David R. Janes
Tharp, Liotta & Janes
Fairmont, West Virginia
Special Judicial Disciplinary Counsel
John W. Swisher
Charleston, West Virginia
Attorney for Honorable John Hey,
Judge, Circuit Court of Kanawha
JUSTICE CLECKLEY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. "Under Rule III(C)(2)(1983 Supp.) 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, 235, 314 S.E.2d 391, 399 (1983).
2. The State may accomplish its legitimate interests
and restrain the public expression of its judges through narrowly
tailored limitations where those interests outweigh the judges'
free speech interests.
3. The State's interests in maintaining and enforcing
the judicial canons against judges' speech are sufficiently served
by their specific prohibitions so that the general prohibitions in
Canons 1, 2, and 3 of the Judicial Code of Ethics (and now the Code
of Judicial Conduct) may not be used to punish judges for their
public remarks that do not concern a pending or impending matter
and that do not violate either a specific prohibition or some other
4. A judge may not be disciplined consistent with the
First Amendment to the United States Constitution or with Section
7 of Article III of the West Virginia Constitution for his remarks
during a radio interview in which he discussed his own disciplinary proceeding, criticized a member of his investigative panel, and
stated his intention to take some reactive and lawful measure
against the panel member.
This judicial disciplinary proceeding arises from a determination of the Judicial Investigation Commission (Commission) that probable cause existed to file a complaint against the Honorable John Hey, Judge of the Circuit County of Kanawha County, based upon purported violations of Canon 1, Canon 2A, and Canon 3A(6) of the West Virginia Judicial Code of Ethics.See footnote 1 After hearing all the evidence presented, a Special Judicial Hearing Board (Special Board) convened for Judge Hey's case determined that the evidence was insufficient to support the Commission's complaint. The Special Board recommended the dismissal of the Commission's complaint against Judge Hey.
Before this Court, Judge Hey argues that the evidence
against him was insufficient as a matter of law and that under the
circumstances of this case any decision adverse to him would
violate his rights under the First Amendment to the United States Constitution. After an independent evaluation of the record, we
find that the evidence does not provide clear and convincing proof
of violations of any of the designated Canons in the Code of
Judicial Conduct or the Judicial Code of Ethics. Additionally, we
find that a contrary result would constitute an infringement of
Judge Hey's rights that are protected by the First Amendment to the
United States Constitution and by Section 7 of Article III of the
West Virginia Constitution. Therefore, we adopt the recommendation
of the Special Board and order the complaint dismissed.
On December 17, 1992, this Court adopted the recommendation of the Judicial Hearing Board (Hearing Board) in the case of Matter of Hey, 188 W. Va. 545, 425 S.E.2d 221 (1992). As a result, Judge Hey was publicly censured for discussing on a national television program, "Crossfire," the details of a case pending before a West Virginia Court.See footnote 2 On the day following his censure, Judge Hey appeared on a talk show on a local radio station and discussed various issues, including his censure and the behavior of some members of the Hearing Board.
During the radio broadcast, Judge Hey mentioned that one
of the members of the Hearing Board that recommended his censure was the wife of the president of the University of Charleston and
that this particular Hearing Board member walked out while the
Hearing Board reviewed the videotape of "Crossfire". Judge Hey
remarked that she "[d]idn't even view 15 minutes of it so I'm not
done with her yet. I want her to understand that. I hope she or
one of her friends are listening."
Judge Hey was referring to Hearing Board member, Dr.
Janet Welch. Although Dr. Welch did not actually hear the radio
interview, friends and various other individuals fearing for Dr.
Welch's welfare informed her of Judge Hey's statements and warned
her to be careful. Because of the warnings, Dr. Welch filed a
complaint against Judge Hey with the Commission on December 30,
In response to the complaint, Judge Hey asserted that his
radio comments were not meant as a threat to Dr. Welch.
