In re McCormick
| Decision Date | 15 July 1999 |
| Docket Number | No. 23971.,23971. |
| Citation | 206 W.Va. 69,521 S.E.2d 792 |
| Parties | In the Matter of Helen McCORMICK, Magistrate for Lincoln County. |
| Court | West Virginia Supreme Court |
Charles R. Garten, Esq., Charleston, West Virginia, Attorney for Judicial Investigation Commission.
C. Joseph Stevens, Esq., Stevens & Stevens, Hamlin, West Virginia, Attorney for Magistrate McCormick.
This judicial disciplinary proceeding was initiated against Magistrate Helen McCormick (hereinafter "Magistrate McCormick") of Lincoln County by the Judicial Hearing Board (hereinafter "Hearing Board") after the Judicial Investigation Commission (hereinafter "Commission") filed a consolidated complaint, including complaint numbers 223-96, 231-96 and 232-96, against her on February 10, 1997. In its complaint, the Commission charged Magistrate McCormick with violating Canons 1,1 2A,2 3A,3 3B(2)4 and (8)5 of the Code of Judicial Conduct. The Commission alleged that Magistrate McCormick violated the "on call" schedule of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia (hereinafter "Rule 1") on three separate occasions.
The Hearing Board held a hearing on June 13, 1997, with regard to these allegations. On October 5, 1998, the Hearing Board filed with this Court its "Recommended Findings of Fact, Conclusions of Law and Proposed Disposition" in which it recommends that the entire complaint against Magistrate McCormick be dismissed. The Hearing Board specifically found in its conclusions of law that Magistrate McCormick did not violate Rule 1 in any of the three incidents.6
The Commission's complaint consolidates three separate incidents which occurred in 1996. All three of these incidents occurred during non-regular hours when Magistrate McCormick was on-call pursuant to Rule 1.7
The first incident, complaint number 223-96, involved an alleged violation of a domestic violence protective order. On November 7, 1996, Magistrate McCormick issued a temporary domestic violence protective order against Mr. A.8 Three days later, on Sunday, November 10, 1996, Mr. A. allegedly violated that order by coming to the family home where Mrs. A. was living. Mr. A. came to the residence twice that day. The first time, Mrs. A. notified the West Virginia State Police after Mr. A. had already left the residence. Trooper Chapman of the West Virginia State Police issued a BOLO ("Be On the Lookout") for Mr. A. The second time, Mrs. A. called Lincoln County 911 and Trooper Chapman responded. By the time Trooper Chapman arrived at the residence, Mr. A. had again left. Mrs. A. advised Trooper Chapman that Mr. A. had taken the license plate and the insurance from her car so she could not drive the vehicle. Trooper Chapman located Mr. A. later that same evening and arrested him, without a warrant, for violating the protective order.
Trooper Chapman testified before the Hearing Board that after arresting Mr. A., he spoke with Magistrate McCormick on the phone at her home from the State Police detachment. Trooper Chapman testified that Magistrate McCormick advised him that he had to release Mr. A. because there was not sufficient evidence to support a finding that Mr. A. had physically abused Mrs. A. and, pursuant to her advice, he released him. Magistrate McCormick's recollection of this event differs significantly from that of Trooper Chapman. Magistrate McCormick testified that she contacted Trooper Chapman at the State Police detachment after Lincoln County 911 advised her of the situation. Magistrate McCormick testified that she advised Trooper Chapman to read the West Virginia Code and check the guidelines for arresting a person for violating a protective order. She further testified that she advised Trooper Chapman if there was enough evidence he could file a criminal complaint against Mr. A., or Mrs. A. could do so. She testified that she advised Trooper Chapman to contact her if he felt he had enough information for the complaint, but testified that he did not contact her again. The Hearing Board considered and cited both Trooper Chapman's and Magistrate McCormick's testimony regarding the incident in its findings of fact, but found in its conclusions of law that, taking the evidence as a whole, and in consideration of both Magistrate McCormick's and Trooper Chapman's testimony, Trooper Chapman could have arrested Mr. A. and then Magistrate McCormick would have been required to follow the call-in procedure under Rule 1.
