Hey, Matter of

• Decision Date: 18 November 1994
• Docket Number: No. 21676,21676
• Court: West Virginia Supreme Court
• Parties: In the Matter of Honorable John HEY, Judge, Circuit Court of Kanawha County.

Page 24

452 S.E.2d 24

192 W.Va. 221

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

No. 21676.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1994.

Decided Nov. 18, 1994.

Syllabus by the Court

1. "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, 235, 314 S.E.2d 391, 399 (1983).

2. The State may accomplish its legitimate interests and restrain the public expression of its judges through narrowly tailored limitations where those interests outweigh the judges' free speech interests.

3. The State's interests in maintaining and enforcing the judicial canons against judges' speech are sufficiently served by their specific prohibitions so that the general prohibitions in Canons 1, 2, and 3 of the Judicial Code of Ethics (and now the Code of Judicial Conduct) may not be used to punish judges for their public remarks that do not concern a pending or impending matter and that do not violate either a specific prohibition or some other law.

4. A judge may not be disciplined consistent with the First Amendment to the United States Constitution or with Section 7 of Article III of the West Virginia Constitution for his remarks during a radio interview in which he discussed his own disciplinary proceeding, criticized a member of his investigative panel, and stated his intention to take some reactive and lawful measure against the panel member.

David R. Janes, Tharp, Liotta & Janes, Fairmont, Special Judicial Disciplinary Counsel.

John W. Swisher, Charleston, for Honorable John Hey, Judge, Circuit Court of Kanawha County.

CLECKLEY, Justice:

This judicial disciplinary proceeding arises from a determination of the Judicial Investigation Commission (Commission) that probable cause existed to file a complaint against the Honorable John Hey, Judge of the Circuit Court of Kanawha County, based upon purported violations of Canon 1, Canon 2A, and Canon 3A(6) of the West Virginia Judicial Code of Ethics. ¹ After hearing all the evidence presented, a Special Judicial Hearing Board (Special Board) convened for Judge Hey's case determined that the evidence was insufficient to support the Commission's complaint. The Special Board recommended the dismissal of the Commission's complaint against Judge Hey.

Before this Court, Judge Hey argues that the evidence against him was insufficient as a matter of law and that under the circumstances of this case any decision adverse to him would violate his rights under the First Amendment to the United States Constitution. After an independent evaluation of the record, we find that the evidence does not provide clear and convincing proof of violations of any of the designated Canons in the Code of Judicial Conduct or the Judicial Code of Ethics. Additionally, we find that a contrary result would constitute an infringement of Judge Hey's rights that are protected by the First Amendment to the United States Constitution and by Section 7 of Article III of the West Virginia Constitution. Therefore, we adopt the recommendation of the Special Board and order the complaint dismissed.

I.

On December 17, 1992, this Court adopted the recommendation of the Judicial Hearing Board (Hearing Board) in the case of Matter of Hey, 188 W.Va. 545, 425 S.E.2d 221 (1992). As a result, Judge Hey was publicly censured for discussing on a national television program, "Crossfire," the details of a case pending before a West Virginia Court. ² On the day following his censure, Judge Hey appeared on a talk show on a local radio station and discussed various issues, including his censure and the behavior of some members of the Hearing Board.

During the radio broadcast, Judge Hey mentioned that one of the members of the Hearing Board that recommended his censure was the wife of the president of the University of Charleston and that this particular Hearing Board member walked out while the Hearing Board reviewed the videotape of "Crossfire". Judge Hey remarked that she "[d]idn't even view 15 minutes of it so I'm not done with her yet. I want her to understand that. I hope she or one of her friends are listening."

Judge Hey was referring to Hearing Board member, Dr. Janet Welch. Although Dr. Welch did not actually hear the radio interview, friends and various other individuals fearing for Dr. Welch's welfare informed her of Judge Hey's statements and warned her to be careful. Because of the warnings, Dr. Welch filed a complaint against Judge Hey with the Commission on December 30, 1992.

In response to the complaint, Judge Hey asserted that his radio comments were not meant as a threat to Dr. Welch. Furthermore, Judge Hey argued that because the comments were not made in the course of his official duties, they gained First Amendment protection.

