Charles R. Garten, Esq.
Charleston, West Virginia
Judicial Disciplinary Counsel
David J. Lockwood, Esq.
Lockwood, Egnor, Gardner & Cyrus
Huntington, West Virginia
The Opinion of the Court was delivered PER CURIAM.
"The Supreme Court of Appeals will make an independent evaluation of the
record and recommendations of the Judicial [Hearing] Board in disciplinary proceedings."
Syllabus Point 1 of West Virginia Judicial Inquiry Commission v. Dostert, 165 W.Va. 233,
271 S.E.2d 427 (1980).
This complaint in this judicial ethics case charges Cabell County Magistrate
Glenn A. Verbage with violating Canons 1, 2A, 3A, 3B(2), and 3B(8) of the Code of Judicial
Conduct by refusing to appear to consider a domestic violence petition when he was on duty
as an on-call magistrate. The West Virginia Judicial Hearing Board has conducted hearings
in the matter and has concluded that, although Magistrate Verbage did in effect, technically
violate the Canons, the complaint against him should be dismissed because of the
circumstances of the case. After reviewing the documents filed this Court believes that the
Judicial Hearing Board is correct in finding that these were violations and is also correct in
concluding that mitigating circumstances justify dismissal of the complaint. The
recommendation of the Judicial Hearing Board is, therefore, adopted, and the complaint is
On April 27 and April 28, 1996, Cabell County Magistrate Glenn A. Verbage
was assigned to work as the "on call" magistrate in Cabell County from the hours of 8:00
p.m. on Saturday, April 27, until 8:00 a.m. on Sunday, April 28, 1996. The evidence shows
that Magistrate Verbage worked in the magistrate office during the evening hours of April
27 until around midnight, even thought he had the flu, and even though he was feverish and
showed other signs of illness.
At 7:00 a.m. on the next morning, Sunday, April 28, 1996, while Magistrate
Verbage was still "on call," and an hour before the "on call" assignment ended, the Cabell
County 911 Operator contacted him and informed him that a woman named Amy Collins
was at the Court House waiting to file a domestic violence petition.
It is clear that, as the "on call" magistrate, Magistrate Verbage, had a duty to
report to the Court House and consider Ms. Collins' domestic violence petition. In spite of
this, Magistrate Verbage, who was apparently still sick, told the Operator to tell Ms. Collins
that another magistrate would come on duty at 8:00 a.m., approximately an hour later, and
to tell her to wait until the other magistrate showed up.
After speaking with Magistrate Verbage the 911 Operator contacted the
magistrate who was to come on duty at 8:00 a.m. The other magistrate agreed to handle the
case and by approximately 8:20 a.m. had arrived at the magistrate office and had taken care
of the Collins' matter.
Because Magistrate Verbage refused to report to the Court House when called
at 7:00 a.m. on Sunday, April 28, 1996, when he was on duty as the "on call" magistrate, the
Chief Circuit Judge of Cabell County investigated the matter and reported it to the Judicial
Investigation Commission. The Chief Judge's action resulted in the formal complaint being
filed which gave rise to this proceeding.
In Syllabus Point 1 of West Virginia Judicial Inquiry Commission v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980), this Court stated:
The Supreme Court of Appeals will make an independent
evaluation of the record and recommendations of the Judicial
[Hearing] Board in disciplinary proceedings.
See also Matter of Browning 192 W.Va. 231, 452 S.E.2d 34 (1994). Further, in assessing
whether sanctions should be imposed against a magistrate it is incumbent upon this Court
to determine whether the allegations of the complaint against the magistrate have been
proved by clear and convincing evidence. In Re Pauley, 173 W.Va. 228, 314 S.E.2d 391
As previously indicated, Magistrate Verbage in the present proceeding is charged with violating five provisions of the Code of Judicial Conduct. First, he is charged with violating Canons 1 and 2 which provide:
Canon 1. A judge should uphold the integrity and
independence of the judiciary.
A. An independent and honorable judiciary is
indispensable to justice in our society. A judge should
participate in establishing, maintaining, and enforcing high
standards of conduct, and shall personally observe those
standards so that the integrity and independence of the judiciary
will be preserved. The provisions of this Code are to be
construed and applied to further that objective.
Canon 2. A judge shall avoid impropriety and the
appearance of impropriety in all of the judge's activities.
A. A judge shall respect and comply with the law, shall avoid
impropriety and the appearance of impropriety in all of the
judge's activities, and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of
Specifically the complaint against Magistrate Verbage alleges he violated the
law in contravention of the Canons by refusing to comply with Rule 1 of the Administrative
Rules for Magistrate Courts which clearly states that the on-call magistrate be available to
act on domestic violence matters.
Magistrate Verbage is also charged with violating Canons 3A and 3B(2) and Canon 3B(8) for failing to report when contacted by the 911 Operator. The Canons in issue provides:
Canon 3. A judge shall perform the duties of judicial
office impartially and diligently.