Furthermore, Judge Hey argued that because the comments were not
made in the course of his official duties, they gained First
After investigating Dr. Welch's complaint, the Commission
determined that there was probable cause to file a complaint with
the Hearing Board. The Commission filed the complaint on April 13,
1993. In order to avoid a potential conflict of interest, the
Special Board was convened to hear the complaint against Judge Hey. The Special Board held a full hearing on the case on March 29,
At the hearing, Judge Hey testified that his radio
comments were intended to indicate that he would subpoena and
depose Dr. Welch in a related civil proceeding pending against him.
Judge Hey did not provide this explanation during the radio
broadcast. Dr. Welch testified that she did not actually hear the
radio program when Judge Hey made his comments, but instead became
aware of the radio broadcast after a number of individuals
questioned her about Judge Hey's comments at a Christmas party.
After hearing from Judge Hey, Dr. Welch, and various
other witnesses, the Special Board concluded: "Although a circuit
judge's conduct and speech is limited in many ways by the Code of
Judicial Conduct, a circuit judge does not lose the full protection
of the First Amendment Rights of the United States Constitution,
especially when he is a party litigant." The Special Board voted
5-2 to dismiss the Canon 2 charges and voted 7-0 to dismiss the
charges based on Canons 1 and 3. The Special Board recommended to
this Court that the complaint against Judge Hey be dismissed.
Allegations in judicial disciplinary proceedings must be proved by clear and convincing evidence. In Syllabus Point 4 of In Re Pauley, 173 W. Va. 228, 314 S.E.2d 391 (1983), we made the following statement regarding the burden of proof:
"Under Rule III(C)(2)(1983 Supp.) 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.'"
This Court must perform an independent evaluation of the
Special Board's findings and recommendations in order to determine
whether a particular allegation has been proven by clear and
convincing evidence. See In the Matter of Kaufman, 187 W. Va. 166,
416 S.E.2d 480 (1992); Matter of Crislip, 182 W. Va. 637, 391
S.E.2d 84 (1990); In re Markle, 174 W. Va. 550, 328 S.E.2d 157
(1984); In re Pauley, supra; West Virginia Judicial Inquiry Comm'n
v. Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980). The term
"independent evaluation" is synonymous with a de novo or plenary
review of the record. This Court in Matter of Hey observed that
"[i]mplicit in this requirement 'is the right to accept or reject
the disciplinary sanction recommended by the Board.'" 188 W. Va.
at 549, 425 S.E.2d at 225, quoting Matter of Crislip, 182 W. Va. at
638, 391 S.E.2d at 85.
The evidentiary support for the charges in this case
stems from the stray ramblings of Judge Hey during a radio program
interview. The evidence, although conflicting in part, can be
summed up by the statement that no one offered any substantial or
persuasive information from which it can be shown that Judge Hey's
comments conveyed a physical or otherwise improper threat. As stated above, Dr. Welch testified that she did not hear the actual
airing of the comments of Judge Hey. The only witness with
firsthand knowledge who testified in support of the complaint was
Karen Glazier. Essentially, Ms. Glazier felt that Judge Hey's
comments were unprofessional, but she did not remember Judge Hey's
comments as being of a threatening nature.
Some of the information sent to the Commission by Judge
Hey included letters from Danny Jones, Don Cook, and Frank George
Scherback, individuals who have performed radio interviews with
Judge Hey.See footnote 3 All three agreed that Judge Hey is very outspoken and
controversial; they denied, however, that he said anything
inappropriate or "mean-spirited" about any individual or group of
people. The letters of Don Cook and Danny Jones specifically deny
that Judge Hey made any threatening comments directed to Dr. Welch.
