Charles R. Garten
The Judicial Investigation Commission
of West Virginia
Charleston, West Virginia
Attorney for the Complainant
Robert P. Martin
Meyer, Darragh, Buckler, Bebenek &
Charleston, West Virginia
Attorney for the Respondent
The Opinion of the Court was delivered PER CURIAM.
1. "'The Supreme Court of Appeals will make an
independent evaluation of the record and recommendations of
Judicial [Hearing] Board in disciplinary proceedings.' Syl. pt. 1,
West Virginia Judicial Inquiry Commission v. Dostert, [165 W. Va.
233] 271 S.E.2d 427 (1980)." Syllabus, Matter of Gorby, ___
W. Va. ___, 339 S.E.2d 697, modified on other grounds, ___ W. Va.
___, 339 S.E.2d 702 (1985).
2. "Under Rule III(C)(2) . . . of the West Virginia
Rules of Procedure for the Handling of Complaints Against Justices,
Judges, and Magistrates, the allegations of a complaint in a
judicial disciplinary proceeding 'must be proved by clear and
convincing evidence.'" Syllabus Point 4, In Re Pauley, 173 W. Va.
228, 314 S.E.2d 391 (1983).
This matter is before this Court upon review of the
judicial disciplinary proceedings initiated against Nancy Boese, a
magistrate in Putnam County. The Judicial Hearing Board (the
Board) found that Magistrate Boese violated Canons 1, 2A and 2B of
the Judicial Code of Ethics,See footnote 1 and recommended that she be publicly
admonished and incur the cost of this action. After reviewing the
record, we concur in the Board's recommendation to the extent that
we publicly reprimand Magistrate Boese.
This proceeding arose from a series of harassing telephone calls exchanged between Magistrate Boese and her ex-husband, Robert Hanson. Several of the calls were made while Magistrate Boese was on duty and were to and from her office phone. During the conversations, Magistrate Boese used obscene and abusive language. Moreover, on at least one occasion, Magistrate Boese left a threatening message on Mr. Hanson's answering machine, in which she warned him that he "better not cross the centerline on the way to work either because you better be looking over your shoulder." Several months after the harassment began, Mr. Hanson filed a complaint against Magistrate Boese with the Judicial Investigation Commission.
At the disciplinary hearing, Joan Bannister, a former employee of Magistrate Boese, testified that Magistrate Boese spent so much time fighting with Mr. Hanson on the phone that it interfered with her work. Ms. Bannister further testified that during these phone conversations, Magistrate Boese used vulgar and profane language which could be overheard by the general public. Magistrate Boese admitted that she had conversations with Mr. Hanson during working hours in which she occasionally used off-color language. She testified that when these conversations took place, the only people who ever overheard them were members of her family or Ms. Bannister. Finally, although she felt continually harassed by Mr. Hanson, Magistrate Boese contended that she did not
allow their dispute to interfere with the performance of her
Magistrate Boese's testimony about her statement that Mr.
Hanson "better be looking over [his] shoulder" began as an attempt
at an innocent explanation, but concluded with her virtually
admitting that she was threatening him. According to Magistrate
Boese, Mr. Hanson had a drinking problem and frequently drove to
work intoxicated. Earlier that evening, Mr. Hanson had had an
altercation with a police officer and the officer had apparently
told Magistrate Boese "that he would probably be watching him
Magistrate Boese testified that she wanted to inform Mr. Hanson that he may be "subjecting himself . . . to a drunk driving charge[.]" When pressed, Magistrate Boese conceded that she was not concerned for Mr. Hanson's welfare.See footnote 2 Rather, after reciting several incidents in which Mr. Hanson had harassed her, Magistrate Boese confessed her intent to reciprocate: "I was looking over my
shoulder and I thought it was time he should look over his
In the Syllabus of Matter of Gorby, ___ W. Va. ___, 339 S.E.2d 697, modified on other grounds, ___ W. Va. ___, 339 S.E.2d 702 (1985), we explained our role in judicial disciplinary matters: "'The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of Judicial [Hearing] Board in disciplinary proceedings.' Syl. pt. 1, West Virginia Judicial Inquiry Commission v. Dostert, [165 W. Va. 233] 271 S.E.2d 427 (1980)."
