(Editor’s note: Friday, July 24th, I wrote a commentary on the findings of the state Judicial Investigation Commission on the complaint filed by Bill Maloney against state Supreme Court Justice Robin Davis. Here is a response to that commentary by the Honorable Judge Ronald E. Wilson, Chairperson of the Judicial Investigation Commission. hk)
I have always admired Hoppy Kercheval — since I am a great fan of the Mountaineers and given his ease and professional manner in covering sports and current events. In his December 4, 2014 commentary, Hoppy stated that the campaign contributions made to Justice Davis were perfectly legal and insignificant because she mostly financed her own campaign. Hoppy also acknowledged that Justice Davis was unaware of her husband’s sale of the airplane until after it happened and that it was sold for face value. In fact, Hoppy pointed out that the sale occurred 2 ½ years before the Supreme Court ruled on the case in question.
Hoppy now criticizes the Commission because of its “obsequious tone . . . toward Davis and the harsh treatment of Maloney.” Yet, he overlooks why the Commission took the position it did in the wording of the Report:
- Maloney, a well-known political figure, violated the confidentiality rule imposed on all who file complaints against judges. The Commission cannot even acknowledge the existence of a complaint, and the complainant is not permitted to publicize its filing. There are good reasons for this rule. Public release of a pending complaint hampers investigations. Allegations against judges are frequent in our system for redressing civil wrongs. Almost all judicial complaints are based upon a litigant’s unhappiness with a court ruling or result. In almost every lawsuit there is a winner and a loser, and the latter tends to blame the presiding judge for his misfortune. However, a judge’s ruling is not normally a violation of the judicial canons, and the Commission cannot change the outcome of any case.
- Even though there may be no ethics violation, people still say horrible things about the judge — who is normally prohibited from responding publicly to criticism. Believe it or not, judges are human beings with hearts and feelings. In West Virginia, judges have to run for office, and mere allegations can destroy a career. Mr. Maloney is not an uneducated person. He released this complaint knowing the political implications. Not only did he get publicity from releasing the complaint, but his allegations and comments denigrated Justice Davis.
- I don’t understand why Hoppy thinks it’s unfair for the Commission to question Mr. Maloney’s motivation for filing an ethics complaint when he immediately broadcast it to the public in violation of our most solemn confidentiality rule. It is clear from a fair reading of our Report that although we took exception to this breach of confidentiality, the matter was fully and fairly investigated and considered. Our decision to dismiss the complaint was not based on Mr. Maloney’s actions but on an analysis of the facts surrounding the sale of the plane, the campaign donations, the oral argument before the Court and the application of the stated law thereto. Having found no ethical violation, I do not think that what was said was inappropriate given the facts of the case, that judges are prohibited from publicly responding to complaints and the tenor of the letter pertaining to Mr. Maloney is the same as used in our admonishments of judicial officers.
- I write this letter as an individual member of the Commission and not on behalf of the entire JIC. I can address this issue only because our Report was made public. Importantly, the Commission did not release the decision. The release of the Report was by Justice Davis, who is arguably the holder of the confidentiality privilege. Having said that, as a human being, I can understand why she felt it necessary to do so since those who now question the Commission’s independence and integrity previously asked why the JIC had not addressed the complaint.
- Hoppy questions the Commission’s independence because members are appointed by the Court. Judicial commission members serve without remuneration. All Commission members have term limits. Sometimes, the Commission and the Court have publicly been at odds over ethical issues. The Commission has never been afraid to charge or admonish Supreme Court Justices when warranted. A comparison of our disciplinary record with other states demonstrates that we are near the top of the list for public discipline of judges. Since January 2014, the Commission has issued 6 admonishments and 3 statements of charges resulting in the removal of two judges.
- Commission members did not ask serve. The positions are generally not coveted by judges, lawyers or laypersons. However, when asked — we agreed to serve because it is the responsible thing to do. I normally devote three days of preparation for the meetings. During each meeting, the Commission reviews at least 300 pages of documents and exhibits. The other members are also fully prepared; therefore, I believe that they must make the same effort. While members are appointed by the Court, it is unreasonable to suggest that the Justices would vote to remove or not reappoint a Commissioner simply because a justice had been disciplined. In fact, the Court has never removed or failed to reappoint a member in prior cases where the Commission has admonished or charged a justice. The Commission is proud of its independence, and I am personally disappointed in anyone who implies that we can be controlled by any person or political party.
Judge Ronald E. Wilson, Chairperson of the Judicial Investigation Commission