A. Judicial duties in general. -- the judicial duties of a
judge take precedence over all the judge's other activities. The
judge's judicial duties include all of the duties of the judge's
office prescribed by law. In the performance of these duties, the
following standards apply.
B. Adjudicative Responsibilities. --
(2) A judge shall be faithful to the law and maintain
professional confidence in it. A judge shall not be swayed by
partisan interests, public clamor, or fear of criticism.
(8) A judge shall dispose of all judicial matters promptly, efficiently, and fairly.
There is no dispute that Magistrate Verbage was on call at the time he received
the 911 Operator's message, and that because he was on call he had a clear duty to report to
the Magistrate Office and act on Ms. Collins' domestic violence petition in a timely manner.
There is also no dispute over the fact that Magistrate Verbage did not report.
Given the circumstances of this case it does appear that the allegations against
Magistrate Verbage have been proven by clear and convincing evidence. He violated Canon
1 by failing to observe the administrative standard requiring him to report as the on-call
magistrate, and he violated Canon 2 by failing to show up when requested and when required
to do so. Further, in this Court's opinion Magistrate Verbage's failure to appear tended to
detract from, rather than promote, public confidence in the integrity and impartiality of the
As previously noted, Canon 3 requires a judge or magistrate to perform the
duties of a judicial office impartially and diligently and that he give precedence to his
judicial duties over all his other activities. Magistrate Verbage in the Collins' matter did not
act diligently to address the judicial question which he, under the law, was required to
address. Finally, under Canon 3B Magistrate Verbage was required to be faithful to the law
and to dispose of all judicial matters promptly and efficiently. There is clear and convincing
evidence in this case that he did not act promptly and efficiently.
In spite of all this the Court believes that the facts in the case are somewhat
similar to, though distinguishable from, those involved in Matter of Codispoti, 186 W.Va.
710, 414 S.E.2d 628 (1992). In the Codispoti case the magistrate charged, like Magistrate
Verbage, was physically sick. Magistrate Codispoti, however, specifically requested that
another magistrate substitute for him and fulfill his duties. In that case the Court found that
no violation of the Code of Judicial Conduct occurred because Magistrate Codispoti made
reasonable efforts to fulfill his judiciary duties.
The case presently under consideration differs from the Codispoti case in that
Magistrate Verbage took no positive action to arrange for a substitute to fulfill his duties.
Nonetheless, there is substantial evidence that Magistrate Verbage was ill and that his on-call
duties were scheduled to end very shortly after to received the 911 call. There is also
evidence that the scheduled replacement did promptly appear and did handle Ms. Collins
domestic petition in a reasonably prompt manner. It does not appear that Ms. Collins
suffered any substantial detriment, other than possibly having to wait briefly, as a result of
Magistrate Verbage's failure to comply with his judicial duties.
This Court believes that the circumstances of this case are such as to mitigate
any sanction to be imposed against Magistrate Verbage and, accordingly, while finding that
a technical violation of the Code of Judicial Ethics did occur, this Court after its independent
consideration of the record concludes that it should adopt the recommendation of the Judicial
Hearing Board and dismiss the complaint against Magistrate Verbage.
In reaching this conclusion the Court by no means wishes to suggest that domestic violence petitions, such as the one involved in this case, are of minor significance. The Court would like to reiterate what was said in Syllabus Point 6 of Matter of Browning, 192 W.Va. 231, 452 S.E.2d 34 (1994):
Domestic violence cases are among those that our courts
must give priority status. In West Virginia Code, 48-2A-1, et
seq., the West Virginia Legislature took steps to ensure that
these cases are handled both effectively and efficiently by our
law enforcement agencies and the judicial system.
We indicated in the Browning case that a magistrate is statutorily required to provide an
individual with any assistance necessary to complete a domestic petition for a protective
order and that, once the petition is completed, a magistrate must file the petition and
promptly issue a protective order. The Court also indicated that under no circumstances
should a victim of abuse be turned away from one magistrate without steps being taken to
insure that the victim will receive prompt attention by another magistrate.
In the present case this Court believes that Magistrate Verbage was fortunate
in that the on-call magistrate did promptly appear and address the issues raised by Ms.
Collins' domestic violence petition. As the case turned out, Ms. Collins apparently suffered
no serious damage as a result of Magistrate Verbage's failure to appear. As previously
indicated, the fact that Magistrate Verbage was ill, the fact that another magistrate was
scheduled to take his place in a very brief period, and did take his place and attend to Ms.
Collins' petition promptly, and the fact that Ms. Collins suffered no substantial harm, all, in
this Court's opinion, served to mitigate the imposition of a sanction against Magistrate
Verbage. If the case had turned out otherwise, or if the particular facts detailed had not been
present, this Court would be compelled to impose a severe sanction against Magistrate
For the reasons stated, the recommendation of the West Virginia Judicial
Hearing Board is adopted and the complaint instituting this judicial ethics proceeding is dismissed.