See also Matter of Crislip, ___ W. Va. ___, 391 S.E.2d 84 (1990);
In Re Markle, 174 W. Va. 550, 328 S.E.2d 157 (1984); In Re Pauley,
173 W. Va. 228, 314 S.E.2d 391 (1983). The standard of proof
required in such proceedings was stated in Syllabus Point 4 of In
Re Pauley, supra:
"Under Rule III(C)(2) . . . of the West Virginia Rules of Procedure for the Handling of Complaints Against Justices, Judges, and Magistrates, the allegations of a complaint in a judicial disciplinary proceeding 'must be proved by clear and convincing evidence.'"
See also Matter of Gainer, ___ W. Va. ___, 404 S.E.2d 251 (1991);
Matter of Crislip, supra; Matter of Osburn, 173 W. Va. 381, 315
S.E.2d 640 (1984).
Applying the standard to the case before us, we find that
there was not clear and convincing evidence presented that
Magistrate Boese allowed her relationship with Mr. Hanson to
interfere with her job or that she allowed their dispute to be made
public. Ms. Bannister was the only person who made this allegation
and her testimony is somewhat suspect because she did not make
these assertions until after she was fired by Magistrate Boese.
Moreover, although Magistrate Boese admitted that she had
conversations with Mr. Hanson during office hours in which she used
profane language, these actions alone do not constitute an ethical
violation. The occasional use of off-color language by a judicial
officer in the privacy of his or her office or among close
acquaintances does not amount to conduct warranting discipline.
Wenger v. Commission on Judicial Performance, 29 Cal. 3d 615, 175
Cal. Rptr. 420, 630 P.2d 954 (1981); Matter of Bennett, 403 Mich.
178, 267 N.W.2d 914 (1978). Cf. Matter of Gorby, supra (use of
foul and abusive language at football game warranted disciplinary
action); In Re Pauley, supra (judges can be disciplined for using
intemperate, profane, vulgar, and abusive language while conducting
We are troubled by the threatening message Magistrate Boese left on Mr. Hanson's answering machine. Magistrate Boese's choice of words, the inflection in her voice, and her desire to reciprocate for the harassment she had experienced simply render
untenable her contention that she called Mr. Hanson because she
wanted to inform him the police were watching him. Rather, we
agree with the finding of the Board that Magistrate Boese was
attempting to use her official position as an officer of the Court
to threaten Mr. Hanson with arrest for driving under the influence.
In short, although Magistrate Boese's reaction to the
unpleasant situation she was confronted with may be understandable,
her actions fell below the high standards of conduct required of
judges "so that the integrity and independence of the judiciary may
be preserved," thus, violating Canon 1. Moreover, Magistrate Boese
failed to "conduct [herself] at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary" in violation of Canon 2A, and allowed her "relationships
to influence [her] judicial conduct" as prohibited by Canon 2B.
Accordingly, the Court hereby publicly reprimands
Footnote: 1Canons 1, 2A, and 2B of the Judicial Code of Ethics state:
Canon 1: "An independent and
honorable judiciary is indispensable to
justice in our society. A judge should
participate in establishing, maintaining, and
enforcing, and should himself observe, high
standards of conduct so that the integrity
and independence of the judiciary may be
preserved. The provisions of this Code
should be construed and applied to further
Canon 2A: "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."
Canon 2B: "A judge should not
allow his family, social, or other
relationships to influence his judicial
conduct or judgment. He should not lend the
prestige of his office to advance the private
interests of others; nor should he convey or
permit others to convey the impression that
they are in a special position to influence
him. He should not testify voluntarily as a
Footnote: 2Specifically, the following dialogue transpired:
"[MAGISTRATE BOESE]: . . . [I]t didn't
really matter to me if he got arrested for
"But if he did, he was going to
have to be subjected to a field sobriety test
just like anyone else."