Roush v. Hey

• Decision Date: 03 July 1996
• Docket Number: No. 22958,22958
• Citation: 475 S.E.2d 299,197 W.Va. 207
• Court: West Virginia Supreme Court
• Parties: , 65 USLW 2124, 24 Media L. Rep. 2441 Judith ROUSH, Appellant, v. John HEY, Pat Buchanan and Turner Broadcasting System, Inc., a corporation, and Cable News Network, Inc., a corporation, Appellees.

Page 299

475 S.E.2d 299

197 W.Va. 207, 65 USLW 2124, 24 Media

L. Rep. 2441

Judith ROUSH, Appellant, v. John HEY, Pat Buchanan and Turner Broadcasting System, Inc. a corporation, and Cable News Network, Inc., a corporation, Appellees.

No. 22958.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1996.

Decided July 3, 1996.

[197 W.Va. 208] Syllabus by the Court

1. "Where the subject matter and the person are within the jurisdiction of the court, the judge, whether of a superior or inferior court, is not subject to a civil action for any matter done by him in the exercise of his judicial functions." Syllabus Point 1, Fausler v. Parsons, 6 W.Va. 486 (1873).

2. "When acting in his judicial capacity a judge is immune from civil liability for any and all official acts." Pritchard v. Crouser, 175 W.Va. 310, 313, 332 S.E.2d 611, 614 (1985).

3. "A judge acting in his judicial capacity who provides the public with information contained in the public record, whether through the press or otherwise, or distributes copies of pleadings or other official court documents which are a part of the public record does not thereby give up the protection of judicial immunity." Syllabus Point 2, Carey v. Dostert, 185 W.Va. 247, 406 S.E.2d 678 (1991).

4. To determine when absolute judicial immunity protects a judge from civil liability, we apply a two-part test: absolute judicial immunity applies (1) to all judicial act; unless (2) those acts fall clearly outside the judge's subject matter jurisdiction.

5. There is a two-factor test for determining whether a judge's act is a "judicial" one. The first factor is whether the act was a function normally performed by a judge. This turns on the nature of the act itself and not on the identity of the actor. The second factor is whether the parties dealt with the judge in his judicial capacity; this factor looks to the expectation of the parties.

6. The appearance by a judge on a nationally televised program, dedicated to contentious discussion of politically and socially sensitive issues, in order to vindicate a position expressed in a decision in a pending case relating to the custody of a child, is not a function normally performed by a judge.

7. Because nothing regarding a judge's conduct while a guest on a nationally televised program, dedicated to contentious discussion of politically and socially sensitive issues, could have been remotely expected by the parties, the parties did not deal with the judge in his judicial capacity, vis-a-vis the judge's defense of an order, while appearing on a television program.

8. When it is beyond reasonable dispute that a judge has acted out of personal motivation and has used his judicial office as an offensive weapon to vindicate personal objectives, and it further appears certain that no party has invoked the judicial machinery for any purpose at all, then the judge's actions do not amount to "judicial acts." These nonjudicial acts are not cloaked with judicial immunity.

Timothy N. Barber, Charleston, for Appellant.

Thomas R. Goodwin, Richard D. Owen, Alexander Marcia, Goodwin & Goodwin, Charleston, for Appellee Hey. RECHT, Justice:

This case requires us to decide whether a circuit court judge has absolute immunity for remarks made on a national television program relating to the facts and personalities of a case in which the judge was involved. The Circuit Court of Kanawha County granted summary judgment in favor of the circuit court judge, holding that the judge was absolutely immune from any claims for damages for remarks which formed the defamation and false light claims filed against the judge.

We conclude that the judge's remarks made while appearing on a national television program were not "judicial acts" for which he should be absolutely immune and, therefore, reverse the decision of the trial court and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Judith Roush, the plaintiff below, was divorced in 1988. In the final order granting the divorce, Ms. Roush was awarded custody of the two children born of her marriage to Rodney Roush. The older of the two children reached the age of maturity and was not subject to further custody proceedings. The younger child, a daughter named Melissa, became the center of a custody contest between Ms. Roush and her former husband. The events surrounding the custody contest were the genesis of the present case.

