In the Matter of : Hey
Annotate this Case
January 1995 Term
___________
No. 22243
___________
IN THE MATTER OF: JOHN HEY, JUDGE,
CIRCUIT COURT OF KANAWHA COUNTY
___________________________________________________
Disciplinary Proceeding
AGREEMENT ACCEPTED, ADOPTED, AND RATIFIED
AND PROCEEDING DISMISSED
___________________________________________________
Submitted: February 1, 1995
Filed: April 14, 1995
Allan N. Karlin
Special Disciplinary Counsel
Charleston, West Virginia
Thomas W. Smith
Charleston, West Virginia
Attorney for Judge John Hey
This Opinion was delivered PER CURIAM.
Justice Brotherton did not participate.
Judge Chafin sitting by temporary assignment.
SYLLABUS BY THE COURT
"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, 165 W. Va. 233,
271 S.E.2d 427 (1980).
Per Curiam:
This matter is before the Court upon the recommendation
of the Judicial Hearing Board that this Court accept and ratify a
proposed settlement agreement entered into between the Judicial
Investigation Commission and the respondent, John Hey, who
previously was Judge of the Circuit Court of Kanawha County. The
agreement, if adopted by the Court, will dispose of two judicial
ethics charges filed against Judge Hey. The first charge asserts
that Judge Hey violated the Canons of Judicial Ethics by sexually
harassing female employees of the Kanawha County Circuit Court.
The second charge states that Judge Hey inappropriately appeared on
the bench in an intoxicated state. We have reviewed the
recommendation of the Judicial Hearing Board, as well as the issues
raised and the facts presented, and we have concluded that it is
appropriate to accept the proposed settlement agreement.
I. Facts
This judicial ethics proceeding was formally instituted
by the Judicial Investigation Commission when it filed a judicial
ethics complaint with the Judicial Hearing Board on April 22,
1994.See footnote 1 That complaint specifically alleged that:
Judge John Hey has engaged in sexual
harassment of female court employees including
but not limited to unwanted and unwelcome
touching, unwanted and unwelcome kissing,
making crude sexual comments, and asking for
sexual favors.
The Commission has also received
allegations that Judge Hey has appeared in
Court smelling of alcohol and having the
physical appearance of being intoxicated.
After the filing of the judicial ethics complaint, the
Judicial Investigation Commission and Judge Hey, or his
representative, filed a number of motions and engaged in discovery.
He also entered into discussions about the possible settlement of
the case. Eventually, they arrived at the proposed settlement
agreement which is presently before the Court. In that proposed
agreement it was stated that:
Judge Hey will accept responsibility for
his actions including a statement, on the
record, that:
(a) He does not deny that, on a number
of occasions, he approached a court employee,
spoke to her with lewd and vulgar language,
touched and kissed her without her consent,
and used language and behavior toward her
which were offensive and sexual in nature;
(b) On a number of occasions he made
comments to another court employee of an
offensive nature which may be reasonably
construed to be sexual harassment;
(c) On at least two occasions he was
under the influence of alcohol while on the
bench and, at that time, made offensive and
inappropriate remarks to litigants and/or
attorneys appearing before him.
Judge Hey also agreed to petition this Court to accept
his resignation from the practice of law. He consented to being
censured for violations of Canons 1, 2 and 3 of the Judicial Code
of Ethics, and he agreed to pay a fine of Ten Thousand Dollars and
to pay the costs of the disciplinary proceedings, including the
cost of Special Counsel for the Judicial Investigation Commission, which may amount to almost Twenty Thousand Dollars. He explicitly
waived any appeal with regard to the fine amount being in excess of
the maximum amount allowable under the Rules of Judicial
Disciplinary Procedure. He also undertook to apologize for any
embarrassment and indignity which he may have caused to
individuals, to the judiciary, or to the people of the State of
West Virginia.
In a hearing conducted before the Judicial Hearing Board
on November 17, 1994, the proposed settlement agreement was
presented to the Judicial Hearing Board. Both the Judicial
Investigation Commission and the attorney for Judge John Hey
recommended that the Hearing Board accept the agreement, and also
asked that the Judicial Hearing Board recommend that we accept and
ratify the agreement.
