Vandelinde, Matter of, 17748

• Decision Date: 11 February 1988
• Docket Number: No. 17748,17748
• Citation: 366 S.E.2d 631,179 W.Va. 183
• Parties: In the Matter of Dennie VANDELINDE.
• Court: West Virginia Supreme Court

Page 631

366 S.E.2d 631

179 W.Va. 183

In the Matter of Dennie VANDELINDE.

No. 17748.

Supreme Court of Appeals of West Virginia.

Feb. 11, 1988.

Syllabus by the Court

1. Conduct by a judge which violates federal or state criminal law may, unless the violation is trivial, constitute a violation of the requirement that a judge must comply with the law found in Canon 2A of the Judicial Code of Ethics.

2. "A specific section of a statute controls over a general section of the statute." Syllabus Point 2, State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970).

3. In the absence of any specific language in W.Va. Code, 3-8-9, authorizing expenditures to a person, committee, or organization engaged in advocating the election of a candidate, the payment of funds to such person, committee, or organization is controlled by W.Va.Code, 3-8-12(f), and is subject to a maximum limit of one thousand dollars.

4. W.Va.Code, 3-8-12(f), which places a one thousand dollar limit on contributions to a committee or organization supporting a candidate, does not violate the First Amendment rights of free speech and association.

5. Where a statute is clear and unambiguous, the oral advice of a public official cannot contravene the plain meaning of such statute.

Boyce Griffith, Hamlin, for Dennie M. Vandelinde.

Charles R. Garten, Charleston, for the Judicial Investigation Com. of West Virginia.

MILLER, Justice.

In this disciplinary proceeding, the Judicial Hearing Board (Board) recommends dismissal of a complaint charging Dennie Vandelinde, a Lincoln County magistrate, with violations of Canons 2 and 7 of the Judicial Code of Ethics for making political contributions to a county political organization. Our prior decisions make it clear that we must make an independent, de novo review of the facts to determine whether clear and convincing evidence of improper judicial conduct has been presented, as we indicated in Syllabus Point 1 of West Virginia Judicial Inquiry Comm'n v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980): "The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial [Hearing] Board in disciplinary proceedings." See also Matter of Wharton, 175 W.Va. 348, 332 S.E.2d 650 (1985); In Re Pauley, 173 W.Va. 228, 314 S.E.2d 391 (1983).

I.

On April 23, 1987, the case was submitted to the Board for decision on the pleadings and a stipulation of facts. This stipulation, which was subsequently adopted by the Board as a part of its findings of fact, indicates that the respondent ran for reelection as a magistrate in Lincoln County in 1984. Financial statements he filed with the West Virginia Secretary of State's office show that he made two expenditures to the "United Democrats of Lincoln County, West Virginia." A $500 contribution was made on April 2, 1984, followed by a $5,000 contribution on May 18, 1984. ¹

According to the stipulation, this organization had offices located in the town of Hamlin, Lincoln County, and sponsored rallies throughout the county at which campaign promotional material was distributed and free refreshments were provided. Copies of this literature were not made a part of the record, but it appears that the respondent's name was placed on a list of candidates supported by the campaign organization. The campaign organization employed clerical help in the campaign office, and candidates affiliated with the organization agreed to contribute funds to cover the organization's expenses. It was also stipulated that these expenses were believed to be lawful election expenses under the provisions of W.Va.Code, 3-8-9 (1980). ²

Before the involved contributions were made, Larry Z. Adkins, Clerk of the County Commission of Lincoln County and chief elections officer for the county, communicated with the Secretary of State's office and was advised that candidates could lawfully make a contribution in any amount to a political organization. This information was given to the respondent before the contributions were made. It was also stipulated that the respondent has not been criminally charged with a violation of W.Va.Code, 3-8-12(f), ³ for making a political contribution in excess of $1,000. ⁴

The Board concluded that the respondent, having relied upon the advice of the county's chief election officer, had not intentionally and knowingly violated W.Va.Code, 3-8-12(f), which makes it a misdemeanor to directly or indirectly make a contribution in excess of $1,000 to any campaign for an elective office in this State. The Board further determined that his good faith reliance served to avoid any appearance of impropriety violative of the Judicial Code of Ethics. The Hearing Board recommended, by a four to two vote, that the disciplinary complaint be dismissed.

