In re Ferguson

• Decision Date: 22 April 2020
• Docket Number: No. 19-0032,19-0032
• Citation: 841 S.E.2d 887,242 W.Va. 691
• Court: West Virginia Supreme Court
• Parties: In the MATTER OF: the Honorable David E. FERGUSON, Magistrate of Wayne County

242 W.Va. 691

841 S.E.2d 887

In the MATTER OF: the Honorable David E. FERGUSON, Magistrate of Wayne County

No. 19-0032

Supreme Court of Appeals of West Virginia.

Submitted: January 14, 2020

Filed: April 22, 2020

Teresa A. Tarr, Esq., Brian J. Lanham, Esq., Judicial Disciplinary Counsel, Charleston, West Virginia, Attorneys for West Virginia Judicial Investigation Commission.

R. Lee Booten II, Esq., Huntington, West Virginia, Attorney for Respondent Ferguson.

HUTCHISON, Justice:

This matter arises from a judicial disciplinary Statement of Charges issued against the respondent, David E. Ferguson, Magistrate of Wayne County (hereinafter "the respondent"). The issues in the case surround the respondent's violation of a state fishing law and, far more importantly, the belligerent and coercive behavior that he exhibited when Department of Natural Resources ("DNR") officers issued him a citation. After holding an evidentiary hearing, the West Virginia Judicial Hearing Board (hereinafter "the Board") concluded that the respondent violated several provisions of the West Virginia Code of Judicial Conduct and recommended that he be suspended for thirty days without pay, be issued a reprimand, pay a total fine of $2,000, and pay the costs of this disciplinary proceeding. Although he denied several of the charges when appearing before the Board, the respondent now indicates his willingness to accept the Board's findings and the recommended punishment. The Office of Judicial Disciplinary Counsel ("JDC") objects to some of the Board's findings and the recommended sanction.

After considering the record and the parties’ written and oral arguments, we adopt the Board's conclusions of law regarding the respondent's rule violations with one modification. Specifically, we conclude that the respondent committed an additional violation of Rule 1.1 of the Code of Judicial Conduct. Furthermore, because of the respondent's flagrant attempt to intimidate law enforcement officers, we find that a harsher sanction than that recommended by the Board is warranted. Therefore, we suspend the respondent for ninety days without pay, reprimand him, order him to pay a total fine of $2,000, and order him to pay the costs of this disciplinary proceeding.

I. Facts and Procedural Background

The respondent became a magistrate in Wayne County on or about November 1, 2016, and continues to hold that position. In April 2018, a DNR official filed a judicial ethics complaint against the respondent describing events that occurred when two DNR officers issued the respondent a citation. After an investigation, the Judicial Investigation Commission issued a Formal Statement of Charges alleging that the respondent violated multiple provisions of the Code of Judicial Conduct. The Board held an evidentiary hearing to address the Statement of Charges on June 24 and 25, 2019. The following evidence was presented at the hearing.

On February 21, 2017, the respondent went fishing with his father¹ at the East Lynn Lake spillway. Many people were fishing at the spillway because the DNR had stocked it with trout earlier that day. Also present were two undercover DNR officers, Corporal Larry Harvey and Officer Jacob Miller, who were watching for any violation of state fishing laws. At the time, the respondent did not know these DNR officers, and the officers did not know him.

Corporal Harvey testified that he was standing on the bank at a vantage point where he could observe the respondent, the respondent's father, and a third man² fishing for trout and conversing with one another. Pursuant to state regulation, the daily creel limit was six trout per person. See W.Va. C.S.R. § 58-60-5.2 (2017). Corporal Harvey explained that although the respondent had already caught six trout, the respondent then caught two additional fish and gave one to his father and one to the third man. Officer Miller testified that after being alerted to the situation by Corporal Harvey, he also witnessed the respondent catch extra fish. Corporal Harvey testified that as the men were packing up to leave, he saw that the respondent had six fish for himself that he carried on a stick, the respondent's father had six fish on a stringer, and the third man had six fish on a stringer. The officers determined that the respondent's actions were contrary to state regulation, so Corporal Harvey instructed Officer Miller to intercede and write a citation.