In recommending that the Hearing Board accept the
proposed agreement, Special Counsel for the Judicial Investigation
Commission stated that the proposed agreement was arrived at by all
the parties and acceptable to the victims of the activities
charged. He specifically said:
Throughout my involvement in this case, I
have made every effort to work closely and
keep in touch with the individual victims who
have made allegations about Judge Hey and in
particular with those who had made allegations
about Judge Hey's conduct within the last two
years.
This agreement which you have before you
is an agreement that was approved by all
individuals who had allegations that were made
to me about any misconduct by Judge Hey within
the two-year statute of limitations.
He also stated:
Very early on, when I first became
involved, because of concerns of two
individuals [victims], I urged them to get
their own counsel, which was subsequently --
which they subsequently did and who, as I
understand it, expenses were paid for by the
judiciary in order to insure that they didn't
have to incur any expense in this process.
I have been in touch with him throughout
these proceedings and he has spoken regularly
to me about their concerns and about what they
felt needed to be done in order for justice to
be done here. I want to emphasize that what -
- I want to emphasize one thing.
From very early on, their attorney made
it clear to me that they did not want to come
before this Board and testify unless we could
not get a just resolution and I want to
emphasize that. I was getting very strong
feedback from two of the victims through their
attorneys that they did not want to testify if
I could arrange for what they considered to be
and I considered to be -- I should emphasize
that they didn't want to take it over for me,
but I could arrange for a resolution that I
considered to be just and they approved.
Special Counsel for the Judicial Investigation Commission also
stressed that all parties to the matter concurred in the agreement
and felt that it was an adequate and fair resolution of the
proceedings. He said:
There were other individuals involved,
two other individuals involved in the various
allegations about harassment and alcohol
because there are two allegations here within
the two-year period. I also spoke to them
throughout my work on the case, both in terms
of developing it and in terms of providing
them with an opportunity for feedback on
whether they had any objections to this
particular agreement and they all concur in
this agreement, that it is an adequate and
fair resolution of these proceedings.
During the November 17, 1994, hearing before the Judicial
Hearing Board, Judge Hey also made a statement. In the statement
he acknowledged that he had engaged in inappropriate conduct while
on the bench, and he publicly stated that he was afflicted with
alcoholism. He added:
I wish to publicly apologize for any
embarrassment my conduct has caused the woman
I am charged with causing emotional upset. I
also wish to apologize to my former colleagues
on the bench for any embarrassment I may have
caused the judiciary because I sincerely love
the West Virginia judiciary.
I especially wish to apologize to my wife
and my family and to the exceptionally fine
people of Kanawha County who elected me to
this position three different times. They did
me the honor of electing me as a circuit judge
three different occasions. For that, I will
always be grateful.
At the conclusion of the hearing the Judicial Hearing
Board accepted the proposed settlement agreement and submitted it
to us with the recommendation that we accept it and conclude the
judicial ethics proceedings against Judge Hey.
II. Disability
It appears that prior to the filing of the Judicial
Investigation Commission's complaint, Judge Hey, or his
representative, entered into discussions with the Governor, or his
representative, about the possibility of receiving disability
retirement benefits under the legislation governing the Judicial
Retirement System. On April 22, 1994, the same day the formal
complaint was filed by the Judicial Investigation Commission, the Governor granted Judge Hey disability retirement pursuant to the
provisions of W. Va. Code, 51-9-8 [1987], which provides, in part:
(a) Whenever a judge of a court of
record of this state, who is not disqualified
from participation herein as provided by
section five [§ 51-9-5] of this article, who
shall have served for ten full years . . . as
a judge of a court of record, shall become
physically or mentally incapacitated to
perform the duties of his or her office as
judge during the remainder of his or her term
and shall make a written application to the
governor for his or her retirement, setting
forth the nature and extent of his or her
disability and tendering his or her
resignation as such judge upon condition that
upon its acceptance he or she shall be retired
with pay under the provisions of this article,
the governor shall make such investigation as
the governor shall deem advisable and, if the
governor shall determine that such disability
exists and that the public service is
suffering and will continue to suffer by
reason of such disability, the governor shall
thereupon accept the resignation and, by
written order filed in the office of the
secretary of state, direct the retirement of
the judge for the unexpired portion of the
term for which such judge was elected or
appointed . . . . The retired judge shall
thereupon be paid annual retirement pay during
the remainder of his or her unexpired term in
an amount equal to the annual salary he or she
was receiving at the time of his or her
disability retirement, which annual retirement
pay, so long as it shall be paid to him or
her, shall be in lieu of any and all
retirement benefits such judge may otherwise
have received under the provisions of this
article[.]