Ms. Roush's former husband attempted to regain custody of the younger child by filing a petition to change custody. Mr. Roush alleged that he should regain custody because Ms. Roush was cohabiting with a man who was not her husband. The change of custody petition was assigned to the defendant John Hey, who was, during the relevant portions of these proceedings, a judge of the Thirteenth Judicial Circuit. ¹

During the course of a hearing relating to the former husband's petition for change of custody, Judge Hey, upon learning that Ms. Roush's living arrangements included Ms. Roush, her daughter, and a man to whom she was not married, entered an order on August 23, 1989, which set forth a series of alternatives: (1) either Ms. Roush marry the person with whom she had been living, or failing that; (2) move from the house where she had been cohabiting with the person not her husband; or failing either of these alternatives (3) lose custody of her daughter. ²

Following the entry of the order requiring Ms. Roush to make this choice, she filed a petition for a writ of prohibition in this Court to prohibit enforcement of the order, with a rule to show cause granted and returnable on November 7, 1989. As part of the relief sought in the writ of prohibition, Ms. Roush requested that in the event that a writ was granted and the matter remanded to the Circuit Court of Kanawha County, that Judge Hey be removed from any further consideration of the matter and a new circuit judge appointed.

The matter relating to Judge Hey's rather unusual order was argued before this Court on November 7, 1989, and the case was submitted for decision at the conclusion of that argument with no decision published until July 26, 1990. ³

On November 8, 1989, the day following the oral argument before this Court, Judge Hey appeared on a national network television program known as "Crossfire" to discuss specific facts and issues concerning the custody case generally and the order relating to cohabitation and loss of custody specifically. ⁴

II.

"CROSSFIRE" APPEARANCE

"Crossfire" is a nationwide television program dedicated to spirited discourse of politically and socially sensitive issues approached from opposite ends of the political spectrum. "Crossfire," at relevant times, was hosted by Pat Buchanan, who would express a position from the "right," and other individuals taking positions from the "left." The format usually includes two guests debating both sides of an issue relating to the topic of discussion on a particular program. See Braden v. News World Communications, 18 Media L.Rep. 2209, No. CA-10689'89, 1991 WL 161497 (D.C.Super.Ct. Mar. 1, 1991). ⁵

While we know very little about the events leading up to Judge Hey's appearance on this television program, we do know from the complaint that he did appear, and during an on-air discussion, the following colloquy occurred:

By Mr. Buchanan:

[I]f a divorcee moves in with her boyfriend is that legitimate grounds to take her 14 year old daughter? Well it is in West Virginia. Divorced from Rodney Roush, Judith Roush and her daughter moved in with her boyfriend; her ex-husband sued charging Judith with an unfit mother; Judge Hey agreed and gave Judith an ultimatum--either marry your boyfriend or get out of his house or give up your daughter. Does shacking up make one an unfit parent or should West Virginia law, which says "yes," be thrown out as a relic of a darker age?

West Virginia law, it may be an old law, but it holds that cohabitation is lewd and lascivious conduct, it deals with ... and a woman engaged in that is considered to be not of high moral character, in other words, it is legitimate consideration to the judge to make when this woman has a 13 or 14 year old daughter. So, it seems to me that he has ruled exactly as the law says he should rule.

By Judge Hey:

Which goes to prove one thing, Ms. Alred, you can't believe everything you read in the newspapers. I would not punish a child. I would not cut off child support for a child. What I did was cut off alimony. We are not a common law state ...

She's talking about love and affection as if this were a stable family unit; this is not perhaps the first boyfriend, now, I won't get into the merits of this particular case, but I will give you hypothets. She's painted it as if it were a loving family unit; normally the boyfriend with whom they're ... to use your word Mr. Buchanan, not mine, "shacked up" with today, in front of the children--teenage, impressionable children, is not necessarily going to be the boyfriend with whom she is living next week or even tomorrow.

She said this after ... she lived with the mother, then she lived with the father, and the mother was going to lose, obviously, some child support. Now, there are two children involved, so, if the child is living with the father, the mother's child support is going to be reduced. So the mother obviously convinced the girl to come back with her.

My primary concern, now I want to make this clear, is for the welfare of that child and I don't think it is in the welfare, the best interest of a child 13 years old to see her mother sleeping with a man that is not her father, and next week there may be a different man in the house, and the third week there may be a third one.

I'm not into sexy kink Ms. Alred. I don't care what two consenting adults do in the privacy of their own quarters, but it genuinely concerns me when they do it in the presence of children--that concerns me.

By Mr. Buchanan:

Judge, would it be fair...