Markle, In re, 17-83

• Citation: 328 S.E.2d 157,174 W.Va. 550
• Decision Date: 21 December 1984
• Docket Number: No. 17-83,17-83
• Court: Supreme Court of West Virginia
• Parties: In re Danny MARKLE. Complaint

Page 157

328 S.E.2d 157

174 W.Va. 550

In re Danny MARKLE.

Complaint No. 17-83.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1984.

Rehearing Denied Jan. 10, 1985.

Syllabus by the Court

1. " 'The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial Review Board [now Judicial Hearing Board] in disciplinary proceedings.' Syllabus Point 1, W.Va. Judicial Inquiry Commission v. Dostert, W.Va., 271 S.E.2d 427 (1980)." Syllabus Point 1, In Re: K. Pauley, W.Va., 318 S.E.2d 418 (1984).

2. "Criminal punishment of chronic alcoholics for public intoxication violates our State constitutional prohibition against cruel and unusual punishment. W.Va. Const. art. III, § 5." Syllabus Point 1, State ex rel. Harper v. Zegeer, W.Va., 296 S.E.2d 873 (1982).

3. State ex rel. Harper v. Zegeer, W.Va., 296 S.E.2d 873 (1982), mandates that a person arrested for public intoxication who is so inebriated that he is unable to care for himself should not be incarcerated, but should be released to a member of his family or some other responsible adult or taken to a county or regional mental health facility.

4. "The deliberate failure to follow mandatory criminal procedures constitutes a violation of the Judicial Code of Ethics." Syllabus Point 2, In Re K. Pauley, W.Va., 318 S.E.2d 418 (1984).

5. " 'Proceedings of the West Virginia Judicial Review Board are governed by the West Virginia Rules of Civil Procedure; consequently, the Board must permit appropriate discovery of Judicial Inquiry Commission members upon proper motion made by a party subject to investigation by the Judicial Review Board.' Syl. Pt. 2, State ex rel. McGraw v. West Virginia Judicial Review Board, W.Va., 264 S.E.2d 168 (1980)." Syllabus Point 1, State ex rel. McGraw v. West Virginia Judicial Review Board, W.Va., 271 S.E.2d 344 (1980).

6. Rule 26(b)(3) of the West Virginia Rules of Civil Procedure is identical to the federal rule, which was adopted in 1970 as a part of a larger reorganization of the discovery section of the Federal Rules of Civil Procedure. The purpose of Rule 26(b)(3) is to narrow the ability to obtain trial preparation material by expanding the coverage of the work product rule to include persons other than an attorney.

7. Rule 26(b)(3) of the West Virginia Rules of Civil Procedure makes a distinction between factual and opinion work product with regard to the level of necessity that has to be shown to obtain their discovery.

8. The limitation in Rule 26(b)(3) of the West Virginia Rules of Civil Procedure is against obtaining documents and other tangible things used in trial preparation. There is no prohibition against using other discovery methods to identify witnesses and depose them.

Talbot & Alsop, Jack Alsop, Webster Springs, for appellant.

Charles R. Garten, Charleston, for appellee.

MILLER, Justice:

This is a judicial disciplinary proceeding arising from a charge that Magistrate Danny Markle failed to follow the procedures set out in State ex rel. Harper v. Zegeer, W.Va., 296 S.E.2d 873 (1982), in incarcerating a semiconscious inebriate, who subsequently committed suicide in the jail. The Judicial Hearing Board (hereinafter referred to as Board), after hearing testimony from several witnesses, recommended dismissal of this charge. We disagree.

Two issues are presented for our consideration. First, did Magistrate Markle violate the Judicial Code of Ethics by placing a semiconscious, highly intoxicated person in the county jail without contacting his family or friends, or seeking alternative placement in a hospital or mental health facility as required by Harper? The Board concluded that he did not because it was not shown that Mr. Palmer was a chronic alcoholic. The second issue centers on whether the work product doctrine bars discovery of investigative reports prepared by the Judicial Investigation Commission (hereinafter Commission) where discovery is sought in a disciplinary proceeding by the judge who is being investigated.

On February 14, 1983, Roger Palmer was arrested for public intoxication by Trooper D.R. Butler of the West Virginia Department of Public Safety. At the time of his arrest, Mr. Palmer was lying semiconscious beside a road in Webster County, soaking wet, with an empty whiskey bottle by his side.

After the arrest, Mr. Palmer was taken to the office of Magistrate Markle, but because of the arrestee's size and condition, Trooper Butler was unable to get him out of the car and into the office. At the request of Trooper Butler, Magistrate Markle went to the State Police cruiser to view the arrestee. Mr. Palmer was too intoxicated to respond to any questions. The magistrate ordered Mr. Palmer held in the Webster County Jail.