Although we believe the evidence is insufficient to support the charges of ethical violations,See footnote 4 we directly address whether the First Amendment rights of Judge Hey are implicated in these proceedings. In doing so, we are mindful of the wisdom expressed in Ashwander v. Tennessee, 297 U.S. 288, 346-47, 56 S. Ct. 466, 482-83, 80 L.Ed. 688, 710-11 (1936) (Brandeis, J., concurring), which admonished that courts must not unnecessarily decide constitutional questions. If a case can be decided by the application of general law, a court should forego deciding it on constitutional grounds. Ordinarily, we would adhere to this precept. The constitutional question before us, however, is one of vital importance because of its potential chilling effect on judicial expression, and the question is likely to be the subject of numerous future appeals.See footnote 5 Additionally, because we believe freedom of speech is a fundamental personal right, see Schneider v. New Jersey, 308 U.S. 147, 60 S. Ct. 146, 84 L.Ed. 155 (1939), and because we have a constitutionally imposed duty to regulate our court system and its judges, W. Va. Const. art. VIII, §§ 1, 3, & 8, we address the issue raised by Judge Hey to provide guidance for our disciplinary committees. See Israel v. West Virginia Secondary Schools Activities Comm'n, 182 W. Va. 454, 457, 388 S.E.2d 480, 483 (1989), quoting State v. Gleason, 404 A.2d 573, 578 (Me. 1979) ("'while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public'").
Unquestionably, it is within this Court's power to
discipline judges. W. Va. Const. art. VIII, § 8. See also
Committee on Legal Ethics v. Karl, ___ W. Va.___, ___ S.E.2d ___
(No. 22172, July 20, 1994). But in doing so, we have a
corresponding duty not to ignore judges' constitutionally protected
rights. The competition between the demands of government and the
free speech interests of its servants has been before us in other
contexts. In our cases on public employees' speech, we have
recognized that the government as an employer has special interests
that can support narrowly tailored limitations on employees'
expressive and political activities. E.g., Weaver v. Shaffer, 170
W. Va. 107, 290 S.E.2d 244 (1980). At the same time, our cases
confirm that public employees retain a considerable measure of
First Amendment protection against unnecessary restraints of their
speech and association by their employer. E.g., Pickering v. Board
of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L.Ed.2d 811 (1968);See footnote 6 Orr v. Crowder, 173 W. Va. 335, 343, 315 S.E.2d 593, 601 (1983), cert.
denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984). "[A]ny
regulations pertaining to such employees must recognize such rights
and strike a balance between the interests of such employee, as a
citizen commenting on matters of public concern, and the interests
of the state in promoting efficiency in its affairs." Gooden v.
Board of Appeals of W. Va., 160 W. Va. 318, 324, 234 S.E.2d 893,
897 (1977).See footnote 7
Judges are not typical, run-of-the-bureaucracy employees,
nor does our oversight of judicial disciplinary proceedings present
us with an employment context. Moreover, the State's interests in regulating judicial conduct are both of a different nature and of
a greater weight than those implicated in the usual government
employment case. The State has compelling interests in maintaining
the integrity, independence, and impartiality of the judicial
system--and in maintaining the appearance of the same--that justify
unusually stringent restrictions on judicial expression, both on
and off the bench. As the Fifth Circuit Court of Appeals has
noted, a "state may restrict the speech of elected judges in ways
that it may not restrict the speech of other elected officials."
Scott v. Flowers, 910 F.2d 201, 212 (5th Cir. 1990), citing Morial
v. Judiciary Comm'n, 565 F.2d 295 (5th Cir. 1977) (en banc), cert.
denied, 435 U.S. 1013, 98 S. Ct. 1887, 56 L.Ed.2d 395 (1978).
(Emphasis in original).
Despite these differences, the public employee-free
speech cases provide an appropriate analogy in this case because
the clash of interests requires us to engage in a similar balancing
process.See footnote 8 It is the same approach we have taken in considering the impact of disciplinary rules on lawyers' speech. See Committee
on Legal Ethics v. Douglas, 179 W. Va. 490, 497, 370 S.E.2d 325,
332 (1988) ("the Free Speech Clause of the First Amendment protects
a lawyer's criticism of the legal system and its judges, but this
protection is not absolute"); Pushinsky v. Board of Law Examiners,
164 W. Va. 736, 266 S.E.2d 444 (1980) (Bar admission process may
not inquire into an applicant's beliefs, advocacy, or associational
activities). That is: the State may accomplish its legitimate
interests and restrain the public expression of its judges through
narrowly tailored limitations where those interests outweigh the
judges' free speech interests. The principles to be applied in
these various contexts (concerning public employees, judges, and
lawyers) are the same, although the interests to be weighed are
different and, thus, the outcomes in particular cases may therefore vary. As in any other free speech context, the regulation of
speech cannot exceed that which is necessary to achieve the State's
legitimate interests. E.g., Shelton v. Tucker, 364 U.S. 479, 488,
81 S. Ct. 247, 252, 5 L.Ed.2d 231, 237 (1960); Pushinsky v. Board
of Law Examiners, 164 W. Va. at 741-44, 266 S.E.2d at 447-49.
