163 W. Va. 661 | W. Va. | 1979
This complaint by the Judicial Inquiry Commission charges Magistrate Denver D. Casto with “backdating”
On June 21, 1977, the complainant, John G. McGuffey, was stopped by two Kanawha County Deputy Sheriffs for traffic violations. The deputies wrote out traffic citations for the violations, which Mr. McGuffey apparently refused to sign, although there is some dispute on this matter.
There is a dispute in the evidence as to whether Mr. McGuffey was found guilty of the violations or plead
On June 27, 1977, Mr. McGuffey returned to the magistrate offices and indicated to the judge that he wished to appeal his case to the Circuit Court of Kanawha County. The appeal was granted and the fines and costs already paid were applied to the appeal bond. At that time Magistrate Casto instructed the magistrate assistant to prepare the file for appeal, a procedure which included filling out the warrants. The information for warrant and the warrant for arrest forms were filled out and put in the file dated June 21, 1977, but the deputies and the judge did not sign them until February or March of 1978. The reasons given for the delay in signing included the press of business, several changes in location of offices and the inability to reach the arresting deputies. On September 14, 1977, Mr. McGuffey filed a complaint with the Judicial Inquiry Commission, which investigated the matter.
Magistrate Casto testified that he was unaware of any impropriety involved in backdating warrants. He apparently did not believe the warrants were essential to enable him to take the guilty plea and thought their presence in the file was a mere technical requirement of perfecting an appeal. The Judicial Review Board con-
First, we should say that criminal actions in magistrate court are instituted by the issuance of a warrant. W. Va. Code § 50-4-2. Without the warrant an individual may neither be tried nor enter a plea to a criminal charge. Even where a warrantless arrest is permitted, the person arrested must be taken before a magistrate without delay, and a complaint must be filed and a warrant issued immediately. W. Va. Code § 62-1-5.
The judge erred in signing the predated informations and warrants. The backdating was characterized by Magistrate Casto as a nunc pro tunc order. Nunc pro tunc entries are usual only in situations where something that actually occurred on a prior date was omitted from the record by inadvertence or mistake, but such an order may not be made where the entry does not reflect something that actually occurred on the date indicated. Bloyd v. Scroggins, 123 W. Va. 241, 15 S.E.2d 600 (1941). The actions of Magistrate Casto, in signing the warrants, gave the impression that the forms were signed on June 21, 1977, when they were not in fact signed until February or March of the following year. The signing of the predated arrest warrants did not comform to the requirements of a valid nunc pro tunc entry, and constituted error.
We are asked to decide whether the judge’s action in signing predated warrants constitutes a violation of Canon 2A of the Judicial Code of Ethics. We conclude that these erroneous actions of Magistrate Casto do not rise to the level of a violation of that Canon.
Canon 2A, which the judge is charged with violating, provides:
“A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Other jurisdictions have interpreted this Canon as prohibiting a variety of judicial conduct, including the sexual conduct of a judge in his private life, In re Lee, 336, So.2d 1175 (Fla. 1976); the use of vulgar and obscene language and gestures by a judge in chambers and in open court, Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 515 P.2d 1, 110 Cal. Rptr. 201 (1973); the use of the contempt power and abusive language to intimidate counsel and to deny defendants their right to counsel, Cannon v. Commission on Judicial Qualifications, 14 Cal.3d 678, 537 P.2d 898, 122 Cal. Rptr. 778 (1975); the involvement of a judge in a real estate transaction requiring city approval, In re Foster, 271 Md. 449, 318 A.2d 523 (1974); the failure of a judge to hold proceedings in open court, In re Holder, 74 N.J. 581, 379 A.2d 220 (1977); the signing by a judge of orders award
The closest we come to finding a case presenting a factual situation similar to that before us is in reading In re Conda, 72 N.J. 229, 370 A.2d 16 (1977), in which a surrogate court judge was censured for falsifying court records by altering the designation of bank depositories in orders. While falsifying court records could be an act not far removed from the action complained of here, it must be noted that falsification anticipates an intent to deceive and a knowledge of the untruth being perpetrated. Here there is no allegation that the judge falsified the warrants nor that he intended to do so. In fact, the record reveals that Magistrate Casto’s intent was not to deceive or to injure Mr. McGuffey by signing the predated warrants but rather to benefit Mr. McGuffey by providing him with documents necessary for his appeal.
We believe that Canon 2A is primarily designed to control the conduct of a judge in his personal affairs and that Canon 3 governs his conduct in the performance of his official duties. We also recognize that there may be areas of conduct where the two Canons may overlap, such as where the conduct of the judge may involve a violation of some criminal law that bears directly or indirectly on his judicial duties. Here, however, we are confronted with a charge that is non-criminal in nature and relates only to the magistrate’s performance of his official duties.
