In the Matter of : CodispotiAnnotate this Case
IN THE WEST VIRGINIA SUPREME COURT OF APPEALS
September 1993 Term
IN THE MATTER OF:
MAGISTRATE FOR LOGAN COUNTY
Recommendation of the West Virginia
Judicial Hearing Board
Case No. 114-9
PUBLIC CENSURE AND COSTS
Submitted: October 5, 1993
Filed: December 9, 1993
Charles R. Garten, Esq.
Counsel for the Judicial Investigation
Commission of West Virginia
Charleston, West Virginia
Kelly Gilmore Codispoti, Esq.
Logan, West Virginia
Attorney for Leonard Codispoti
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
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, 314 S.E.2d 391 (1983).
2. "'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, 271 S.E.2d 427 (W.Va.1980)." Syllabus Point 1, In re Pauley, 173 W. Va. 228,
314 S.E.2d 391 (1983).
3. "When the language of a canon under the Judicial
Code of Ethics is clear and unambiguous, the plain meaning of the
canon is to be accepted and followed without resorting to
interpretation or construction." Syllabus Point 1, In the Matter
of Karr, 182 W. Va. 221, 387 S.E.2d 126 (1989).
This is a judicial disciplinary proceeding instituted by
the Judicial Investigation Commission of West Virginia against
Leonard Codispoti, a magistrate in Logan County. The complaint
alleges that during Kelly Gilmore Codispoti's 1992 primary campaign
for circuit court judge, Magistrate Codispoti, the candidate's
husband, collected and disseminated material adverse to her
opponent. The Judicial Hearing Board by a 7-1 vote found that
Magistrate Codispoti's actions violated Canons 2, 3A(6) and 7B(1)
of the Judicial Code of Ethics .See footnote 1 The Board recommends that
Magistrate Codispoti be suspended for one month with loss of pay
and that he pay the costs of the Judicial Investigation Commission
and the Judicial Hearing Board. Based on this Court's independent
review of the record, we find that although Magistrate Codispoti
did not violate Canon 3A(6), his actions violated Canons 2 and
7B(1) and, therefore, we impose the sanctions of a public censure
and payment of costs.
During the 1992 primary election, Magistrate Codispoti
ran for reelection and his wife, Kelly Gilmore Codispoti, was a
candidate for circuit judge in Logan County.See footnote 2 Roger Perry, who
eventually won the election, was also a candidate for circuit
judge. Before serving as circuit judge, Mr. Perry was an assistant
prosecuting attorney in Boone County where he was involved in two
controversial matters. One matter involved the murder of two
elderly ladies and the other involved a fatal accident between a
coal truck and an automobile that killed four members of one
Seeking information about the murder case and the
identity of murder victims' families, Magistrate Codispoti
approached at least one lawyer in Boone County and the editor of
The Coal Valley News, a Boone County newspaper. The editor
photocopied various newspaper articles and gave them to Magistrate
Based on the information he gathered, Magistrate
Codispoti contacted a granddaughter of one of the murder victims
and asked her opinion about the handling of her grandmother's
murder case.See footnote 3 Later he went to the granddaughter's job site and
showed her a typewritten letter containing her opinion. When
Magistrate Codispoti returned with a statement containing her
opinion, the granddaughter signed it. Apparently, during his
visits with the granddaughter, Magistrate Codispoti was accompanied
by his brother-in-law, Randy Redmond.
On May 3, 1992 and May 10, 1992, the two Sundays immediately preceding the primary election, the Logan Banner, the local newspaper, ran an advertisement criticizing Mr. Perry's handling of the murder case.See footnote 4 The advertisement said that it had been paid for by the murder victim's granddaughter. Although the granddaughter acknowledged that the advertisement was similar to the statement that had been presented during Magistrate Codispoti's visit, she denied both that the signature in the advertisement was hers and that she paid for the advertisement.
An advertisement critical of Mr. Perry's decision not to
prosecute the coal truck driver involved in the fatal accident also
appeared in the Logan Banner on May 10, 1992. The advertisement
said that the murder victim's granddaughter had paid for the
advertisement.See footnote 5 The murder victim's granddaughter denied both
paying for this advertisement as well as having any information
related to the fatal accident.
The third advertisement published on May 10, 1992 by the
Logan Banner concerned Mr. Perry and the murder cases. Apparently
this advertisement was to rebut Mr. Perry's radio promotions. The
advertisement ended with the granddaughter's signature and stated
that she had paid for it; both of which the granddaughter denied.
When Magistrate Codispoti requested the granddaughter to appear on
a radio show shortly before the election to talk about Mr. Perry,
she refused. Magistrate Codispoti denies asking her to appear.