Engaging the above analysis, we conclude that the State's
interests in maintaining and enforcing the judicial canons against
judges' speech are sufficiently served by their specific
prohibitions so that the general prohibitions in Canons 1, 2, and
3 of the Judicial Code of Ethics (and now the Code of Judicial
Conduct) may not be used to punish judges for their public remarks
that do not concern a pending or impending matter and that do not
violate either a specific prohibition or some other law.See footnote 9
Turning to the specifics in this case, Judge Hey has been
charged with violating Canons 1, 2, and 3 of the Judicial Code of
Ethics for a statement he made regarding (as interpreted in the
Special Board's findings of fact) the fairness of a prior
disciplinary proceeding against him and intimating that he planned
to take some reactive measure. So interpreted, the statement
related to Judge Hey's status as an "accused" and not directly to
his status as a judge in a pending or impending case.
Judicial disciplinary proceedings are subjects of the
highest public concern. The media, and the public generally, are
free to comment on and discuss such matters at length. See, e.g.,
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838-39, 98
S. Ct. 1535, 1541, 56 L.Ed.2d 1, 10 (1978); see also Daily Gazette
Co. v. Committee on Legal Ethics, 174 W. Va. 359, 326 S.E.2d 705
(1984) (public has right of access to disciplinary proceedings
against lawyers because of the public significance involved). In
such cases, where the judge himself (or herself) is the target and
his professional reputation and possibly his career are at stake,
fairness to him and promotion of the search for truth in the public marketplace require that he have the right to respond and defend
himself in the public debate as well as in formal proceedings.
That is especially so in West Virginia, where judges are elected
officials. A judge depends on public opinion to remain in his job,
and the public needs balanced information about its judges to make
informed decisions at the polls. The formal proceedings of the
Judicial Hearing Board do not, by themselves, provide an accused
judge with a sufficient forum to influence public perceptions, nor
do they provide the end-all for the public's need to know about a
judge's conduct.See footnote 10
The Canons are not insensitive to the free expression
rights of judges. Canon 4(B) of the current Code of Judicial
Conduct provides that "[a] judge may speak, write, lecture, teach,
and participate in other extra-judicial activities concerning the
law, the legal system, the administration of justice, and non-legal
subjects, subject to the requirements of this Code." The
commentary to Canon 3(B)(9) of the Code of Judicial Conduct, which
restricts a judge's ability to comment publicly, states that the
restriction "does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal
capacity[.]"See footnote 11 These provisions certainly indicate that Judge Hey's
remarks, which alluded only to a proceeding in which he was a party
and were not otherwise specifically prohibited by the Code, are not
within Canon 3's proscriptions.See footnote 12 To now apply that Canon to his
speech would create the same constitutional deficiency as that
recently struck down by the United States Supreme Court in Gentile
v. State Bar of Nevada, 501 U.S. 1030, 1048-51, 111 S. Ct. 2720,
2731-32, 115 L.Ed.2d 888, 906-08 (1991). That case overturned a
disciplinary action against a criminal defense attorney who had
publicly but carefully responded to the case against his just-
indicted client. The relevant disciplinary rule, the Court held,
misled the attorney into thinking that he could engage in such
expression and failed "to provide fair notice to those to whom [it]
is directed." 501 U.S. at 1048, 111 S. Ct. at 2731, 115 L.Ed.2d at
906. (Internal quotation marks omitted). The rule was therefore
Canons 1 and 2 also fail to provide an adequate or
appropriate basis for limiting or disciplining judges' speech about
their own disciplinary proceedings. Indeed, Canon 1's principle
that judges shall uphold the integrity and independence of the
judiciary could be disserved by punishing judges for discussing
with the public the fairness and validity of their hearings.