II.

A.

We consider first whether the respondent violated Canon 2A, which specifically requires a judge to "respect and comply with the law." Canon 2A also contains a more general admonition that a judge should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. ⁵ Courts are in general agreement that conduct by a judge which violates federal or state criminal law may, unless the violation is trivial, constitute a violation of the requirement that a judge must comply with the law found in Canon 2A. ⁶ E.g., In re Alsip, 499 N.E.2d 1102 (Ind.1986); In re Soileau, 502 So.2d 1083 (La.1987); In re Killam, 388 Mass. 619, 447 N.E.2d 1233 (1983); In re Duncan, 541 S.W.2d 564 (Mo.1976); In re Roth, 293 Or. 179, 645 P.2d 1064 (1982) (In Banc); In the Matter of Sawyer, 286 Or. 369, 594 P.2d 805 (1979) (In Banc).

We reached the same conclusion in Dostert, supra, where a judge who had violated our gun licensing statute, W.Va.Code, 61-7-2, was also found to be in violation of Canon 2A. See also In the Matter of Gorby, 176 W.Va. 11, 339 S.E.2d 697 (1985) (magistrate involved in altercation resulting in misdemeanor warrants issued against him).

We have also recognized a similar rule by holding that if a magistrate deliberately fails to follow mandatory criminal procedures, there is a violation of the Canon 2 A requirement to respect and follow the law. Matter of Wharton, supra; In Re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984); In Re Pauley, supra.

The Board's opinion does not address what the relationship is, if any, between the lawful campaign expenditures set out in W.Va.Code, 3-8-9, and the maximum political contribution authorized by W.Va.Code, 3-8-12(f). It is obvious, however, that if the contribution in this case fell under W.Va.Code, 3-8-9, there would be no violation since there is no limit on the amount of expenditures under this section. There is, however, no language in this section authorizing an expenditure or contribution to a political organization which is involved in supporting candidates. ⁷

Furthermore, there is a distinction between a contribution and an expense or expenditure which can be drawn from our election statutes. The term "contribution" is broadly defined in W.Va.Code, 3-8-5c, and contemplates the transfer of something of value for the purpose of influencing the election. ⁸ Thus, a contribution viewed from the candidate's or his campaign committee's perspective is the receipt of something of value. On the other hand, an expenditure is something that is paid out for those lawful election expenses delineated in W.Va.Code, 3-8-9. Here the payment by Magistrate Vandelinde was a contribution to an organization to help it influence his and other candidates' election.

Even aside from the distinction between contributions and expenditures, we are persuaded by the specific language of W.Va.Code, 3-8-12(f), which is designed to fit this precise situation. It specifically places a $1,000 limit on contributions to a "committee or other organization or person engaging in furthering, advancing or advocating the nomination or election of any candidate." ⁹ This language must be deemed to control over any general language. Traditional rules of statutory construction require, as we explained in Syllabus Point 2 of State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970), that:

"A specific section of a statute controls over a general section of the statute."

See also Syllabus Point 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984); State ex rel. Simpkins v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983).

Thus, we conclude that in the absence of any specific language in W.Va.Code, 3-8-9, authorizing expenditures to a person, committee, or organization engaged in advocating the election of a candidate, the payment of funds to such person, committee, or organization is controlled by W.Va.Code, 3-8-12(f), and is subject to a maximum limit of $1,000.

B.

Although not addressed by the Board, we recognize First Amendment free speech and association principles may be implicated where statutory constraints are placed on political expenditures and contributions. The seminal case is Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), which essentially upheld as constitutional federal statutory limitations on contributions to candidates. In particular, the $1,000 limit per candidate per election for contributions by an individual was upheld. This would include an individual's campaign committee. ¹⁰ It struck down as unconstitutional limitations on independent expenditures by candidates.

A more analogous case is California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981), where the Supreme Court upheld the constitutionality of a provision in the Federal Election Campaign Act, 2 U.S.C. § 431, et seq., that placed a $5,000 limitation per year on contributions by persons or associations to any multicandidate political committee. In determining this limit to be valid, the Supreme Court stated:

"Our decision in Buckley precludes any argument to...