The trooper and assistant jailer were unable to carry Mr. Palmer up the stairs to the second floor of the Webster County Jail, so, after a conversation with the sheriff, they placed Mr. Palmer in a locked cell in a "juvenile section" of the jail. When the sheriff of Webster County learned that Mr. Palmer was being incarcerated, he contacted Magistrate Markle to express his belief that Mr. Palmer was an alcoholic.

Roger Palmer had two brothers residing in Webster County, both of whom were known to Magistrate Markle, but he did not attempt to contact either of them or any other member of Mr. Palmer's family or to secure an alternative disposition by way of temporary commitment under the applicable mental health statutes. Magistrate Markle did not talk to Mr. Palmer after he was incarcerated, although he did contact the jail at least twice to inquire about Mr. Palmer's condition.

We note initially that we have an independent obligation to review the record and recommendations of the Board, as stated in Syllabus Point 1 of In Re K. Pauley, W.Va., 318 S.E.2d 418 (1984):

" 'The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial Review Board [now Judicial Hearing Board] in disciplinary proceedings.' Syllabus Point 1, W.Va. Judicial Inquiry Commission v. Dostert, W.Va., 271 S.E.2d 427 (1980)."

In State ex rel. Harper v. Zegeer, W.Va., 296 S.E.2d 873 (1982), we discussed at some length our law surrounding the handling and incarceration of chronic alcoholics for the crime of public intoxication and stated in Syllabus Point 1:

"Criminal punishment of chronic alcoholics for public intoxication violates our State constitutional prohibition against cruel and unusual punishment. W.Va. Const. art. III, § 5."

Aside from decriminalizing the crime of public intoxication for chronic alcoholics, we established guidelines for magistrates to follow in dealing with inebriated persons who have been arrested for public intoxication. We stated that when such an individual is brought before a magistrate on a charge of public intoxication:

"[T]he judicial officer may release the charged individual on his own recognizance or other bond upon a determination that the accused possesses the necessary rational capability to conduct his own affairs. W.Va.Code § 62-1C-1 (1977 Replacement Vol.) Alternatively, the judicial officer may release the individual into the custody of a responsible person who agrees to be responsible for the accused's actions. However, if it is determined that the accused is an 'inebriate', defined by statute as 'anyone over the age of eighteen years who is incapable or unfit to properly conduct himself or herself, or his or her affairs, or is dangerous to himself or herself or others, by reason of ... drunkenness ...,' W.Va.Code § 27-1-4 (1980 Replacement Vol.), an alternative disposition must be made under the applicable mental health statutes." W.Va., 296 S.E.2d at 884. (Emphasis added).

In speaking of an inebriate, we pointed out that "the judicial officer may order that the defendant be remanded to the custody of the nearest county or regional mental health facility," citing W.Va.Code, 27-5-2. W.Va., 296 S.E.2d at 884. We also stated that such commitment "may extend for no more than 24 hours without a judicial determination of the need for further detention. W.Va.Code §§ 27-1-4; 27-5-2, 27-1A-11." W.Va., 296 S.E.2d at 885. Finally, after referring to W.Va.Code, 16-1-10(19), relating to the treatment of alcoholics by the Mental Health Division of the Department of Health, we said that: "The Legislature has clearly demonstrated by enactment of the mental health laws that it does not contemplate that inebriated persons, as defined by law, should be detained in jails or lockups." W.Va., 296 S.E.2d at 885. ¹

From the foregoing, it is clear that Harper mandates that a person arrested for public intoxication who is so inebriated that he is unable to care for himself should not be incarcerated, but should be released to a member of his family or some other responsible adult or taken to a county or regional mental health facility. ² From the facts of this case, it is clear that Mr. Palmer was so inebriated that he was virtually unconscious. Rather than heeding the strictures of Harper and contacting members of Mr. Palmer's family or having him sent to a mental health facility, the magistrate sent him to jail. We believe this was a clear violation of Canon 3(A)(1) which requires, in part, that: "A judge should be faithful to the law and maintain professional competence in it."

We discussed this provision in In Re K. Pauley, where a magistrate had failed to follow certain mandatory criminal procedures in the commitment of a defendant to jail. Relying in part on a number of cases from other jurisdictions, ³ we held in Syllabus Point 2:

"The deliberate failure to follow mandatory criminal procedures constitutes a violation of the Judicial Code of Ethics."

Here, as in In Re K. Pauley, the magistrate was aware of the mandates of our law and decided not to follow them. We, therefore, reverse the decision of the Board and conclude that a violation of the Judicial Code of...