Clearly, the public has a need to know about any deficiencies in
those proceedings, and the integrity of the judiciary cannot be
advanced by a rule that chills critical discussion by those most
knowledgeable of the very process created to enforce and protect
Canon 2 directs that judges must avoid impropriety, and
the appearance of impropriety, in their personal and professional
conduct. (See Commentary to the current Canon 1(A)) This section
cannot be stretched to restrict pure speech on a matter of public
interest when the speech does not pertain to pending or impending
cases and is not within a specific prohibition of the Code or some
other law. It is difficult to comprehend how truthful remarks or
statements of opinion by a judge about a matter of public
significance unrelated to a matter before him, or likely to come
before him, and which is not otherwise specifically prohibited can
ever create the appearance of impropriety. In this case, Judge Hey
accurately stated that a member of his hearing panel left the
hearing for a period of time while it was in progress. He also
claimed that he intended to do something about it. Although the statement could, somewhat implausibly, be taken as a physical
threat, the hearing panel and this Court have found that a threat
was neither intended nor reasonably inferable. Thus, there is
nothing left in the remark that appears improper.
Finally, Canons 1 and 2 are fraught with subjectivity and
elasticity. As stated in the Commentary to the current Canon 2(A),
"it is not practicable to list all prohibited acts," and the canon
is therefore "necessarily cast in general terms." The same could
describe Canon 3. Such subjectivity and elasticity, or vagueness,
create problems when applied to expression. That is, vague
regulations fail to adequately direct regulatees and cause them to
play it safe by foregoing participation in public discussion, thus
discouraging them from engaging in what would be protected
expression and also depriving the public of their contributions.
West Virginia Citizens Action Group v. Daley, 174 W. Va. 299, 305-
06, 324 S.E.2d 713, 719-20 (1984); accord, e.g., Keyishian v. Board
of Regents, 385 U.S. 589, 598-600, 87 S. Ct. 675, 681-82, 17
L.Ed.2d 629 (1967). More recently, the United States Supreme Court
in Gentile v. State Bar of Nevada, 501 U.S. at 1051, 111 S. Ct. at
2732, 115 L.Ed.2d at 908, emphasized that
"[t]he prohibition against vague regulations of speech is based in part on the need to eliminate the impermissible risk of discriminatory enforcement, Kolender v. Lawson, 461 U.S. 352, 357-358[, 103 S. Ct. 1855, 1858, 75 L.Ed.2d 903, 909] (1983); Smith v. Goguen, 415 U.S. 566, 572-573[, 94 S. Ct. 1242, 1246-47, 39 L.Ed.2d 605, 611-12] (1974), for history shows that speech is suppressed when either the speaker or the message is critical of those who enforce the law. The question is not whether discriminatory enforcement occurred here . . . , but whether the Rule is so imprecise that discriminatory enforcement is a real possibility."
This is not to say that Canons 1 and 2 are facially unconstitutional; rather, it means that those canons cannot constitutionally be manipulated to apply to a judge's off-the-bench remarks about a subject of public concern that is neither presently pending before him nor likely to come before him and that does not violate some other more specific provision of the Code or the law. A judge may not be disciplined consistent with the First Amendment to the United States Constitution or with Section 7 of Article III of the West Virginia Constitution for his remarks during a radio interview in which he discussed his own disciplinary proceeding, criticized a member of his investigative panel, and stated his intention to take some reactive and lawful measure against the panel member.
Admittedly, Judge Hey's comments created a storm of
controversy and were not appreciated by many of the listeners, but
it is in this context that the First Amendment plays its most
important function. See Waters v. Churchill, ___ U.S. ___, ___,
114 S. Ct. 1878, 1886, 128 L.Ed.2d 686, 697 (1994), quoting Cohen
v. California, 403 U.S. 15, 24-25, 91 S. Ct. 1780, 1788, 29 L.Ed.2d
284, 293 (1971) ("The First Amendment demands a tolerance of
'verbal tumult, discord, and even offensive utterance,' as
'necessary side effects of . . . the process of open debate'"); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 896, 93 L.Ed.
