West Virginia Judicial Inquiry Commission v. Dostert

Decision Date19 June 1980
Docket NumberNo. 14747,14747
Citation271 S.E.2d 427,165 W.Va. 233
CourtWest Virginia Supreme Court
PartiesWEST VIRGINIA JUDICIAL INQUIRY COMMISSION v. Judge Pierre E. DOSTERT.

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 in disciplinary proceedings.

2. A judge violates Canon 2 A of the Judicial Code of Ethics when he carries afirearm without licensure as required by W.Va.Code, 61-7-2.

3. An error of judgment, absent proof of improper motive, is not grounds for discipline under Canon 3 A of the Judicial Code of Ethics.

Fowler, Paterno & Lane, Charlotte R. Lane, Charleston, for Inquiry Commission.

Rice, Hannis & Douglas, Richard L. Douglas, Martinsburg, for Dostert.

HARSHBARGER, Justice:

Circuit Judge Pierre E. Dostert asks us to review a recommendation by the West Virginia Judicial Review Board that he be publicly censured, suspended without pay for six months, and required to pay the costs of these disciplinary proceedings, for violating our Judicial Code of Ethics.

The West Virginia Judicial Inquiry Commission filed a complaint against Judge Dostert for breaching Canons 2 A and 3 A of the Code. 1 After a hearing, the review board made its recommendation, objected to by Judge Dostert because the evidence did not support the findings of fact or conclusions, and the recommended penalties were disproportionate to his misdeeds.

Article VIII, Section 8 of the West Virginia Constitution vests in this Court the power to censure, suspend, or retire judges, justices, or magistrates for violating the Code of Ethics. We promulgated and adopted Rules of Procedure for Handling Complaints Against Justices, Judges, and Magistrates 2 in 1976, establishing a Judicial Inquiry Commission and Judicial Review Board. After hearing and arguments before the board, at which the commission and respondent present their cases, the board must make a written recommendation including findings of fact, legal conclusions, and proposed disposition of charges. Rules, II(A)(2); West Virginia Judicial Inquiry Commission v. Allamong, W.Va., 252 S.E.2d 159, 160 (1979). The recommendation and record is then forwarded here. Our role in the process is defined in Rules, II(A)(3):

The Supreme Court of Appeals shall review the record of the proceedings on the law and the facts and shall afford the aggrieved Judge or his counsel an opportunity to be heard before the Supreme Court of Appeals. 3

There is nothing in the constitution or rules that requires us to give any conclusive weight to findings or recommendations of the board, and we decline to do so. We shall review the record on the facts and law, and assess the sanctions imposed, de novo.

We are constitutionally vested with responsibility for disciplining judicial officers, and it is our constitutional responsibility to review the record and make an independent evaluation of it. This "independent evaluation" standard has been adopted in other jurisdictions:

Since the ultimate, dispositive decision to censure or remove a judge has been entrusted to this court, we felt it our responsibility 'in exercising that authority ... (to) make our own, independent evaluation of the record evidence adduced below.' ((Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270) at p. 276, 110 Cal.Rptr. (201) at p. 204, 515 P.2d (1) at 4.) Spruance v. Commission on Judicial Qualifications, 13 Cal.3d 778, 119 Cal.Rptr. 841, 532 P.2d 1209, 1212 (1975).

See In Matter of Mikesell, 396 Mich. 517, 243 N.W.2d 86 (1976); In re Hanson, Alaska, 532 P.2d 303, 309 (1975). 4

The complaint against Judge Dostert, as amended, alleges that he: (1) participated in specified arrests; (2) carried a pistol without a proper license while participating in the arrests; (3) carried a pistol without a license on other occasions; and (4) improperly entered an order relieving a prosecuting attorney from acting in cases arising out of the arrests.

The pleadings and transcript indicate Judge Dostert admitted participating in the arrests on March 25, 1979, carrying a pistol at that time and on other occasions, and relieving the prosecutor. He only denies that he was carrying the pistol without a license ; and he affirmatively avers that he was justified in removing the prosecutor.

The record contains no evidence or testimony with respect to the arrests in which Judge Dostert was involved. His admission that he participated in arrests supported the board's finding:

We find that the participation of Judge Pierre E. Dostert in the arrests of the three individuals in Bolivar, West Virginia, on March 25, 1979, whether armed or not armed, was a violation of Canon 2A(2A) of the Judicial Code of Ethics which provides "a Judge should respect and comply with the law and conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

When the Judge took it upon himself to participate in the arrests of the individuals, he departed from the role of a judicial officer who is an impartial arbitrator of the law.