Magistrate Casto was apparently under the impression that a defendant appearing before him on a traffic citation could waive the requirement for a warrant by pleading guilty to the charge stated on the traffic ticket.
It appears from the record that Magistrate Casto sought to comply faithfully with the duties he understood the law to impose upon him. He agreed to remain in his office at the request of the arresting officers past 5:00 p.m. in order that Mr. McGuffey might be brought before a magistrate without undue delay.
We detect no intentional misconduct or disrespect for the law in Magistrate Casto’s actions. It appears that he complied with the law as he perceived and understood it. The record reveals no evidence that the judge intended to deny a defendant his rights or to circumvent the requirements of the law. His motivation in signing the predated warrants appeared to be to see that Mr. McGuffey received a proper appeal. There is no evidence that the judge’s conduct brought the integrity of the judiciary into disrepute in the public’s eye.
Canon 2A should not be used as a “catch all” to charge and dispose of any unseeming conduct which cannot be said to violate any of the other Canons of Ethics. The machinery of the Judicial Inquiry Commission exists for the serious purpose of disciplining errant judges. To permit the judiciary to be charged under such a “catch all” provision for any conduct whatsoever would be to invite frivolous charges based on personal, political or vindictive motivations rather than charges based on improper conduct.
Finally, we view the power to censure or discipline judges as provided by Article 8, § 8 of the West Virginia Constitution to be consonant with the provisions of Article 3, § 2 which provides that “[a]ll power is vested in, and consequently derived from, the people. Magistrates are their trustees and servants, and at all times amenable to them.” By the very nature of the administrative procedure established by this Court under the Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates, any action taken by this Court on a recommendation from the Judicial Review Board must be by public order. Thus, the distinction between private reprimand and public censure is of little meaning.
For the reasons stated above, we conclude that when a judge, with no intent to prejudice the rights of a party, makes a legal error, his act does not constitute a violation of Canon 2A or Canon 3 of the Judicial Code of Ethics. Charges relating to a judge’s performance of his official duties should be brought under Canon 3 of the Judicial Code of Ethics. Magistrate Casto’s conduct does not rise to the level of a Canon 2 or Canon 3 violation, therefore, we dismiss the complaint of the Judicial Inquiry Commission and exonerate the magistrate of the charges against him.
Complaint dismissed; judge exonerated.
Although the complaint charges Magistrate Casto with “backdating” records, there is no allegation that he tampered with the dates on the records. Rather, “backdating” in this instance refers to the action of the Magistrate in signing predated records.
Magistrates are classified as “judges” under the Judicial Code of Ethics and are subject to all Canons of Ethics. Canon 7, Judicial Code of Ethics (readopted July 16, 1976).
Although Mr. McGuffey insists that he did not refuse to sign the citations, his signature does not appear on either ticket.
The Judicial Review Board did not resolve this factual dispute but chided Magistrate Casto for not clearly reflecting in his records the taking of a guilty plea. Since the Board apparently did not accept Mr. McGuffey’s account of what occurred when he was brought before Magistrate Casto, we will treat the proceeding as the tender of a guilty plea.
While we are not prepared to say how egregious error must be to warrant disciplinary action, we note one example of judicial conduct which might be chargeable under our Judicial Code of Ethics. In overruling a defense objection to an allegedly unconstitutional instruction in a criminal trial, a Montana judge met defense counsel’s offer to provide federal cases supporting his objection with the statement, “You can give those to the Supreme Court.” Sandstrom v. Montana, 47 U.S.L.W. 4719 (June 19, 1979). To us, this statement imports an intentional disregard of and failure to consider and comply with the law.
Order of the Supreme Court of Appeals, July 16, 1976.
Other examples of conduct forbidden by Canon 2A are found in the following cases; Spruance v. Commisssion on Judicial Qualifications, 13 Cal.3d 778, 532 P.2d 1209, 119 Cal. Rptr. 841 (1975); Dacey v. Connecticut Bar Ass’n., 170 Conn. 520, 368 A.2d 125 (1976); Scogin v. State, 138 Ga. App. 859, 227 S.E.2d 780 (1976); In re Larkin, 368 Mass. 87, 333 N.E.2d 199 (1975); In re Troy, 364 Mass. 15, 300 N.E.2d 159 (1973); In re Del Rio, 400 Mich. 665, 256 N.W.2d 727 (1977); In re Duncan, 541 S.W.2d 564 (Mo. 1976); In re Dandridge, 462 Pa. 67, 337 A.2d 885 (1975).
At the time of Mr. McGuffey’s arrest, we had not yet enunciated the rule that a magistrate must he available to arrested persons at all times of -the day or night. State v. Mason,_W. Va._, 249 S.E.2d 793 (1978).