*1 S.E.2d 391 L. PAULEY. In re Herbert 23-79.
No. Appeals
Supreme Court Virginia.
West 15, 1983.
Dec. Opinion March
Dissenting
engendered animosity great deal of which manifested itself in different forms. Pau- ley complained to an examiner for Judi- Inquiry cial Commission that officers re- implementation sisted of an administrative by magistrates, order this Court that and officers, police set the amount of fines addition, Magistrate in traffic cases. Pauley frequently asserted that officers appearing by releasing avoided him persons outright by contacting arrested the sheriff’s communications center Lewis, Ciccarello, magistrate which Ciccarello, duty. Arthur ascertain T. Charleston, Friedberg, Masinter & for re- duty, When officers learned he was on spondent. Pauley they contended that would take prisoners magistrate their before another
McGRAW, Chief Justice: at ap- one satellite offices to avoid judicial disciplinary proceeding This pearing Finally, Pauley before him. relat- arises out of what can best described attempts ed various at intimidation sev- political imbroglio Magistrate between sheriffs, deputy including eral one incident Pauley Herbert L. and the Kanawha Coun- deputy in an off-duty sheriff threat- ty Department. The re- Sheriffs record magis- ened on a street outside the Magistrate Pauley’s veals that troubles court, stating, trate “I’ll your beat God began first in when he was assaulted “remember, Damn Ass” and I never lose.” by a County deputy Kanawha sheriff in the August 13, antipathy On be- County Kanawha Jail while three other tween Mel- deputy passively sheriffs looked on. As complaint being ton in culminated filed incident, Pauley result of this filed suit Virginia Inquiry with the West Judicial federal against district court Sheriff G. Commission, Investigation Kemp now the Judicial deputies, Melton and his four seek- $500,000 Commission, sheriff, ing damages. alleging viola- tions of the Judicial Code of Ethics relationship The between Magistrate Pauley arising out an inci- Department and the Sheriffs dete- involving deputies, dent one Melton’s years. riorated further over the next three Raymond E. The In- Crabtree. Judicial Magistrate Phyllis Gatson quiry investigated charges Commission County twenty Kanawha submitted names complaint, set forth the sheriff’s appeared representing persons who to have by police been determined that a reasonable basis existed beaten Federal Bu- Investigation. Pauley complained complaint reau of filing the West with that nothing being done to curb Board, Virginia Judicial Review now the police use of excessive force in Kana- Board, under the West County. Finally, Pauley wha hinted Virginia of Procedure for the Han- Rules might 1979 that he run for Sheriff of Kana- Justices, Complaints Against dling of upcoming wha in the County election. (1982 Magistrates Supp. & Judges and 1983). complaint charged This Magistrate Pauley’s objections various 2(A),1 3(A)(2),2 Department conduct the Sheriff’s of Canons violations 2(A) 3(A)(2) of Ethics 1. Canon of the Judicial Code of Ethics 2. Canon of the Judicial Code provides: respect comply "A should provides: "A maintain order and should with the and should himself all law conduct proceedings before him.” decorum promotes in a manner that confi- times integrity impartiality dence in judiciary.” Virginia charges pending answer 3(A)(3)3of the West Judicial Code Trent to Ra- specific County. leigh behavior com- of Ethics. of, complaint, set forth
plained the bailiff returned to When follows: aswas *3 reported courtroom and this situation to July 10, 1979, Magistrate Pauley, Pauley, 1. On Magistrate Magistrate, the in open presence in open court, presence in court and the hearing in the and others, Deputy talked Sheriff R.E. above, persons spoke of the indicated humiliating in and Crabtree an abusive loud, in the and bailiff abusive insult- manner. manner, ing in profanity open and used