Mrs. Codispoti's June 12, 1992 campaign financial
statement under "In-Kind Contributions" listed a $300.00 donation
from Marie Redmond, the magistrate's sister, on May 3, 1992 for a
"Campaign Advertisement" and a $900.00 donation from Randy
Redmond, the magistrate's brother-in-law, on May 10, 1992 for a
"Campaign Advertisement." No other information was presented about
the publishing of the critical advertisements.
During the 1992 primary campaign, Magistrate Codispoti
encouraged several people to vote for his wife. When a neighbor and
businessman placed a sign near his home supporting the incumbent
Judge J. Ned Grubb, Magistrate Codispoti suggested that his wife
would be a better choice for circuit judge.See footnote 6
The Committee heard testimony from Judge Perry, the former managing editor of The Coal Valley News, the murder victim's granddaughter, two lawyers contacted by Magistrate Codispoti during the primary and Magistrate Codispoti. Although Magistrate Codispoti acknowledges he visited the murder victim's granddaughter, he denies asking her to appear on the radio, denies paying for the advertisements, denies preparing either the granddaughter's first letter or the statement eventually published, denies preparing the advertisements and denies authorizing the publishing of the advertisements.
Based on the record the Board found that Magistrate
Codispoti's campaign activities on behalf of his wife violated
Canons 2, 3A(6) and 7B(1) of the Judicial Code of Ethics .
By a 7-1 vote the Board recommended that Magistrate Codispoti be
suspended for one month, without pay, and be required to pay the
costs of the proceeding.
In Syl. Pt. 4, In re Pauley, 173 W. Va. 228, 314 S.E.2d 391 (1983), we said:
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."
See Syl. Pt. 1, In the Matter of Hey, ___ W. Va. ___, 425 S.E.2d 221 (1992); In the Matter of Crislip, 182 W. Va. 637, 391 S.E.2d 84
(1990); In the Matter of Karr, 182 W. Va. 221, 387 S.E.2d 126
This Court makes an independent evaluation of the record
and the recommendations of the Committee. In Syl. Pt. 1, In re
Pauley, supra, we said:
"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, 271 S.E.2d 427 (W.Va. 1980).
In Syl. Pt. 1, In the Matter of Karr, supra, we said:
When the language of a canon under the Judicial Code of Ethics is clear and unambiguous, the plain meaning of the canon is to be accepted and followed without resorting to interpretation or construction.
In the present case, the Committee alleges that
Magistrate Codispoti's activities violated Canons 2 and 7B(1) of
the Judicial Code of Ethics . Canon 2 states:
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 character witness.
In Matter of Gorby, 176 W. Va. 11, 14, 339 S.E.2d 697, 700 (1985)
(Canon 2 was violated by a magistrate's injudicious demeanor and
behavior at a football game), we quoted Canon 2's commentary and
noted that a judicial officer should avoid impropriety and the
appearance of impropriety in all his activities. The canon
prohibits a judge from lending the prestige of his office to
advance the private interest of others as well as conveying or
permitting others to convey the impression that they are in a
special position of influence.
Canon 7B(1) of the Judicial Code of Ethics restricts the
campaign conduct of all candidates for judicial office, including
an incumbent judge. Canon 7B(1) states:
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, qualifications, present position, or other fact.
In In the Matter of Hill, ___ W. Va. ___, ___ S.E.2d ___ (No. 21500
Filed October 25, 1993) (complaint involving judge's endorsement of
a candidate) we noted that "Canon 7B(1) and (2) speaks more
generally to campaign activities deemed inappropriate for judges to
engage in. . . ." Slip op. at 7. See In re: Turner, 573 So. 2d 1
(Fla. 1990) (circuit judge publicly reprimanded for active
involvement in son's campaign, violations of Canons 1, 2 and 7A);
Matter of Katic, 549 N.E.2d 1039 (Ind. 1990) (judge suspended for
30 days without salary for partisan political activity, violations
of Canons 2 and 7B); Inquiry Concerning a Judge, DeFoor, 494 So. 2d 1121 (Fla. 1986) (judge publicly reprimanded for actively
participating in two election campaigns). See also In re Code of
Jud. Conduct, 603 So. 2d 494 (Fla. 1992) (the canons' prohibition
against a judge publicly endorsing a candidate for public office
In the present case, Magistrate Codispoti was directly,
actively and heavily involved in his wife's campaign for circuit
judge. The record presents clear and convincing evidence that the
magistrate sought information about his wife's opponent, directly
contacted a murder victim's granddaughter seeking disparaging
information, and facilitated the publishing of advertisements that
misrepresented who paid for them, whose opinion was presented and
who signed them. Although the record does not show who was
directly responsible for publishing the advertisements, Magistrate
Codispoti's involvement in the advertisements is plain.See footnote 7
The Committee also alleges that Magistrate Codispoti's
activities violated Canon 3A(6) of the Judicial Code of Ethics.