A Judge is not expected to and should not summarily step from his judicial function and become an investigator, prosecutor, arresting officer, or instigator of legal actions, for when he does, he lessens the public confidence in the impartiality of his office. It is important that the Judge not only actually maintain integrity and impartiality, but that he must also give the appearance of such. No Judge should take unto himself activities or functions which are delegated to other branches of the government. When the Judge shed his robe of judicial impartiality and donned the garb of a participant in an arrest, he could not promote public confidence in the impartiality of the judiciary.

We believe that this is a proper interpretation and application of Canon 2 A.

The review board also found that he carried a pistol without a license, disregarding Canon 2 A, supra. The evidence elicited at his hearing makes that conclusion inevitable.

W.Va.Code, 61-7-2, 5 sets forth the required procedure for obtaining a weapons license, which includes, inter alia :

(1) Publication of a notice of application (2) A completed application;

(3) A public hearing;

(4) An application fee and bond; and

(5) A certified copy of the order furnished to the Department of Public Safety.

Judge Dostert's noncompliance with that law was described in his testimony:

BY COUNSEL:

Q. Sir, would you please state your name, your place of residence and your business or occupation?

A. My name is Pierre E. Dostert. My residence is Wolakadia, Harpers Ferry, West Virginia. I am the Circuit Judge of the 23rd Circuit of the State of West Virginia.

Q. How long have you served as the Judge of the 23rd Judicial Circuit?

A. I took office January the 1st, 1977.

Q. If you would, sir, would you please relate to the Board the circumstances under and by which you obtained a permit to carry a pistol?

A. Exhibit 1 is an order bearing the date the 2nd of June, 1978, reciting that I came before the Court and that the Court concludes in other words, I concluded, as Circuit Judge that I was qualified in all respects to carry a pistol and it directed that the permit be issued.

It further directed that there be no publication or disclosure to the public of the issuance of the permit and that an order be sealed and placed in the administrative order book by the Clerk of the Court to be opened only upon court order and it further directed that the West Virginia State Police not be notified in writing because it was my intention to advise all necessary officers of the issuance of this permit.

Q. Your Honor, when was this hearing held?

A. It was on Friday, the 2nd of June, 1978.

Q. When and by whom was the order typed?

A. It was typed by myself on the 2nd of June, 1978, and placed in an envelope and sealed on that date. It was not transmitted to the Clerk on June the 2nd, 1978, but was retained in camera or in chambers by me.

Q. Your Honor, I would suggest to you that the last entry on the order recites that the clerk should enter the above order as of the 2nd day of April, 1979. What, if any explanation do you have for the variance of one year in the dates?

JUDGE: I think you are referring to June.

BY COUNSEL:

Q. June, I am sorry.

A. The variance is a typographical error.

Q. And it was typed by you?

A. It was typed by me.

Q. From June 2, 1978, where did the order remain?

A. The order remained in my chambers until April the 2nd, I believe, just a minute. I will check that out. April 2nd, 1979 when I transmitted the order still under seal and unopened to the Clerk of the Berkeley County Circuit Court.

Q. That is Mr. J. Hugh Shipper?

A. That is correct.

Q. What, if any instructions did you give Mr. Shipper?

A. I instructed him to enter it upon the order book of the Court sealed to be opened only under court order.

Q. All right, sir.

At the time of entering the order of June 2, 1978, were you aware of the statutory provisions in West Virginia Law concerning the circumstances under and by which a pistol permit should be issued?

A. Yes, I was.

Q. Did you consider these matters in granting the pistol permit?

A. I considered all of those matters and concluded that I qualified in all respects as being eligible to obtain a pistol permit in the State of West Virginia. I am referring specifically to the West Virginia Code, Chapter 61, Article 7, Section 2.

A. Specifically I am referring to all of the qualifications that are set forth in that section. I am a citizen of the United States of America. I have resided in the State for at least one year prior to the date of the application. My residence was at that time in Jefferson County and Morgan County. I am over 18 years of age.

Q. You were at that time; is that correct?

A. Yes, I was. I feel that I...

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