While Corporal Harvey remained on the bank of the spillway, Officer Miller followed the respondent up a hill to a parking lot. When they reached the respondent's vehicle, Officer Miller identified himself as a DNR officer and displayed his DNR badge and identification card, saying this is "just to show you, I'm not lying about who I am." The officer requested the respondent's photo identification, fishing license, and trout stamp. Officer Miller testified that the respondent dropped the tailgate of his truck, threw a card down on the tailgate in an "arrogant manner," and said "well, I'm not lying about who I am, either." The officer testified that the card the respondent threw down was a West Virginia Supreme Court photo identification card. According to Officer Miller, the impression that the respondent gave during this exchange was that he "was telling me he was somebody, some type of ... whether it be attorney, judge, magistrate, [I] didn't know at the time. That he's somebody above the law. That it wouldn't apply to him. That I – I couldn't enforce the law." Upon the officer's second request, the respondent produced his driver's license, fishing license, and trout stamp.

The respondent's father and, at some point in time, the third man walked from the spillway up to the parking lot.³ A few minutes later, Corporal Harvey joined them and sent Officer Miller to issue citations to other people who were fishing illegally. Corporal Harvey testified that he instructed the respondent, the respondent's father, and the third man to stay where they were while he went to a nearby picnic table to gather his paperwork. Before he left, Corporal Harvey saw that there were three creels each holding six fish in the back of the respondent's truck. However, the corporal recalls that when he returned from the picnic table, the third man had left and there were only two creels with five fish each in the truck. Corporal Harvey asked "what happened to your friend," and the respondent answered "what friend." When Corporal Harvey explained that he was asking about the man that they had been fishing with, the respondent said "I don't know what you're talking about."

Corporal Harvey testified that "things [were] starting to get a little bit out of hand." The corporal described how, while pointing to the fish in the truck bed, the respondent raised his voice and demanded that the corporal "prove that ... I've exceeded the limit of trout. I want you to look in the back of this truck right here. There's two stringers there, and there's five fish on each stringer. Now you tell me – prove to me, how that [sic] I've exceeded the limit." According to the corporal, the respondent twice said, "you go ahead and do what you're gonna do. This ain't going nowhere." Meanwhile, the respondent's father was also becoming agitated.

Corporal Harvey recounted how he returned to the picnic table to write the citations and to put some distance between himself and the agitated men. The respondent put his hands in his pockets and started walking toward the corporal. During his testimony, the corporal explained that being approached by someone who has his hands in his pockets is a "huge officer safety issue" inasmuch as there could be a weapon in the person's pocket. Corporal Harvey testified that he directed the respondent to remove his hands from his pockets, saying something to the effect of, "I don't want to get shot today." According to the corporal, this "enraged" the respondent. While pacing back and forth the respondent angrily said to his father, "so now I'm gonna shoot ... I guess I'm gonna shoot him." The respondent's father then demanded that they be allowed to leave. In his testimony, the corporal described how the men's bad behavior continued to escalate:

[They were] pacing back and forth, side to side, screaming at the top of the lungs. If they really wanted me to understand a point they had to say, they'd take a couple steps toward me, and they'd put their head over their chest right here, and then scream it real loud, like this (demonstrating) .... [T]he Respondent's father, if I'm remembering, is the one that really talked to me about the law, and the [sic] he – he said that, you know, "I know the law. You can't be arrested. This is not a jailable offense. You can't be arrested for this." And that goes on a minute. And the Respondent would – would come back and – and he would justify it. He would say again what the father said. "Yeah, you can't arrest us for this. This is not – this is not a jailable offense." And like I said, most of the whole time, is screaming, it's throwing their hands up in the air like this, and just unbelievable to me, to be truthful with you.

The corporal explained that the men finally calmed down and he was able to issue each of them a citation for violating the state fishing law. Corporal Harvey testified that as he handed the citation to the respondent, the respondent named two of the corporal's supervisors at the DNR and indicated that he would be contacting them.

Corporal Harvey testified that while it usually takes him just five minutes to write and issue a citation, this encounter with the respondent and his father lasted between thirty and forty-five minutes because of the men's behavior. He summed up the encounter by noting that "[i]n my 19 years of experience, I have wrote [sic] many fish citations, exceeding the limit citations. I've never had anything close to this happen, not – I mean, this was terrible over a fishing violation." During the exchange, the...