The state Judicial Investigation Commission report released this week found no merit to the ethics complaint filed against state Supreme Court Justice Robin Davis. Republican and former gubernatorial candidate Bill Maloney filed the complaint, alleging Davis should have disclosed a potential conflict of interest in a more timely manner in a case before the court and recused herself because the plaintiff’s attorney in the case bought a Learjet from Davis’s husband’s (Scott Segal) law firm.
The commission, in a decision signed by Chairperson Judge Ronald E. Wilson from Hancock County, determined “there is no evidence to support a finding of probable cause that Respondent (Davis) violated the Code of Judicial Conduct.”
The allegations grew out of an ABC News report with the sensational headline, “Learjet Justice in West Virginia? A Circus Masquerading as a Court.” The story suggested strongly that Davis was integral in the court’s decision upholding a large portion of a huge verdict in a wrongful death case against the operator of a nursing home because of her tangential ties to plaintiff’s attorney Michael Fuller, including Fuller’s purchase of Segal’s jet.
The Learjet sale went through a broker and Davis says she was unaware of the deal so there was no need for recusal. “I was not involved in the details of the transaction and only learned about them much after the fact,” Davis said in statement when the story hit last December.
There were a lot of dots in the story, but they were never fully connected, and I never bought the story’s suggestion or Maloney’s implied quid pro quo. The finding of the Judicial Investigation Commission is not surprising. What is surprising, however, is the obsequious tone and language toward Davis and the harsh treatment of Maloney.
For example, the opinion fairly points out that Davis is a “highly respected and independent jurist,” but then adds “She is a judge who has grit combined with intelligence and enjoys the reputation of an independent thinker and a leader on our highest court.”
That sounds more like sycophantic campaign literature than an order by a supposedly independent review board.
Additionally, the commission takes several personal shots at Maloney, saying his decision to issue a press release after filing the complaint was “a blatant attempt to garner free publicity for himself. It gives the impression that Mr. Maloney was motivated by self-seeking political and egotistical purposes because Mr. Maloney, a two-time unsuccessful candidate for Governor of West Virginia, chose to violate the confidentiality Rule for filing complaints.”
(The rule 2.4 does say “The details of complaints filed or investigations conducted by the Office of Disciplinary Counsel shall be confidential.” But that would seem to apply to the commission, since it’s a reach for the government to suggest Maloney cannot publicly discuss his own complaint.)
But even if Maloney did break that rule, that does not warrant the commission calling him an egotistical two-time loser. Should the next citizen contemplating filing a complaint against a judge or magistrate worry the commission will deliver a personal smackdown if the nine-member board disagrees with the allegation?
The commission also felt compelled to lecture on the standards of journalism. “An axiom of journalism is ‘don’t invent.’ The manner in which ABC News treated our highly respected Justice and our Supreme Court of Appeals causes the Commission to conclude that ABC News is not aware of the rigorous standard implicit in that axiom,” the commissioners said.
The commissioners (three circuit judges, one magistrate, one family court judge, one senior status judge and three members of the public) are all appointed by the state Supreme Court. In this case, that set up the uncomfortable circumstance of the commissioners having to pass judgment on a person who may have played a role in their selection.
That’s not the most reassuring check and balance on judicial complaints.
At least when the commission does find in favor of one of their own, it should consider crafting opinions that speak judiciously to the issue and refrain from gratuitous praise, impertinent criticism and self-righteous moralizing, which only serves to diminish its ruling.