After investigating Dr. Welch's complaint, the Commission determined that there was probable cause to file a complaint with the Hearing Board. The Commission filed the complaint on April 13, 1993. In order to avoid a potential conflict of interest, the Special Board was convened to hear the complaint against Judge Hey. The Special Board held a full hearing on the case on March 29, 1994.

At the hearing, Judge Hey testified that his radio comments were intended to indicate that he would subpoena and depose Dr. Welch in a related civil proceeding pending against him. Judge Hey did not provide this explanation during the radio broadcast. Dr. Welch testified that she did not actually hear the radio program when Judge Hey made his comments, but instead became aware of the radio broadcast after a number of individuals questioned her about Judge Hey's comments at a Christmas party.

After hearing from Judge Hey, Dr. Welch, and various other witnesses, the Special Board concluded: "Although a circuit judge's conduct and speech is limited in many ways by the Code of Judicial Conduct, a circuit judge does not lose the full protection of the First Amendment Rights of the United States Constitution, especially when he is a party litigant." The Special Board voted 5-2 to dismiss the Canon 2 charges and voted 7-0 to dismiss the charges based on Canons 1 and 3. The Special Board recommended to this Court that the complaint against Judge Hey be dismissed.

II.

Allegations in judicial disciplinary proceedings must be proved by clear and convincing evidence. In Syllabus Point 4 of In Re Pauley, 173 W.Va. 228, 314 S.E.2d 391 (1983), we made the following statement regarding the burden of proof:

"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.' "

This Court must perform an independent evaluation of the Special Board's findings and recommendations in order to determine whether a particular allegation has been proven by clear and convincing evidence. See In the Matter of Kaufman, 187 W.Va. 166, 416 S.E.2d 480 (1992); Matter of Crislip, 182 W.Va. 637, 391 S.E.2d 84 (1990); In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984); In re Pauley, supra; West Virginia Judicial Inquiry Comm'n v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980). The term "independent evaluation" is synonymous with a de novo or plenary review of the record. This Court in Matter of Hey observed that "[i]mplicit in this requirement 'is the right to accept or reject the disciplinary sanction recommended by the Board.' " 188 W.Va. at 549, 425 S.E.2d at 225, quoting Matter of Crislip, 182 W.Va. at 638, 391 S.E.2d at 85.

The evidentiary support for the charges in this case stems from the stray ramblings of Judge Hey during a radio program interview. The evidence, although conflicting in part, can be summed up by the statement that no one offered any substantial or persuasive information from which it can be shown that Judge Hey's comments conveyed a physical or otherwise improper threat. As stated above, Dr. Welch testified that she did not hear the actual airing of the comments of Judge Hey. The only witness with firsthand knowledge who testified in support of the complaint was Karen Glazier. Essentially, Ms. Glazier felt that Judge Hey's comments were unprofessional, but she did not remember Judge Hey's comments as being of a threatening nature.

Some of the information sent to the Commission by Judge Hey included letters from Danny Jones, Don Cook, and Frank George Scherback, individuals who have performed radio interviews with Judge Hey. ³ All three agreed that Judge Hey is very outspoken and controversial; they denied, however, that he said anything inappropriate or "mean-spirited" about any individual or group of people. The letters of Don Cook and Danny Jones specifically deny that Judge Hey made any threatening comments directed to Dr. Welch.

III.

Although we believe the evidence is insufficient to support the charges of ethical violations, ⁴ we directly address whether the First Amendment rights of Judge Hey are implicated in these proceedings. In doing so, we are mindful of the wisdom expressed in Ashwander v. Tennessee, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688, 710-11 (1936) (Brandeis, J., concurring), which admonished that courts must not unnecessarily decide constitutional questions. If a case can be decided by the application of general law, a court should forego deciding it on constitutional grounds. Ordinarily, we would adhere to this precept. The constitutional question before us, however, is one of vital importance because of its potential chilling effect on judicial expression, and the question is likely to be the subject of numerous future appeals. ⁵ Additionally,...