circuit court, the magistrate court loses jurisdiction of the case.

Both civil and criminal cases are assigned by the clerk to a magistrate in rotation. A magistrate may not act in a case assigned to another magistrate without obtaining the latter's permission. Under the Marion County magistrate court administrative procedures, if the complaining party wishes to withdraw the complaint in a criminal case, he must sign a withdrawal form, and the dismissal must be approved by the prosecuting attorney's office. The record reveals that Magistrate Crislip was aware of these procedures and understood them.

The charges against Magistrate Crislip arose from his handling of seven different cases. In Riefer v. Riefer, ³ a criminal trespass warrant was issued by Magistrate M.L. Twyman in May 1987, and the case was assigned to Magistrate J.P. Feltz. The parties, husband and wife, subsequently reconciled and, because they knew Magistrate Crislip personally, they asked him to have the complaint dismissed. Rather than refer them to Magistrate Feltz, Magistrate Crislip asked the sheriff's office to return the warrant without executing it. Magistrate Crislip then placed the warrant in the court file without making any disposition of the case. Magistrate Crislip did not have the complainant sign the withdrawal of prosecution form, nor did the prosecuting attorney consent to dismiss the case.

In Richardson v. Jones, the complainant was seeking a criminal warrant for destruction of property arising out of an automobile accident. Both Magistrate Crislip and Magistrate C.F. Jones found no probable cause and advised the complainant that a civil action was more appropriate. Dissatisfied, the complainant expressed to Magistrate Crislip his anger at not being able to obtain a criminal warrant. Magistrate Crislip subsequently issued the warrant Magistrate Jones had previously refused to issue.

In West v. Tilko, a civil case which had been assigned to Magistrate Feltz, the defendant's attorney filed a motion to dismiss on April 18, 1988. A hearing on the merits of this motion was scheduled for April 27, 1988, before Magistrate Feltz. Although it was not his case, Magistrate Crislip dismissed the action the same day the motion to dismiss was filed.

In Minico v. Zuspan, Magistrate Crislip issued warrants for attempted assault and threatening to commit a crime by telephone. Magistrate Crislip subsequently permitted the complaining witness to withdraw the complaint without getting the necessary approval from the prosecutor's office.

State v. Jones involved an aggravated robbery case assigned to Magistrate Twyman. Because the defendant could not make bond, he was incarcerated. On February 10, 1988, after conducting a preliminary hearing, Magistrate Twyman found probable cause and bound the defendant over to circuit court. Approximately six days later, the defendant's mother contacted Magistrate Crislip after normal working hours and told him that she was now able to make her son's bond. Magistrate Crislip accepted the bond money and ordered the defendant released without filing the appropriate papers in the circuit clerk's office.

In Gardi v. Custer, the defendant had received a traffic ticket in April 1987 for parking in a fire lane. A warrant for arrest was issued in June 1987 by Magistrate Twyman. The defendant approached Magistrate Crislip and asked him to have the case dismissed. Although the case was assigned to Magistrate Jones, Magistrate Crislip spoke to the complaining officer about withdrawing the charge and kept the warrant in his desk. Eventually, Magistrate Crislip ordered the case dismissed.

Finally, Magistrate Crislip was charged with failing to assess the minimum penalties for the offenses of littering and carrying a loaded gun in a motor vehicle. Under W.Va.Code, 20-7-26(c) (1988), littering carries a minimum fine of $50. Under W.Va.Code, 20-2-5(10) (1989), and 20-7-9 (1984), carrying a loaded gun involves a minimum fine of $20. Magistrate Crislip admits that he imposed a fine of $40 on a defendant charged with these offenses in the case of Betonte v. Edwards.

The Board concluded that Magistrate Crislip had violated Canon 3A in (1) allowing his decision in the Richardson case to be swayed by public clamor and fear of criticism; (2) failing to exercise professional competence by dismissing, without authority, a case assigned to another magistrate in the West case; (3) knowingly violating the Marion County magistrate court administrative rules by withdrawing the criminal complaint in the Minico case without the approval of the prosecuting...