James I. Stealey
Goldenberg, Goldenberg & Stealey
Parkersburg, West Virginia
Attorney for Judge Hill
Charles R. Garten
Charleston, West Virginia
Attorney for the Judicial Investigation Commission
JUSTICE BROTHERTON delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN and JUSTICE NEELY concur and reserve the
right to file concurring opinions.
1. "'"The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the 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 (W.Va. 1980).' Syllabus, Matter of Gorby, [176 W.Va. 11], 339 S.E.2d 697 (1985)." Syllabus point 1, Matter of Crislip, 182 W.Va. 637, 391 S.E.2d 84 (1990).
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)." Syllabus
point 2, Matter of Vandelinde, 179 W.Va. 183, 366 S.E.2d 631
3. Canon 5A(1)(b) of the Code of Judicial Conduct,
effective January 1, 1993, clearly states that a judge or a
candidate for election or appointment to judicial office shall not
"publicly endorse or publicly oppose another candidate for public
This case is before this Court for review of the West
Virginia Judicial Hearing Board's May 12, 1993, recommendation that
charges against Judge George W. Hill, Jr., Fourth Judicial Circuit,
Wood County, West Virginia, be dismissed. "'"The Supreme Court of
Appeals will make an independent evaluation of the record and
recommendations of the 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 (W.Va.
1980).' Syllabus, Matter of Gorby, [176 W.Va. 11], 339 S.E.2d 697
(1985)." Syllabus point 1, Matter of Crislip, 182 W.Va. 637, 391
S.E.2d 84 (1990).
On November 13, 1992, the Judicial Investigation
Commission of West Virginia filed a complaint with the Judicial
Hearing Board which alleged that Judge Hill had violated Canon 2
and Canon 7B(1) and (2) of the Judicial Code of Ethics. Judge Hill
admitted that the factual allegations contained in the complaint
were true, but he denied violating any of the canons of the
Judicial Code of Ethics.
During the 1992 election, Judge Hill ran as an unopposed
candidate for Division 1, Circuit Judge, Fourth Judicial Circuit,
Wood County, West Virginia. At the time, Judge Hill was a sitting
circuit judge in the Fourth Judicial Circuit. In October, 1992,
Judge Hill's reelection committee paid for a campaign advertisement
which was run with Judge Hill's approval.
This advertisement is at the center of the controversy in
this case because voters were urged to "Vote For The Best," the
Democratic team of Judge Hill and Robert W. "Bob" Friend, who was
a candidate for Circuit Judge, Division II. The advertisement
first appeared in the October 14 - 20 edition of a local shopping
magazine known as the "Bulletin Board." In the ad, Hill and Friend
were described as "Mature - Qualified" and "Competent - Confident -
Compatible," and voters were informed that, "This Team Will Work
For You." A similar ad which appeared in the October 21, 1992,
Wirt County Journal added that "Judge Hill Needs a FRIEND In The
On October 16, 1992, Wood County Chief Circuit Judge
Arthur N. Gustke wrote a letter to the Judicial Investigation
Commission in which he alleged that Judge Hill had engaged in
improper political activity by endorsing a candidate for political
office. Judge Gustke related how "[a]pproximately three and one-
half years ago Judge George Hill came to my office and adamantly
insisted that I join him in condemning former Judge Donald F. Black
for his endorsement of a political candidate in an election. At
the time of Judge Black's endorsement, he was not on the bench,
having retired, was not actively serving as a judge, and was not a
candidate for any office." Judge Gustke stated that "it appears to
me that Judge Hill is violating the very rule which he so adamantly
wanted to uphold when another judge was involved."
In his complaint, Judge Gustke referred to a
September 30, 1991, letter from W. Jack Stevens, Chairman of the
Judicial Investigation Commission, and said that "I have been very
reliably informed that Judge Hill is fully aware of the contents of
this letter." The letter was a response to an inquiry Judge Hill
directed to the Judicial Investigation Commission, seeking an
advisory opinion on the following questions:
1. May a judge who is a candidate for reelection publicly endorse another candidate for judicial office whose election to office the judge believes would promote the proper administration of justice?
2. May a judge (whether a candidate or not) publicly oppose the candidacy for judicial office of a lawyer whom the judge believes to be unsuitable for judicial office and whose election would, in the judge's opinion, be detrimental to the proper administration of justice?
Judge Hill was informed that "[i]n answer to both questions, the
provisions set forth in 7B(1) and (2) would prohibit such
In an October 13, 1992, memorandum, Judge Gustke warned
judicial candidates against endorsing other candidates. Judge
Gustke wrote that, "I am informed that it is the Judicial
Investigation Commission's position that endorsing another
candidate by word or actions is strictly prohibited."
