Hey, Matter of, 22243

• Decision Date: 14 April 1995
• Docket Number: No. 22243,22243
• Citation: 193 W.Va. 572,457 S.E.2d 509
• Court: West Virginia Supreme Court
• Parties: In the Matter of John HEY, Judge, Circuit Court of Kanawha County.

Page 509

457 S.E.2d 509

193 W.Va. 572

In the Matter of John HEY, Judge, Circuit Court of Kanawha County.

No. 22243.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 1, 1995.

Decided April 14, 1995.

Syllabus by the Court

"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, 165 W. Va. 233, 271 S.E.2d 427 (1980).

Allan N. Karlin, Special Disciplinary Counsel, Charleston.

Thomas W. Smith, Charleston, for Judge John Hey.

PER CURIAM:

This matter is before the Court upon the recommendation of the Judicial Hearing Board that this Court accept and ratify a proposed settlement agreement entered into between the Judicial Investigation Commission and the respondent, John Hey, who previously was Judge of the Circuit Court of Kanawha County. The agreement, if adopted by the Court, will dispose of two judicial ethics charges filed against Judge Hey. The first charge asserts that Judge Hey violated the Canons of Judicial Ethics by sexually harassing female employees of the Kanawha County Circuit Court. The second charge states that Judge Hey inappropriately appeared on the bench in an intoxicated state. We have reviewed the recommendation of the Judicial Hearing Board, as well as the issues raised and the facts presented, and we have concluded that it is appropriate to accept the proposed settlement agreement.

I. Facts

This judicial ethics proceeding was formally instituted by the Judicial Investigation Commission when it filed a judicial ethics complaint with the Judicial Hearing Board on April 22, 1994. ¹ That complaint specifically alleged that:

Judge John Hey has engaged in sexual harassment of female court employees including but not limited to unwanted and unwelcome touching, unwanted and unwelcome kissing, making crude sexual comments, and asking for sexual favors.

The Commission has also received allegations that Judge Hey has appeared in Court smelling of alcohol and having the physical appearance of being intoxicated.

After the filing of the judicial ethics complaint, the Judicial Investigation Commission and Judge Hey, or his representative, filed a number of motions and engaged in discovery. He also entered into discussions about the possible settlement of the case. Eventually, they arrived at the proposed settlement agreement which is presently before the Court. In that proposed agreement it was stated that:

Judge Hey will accept responsibility for his actions including a statement, on the record, that:

(a) He does not deny that, on a number of occasions, he approached a court employee, spoke to her with lewd and vulgar language, touched and kissed her without her consent, and used language and behavior toward her which were offensive and sexual in nature;

(b) On a number of occasions he made comments to another court employee of an offensive nature which may be reasonably construed to be sexual harassment;

(c) On at least two occasions he was under the influence of alcohol while on the bench and, at that time, made offensive and inappropriate remarks to litigants and/or attorneys appearing before him.

Judge Hey also agreed to petition this Court to accept his resignation from the practice of law. He consented to being censured for violations of Canons 1, 2 and 3 of the Judicial Code of Ethics, and he agreed to pay a fine of Ten Thousand Dollars and to pay the costs of the disciplinary proceedings, including the cost of Special Counsel for the Judicial Investigation Commission, which may amount to almost Twenty Thousand Dollars. He explicitly waived any appeal with regard to the fine amount being in excess of the maximum amount allowable under the Rules of Judicial Disciplinary Procedure. He also undertook to apologize for any embarrassment and indignity which he may have caused to individuals, to the judiciary, or to the people of the State of West Virginia.

In a hearing conducted before the Judicial Hearing Board on November 17, 1994, the proposed settlement agreement was presented to the Judicial Hearing Board. Both the Judicial Investigation Commission and the attorney for Judge John Hey recommended that the Hearing Board accept the agreement, and also asked that the Judicial Hearing Board recommend that we accept and ratify the agreement.