[*] # [*] [*] # [*] court in the hearing the other partici- pants proceedings in the and those as- July 10, 2. On sembled courtroom. making campaign profanity used Magistrate 7. The statements made promises talking when about the Sher- Pauley competency attacked the degrading Department iff’s in a manner. bailiff and he said on more than one 19,1983, hearing in May this matter On occasion, words to the effect that “When Virginia held was before the West Judicial Sheriff, I am stop.” elected this shit will hearing, testimony Board. thisAt fact, upon findings these Based the Crabtree, Deputy taken from was loud, that, “By Bennett, Dolin, Dolin, Board held the use of abu- Norma Yvonne Jack insulting employing sive language, and Withrow, Magistrate Pauley. Nadine and profanity use of one of his this toward court Upon testimony, consideration of officials, Magistrate Pauley findings has failed to Board’s of fact were as follows: conform his conduct to Judicial Code of duly 1. Herbert L. is a elected 3A(2) requires Ethics Canon Magistrate County, of Kanawha West judge to maintain order and decorum in Virginia, serving Magis- and was such Additionally, proceedings before him.” July 10, trate on and on date such that, “By Board held the use of the same conducting night court at was the Kana- demeanor, language and County wha Courthouse. has failed to conform his conduct to Judi- date, Crabtree, E. Raymond 2. On such 3A(3) cial Ethics Code of Canon which re- Deputy Sheriff, County a Kanawha was quires patient, dignified be serving Magistrate Pauley. as bailiff to and courteous to other individuals with During night 3. court session a capacity.” whom he deals in official Dolin, bondsperson, appeared to Yvonne The Board recommended that “be defendant, a bond post for a James censured, publicly not for his dissatisfac- Trent, who was incarcerated Kana- performance bailiff, tion with the County time, among wha Jail. At such but instead with manner which he courtroom, others in the were Norma express chose to that dissatisfaction.” Bennett, Dolin, Dolin, Dep- Yvonne Jack uty and Sheriff Crabtree Nadine With- Syllabus 1 of Virgi Point West row, Secretary Magistrate Pauley. Inquiry nia Judicial Commission Dos Magistrate Pauley prepared 4. a release tert, 165 W.Va. 271 S.E.2d gave Trent and it to James the bailiff judicial disciplinary we defined our role in go and directed him to and Jail proceedings Supreme as follows: “The obtain release of said James Trent Appeals independent will Court of make an bring him the Magistrate. and before evaluation of the record and recommenda by jail per- [Hearing] 5. The bailiff informed tions was of the Judicial Board in Raleigh County disciplinary sonnel that proceedings.” authorities We therefore fact, placed a on the findings had “hold” said James the Board’s review well 3(A)(3) capacity, require Canon Code of Ethics official and should similar staff, provides: patient, dignified, lawyers, "A be should conduct of cials, and of his court offi- witnesses, litigants, jurors, subject and courteous to others direction to his lawyers, and others with whom he deals in his control." am to do what he me to do.” Norma as its conclusions of law based those tells findings. Bennett testified that “seemed to agitated upset;” very that “he was testimony given Board deputy;” “he abusive to ... evenly ambiguous divided best very cutting made some remarks.” important at worst. There are a number of Dolin simply Yvonne Pau- characterized testimony contractions of those ley’s treatment of Crabtree as “rude.” present at the time the incident at issue Jack Dolin testified that “lit place. took Some this conflict is un- just “Crabtree [Crabtree]” doubtedly year attributable to the four there, standing big toadfrog looked like a lapse between date of incident and *4 ready Withrow, up.” about to blow Nadine hearing the date of the before the Judicial Magistrate Pauley’s secretary, testified Hearing witnesses, All Board. of the ex- Pauley that she did not hear either raise his cept Magistrate Pauley, to made reference length verbally, the time had in voice to Crabtree or abuse him elapsed of which stating, encountering difficulty recalling specific “I’ve never Mr. talk Pauley heard details. on Pauley like that the stand.” testified may that he have told the Crabtree over misconduct, aspects Three of the upon phone obey “to the rules of the court be- testimony particularly which the was con- magistrate I the duty cause was and this flicting, go charges heart posted man entitled to was to bond be ... against Pauley. First, the witnesses were duty bring prison- and it was his ... the equally actually on Pauley divided whether court,” Pauley abusing er to the but denied profane. used the word characterized as in any way. Crabtree witnesses, Crabtree, Deputy Three Sheriff Bennett, Dolin, Norma and Jack each testi- Beyond this conflict in substantial fied Magistrate Pauley that used the word. testimony concerning incident, the hand, Dolin, On the other Yvonne Nadine word characterized the Judicial Withrow, Magistrate Pauley testified is, by “profanity” dictionary Board as defi Second, that it was not used. the three nition, “profane,” not but con usually witnesses did testify who that