On October 19, 1992, the Judicial Investigation
Commission found probable cause to file a complaint against Judge
Hill with the Judicial Hearing Board. Judge Hill was charged with
violating Canon 2 and Canon 7B(1) and (2) of the Judicial Code of
The Judicial Investigation Commission now urges this
Court to reject the Judicial Hearing Board's recommendation that
charges against Judge Hill be dismissed. The Commission argues
that the record in this case offers clear and convincing evidence
that Judge Hill's actions violated Canon 2 and Canon 7B(1) and (2)
of the Judicial Code of Ethics.
The Judicial Code of Ethics has now been superseded by
the Code of Judicial Conduct, which was adopted by order entered
October 21, 1992, and became effective January 1, 1993. However,
Canon 2 of the former Judicial Code of Ethics provided that:
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.
A. 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.
B. 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
Canon 7B(1) and (2) of the old Judicial Code of Ethics
A Judge Should Refrain from Political
Activity Inappropriate to His Judicial Office
. . .
B. Campaign Conduct.
(1) A candidate, including an incumbent
judge, for a judicial office that is
to be filled by public election
between competing candidates:
(a) should maintain the dignity
appropriate to judicial
office, and should encourage
members of his family to
adhere to the same standards
of political conduct that
apply to him;
(b) should prohibit public
officials or employees subject
to his direction or control
from doing for him what he is
prohibited from doing under
this Canon; and except to the
extent authorized under
subsection B(2), he should not
allow any other person to do
for him what he is prohibited
from doing under this Canon;
(c) should not make pledges or
promises of conduct in office
other than the faithful and
impartial performance of the
duties of the office; announce
his views on disputed legal or
political issues; or
misrepresent his identity,
position, or other fact.
(2) A candidate, including an incumbent
judge, for a judicial office that is
to be filled by public election
between competing candidates should
not himself solicit or accept
campaign funds, or solicit publicly
stated support, but he may establish
committees of responsible persons to
secure and manage the expenditures
of funds for his campaign and to
obtain public statements of support
for his candidacy. Such committees
are not prohibited from soliciting
campaign contributions and public
support from lawyers. A candidate's
committees may solicit funds in
accordance with the state law. A
candidate should not use or permit
the use of campaign contributions
for the private benefit of himself
or members of his family.
Most significant to our decision in this case, however,
is Canon 7A(1)(b), which states that "[a] judge who is not a
candidate for election or reelection should not make speeches for
a political organization or candidate or publicly endorse a
candidate for public office . . . ." Judge Hill argues that a
strict construction of Canon 7A(1)(b) permits the conduct which the
Commission claims constitutes a violation of Canon 2 and Canon
7B(1) and (2). We agree that Canon 7A(1)(b) does not prohibit the
conduct complained of in this case.
Canon 7A(1)(b) is plain and unambiguous. It clearly
states that a judge who is not a candidate may not publicly endorse
a candidate for public office. Just as clearly, this canon does
not prohibit the endorsement of a candidate by a judge who is a
candidate. Unlike either Canon 2 or Canon 7B(1) and (2), Canon
7A(1)(b) specifically addresses the question of whether a judge can
publicly endorse a candidate for public office. "'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)." Syllabus point 2, Matter of
Vandelinde, 179 W.Va. 637, 366 S.E.2d 631 (1988). Canon 7B(1) and
(2) speaks more generally to campaign activities deemed
inappropriate for judges to engage in and is not controlling in
this instance. Likewise, Canon 2 is general in nature. Moreover,
this Court has previously cautioned that "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." West Virginia Judicial Inquiry Commission v. Casto, 163
W.Va. 661, 263 S.E.2d 79, 83 (1979).
It is obvious that Canon 7A(1)(b) was poorly drafted
because, technically, perhaps through oversight, the endorsement of
candidates by judges running for reelection was not prohibited.
There is ample evidence that Judge Hill was fully aware that he
should not endorse another judicial candidate. In fact, he himself
had once frowned upon such conduct. In spite of our holding
herein, we wish to make it clear that in no way do we condone the
manner in which Judge Hill circumvented the spirit and intent of
the ethical canons.
We should point out that the new Code of Judicial Conduct
now specifically proscribes the conduct complained of in this case.
Canon 5A(1)(b) of the Code of Judicial Conduct, effective
January 1, 1993, clearly states that a judge or a candidate for
election or appointment to judicial office shall not "publicly
endorse or publicly oppose another candidate for public office."
(Emphasis added). Thus, the technical deficiency in the old
Judicial Code of Ethics which was exposed in this matter has
obviously been corrected, leaving no doubt that the endorsement of
candidates by judges, candidates or otherwise, is not permitted.
For the reasons discussed above, we order that the
complaint against Judge Hill be dismissed.