In recommending that the Hearing Board accept the proposed agreement, Special Counsel for the Judicial Investigation Commission stated that the proposed agreement was arrived at by all the parties and acceptable to the victims of the activities charged. He specifically said:

Throughout my involvement in this case, I have made every effort to work closely and keep in touch with the individual victims who have made allegations about Judge Hey and in particular with those who had made allegations about Judge Hey's conduct within the last two years.

This agreement which you have before you is an agreement that was approved by all individuals who had allegations that were made to me about any misconduct by Judge Hey within the two-year statute of limitations.

He also stated:

Very early on, when I first became involved, because of concerns of two individuals [victims], I urged them to get their own counsel, which was subsequently--which they subsequently did and who, as I understand it, expenses were paid for by the judiciary in order to insure that they didn't have to incur any expense in this process.

I have been in touch with him throughout these proceedings and he has spoken regularly to me about their concerns and about what they felt needed to be done in order for justice to be done here. I want to emphasize that what--I want to emphasize one thing.

From very early on, their attorney made it clear to me that they did not want to come before this Board and testify unless we could not get a just resolution and I want to emphasize that. I was getting very strong feedback from two of the victims through their attorneys that they did not want to testify if I could arrange for what they considered to be and I considered to be--I should emphasize that they didn't want to take it over for me, but I could arrange for a resolution that I considered to be just and they approved.

Special Counsel for the Judicial Investigation Commission also stressed that all parties to the matter concurred in the agreement and felt that it was an adequate and fair resolution of the proceedings. He said:

There were other individuals involved, two other individuals involved in the various allegations about harassment and alcohol because there are two allegations here within the two-year period. I also spoke to them throughout my work on the case, both in terms of developing it and in terms of providing them with an opportunity for feedback on whether they had any objections to this particular agreement and they all concur in this agreement, that it is an adequate and fair resolution of these proceedings.

During the November 17, 1994, hearing before the Judicial Hearing Board, Judge Hey also made a statement. In the statement he acknowledged that he had engaged in inappropriate conduct while on the bench, and he publicly stated that he was afflicted with alcoholism. He added:

I wish to publicly apologize for any embarrassment my conduct has caused the woman I am charged with causing emotional upset. I also wish to apologize to my former colleagues on the bench for any embarrassment I may have caused the judiciary because I sincerely love the West Virginia judiciary.

I especially wish to apologize to my wife and my family and to the exceptionally fine people of Kanawha County who elected me to this position three different times. They did me the honor of electing me as a circuit judge three different occasions. For that, I will always be grateful.

At the conclusion of the hearing the Judicial Hearing Board accepted the proposed settlement agreement and submitted it to us with the recommendation that we accept it and conclude the judicial ethics proceedings against Judge Hey.

II. Disability

It appears that prior to the filing of the Judicial Investigation Commission's complaint, Judge Hey, or his representative, entered into discussions with the Governor, or his representative, about the possibility of receiving disability retirement benefits under the legislation governing the Judicial Retirement System. On April 22, 1994, the same day the formal complaint was filed by the Judicial Investigation Commission, the Governor granted Judge Hey disability retirement pursuant to the provisions of W.Va.Code, 51-9-8 [1987], which provides, in part:

(a) Whenever a judge of a court of record of this state, who is not disqualified from participation herein as provided by section five [§ 51-9-5] of this article, who shall have served for ten full years ... as a judge of a court of record, shall become physically or mentally incapacitated to perform the duties of his or her office as judge during the remainder of his or her term and shall make a written application to the governor for his or her retirement, setting forth the nature and extent of his or her disability and tendering his or her resignation as such judge upon condition that upon its acceptance he or she shall be retired with pay under the provisions of this article, the governor shall make such investigation as the governor shall deem advisable and, if the governor shall determine that such disability exists and that the public service is suffering and will continue to suffer by reason of such disability, the governor shall thereupon accept the resignation and, by written order filed in the office of the secretary of state, direct the retirement of the judge for the unexpired portion of the term for which such judge was elected or appointed.... The retired judge shall thereupon be paid annual retirement pay during the remainder of...