Canon 3A(6) states:
The judicial duties of a judge take precedence over all his other activities. His judicial duties include all of the duties of his office prescribed by law. In the performance of these duties, the following standards apply:
A. Adjudicative Responsibilities . . .
(6) 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 Hey, supra ___ W. Va. at ___, 425 S.E.2d at 223-24 we said "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." In Hey, we noted the underlying case
could be a "'pending or impending proceeding in any court.'" Hey
id. ___ W.Va. at ___, 425 S.E.2d at 224.
The Committee found that by publishing the advertisement
concerning the fatal accident, Magistrate Codispoti violated Canon
3A(6). However, because the Committee failed to prove, by clear
and convincing evidence that Magistrate Codispoti caused the
advertisement to be published, we cannot find a violation of Canon
3A(6). Moreover, the classification of the fatal accident as a
"pending or impending proceeding" is at best dubious because by the
1992 primary, the charges in the fatal accident matter had been
dismissed for almost two years. (The charges were dropped on June
Although we concur with the Board that Magistrate Codispoti violated Canons 2 and 7B(1) of the Judicial Code of Ethics , we find that the record does not support the allegation of a violation of Canon 3A(6). We find that Magistrate Codispoti's conduct in support of his wife's candidacy was public and sufficiently serious to merit the sanctions of a public censure and payment of costs.
For the above stated reasons, we adopt only the sanction
of payment of costs that was recommended by the West Virginia
Judicial Hearing Board and we also hold that Magistrate Codispoti
should be publicly censured.
Public Censure and Costs.
Footnote: 1Although the Judicial Code of Ethics  was superseded by the Code of Judicial Conduct, effective January 1, 1993, the allegations concerning Magistrate Codispoti arose before the effective date of the Code of Judicial Conduct.
Footnote: 2Mrs. Codispoti is her husband's counsel in this matter.
Footnote: 3See State v. Walker, No. 930610 (W.Va., appeal denied (4-1) July 14, 1993).
Footnote: 4The following advertisement appeared in the Logan Banner on
both May 3 and 10, 1993:
EIGHTEEN HUNDRED REASONS
"NOT TO" VOTE FOR ROGER PERRY
To The Voters of Logan County:
I want the voters of Logan County to know
that I do not feel that Roger Perry would make
a good judge if his conduct as an assistant
prosecuting attorney in Boone County is any
measure of his ability. I am the
granddaughter of Faye Jarrell and a friend of
Dorothy Daniels. Both were brutally murdered
by the Walker boys. These women had just
returned from a wake at a funeral home when
the Walker boys robbed them (even of their
wedding bands), stabbed them 37 times,
partially scalped them, and beat their bodies
Roger Perry played a role in the
prosecution of the murders and allowed Paul
Walker to enter a plea that would make him
eligible for parole in less than 20 years.
This was done against the wishes of both
families. We begged that the prosecution not
allow any plea where the Walker boys would
ever get out of prison.
If his conduct in the Walker case is
considered by you, the voters of Logan County,
you will not want to cast your vote for a man
whose legal representation of the State of
West Virginia failed the families of these two
elderly souls. I am sure that you, the voters
of Logan County, want a judge to protect your
families, young and old alike.
Many citizens of Boone County joined me
in my efforts to have him removed as assistant
prosecuting attorney due to his actions in the
Walker case. A petition of more than 1800
signatures calling for the dismissal of Roger
Perry as assistant prosecutor was obtained
from the people of Boone County.
With Great Concern for Logan County,
This Advertisement Paid For
By Anna Abshire
Footnote: 5On Sunday, May 10, 1992, the Logan Banner ran a political advertisement with the headline "Entire Family Wiped Out;[sic]." The advertisement's first section said the coal truck driver, who allegedly was "clearly left of center at the time of the accident" was "[c]harged in [f]our [d]eaths." The second section said that about 6 months after the fatal accident, Roger Perry, the prosecuting attorney, dropped the charges. The advertisement concluded by quoting Jerry Cook, a lawyer representing the accident victims' families, saying, "It's a shame but we just don't have any prosecution in this county.,[sic]"
Footnote: 6See Committee on Legal Ethics v. Grubb, 187 W. Va. 608, 420 S.E.2d 744 (1992).
Footnote: 7The record contains no testimony from an employee of the Logan Banner, the newspaper in which the advertisements appeared, or from Mr. or Mrs. Redmond, the Magistrate's brother-in-law and sister, who allegedly paid for the advertisements.