The second incident, complaint number 231-96, involves a domestic altercation between Shelby M. and her estranged husband, William M., and William's mother, Cheryl M. On Saturday, January 20, 1996, Shelby and her new boyfriend broke into the trailer where William and Cheryl resided, allegedly to retrieve some of her personal belongings. Shelby had moved out of the trailer four days earlier and had returned her keys to the trailer to William. Sergeant Parsons of the West Virginia State Police responded to this complaint at approximately 7:30 a.m. At that time, the dispatcher advised him that there had been another altercation between these same individuals. Earlier that morning, Cheryl and William had gone to the J. residence, where Shelby was now residing, allegedly to retrieve some of William's personal belongings and to obtain custody of Shelby's and William's son. An argument then ensued between these two families and one of the members of the J. family, the brother of Shelby's alleged boyfriend, broke Cheryl's windshield with a piece of ice.
Sergeant Parsons testified before the Hearing Board that he advised William and Cheryl they needed to obtain a domestic violence protective order from the magistrate to prevent Shelby and her boyfriend from coming back to their residence. He testified that he explained to them that William would have to file for divorce in order to resolve the custody and property issues. Sergeant Parsons testified that he then went to the J. residence and took a similar complaint. He also advised the J. family and Shelby that they would need to contact the magistrate for a protective order.
Magistrate McCormick testified that she spoke with Cheryl M. on January 20, 1996. She testified that Cheryl only stated that William wanted to obtain custody of his son and William wanted his personal property back from Shelby and that no acts of domestic violence were alleged by Cheryl. Magistrate McCormick testified that she advised Cheryl these allegations would not support an issuance of a protective order and these issues would have to be resolved in a divorce proceeding. She further testified that Cheryl advised her that they would not be coming to the courthouse until the following Monday.
Cheryl M. testified before the Hearing Board that she and William wanted a protective order to keep Shelby away from their residence. She testified that during her telephone conversation with Magistrate McCormick, she was advised that if they did come in on that Saturday, the order would probably not be served by the police until Monday. Interestingly, the record indicates that on Monday, January 22, 1996, after William and his mother came to magistrate court, Magistrate McCormick issued William M. a temporary protective order against Shelby M. Magistrate McCormick testified that she did so at that time because William changed his story and alleged that Shelby hit him during the altercation on January 20, 1996. The Hearing Board credited Magistrate McCormick's testimony and found in its conclusions of law that Cheryl M. only advised Magistrate McCormick that her son wanted custody of his child and wanted to obtain possession of his personal items, and that such "requests would not initiate a Domestic Violence Petition and, thus, Magistrate McCormick advised [Cheryl M.] to advise her son to pursue other remedies through the Courts."
The third incident, complaint number 232-96, involves the arrest of William A. on Saturday, January 20, 1996, for the battery of his mother. Sergeant Parsons and Trooper Chapman responded to a call at approximately 11:00 a.m. from Lincoln County 911 that there was a domestic altercation in progress at the A. residence. They responded, finding that William had been beating his mother and his mother wanted him prosecuted. William was arrested for battery. Sergeant Parsons testified before the Hearing Board that he then transported William to the Lincoln County Courthouse, under the belief that Magistrate McCormick would be in the office for a protective order hearing for Cheryl and William M. Sergeant Parson testified that he contacted Magistrate McCormick at home and she informed him that she was not coming to the courthouse and advised him to take William to the South Central Regional Jail,9 which he did. Sergeant Parsons testified that William was not transported to the Lincoln County Courthouse for his initial appearance until the following day, January 21, 1996, after 2:00 p.m. He further testified that State Police records indicated that officers were available on the evening of January 20, 1996, to transport William.
Magistrate McCormick testified before the Hearing Board that she came to the court-house for William's initial appearance as soon as she was able to obtain an officer to transport William to and from the South Central Regional Jail. The Lincoln County 911 records indicate that Magistrate McCormick contacted 911 to determine if an officer was available to transport the prisoner at approximately 9:00 p.m. on January 20, 1996, and 11:31 a.m., 1:15 p.m. and 3:39 p.m. on January 21, 1996. The Hearing Board credited Magistrate McCormick's testimony and found that she could not locate a state police officer to transport the prisoner to the magistrate court for his initial appearance. The Hearing...
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Rogers v. Albert
...added). As we recently admonished, "magistrates must follow the `on call' schedule in Rule 1 scrupulously." In re McCormick, 206 W.Va. 69, 78, 521 S.E.2d 792, 801 (1999). Plaintiff Rogers argues that Rule 1(b)(1) is constitutionally deficient, in that it implicitly sanctions "gaps" in magis......