In re Toler

• Decision Date: 02 December 2005
• Docket Number: No. 31797.,31797.
• Citation: 625 S.E.2d 731
• Court: West Virginia Supreme Court
• Parties: In the Matter of William Tom TOLER, Magistrate for Wayne County, West Virginia.

625 S.E.2d 731

In the Matter of William Tom TOLER, Magistrate for Wayne County, West Virginia.

No. 31797.

Supreme Court of Appeals of West Virginia.

Submitted November 15, 2005.

Decided December 2, 2005.

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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.' Syllabus Point 1, West Virginia Judicial Inquiry Commission v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980)." Syllabus Point 1, In re Browning, 192 W.Va. 231, 452 S.E.2d 34 (1994).

2. "The purpose of judicial disciplinary proceedings is the preservation and enhancement of public confidence in the honor, integrity, dignity, and efficiency of the members of the judiciary and the system of justice." Syllabus, In the Matter of Gorby, 176 W.Va. 16, 339 S.E.2d 702 (1985).

3. "Under the authority of article VIII, sections 3 and 8 of the West Virginia Constitution and Rule [4.12] of the [West Virginia Rules of Judicial Disciplinary Procedure], the Supreme Court of Appeals of West Virginia may suspend a judge, who has been indicted for or convicted of serious crimes, without pay, pending the final disposition of the criminal charges against the particular judge or until the underlying disciplinary proceeding before the Judicial Investigation Commission has been completed." Syllabus, In the Matter of Grubb, 187 W.Va. 228, 417 S.E.2d 919 (1992).

4. "`Pursuant to article VIII, section 8 of the West Virginia Constitution, this Court has the inherent and express authority to "prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics, and a code of regulations and standards of conduct and performances for justices, judges and magistrates, along with sanctions and penalties for any violation thereof[.]'" Syllabus Point 5, Committee On Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994)." Syllabus Point 4, Matter of Troisi, 202 W.Va. 390, 504 S.E.2d 625 (1998).

5. Pursuant to Article VIII, Sections 3 and 8 of the West Virginia Constitution and Rule 4.12 of the Rules of Judicial Disciplinary Procedure, it is clearly within this Court's power and discretion to impose multiple sanctions against any justice, judge or magistrate for separate and distinct violations of the Code of Judicial Conduct and to order that such sanctions be imposed consecutively.

Charles R. Garten, Judicial Disciplinary Counsel, Judicial Investigation Commission, Charleston, for Complainant.

Donald R. Jarrell, Wayne, for Respondent.

MAYNARD, Justice:

This judicial disciplinary proceeding arises from a complaint filed with the Judicial Investigation Commission (hereinafter, "the Commission") alleging that Wayne County Magistrate William Tom Toler violated several Canons of the West Virginia Code of Judicial Conduct. Throughout the period of this disciplinary proceeding, Mr. Toler was suspended without pay as a result of allegations that he engaged in sexual misconduct while performing his duties as a Magistrate of Wayne County. The Commission found probable cause that Mr. Toler violated Canon 1(A), Canon 2(A), Canon 2(B), Canon 3(A), and Canon 3(B)(2) of the Code of Judicial Conduct. The matter was then forwarded to the Judicial Hearing Board (hereinafter, "the Board"). The Board concluded that Mr. Toler violated Canon 1(A) and Canon 2(A) and recommended: (1) censuring Mr. Toler; (2) suspending him for one year without pay; (3) fining him $5,000.00; (4) requiring that Mr. Toler pay the costs of the proceedings before the Judicial Hearing Board; and (5) providing that the sanctions be imposed separately for each of the four violations committed by Mr. Toler. Having reviewed the recommendation, all matters of record, and the briefs and arguments of counsel, we find that Mr. Toler violated the Code of Judicial Conduct. Thus, for the reasons set forth below, the sanctions recommended by the Board are hereby adopted and imposed by this Court.

I. FACTS

On July 8, 2004, the Acting Administrator of this Court filed a complaint against William Tom Toler, Magistrate of Wayne County, with the Judicial Investigation Commission alleging among other things that Mr. Toler had been charged with the commission of serious criminal offenses which would also constitute a violation of the Code of Judicial Conduct. Attached to the complaint was a letter from the Chief Judge of the Twenty-fourth Judicial Circuit stating that on July 7, 2004, a Wayne County grand jury indicted Mr. Toler on eight felony counts of sexual abuse, a count of demanding a bribe, and a misdemeanor count of indecent exposure.

