Pauley, In re

• Decision Date: 15 December 1983
• Docket Number: No. 23-79,23-79
• Citation: 314 S.E.2d 391,173 W.Va. 228
• Court: West Virginia Supreme Court
• Parties: In re Herbert L. PAULEY.

Page 391

314 S.E.2d 391

173 W.Va. 228

In re Herbert L. PAULEY.

No. 23-79.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1983.

Dissenting Opinion March 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 [Hearing] Board in disciplinary proceedings." Syl. pt. 1, West Virginia Judicial Inquiry Commission v. Dostert, 271 S.E.2d 427 (W.Va.1980).

2. A bailiff is an officer of the court to which he or she is assigned, subject to its control and supervision, and responsible for preserving order and decorum, taking charge of the jury, guarding prisoners, and other services which are reasonably necessary for the court's proper functioning.

3. The bailiff's crucial role in maintaining order in the courtroom requires his or her undivided loyalty and allegiance to the judge whom he or she serves.

4. 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."

Arthur T. Ciccarello, Lewis, Ciccarello, Masinter & Friedberg, Charleston, for respondent.

McGRAW, Chief Justice:

This judicial disciplinary proceeding arises out of what can best be described as a political imbroglio between Magistrate Herbert L. Pauley and the Kanawha County Sheriff's Department. The record reveals that Magistrate Pauley's troubles first began in 1976, when he was assaulted by a Kanawha County deputy sheriff in the Kanawha County Jail while three other deputy sheriffs passively looked on. As a result of this incident, Pauley filed suit in federal district court against Sheriff G. Kemp Melton and his four deputies, seeking $500,000 in damages.

The relationship between Magistrate Pauley and the Sheriff's Department deteriorated further over the next three years. Pauley and Magistrate Phyllis Gatson of Kanawha County submitted twenty names representing persons who appeared to have been beaten by police to the Federal Bureau of Investigation. Pauley complained that nothing was being done to curb the use of excessive force by police in Kanawha County. Finally, Pauley hinted in 1979 that he might run for Sheriff of Kanawha County in the upcoming election.

Magistrate Pauley's various objections to the conduct of the Sheriff's Department engendered a great deal of animosity which manifested itself in different forms. Pauley complained to an examiner for the Judicial Inquiry Commission that officers resisted implementation of an administrative order by this Court that magistrates, and not police officers, set the amount of fines in traffic cases. In addition, Magistrate Pauley asserted that officers frequently avoided appearing before him by releasing arrested persons outright or by contacting the sheriff's communications center to ascertain which magistrate was on duty. When officers learned that he was on duty, Pauley contended that they would take their prisoners before another magistrate at one of the satellite offices to avoid appearing before him. Finally, Pauley related various attempts at intimidation by several deputy sheriffs, including one incident in which an off-duty deputy sheriff threatened Pauley on a street outside the magistrate court, stating, "I'll beat your God Damn Ass" and "remember, I never lose."

On August 13, 1979, the antipathy between Magistrate Pauley and Sheriff Melton culminated in a complaint being filed with the West Virginia Judicial Inquiry Commission, now the Judicial Investigation Commission, by the sheriff, alleging violations of the Judicial Code of Ethics by Magistrate Pauley arising out of an incident involving one of Melton's deputies, Raymond E. Crabtree. The Judicial Inquiry Commission investigated the charges set forth in the sheriff's complaint, and determined that a reasonable basis existed for the filing of a complaint with the West Virginia Judicial Review Board, now the Judicial Hearing Board, under the West Virginia Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates (1982 & Supp.1983). This complaint charged Pauley with violations of Canons 2(A), ¹ 3(A)(2), ² and 3(A)(3) ³ of the West Virginia Judicial Code of Ethics. The specific behavior complained of, as set forth in the complaint, was as follows:

1. On July 10, 1979, Magistrate Pauley, in open court and in the presence of others, talked to Deputy Sheriff R.E. Crabtree in an abusive and humiliating manner.

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2. On July 10, 1979, Magistrate Pauley used profanity in making campaign promises when talking about the Sheriff's Department in a degrading manner.

