Osburn, Matter of

• Decision Date: 09 May 1984
• Docket Number: No. 15-83,15-83
• Citation: 173 W.Va. 381,315 S.E.2d 640
• Parties: In The Matter of Magistrate Gary OSBURN.
• Court: West Virginia Supreme Court

Page 640

315 S.E.2d 640

173 W.Va. 381

In The Matter of Magistrate Gary OSBURN.

No. 15-83.

Supreme Court of Appeals of West Virginia.

May 9, 1984.

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, West Virginia Judicial Inquiry Commission v. Dostert, W.Va., 271 S.E.2d 427 (1980).

2. "Under Rule III(C)(2) (1983 Supp.) of the West Virginia Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates, the allegations of a complaint in a judicial disciplinary proceeding 'must be proved by clear and convincing evidence.' " Syllabus Point 4, In Re Pauley, 314 S.E.2d 391 (W.Va.1983).

Charles R. Garten, Charleston, for Judicial Investigation Comn.

George D. Beter, Huntington, for Magistrate Osburn.

PER CURIAM:

This is a judicial disciplinary proceeding in which the Judicial Hearing Board recommends that Wayne County Magistrate Gary Osburn be publicly reprimanded for failing to discharge his administrative responsibilities diligently and for failing to maintain professional competence in judicial administration. After examining the record before us, we concur in the Board's recommendation, and we, therefore, publicly reprimand Magistrate Osburn, and we caution him to discharge his responsibilities diligently in the future.

On June 28, 1983, a complaint was filed against Magistrate Osburn which charged him with violating Canon 3 A(1), Canon 3 A(4), Canon 3 B(1), and Canon 3 B(2) of the Judicial Code of Ethics. ^* The complaint specifically alleged that Magistrate Osburn, who was on duty in Wayne County, on September 17, 1982, was out of his office when a prisoner, Glen Rideout, was taken to the office. The magistrate was contacted by telephone and told that the prisoner was in the office. It was alleged that the magistrate directed his assistant to commit Mr. Rideout to jail by rubber-stamping a jail commitment form with his signature. It was also alleged that the magistrate's conduct was improper in that he failed to have the prisoner brought personally before him for a hearing, in that he failed to inform the prisoner in plain terms of the nature of the complaint against him and of his right to counsel, and in that he failed to inform the prisoner that he was not required to make a statement, and that any statement made by him could be used against him. The Complaint also averred that the Magistrate failed to provide Mr. Rideout with reasonable means to communicate with an attorney or at least one other person for the purpose of obtaining counsel or arranging bail.

On October 11, 1983, a hearing in the matter was held before the West Virginia Judicial Hearing Board. At the hearing the testimony of a number of witnesses was taken. Glen Rideout testified that he had been arrested on September 17, 1982, and that he had been taken to Magistrate Osburn's office. The magistrate was not there at the time, and according to Rideout the assistant showed him papers which he read and signed. He said that the assistant spoke to the Magistrate on the telephone, but he could not remember speaking to him. He could not remember anyone other than the arresting officers telling him what he was charged with. He also testified that he did not believe that he was informed that he had the right to have an attorney appointed to represent him. A bond, however, was set for him.

While being questioned, Mr. Rideout was shown a document which he had signed on September 17, 1982. In that document he had stated that he had been informed of the charges against him, that he understood that he did not have to make incriminating statements, that any such statements might be used against him, and that he also understood that he was entitled to the assistance of counsel. In the document Rideout also had indicated that he had wanted an attorney appointed for him. Rideout testified that he had read through the document and that he had signed it.

Geraldine Rideout, Glen Rideout's mother, contradicted the testimony of other witnesses at the hearing and testified that her son was taken to jail directly after his arrest and denied that he was even taken to the magistrate's office.

Patricia Napier, the magistrate's assistant who was in the magistrate's office at the time Rideout arrived, testified that she called the magistrate and that he asked to speak to Mr. Rideout. According to her, a telephone conversation ensued between the magistrate and Rideout. She indicated that she had given Mr. Rideout a "right's sheet" and that he had signed it. She verified Mr. Rideout's testimony that Magistrate Osburn did not appear in the office while Rideout was there. She also testified that she had affixed the magistrate's name to Rideout's commitment papers with a rubber stamp.

Magistrate Osburn testified that he was on duty on September 17, 1982, and that he was at home eating when Mr. Rideout was taken to his office. He said that he talked with the prisoner over the telephone and informed him of his rights. He stated that he remained on the telephone while his assistant advised Mr. Rideout of his rights. He admitted that he had a rubber stamp which had been used for official papers, but when he had instituted the use of it, he had not considered such use wrong or improper. He testified that since the Rideout incident he had been informed by a judge that its use was improper.

At the...