Hill, Matter of, 21500

• Decision Date: 16 December 1993
• Docket Number: No. 21500,21500
• Citation: 437 S.E.2d 738,190 W.Va. 165
• Court: West Virginia Supreme Court
• Parties: In the Matter of Honorable George W. HILL, Jr., Judge, Circuit Court of Wood County.

Page 738

437 S.E.2d 738

190 W.Va. 165

In the Matter of Honorable George W. HILL, Jr., Judge Circuit Court of Wood County.

No. 21500.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1993.

Decided Oct. 25, 1993.

Concurring Opinion by Justice Neely, Dec. 16, 1993.

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, , 339 S.E.2d 697 (1985)." Syllabus point 1, Matter of Crislip, 182 W.Va. 637, 391 S.E.2d 84 (1990).

2. " 'A specific section of a statute controls over a general section of the statute.' Syllabus Point 2, State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970)." Syllabus point 2, Matter of Vandelinde, 179 W.Va. 183, 366 S.E.2d 631 (1988).

3. Canon 5 A(1)(b) of the Code of Judicial Conduct, effective January 1, 1993, clearly states that a judge or a candidate for election or appointment to judicial office shall not "publicly endorse or publicly oppose another candidate for public office."

BROTHERTON, Justice:

This case is before this Court for review of the West Virginia Judicial Hearing Board's May 12, 1993, recommendation that charges against Judge George W. Hill, Jr., Fourth Judicial Circuit, Wood County, West Virginia, be dismissed. " ' "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 (W.Va.1980).' Syllabus, Matter of Gorby, 176 W.Va. 11, 339 S.E.2d 697 (1985)." Syllabus point 1, Matter of Crislip, 182 W.Va. 637, 391 S.E.2d 84 (1990).

On November 13, 1992, the Judicial Investigation Commission of West Virginia filed a complaint with the Judicial Hearing Board which alleged that Judge Hill had violated Canon 2 and Canon 7 B(1) and (2) of the Judicial Code of Ethics. Judge Hill admitted that the factual allegations contained in the complaint were true, but he denied violating any of the canons of the Judicial Code of Ethics.

During the 1992 election, Judge Hill ran as an unopposed candidate for Division 1, Circuit Judge, Fourth Judicial Circuit, Wood County, West Virginia. At the time, Judge Hill was a sitting circuit judge in the Fourth Judicial Circuit. In October, 1992, Judge Hill's reelection committee paid for a campaign advertisement which was run with Judge Hill's approval.

This advertisement is at the center of the controversy in this case because voters were urged to "Vote For The Best," the Democratic team of Judge Hill and Robert W. "Bob" Friend, who was a candidate for Circuit Judge, Division II. The advertisement first appeared in the October 14-20 edition of a local shopping magazine known as the "Bulletin Board." In the ad, Hill and Friend were described as "Mature--Qualified" and "Competent--Confident--Compatible," and voters were informed that, "This Team Will Work For You." A similar ad which appeared in the October 21, 1992, Wirt County Journal added that "Judge Hill Needs a FRIEND In The Courtroom."

On October 16, 1992, Wood County Chief Circuit Judge Arthur N. Gustke wrote a letter to the Judicial Investigation Commission in which he alleged that Judge Hill had engaged in improper political activity by endorsing a candidate for political office. Judge Gustke related how "[a]pproximately three and one-half years ago Judge George Hill came to my office and adamantly insisted that I join him in condemning former Judge Donald F. Black for his endorsement of a political candidate in an election. At the time of Judge Black's endorsement, he was not on the bench, having retired, was not actively serving as a judge, and was not a candidate for any office." Judge Gustke stated that "it appears to me that Judge Hill is violating the very rule which he so adamantly wanted to uphold when another judge was involved."

In his complaint, Judge Gustke referred to a September 30, 1991, letter from W. Jack Stevens, Chairman of the Judicial Investigation Commission, and said that "I have been very reliably informed that Judge Hill is fully aware of the contents of this letter." The letter was a response to an inquiry Judge Hill directed to the Judicial Investigation Commission, seeking an advisory opinion on the following questions:

1. May a judge who is a candidate for reelection publicly endorse another candidate for judicial office whose election to office the judge believes would promote the proper administration of justice?

and

2. May a judge (whether a candidate or not) publicly oppose the candidacy for judicial office of a lawyer whom the judge believes to be unsuitable for judicial office and whose election would, in the judge's opinion, be detrimental to the proper administration of justice?

Judge Hill was informed that "[i]n answer to both questions, the provisions set forth in 7B(1) and (2) would prohibit such activity."

In an October 13, 1992, memorandum, Judge Gustke warned judicial candidates against endorsing other candidates. Judge Gustke wrote that, "I am informed that it is the Judicial Investigation Commission's position that endorsing another candidate by word or actions is strictly prohibited."

On October 19, 1992, the Judicial Investigation Commission found probable cause to file a complaint against Judge Hill with the Judicial Hearing Board. Judge Hill was charged with violating Canon 2 and Canon 7 B(1) and (2) of the Judicial Code of Ethics.

The Judicial Investigation Commission now urges this Court to reject the Judicial Hearing Board's recommendation that charges against Judge Hill be dismissed. The Commission argues that the record in this case offers clear and convincing evidence that Judge Hill's actions violated Canon 2 and Canon 7 B(1) and (2) of the Judicial Code of Ethics.

The Judicial Code of Ethics has now been superseded by the Code of Judicial Conduct, which was adopted by order entered October 21, 1992, and became effective January 1, 1993. However, Canon 2 of the former Judicial Code of Ethics provided that:

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.

B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

Canon 7 B(1) and (2) of the old Judicial Code of Ethics stated:

A Judge Should Refrain from Political Activity Inappropriate to His Judicial Office

. . . . .

B. Campaign Conduct.

(1) A candidate, including an incumbent judge, for a judicial office that is to be filled by public election between competing candidates:

(a) should maintain the dignity appropriate to judicial office, and should encourage members of his family to adhere to the same standards of political conduct that apply to him;

(b) should prohibit public officials or employees subject to his direction or control from doing for him what he is prohibited from doing under this Canon; and except to the extent authorized under subsection B(2), he should not allow any other person to do for him what he is prohibited from doing under this Canon;

(c) should not...