the word “slang.” “vulgar” sidered or See Web agree many used did on how times Collegiate Dictionary ster’s New it was used. Crabtree testified that he (1979) (“usu. vulgar”); considered Web Pauley used word more “believe[d]” Dictionary ster’s Third New International once, although than he could not remember (“slang”). In context state approximately many how times it was question, vulgar slang ment in word Bennett, used. accompanied Norma who profane by as characterized Dolin, husband, Dolin, Yvonne her Jack Hearing Board means “nonsense” “fool or night, magistrate court that testified Collegiate New ishness.” See Webster’s that made the statement 1063; Third In Dictionary Webster’s New eight times,” or although least ten “[a]t Dictionary upon ternational Based specifically Pauley she stated that was not us, it is what the dictionaries teach while addressing this remark to Crabtree. Jack slang possible vulgar expression for a or Dolin, hand, only on the other testified that profane, the absence of a blas Pauley expression he heard use the “more phemous quality, vulgar slang expres or Additionally, than once.” in its answers to profane. The sions are not mischaracteri interrogatories propounded by Magistrate question zation of word in undermines Pauley, Inquiry the Judicial Commission of conclusions fact and law with which alleged Pauley that made statement presented, we are as as the ultimate well Finally, “25 times.” each witness also had discipline. recommendation of perspective severity different of Can- Pauley’s The conclusion that violated Deputy treatment of his bailiff. 3(A)(2) 3(A)(3) ons of Judicial Code Crabtree testified that alleged his of up” rage,” calling “blew “went was based on “use into a Ethics “ignorant” loud, insulting him “I em- telling language, that Crabtree abusive feel Deputy Sheriff Crabtree could one of how profanity toward the use of
ploying ” personally abused or insulted such Having dealt court officials .... his language general statement. mischaracterization necessary to ad- “profanity,” it is used fact, findings of the Board states In its remaining allegations of miscon- dress “Magistrate Pauley attacked the com- that ” Board’s conclusions contained in the duct Apparently, petency of the bailiff .... law. testimony by Depu- finding from stems speech Pauley’s The characterization him ty called Sheriff Crabtree initially conclusory. We notice “loud” is “ignorant,” testimony which was uncorrob- is in speech the ear loudness by any of other five witnesses. orated may interpret as What some hearer. leaves the distinct A of the record review “forceful,” “loud,” may find “asser others in- impression Magistrate tive,” charac “resolute.” “Loud” as a exasperated his bailiff’s refusal deed a conclusion base terization to secure the release comply with order overly broad. of abusiveness is See easy to Trent. It is understand James Johnson, A.2d Pa. Pauley’s of frustration of 1319, sense *5 rep (1978)(refusing officially to 1326 dealing his bailiff. In ad- recalcitrant in and judge speaking a “loud rimand a for to the historical tension between dition Furthermore, tes ]”). no aggressive voice[ members of the Magistrate supports char timony given which the was Department, the bailiff’s obsti- Sheriff’s “loud,” Pauley’s tone as or of acterization misunder- nance reflected fundamental Pauley “yelled,” that which indicated Magis- to standing of his role as attendant “screamed,” “shouted,” or at “roared” responsibility respect- trate his One tes Deputy Sheriff witness Crabtree. ing prisoners. Pauley’s Magistrate to the volume of tified (1980), Virginia 50-1-14 West Code § Dolin, said he had a speech. Jack who that, provides Pauley’s hearing problem, testified that of the Subject supervision to the chief talking than a normal speech was “[m]ore justice appeals court of supreme of court, judge of the circuit or the or of Pauley’s The Board characterized also if is more than judge chief thereof there insulting.” The language as “abusive court, it shall be one circuit in indicated the record only abusiveness sheriff, designated his duty of the or ap- from that results the assertion magis- of a deputy, to serve as bailiff categorized profane as to plied the word mag- request of the trate court noted, deputy. the testi- previously As shall also be sub- istrate. Such service this was mony concerning whether word ject may rules to such administrative by Magistrate Pauley evenly di- used supreme court of promulgated the evidence concern- Additionally, vided. A writ of mandamus shall lie appeals. used this ing the number of times to magistrate of a enforce on behalf conflicting, from epithet ranging was also of this section. provisions accept times. twenty-five at all to To the Trial As in Rule VII of Court is stated concerning the face value evidence of for Courts Record: Rules Pauley’s of repetitive nature sheriff, present shall be deputy, The or accept Pauley persev- that statement is to while court is session. at all times if his antimatedly as record was erated provide sheriff shall sufficient The that Our is this testimo- stuck. inclination deputies maintain order in of to Furthermore, number ny is as dis- incredible. The earlier, at all times. rules the courtroom witness that