On May 19, 1983, a hearing in this matter was held before the West Virginia Judicial Hearing Board. At this hearing, testimony was taken from Deputy Sheriff Crabtree, Norma Bennett, Jack Dolin, Yvonne Dolin, Nadine Withrow, and Magistrate Pauley. Upon consideration of this testimony, the Board's findings of fact were as follows:

1. Herbert L. Pauley is a duly elected Magistrate of Kanawha County, West Virginia, and was serving as such Magistrate on July 10, 1979, and on such date was conducting night court at the Kanawha County Courthouse.

2. On such date, Raymond E. Crabtree, a Kanawha County Deputy Sheriff, was serving as bailiff to Magistrate Pauley.

3. During the night court session a bondsperson, Yvonne Dolin, appeared to post a bond for a defendant, James Trent, who was incarcerated in the Kanawha County Jail. At such time, among others in the courtroom, were Norma Bennett, Yvonne Dolin, Jack Dolin, Deputy Sheriff Crabtree and Nadine Withrow, Secretary to Magistrate Pauley.

4. Magistrate Pauley prepared a release for James Trent and gave it to the bailiff and directed him to go to the Jail and obtain the release of said James Trent and to bring him before the Magistrate.

5. The bailiff was informed by jail personnel that authorities in Raleigh County had placed a "hold" on the said James Trent to answer charges pending in Raleigh County.

6. When the bailiff returned to the courtroom and reported this situation to Magistrate Pauley, the Magistrate, in open court, in the presence and hearing of the persons indicated above, spoke to the bailiff in a loud, abusive and insulting manner, and used profanity in open court in the hearing of the other participants in the proceedings and those assembled in the courtroom.

7. The statements made by Magistrate Pauley attacked the competency of the bailiff and he said on more than one occasion, words to the effect that "When I am elected Sheriff, this shit will stop."

Based upon these findings of fact, the Board held that, "By the use of loud, abusive and insulting language, employing the use of profanity toward one of his court officials, Magistrate Pauley has failed to conform his conduct to Judicial Code of Ethics Canon 3A(2) which requires the judge to maintain order and decorum in proceedings before him." Additionally, the Board held that, "By the use of the same language and demeanor, the Magistrate has failed to conform his conduct to Judicial Code of Ethics Canon 3A(3) which requires the judge to be patient, dignified and courteous to other individuals with whom he deals in his official capacity." The Board recommended that Pauley "be publicly censured, not for his dissatisfaction with the performance of the bailiff, but instead with the manner in which he chose to express that dissatisfaction."

In Syllabus Point 1 of West Virginia Judicial Inquiry Commission v. Dostert, 271 S.E.2d 427 (W.Va.1980), we defined our role in judicial disciplinary proceedings as follows: "The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial [Hearing] Board in disciplinary proceedings." We therefore review the Board's findings of fact, as well as its conclusions of law based upon those findings.

The testimony given before the Board was evenly divided at best and ambiguous at worst. There are a number of important contractions in the testimony of those present at the time the incident at issue took place. Some of this conflict is undoubtedly attributable to the four year lapse between the date of the incident and the date of the hearing before the Judicial Hearing Board. All of the witnesses, except Magistrate Pauley, made reference to the length of time which had elapsed in encountering difficulty in recalling specific details.

Three aspects of the misconduct, upon which the testimony was particularly conflicting, go to the heart of the charges against Pauley. First, the witnesses were equally divided on whether Pauley actually used the word characterized as profane. Three witnesses, Deputy Sheriff Crabtree, Norma Bennett, and Jack Dolin, each testified that Magistrate Pauley used the word. On the other hand, Yvonne Dolin, Nadine Withrow, and Magistrate Pauley testified that it was not used. Second, the three witnesses who did testify that the word was used did not agree on how many times it was used. Crabtree testified that he "believe[d]" Pauley used the word more than once, although he could not remember approximately how many times it was used. Norma Bennett, who accompanied Yvonne Dolin, and her husband, Jack Dolin, to magistrate court that night, testified that Magistrate Pauley made the statement "[a]t least eight or ten times," although she specifically stated that Pauley was not addressing this remark to Crabtree. Jack Dolin, on the other hand, testified only that he heard Pauley use the expression "more than once." Additionally, in its answers to interrogatories propounded by Magistrate Pauley, the Judicial Inquiry Commission alleged that Pauley made the statement "25 times." Finally, each witness also had a different perspective on the severity of Pauley's treatment of his bailiff. Deputy Sheriff Crabtree testified that...