1131, 1134 (1949) ("[A] function of free speech under our system of
government is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people
to anger. Speech is often provocative and challenging"). The
comments of Judge Hey cannot be construed as a physical or
otherwise improper threat against Dr. Welch. Judge Hey's
commentary thus clearly falls within protected speech and need not
be punished in order to maintain the purposes of the judicial
canons. As often proved in this State, judges (like anyone else)
have a right to be obnoxious in their public expression. They may
continue to offend, so long as they refrain from violating specific
provisions of the Code or some other law. While offensive
expression may raise questions about the speaker's temperament and
discretion, the Constitution requires that those questions must be
answered by the public through the ballot box and not by this Court
through disciplinary proceedings. The Special Judicial Hearing
Board correctly recommended the dismissal of this complaint.
Footnote: 1 The Judicial Code of Ethics was superseded by the Code of Judicial Conduct, which was adopted on October 21, 1992, and became effective on January 1, 1993. Because the alleged violations occurred prior to the adoption of the Code of Judicial Conduct, we will consider this case under the Judicial Code of Ethics. Although the old Code is controlling, we believe that in cases such as this, the individual charged deserves the benefit of any new expressions of law that have been formulated since the incident in question occurred. There are some significant differences between the Judicial Code of Ethics and the Code of Judicial Conduct. While there were only minor changes in Canons 1 and 2, Canon 3 was substantially reorganized. Notably, Canons 3B(7) and 3B(9) of the Code of Judicial Conduct now contain some of the same language that previously existed in Canon 3A(6) of the Judicial Code of Ethics.
Footnote: 2 For other litigation arising from the first Hey case, see Roush v. Roush, 767 F. Supp. 1344 (S.D. W. Va. 1991), aff'd, 952 F.2d 396 (4th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1948, 118 L.Ed.2d 552 (1992). See also Hey, 188 W. Va. at 547 n.1, 425 S.E.2d at 223 n.1.
Footnote: 3 In fact, it is an interview with Judge Hey on Mr. Cook's morning radio talk show that is at the center of this litigation.
Footnote: 4 The facts here are substantially distinguishable from those cases in which this Court has found a violation of Canon 1. Canon 1 reads as follows:
"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
See Matter of Eplin, 187 W. Va. 131, 416 S.E.2d 248 (1992) (magistrate accorded special treatment to a criminal defendant in order to curry favor with a state senator); Matter of Boese, 186 W. Va. 46, 410 S.E.2d 282 (1991) (in a series of harassing telephone calls between magistrate and ex-husband, magistrate used "obscene and abusive language"; some of these conversations occurred while the magistrate was on duty and in her office); Matter of Gainer, 185 W. Va. 8, 404 S.E.2d 251 (1991) (magistrate found to have squeezed breasts of a fifteen-year-old student employee). To the contrary, where the evidence has been questionable and conflicting, this Court has not hesitated to find a failure of proof. See Matter of Atkinson, 188 W. Va. 293, 423 S.E.2d 902 (1992) (evidence insufficient to establish knowledge of wrongdoing by magistrate).
The case against Judge Hey under Canon 2A is equally
deficient. Canon 2A 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." In reference to Canon 2A, we
have noted in Matter of Gorby, 176 W. Va. 11, 14, 339 S.E.2d 697,
700 (1985), quoting Syllabus Point 7, Matter of Bennett, 403
Mich. 178, 267 N.W.2d 914 (1978):
"'[A] judge, whether on or off the bench, is
bound to strive toward creating and
preserving the image of the justice system as
an independent, impartial source of reasoned
actions and decisions. Achievement of this
goal demands that a judge, in a sense, behave as though he is always on the bench.'"
Our prior cases have found violations of Canon 2A where
the evidence was clear and convincing and the conduct complained
of was egregious. See Matter of Codispoti, 190 W. Va. 369, 438
S.E.2d 549 (1993) (magistrate helped to create misleading
campaign advertisements for his wife's circuit judge campaign);
Matter of Boese, supra (magistrate violated Canons 1, 2A, and 2B
as a result of a series of harassing telephone calls between
magistrate and her ex-husband); Matter of King, 184 W. Va. 177,
399 S.E.2d 888 (1990) (family law master violated Canon 2A by
making misrepresentations regarding status of decision); Matter
of Gorby, supra (magistrate shouted, used foul and abusive
language, and may have used even physical force against other
people at a football game).