cussed one testified pertaining of orders the court Pauley’s was not statement addressed bailiff, shall in the courtroom be en- general but conduct exclamation by him or imagine frustration. is difficult forced them.4 of It 526, 529-30, 74, (1938), Supreme Court Phelps, In Merrill v. Ariz. P.2d 76 the Arizona 52 84
233 Berks, court 62 County has been defined as ers A Pa.Commw. “bailiff” “[a] of of 310, 313, charge attendant who has 436 or A.2d 712 officer Steven or keeping 14, 18, session the matter of 140 County, court son v. Milwaukee Wis. custody der, custody jury, of (1909). 121 656 It N.W. has also been that, court.” prisoners while Black’s Law “The bailiff an noted officer of the (1979). Dictionary Similarly, in Calda Brickley State, court. v. 286 Ala. Ferber, 128, 134-35, 180 N.J.Super. (1970).”
ro v. State, So.2d 502 Fuller v. (1962), 1010, 1011 A.2d rev’d on other (Ala.Cr.App.1978). So.2d A bail (1963), grounds, 39 N.J. A.2d 576 subject supervision iff is control stated, “Generally, the court court attend City of the court he serves. See Cin present purpose pre are for the ants 539, 543, Flaherty, App. cinnati v. 71 Ohio court, serving charge order in taking (1943). power This 50 N.E.2d jury, and other work incidental to the supervision personnel of court is critical to trial of cases.”5 independence judiciary. In Gray Hakenjos, v. 366 Mich. functions, In performing these it is Michigan Su essential the bailiff understands his noted, preme Court role an officer of the court attendant magistrate The rule is well to whom he is settled under our government assigned. power form inherent that courts the constitution con- provide possess necessary judicial fers in the department attendants all the perform authority necessary order to their constitutional pow- to exercise its example, has recognized. govern- duties been For ers aas co-ordinate branch of Department ex only State rel. Moran ment. It is a manner such *6 Administration, 311, 317, independence Wis.2d judiciary the of the can be (1981), stated, preserved. the court The courts cannot be ham- power “A has appoint pered discharge court inherent to its limited in the of their bailiff, despite legislation by purporting own functions either of the other 2 branch- appointment to to a group government. restrict certain es of To remove bailiffs public employees personnel selected the sher and other court for cause is an power iff.” See v. judiciary. also Eshelman Commission inherent of the history "(c) prevent effacing the traced of the sheriff’s role as court To the and destruction attendant: furniture of the room; and fixtures the court England, Under the law of the common solely judges particular "(d) did not sit in certain properly To see that such court room is jurisdiction territorial areas. heated; Their extended lighted, ventilated and parts country, they all of the and court to held "(e) jury charge To take of the when under Westminster, part part of the time at and finally the rule and after the has been case places the time in such as the the business of submitted, and to see that no one communi- required. they nation When exercised the deliberations; jury during the its cates with function, the time latter it was custom from "(f) upon judge upon wait To the while the county in immemorial that the sheriff of the convey judge and to the bench to and to held, the court to be the who was they may lawyers request; such law books as county, chief administrative officer of that "(g) keep the corridors clear when the To judge county the as he entered the and met keep is to court room therein; crowded and order from that time on furnished him all attend- necessary and ants other conveniences "(h) To call witnesses the court room into court, carry obeying on the its business times; telephone at all and answer calls respects orders in all as to what was done. "(i) attorneys call others To and whose at- Phelps, In