On July 7, 2004, pursuant to Rule 2.14(d)(1)¹ of the Rules of Judicial Disciplinary Procedure, the Chief Justice of this Court ordered the suspension of Mr. Toler without pay while the criminal matter against him was pending. On July 16, 2004, a separate order was entered by this Court stating that there was probable cause to believe that Mr. Toler engaged in, or was engaging in, a serious violation of the Code of Judicial Conduct. That order also provided that Mr. Toler was suspended without pay and prohibited from hearing any further civil or criminal cases or performing any other judicial functions pending the resolution of the matter. Following those orders, we remanded the complaint back to the Judicial Investigation Commission for the filing of formal charges, and held that such charges would be held in abeyance pending the outcome of the criminal charges against Mr. Toler.

On August 5, 2004, the initial formal charges against Mr. Toler were filed with the Judicial Hearing Board alleging violations of Canon 1(A), Canon 2(A), Canon 2(B), Canon 3(A), and Canon 3(B)(2) of the Code of Judicial Conduct. On July 14, 2005, the formal charges were amended to include two additional counts against Mr. Toler which had been filed in a superceding criminal indictment in the Circuit Court of Wayne County.

During the general election on November 4, 2004, while criminal charges were pending against him, Mr. Toler was re-elected to his post as magistrate. On February 24, 2005, Mr. Toler was acquitted by a jury of the criminal charges against him in the Circuit Court of Wayne County. Thereafter, on March 4, 2005, Mr. Toler filed a motion with this Court seeking reinstatement as magistrate with back pay. On June 1, 2005, this Court again held Mr. Toler's motion for reinstatement in abeyance pending the full development of the record through the judicial investigation process. See In re Toler, 216 W.Va. 743, 613 S.E.2d 604 (2005).

On July 13, 2005, and July 14, 2005, the complaint against Mr. Toler was heard before the West Virginia Judicial Hearing Board. The Commission called four witnesses during its presentation of the case who claimed they were victims of Mr. Toler's inappropriate behavior. All four witnesses testified that prior to the criminal trial wherein Mr. Toler was accused of sexual assault and other charges, that none of the four individuals knew each other and none had discussed any of the allegations between and/or among themselves.

The first witness, a corrections officer in Wayne County, stated that on one occasion while she and Mr. Toler were alone in the magistrate's office, that Mr. Toler began walking toward her and stood very close to her face, followed by him putting his hand and his finger on her breasts. He then asked her if he could "go downtown on her." Mr. Toler further asked if she had anybody who could do that to her. She understood Mr. Toler's suggestion as a solicitation for oral sex.

The Commission's second witness testified that on the evening of March 2, 2001, that her husband beat her up and she left her house and went to her sister's residence to stay for the night. The witness explained that she and her husband were going through a divorce at the time. She said the next morning she went to see Mr. Toler in hopes of filing a domestic violence petition against her husband. While she was being assisted by a magistrate assistant in filling out the domestic violence petition, Mr. Toler entered the office with her husband. He then awarded the marital home to her husband and gave her four hours to remove her belongings from the house. Minutes later, she and Mr. Toler were alone in his office. Mr. Toler told her that he could help her if she would help him. He added that he would help her get a lawyer and would see to it that her husband paid dearly. According to this witness, he then grabbed her blouse and pulled it up along with her bra exposing her breasts and put his hands on her breasts. Mr. Toler then removed one hand from her breast and grabbed her between the legs and told her he wanted to f* *k her. This behavior continued until she was able to leave his office.

A third witness described one occasion when she and Mr. Toler were alone in his office because she was inquiring about a case she had filed against another individual in magistrate court during a previous month. Mr. Toler said he did not know anything about the case, but stated that he could cure her problems. When she said she did not understand what he meant, he explained that men only want one thing and began walking toward her. She said he grabbed her breasts with both hands and she angrily told him to get his hands off her. Mr. Toler then laughed and sat down on the corner of his desk. After Mr. Toler attempted this same behavior a second time she immediately left his office.

The fourth witness testified that she went to Mr. Toler to complete a domestic violence petition following a fight with her boyfriend which required her to seek medical attention. While she and Mr. Toler were alone in his office, he asked her if she liked sex and if she was any good at performing oral sex. She completed the necessary paperwork for the domestic violence petition and proceeded to the elevator. Mr. Toler entered the elevator with her and...