Unlike the words of Judge Hey, the above conduct was
either deceptive, illegal, or a flagrant abuse of power. More
significantly, the evidence against the judicial officer was
Canon 3A(6) of the Judicial Code of Ethics states:
"A judge should abstain from public
comment about a pending or impending
proceeding in any court, and should require
similar abstention on the part of court
personnel subject to his direction and
control. This subsection does not prohibit
judges from making public statements in the
course of their official duties or from
explaining for public information the
procedures of the court."
In Matter of Hey, 188 W. Va. at 547-48, 425 S.E.2d at 223-24, we stated "that the test for judicial impropriety under Canon 3A(6) is whether the judge's public comments on a specific case raise a reasonable question as to impartiality." See also Matter of Codispoti, 190 W. Va. at 373, 438 S.E.2d at 553. We also stated in Matter of Hey that Canon 3A(6) would be violated if a judge's public comments involved a case pending or impending in any court in West Virginia. 188 W. Va. at 548, 425 S.E.2d at 224.
The Commission based their complaint against Judge Hey
on the fact that he made comments about this Court's decision in
the previous Hey case and the comments about Dr. Welch. None of
the comments made by Judge Hey during the radio broadcast could
possibly constitute a violation of Canon 3A(6) because the
comments were not directed to a case that was pending or impending before any court. In fact, not only was Judge Hey a party to the case that he mentioned, but the case had been fully resolved by this Court.
Footnote: 5 The inquiry should be whether the facts alleged show that "there is a substantial controversy, between parties having adverse interests, of sufficient immediacy and reality to warrant the issuance of" an opinion on the controversial subject. See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L.Ed.2d 826,829 (1941). We give due consideration to the fact that there is governmental involvement in an area arguably protected by the Constitution, which may well have a substantial adverse effect on the freedom of speech. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S. Ct. 1694, 40 L.Ed.2d 1 (1974).
Footnote: 6 We have described Pickering as holding that "public employees are entitled to be protected from firings, demotions and other adverse employment consequences resulting from the exercise of their free speech rights, as well as other First Amendment rights." Orr v. Crowder, 173 W. Va. 335, 343, 315
S.E.2d 593, 601 (1983), cert. denied, 469 U.S. 981, 105 S. Ct. 384, 83 L.Ed.2d 319 (1984) (describing part of the Pickering holding).
Footnote: 7 The United States Supreme Court has also addressed the issue of balancing the interests of the public employer and its employees. In the Supreme Court's most recent decision in this area, Waters v. Churchill, ___ U.S. ___, ___, 114 S. Ct. 1878, 1888, 128 L.Ed.2d 686, 699-700 (1994), it recognized that the government as an employer has efficiency interests that "should . . . be assigned a greater value" than when the government acts as a sovereign regulating the public generally. Thus, the government-as-employer may rely on procedures that would be constitutionally inadequate if used by the government-as- sovereign. The case left thoroughly intact, however, the principle established by such decisions as Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L.Ed.2d 708 (1983); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L.Ed.2d 471 (1977); and Pickering: The State may not punish an employee for her speech about a matter of public concern unless "'"the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees"'" outweighs "'"the employee's interest in expressing herself on this matter[.]"'" Waters v. Churchill, ___ U.S. at ___, 114 S. Ct. at 1884, 128 L.Ed.2d at 695, quoting Connick and Pickering.
Footnote: 8 Balancing is the appropriate analysis here because its setting (the judicial system) places this case in the line of diverse decisions addressing the State's ability to restrict speech in order to operate effectively its own institutions. In each of these contexts, the institutional interests of the State, which are typically unrelated to the suppression of expression, are balanced against the individual's free speech interests. Such contexts include, among many others, the operation of public schools, e.g., Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L.Ed.2d 592 (1988); state colleges and universities, e.g., Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 93 S. Ct. 1197, 35 L.Ed.2d 618 (1973); Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L.Ed.2d 266 (1972); prisons, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 98 S. Ct. 2588, 57 L.Ed.2d 553 (1978); Adderly v. Florida, 385 U.S.