Merrill v. Ariz. at 84 P.2d at required; are tendance the court following the of court were duties attendants "(j) doTo numerous other duties not here- necessary reasonably proper deemed functioning for the specifically mentioned and set out.” inabove aof court: Therefore, duty the court held "it is the "(a) jurors places To direct the to their sheriff, deputies, perform the or his [these jury impanelling jury; the box while the when court.” ordered the Id. services] "(b) To maintain order decorum in during court room at all times the sessions of court; things court thinks are which the court which A is an officer bailiff necessary its are subject to control for these attendants to do assigned, she is he or pre- done, dignity for is supervision, responsible the essential court decorum, taking charge serving orderly proper order and an protected and guarding prisoners, and other jury, is assured. transaction of business reasonably necessary which are services 535-36, 84 at It is Ariz. at P.2d 78-79. functioning. In the proper for court’s present pre- action in the obvious Hearing Board action, present the Judicial will work sumption that servants inappropriate behav- recognized Crabtree’s harmoniously together common Magis- a clear order questioning ior in rebuttable, good and that best bring prisoner trate deputy of the sheriff and his were actions him. dignity of the an affront to the essential Ariz. at Phelps, In Merrill v. fact, July In court. Supreme the Arizona at 79 P.2d Melton, disregard of W.Va.Code although primary pow held that Court letter, 50-1-14, “as of this asserted § supe bailiffs its providing er of suitable assign a any deputy I will date sheriff, “if the rests with the rior courts Magistrate Her- Night Court Bailiff while opinion is of the reasonable court presiding.” bert provided so are not sufficient attendants lawfully judicial officer When character, it de or suitable can number up a bailiff to deliver an incarcerat orders suitable attend mand that sufficient and duty comply, it person, ed is the bailiff’s any provided, accept and refuse to ants be judicial higher aut unless restrained that, satisfy opinion, in its do not these role in main hority.6 The crucial bailiff’s ex Hil requirements.” also State rel. See requires taining in the courtroom order Sullivan, 137 P. lis 48 Mont. allegiance to loyalty or her undivided (1913). reaching conclu he or serves. At the whom she sion, dis court had occasion to Merrill Board, hearing before the Judicial length relationship cuss at between questioned Deputy Sheriff Crabtree was appointment sheriff and bring *7 concerning prisoner refusal to court bailiff: Magistrate Pauley: may to one permit public be said that [I]t Well, telling Mr. appoint deputy, Q you to a who never- officer were prisoner? subject to the exclusive theless law that he couldn’t release officer, in so control of another far explained Mr. I could A I to that concerned, is of his duties are certain jail. get not him out of the give to a to rise such conflict bound got Q And is when Mr. that authority so much friction and bad upset, is that correct? feeling, hamper it the court that will up. he A That’s when blew performance duty. of We think its non-sequitur. a Public officers this is Q Okay. bring the you Now did ever presumed all to be servants of are prisoner to released? over be working harmoniously together in public, did, A I I no sir. don’t think employer, interest of their and will- indi- Q though Mr. had Even personal ing lay to their feel- aside own you he him cated to wanted ings in the of better transac- interest released, brought to is that over be think of business.... We tion right? judge has final long so as the years deputy A I was with about two a as to whether the attendants decision department. corporal I had a on the the sheriff are sufficient chosen not that she could release such a character so that tell me number and of may disobey appellate an example, Syllabus not a lawful order of Point 1 of ex For State Giardina, 483, to has been advised do so W.Va. stated, 294 court because he rel. Walker v. 170 (1982), party "A lower court." S.E.2d 900 this Court
235
from
jail
questionably,
individual
because
judges may
appropriately
be
County.
hold from Raleigh
disciplined
using abusive, insulting,
for
in
temperate, obscene, profane, threatening,
Well,
Q
is,
but the fact of the matter
he
vulgar, or
language. See,
other offensive
had
him
ordered
to
released
be
e.g., Aldrich v. State Commission on
you
Ju
bring
did
him
not
over
be
Conduct,
279,
dicial
58 N.Y.2d
460 N.Y.
released?
917,
(1983);
S.2d
convincing evidence”
206,
grave
The underlying this standard of the Court holds that First, complaint proof against are several. as the Kansas tions contained proof applied reviewing present- case. the evidence ed in this
237 Withrow, proven by tary, not Nadine testified that Pauley were evidence,” convincing and there- phrase “clear was not used. must be dismissed. complaint
fore majority I find it incredible that It is so ordered. would characterize this evidence as close. attempt to re- Even more incredible is Justice, MILLER, dissenting: dictionary sophistry sort to to demonstrate correctly cites Canon majority The that the word “shit” means “nonsense” 3(A)(3) of Ethics of the Judicial Code 231-232)3 (Maj.Op., pp. “foolishness.” dignified patient, requiring to “be correctly Furthermore, profani- states independent courteous.”1 It also have held that that a number of courts issue, ty clearly the record reveals abusive language part on the and offensive abusive Deputy conduct toward Crabtree which of his official judge in the course majority opinion cannot mask. even the of the can- duties will constitute violation give recogni- purpose The of the canon is to on.2 judges personal to the fact that are the tion majority proceeds then to stand process and judicial embodiment of the concluding that on its head evidence quarreling should to avoid with and be able testimony before the Board was ev- “[t]he appear them. To abusing those who ambiguous at enly divided best office, only not demeans the hold otherwise 231) (Maj.Op., p. Three witness- worst.” impartiality but casts a cloud over Bennett, Dolin, es, Deputy Jack Norma jus- effectiveness of the administration Crabtree, Magistrate Pauley state heard tice. to the stop” shit with reference “this will that the fact the Finally, I do not believe depart- utilized the sheriffs procedures deputy person abused in this case was a ment. exculpates magis- somehow sheriff Dolin, witness, a bonds- A fourth Yvonne general quarrel I have no trate. woman, contrary the assertion of the majority, that by the proposition, advanced say the statement was majority, did not subject to the control and court bailiff it. that she had not heard made but stated he is supervision of the court not in the court- testified that she was She However, nothing in the I find assigned. jail gone had at all times as she room is not indicate a bailiff law that would arrange Not unex- a bail bond. in order to I affirm the 3. would protected Canon Magistrate Pauley and his secre- pectedly, Albano, 509, 144 N.J. 384 A.2d Matter 3(A)(3) 75 Code of Ethics of the Judicial 1. Canon 178, Bennett, (1978); dignified, Mich. 267 patient, 403 provides: "A should witnesses, on (1978); Spruance v. Commission litigants, jurors, and courteous N.W.2d 914 778, Qualifications, lawyers, he deals in his 119 Cal. Judicial and others with whom 13 Cal.3d require 841, (1975); Geiler v. Com capacity, and should similar Rptr. official P.2d 1209 532 staff, Qualifications, lawyers, and of his court offi- Judicial conduct of cials, 10 Cal.3d mission on subject 201, 270, to his direction and cert. and others Cal.Rptr. P.2d 1 515 110 932, 2643, denied, control." 41 L.Ed.2d U.S. 94 S.Ct. 417 891, Glickfeld, 3 Cal.3d (1974); In Re 92 235 Con Commission on Judicial 2. Aldrich v. State 278, (1971). juris Other Cal.Rptr. P.2d 638 479 duct, 915, 279, 447 460 N.Y.S.2d 58 N.Y.2d In Re majority are: not cited dictions (1983); Roberts v. Commission N.E.2d 1276 Crowell, (Fla.1979); In Re 107 379 So.2d 739, Performance, 190 Cal. Judicial 33 Cal.3d (1980); Broome, In 656 Ga. 264 S.E.2d 245 (1983); Gonzalez Rptr. P.2d 1064 661 (1977); Dwyer, P.2d 898 Re Kan. Performance, Cal.3d Commission on 1979). (Minn. McDonough, Re 296 N.W.2d (1983); Cal.Rptr. P.2d 372 Frankel, Matter of 414 Mich. mischar- majority’s that *‘[t]he conclusion Horan, 3.The In Re N.J. 428 A.2d [by question Ross, of the word (Me. acterization *10 (1981); Matter A.2d 858 the conclusions undermines Board] 1981); Shilling State Commission on v. presented, as we are with which Conduct, and law fact 434 N.Y.S.2d 51 N.Y.2d of disci- recommendation ultimate Seraphim, well as the N.E.2d 900 fitting epitaph its own denied, may pline” cert. N.W.2d 485 Wis.2d 291; opinion. 66 L.Ed.2d U.S. 101 S.Ct. by the recommended reprimand Hearing Board.
314 S.E.2d ALLEN
Richard P. COMMIS COMPENSATION
WORKERS’ AND CONSOLIDATION
SIONER CO.
COAL 16047.
No.
Supreme Appeals Court Virginia.
West 2, 1984.
March
Dissenting Opinion March