39, 87 S. Ct. 242, 17 L.Ed.2d 149 (1966); public employment, e.g., Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L.Ed.2d 708 (1983); Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S. Ct. 384, 83 L.Ed.2d 319 (1984); park systems, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L.Ed.2d 221 (1984); and government grants, e.g., Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L.Ed.2d 233 (1991). From even this abbreviated sampling, it can be seen that an individual's free speech expectations and the government's legitimate interests in restraining speech can vary dramatically depending upon the context. Consequently, each of these contexts has developed its own doctrine to a certain extent. See note 7, supra. Of course, when the State discriminates against a class of protected speech using its regulatory or police powers--as opposed to its proprietary or spending powers in the above examples--the analysis must be considerably more exacting. E.g., Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 112 S. Ct. 501, 116 L.Ed.2d 476 (1991) (speech classification must be necessary to advance a compelling governmental interest); Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L.Ed.2d 333 (1988) (Accord).
Footnote: 9 Specific prohibitions in the current Code include Canon 4(C)(3)(b), which forbids judges from soliciting funds for educational, religious, charitable, fraternal, or civic organizations--an expressive activity clearly protected when engaged in by private citizens. E.g., Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S. Ct. 826, 63 L.Ed.2d 73 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S. Ct. 1755, 48 L.Ed.2d 243 (1976); West Virginia Citizens Action Group, Inc. v. Daley, 174 W. Va. 299, 324 S.E.2d 713 (1984). Similarly, Canon 5 strictly limits judges' participation in partisan political matters, another subject that clearly embraces constitutionally protected rights. E.g., Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L.Ed.2d 547 (1976); Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976). Such participation can be placed off-limits to judges because of compelling and countervailing governmental interests. See, e.g., Clements v. Fashing, 457 U.S. 957, 102 S. Ct. 2836, 73 L.Ed.2d 508 (1982) (sustaining resign-to-run law).
In addition, the requirements of Canon 2 that judges
"shall respect and comply with the law" and "shall act at all
times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary" could be
legitimately applied to a judge's speech that is the subject of valid criminal laws, such as bans on obscenity, fighting words, unlawful incitement, and criminal solicitation. Some civil restraints on speech might also possibly form the basis for an appropriate disciplinary action. For example, it is not untenable that a judge's public, intentionally false, and viciously defamatory attack on an individual could be such a case. See Committee on Legal Ethics v. Farber, 185 W. Va. 522, 408 S.E.2d 274 (1991), cert. denied, ___ U.S.___, 112 S. Ct. 970, 117 L.Ed.2d 135 (1992).
Footnote: 10 This case must be distinguished from those in which a judge responds to attacks on his ruling(s) in a pending case. In that circumstance, the State's interests in maintaining the appearance of impartiality and independence of the judiciary trumps an individual judge's right to defend himself. But those interests of the State are not implicated to the same extent or in the same way when a judge publicly comments on charges of misconduct made against him in a formal disciplinary proceeding. As noted below, Canon 3 explicitly adopts this distinction and is, therefore, narrowly tailored to accomplish the State's interests.
Footnote: 11 See also Canon 2C, which, to avoid infringing upon a judge's associational rights, makes certain exceptions to a general ban on a judge's membership in organizations that discriminate on the basis of race, sex, religion, or national origin.
Footnote: 12 We are applying Canon 3B(7) of the Code of Judicial Conduct to this case because, as noted in note 1, supra, we have determined that individuals charged under the old canons should benefit from any new advantageous statement of law. In essence, we are extending the criminal principles governing the retroactive effect of amended statutes. We have previously held in the criminal law setting that "where a repeal arises by implication from the imposition of a lesser penalty for the same offense, the mitigated penalty may be imposed although the prosecution proceeds under the repealed act." State ex rel. Arbogast v. Mohn, 164 W. Va. 6, 11, 260 S.E.2d 820, 824 (1979).