The formal legal ethics complaint in the present
proceeding challenged the propriety of Judge Hey's actions on the
bench and toward female employees of the circuit court. It did not
raise the issue of whether he had become physically or mentally
incapacitated to perform his official duties. That issue was not subsequently made a part of the proceeding, and the sole question
which the Court is presently asked to address is whether the
proposed settlement agreement, which makes no mention of Judge
Hey's disability retirement, should be accepted and adopted by this
Court.
In the present proceeding the Court is only addressing
the appropriateness of the settlement agreement. Nothing in this
opinion should be read, or construed, as a comment or ruling by the
Court on the propriety of the action of the Governor in granting
Judge Hey disability retirement benefits, and, since the parties
have not raised the issue of the temporary suspension of Judge
Hey's retirement benefits, that issue is, likewise, not addressed.See footnote 2
III. Ethical Questions
In considering whether to accept the proposed settlement
agreement in the present proceeding, this Court has consulted the Canons of the Judicial Code of Ethics which Judge Hey has been
accused of violating. The Court notes that Canon 1 provides:
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 may be
preserved. The provisions of this Code should
be construed and applied to further that
objective.
Canon 2A provides: "A judge 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."
Lastly, the Court notes that Canon 3 provides:
The judicial duties of a judge take
precedence over all the judge's other
activities. The judge's judicial duties
include all the duties of the judge's office
prescribed by law. In the performance of
these duties, the following standards apply:
B. Adjudicative Responsibilities.
(4) A judge shall be patient, dignified,
and courteous to litigants, jurors, witnesses,
lawyers, and others with whom the judge deals
in an official capacity, and shall require
similar conduct of lawyers, and of staff,
court officials, and others subject to the
judge's direction and control.
We note that these Canons largely follow the language and
precepts of the Model Code of Judicial Conduct adopted by the
American Bar Association. In fact, the language of West Virginia's
Canon 3, which is quoted above, and under which Judge Hey is
charged, is identical to the language of Canon 3 of the Model Code
of Judicial Conduct.
In the official commentary on Canon 3 of the American Bar
Association's Model Code of Judicial Conduct it is clear that
sexual harassment is a proscribed judicial activity, for it
explicitly states that: "A Judge must refrain from speech,
gestures or other conduct that could reasonably be perceived as
sexual harassment and must require the same standard of conduct of
others subject to the judge's direction and control."
A number of jurisdictions which have addressed the
propriety of sexual harassment by a judge have also concluded that
it is highly inappropriate. For instance, in Ryan v. Commission on
Judicial Performance, 247 Cal. Rptr. 378, 45 Cal. 3d 518, 754 P.2d 724 (1988), it was held that a judge's telling offensive jokes to
female attorneys in his chambers constituted prejudicial conduct.
In In re Miera, 426 N.W.2d 850 (Minn. 1988), the Minnesota Court
held that a judge's making improper sexual advances to a court
employee warranted the imposition of severe sanctions. In Matter
of Gelfand, 518 N.Y.S.2d 950, 70 N.Y.2d 211, 512 N.E.2d 533 (1987),
it was recognized that the making of implicit and explicit threats
to court officials and others in order to prolong a sexual
relationship with a law assistant, and later to exact personal
vengeance when she refused to continue their affair, together with
a lack of candor during disciplinary proceedings, warranted removal
of a surrogate judge. Finally, the Washington court, in Matter of
Deming, 108 Wash. 2d 82, 736 P.2d 639 (1987), indicated that
sexually harassing and intimidating women subject to judicial
authority would be a factor warranting the removal of a judge.
Further, as previously noted, Judge Hey was charged with
appearing on the bench in an intoxicated state and with engaging in
inappropriate conduct.
Canon 2A of the West Virginia Code of Judicial Ethics
requires that a judge comply with the law and conduct himself at
all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary. This Canon is
identical to the corresponding Canon of the American Bar
Association's Model Code of Judicial Conduct. The official
commentary on the Model Code language explains that: "The test for
appearance of impropriety is whether the conduct would create in
reasonable minds a perception that the judge's ability to carry out
judicial responsibilities with integrity, impartiality and
competence is impaired."
In this Court's view, it is widely recognized and
perceived that intoxication impairs an individual's judgment, and
we believe that the appearance of a judge on the bench in an
intoxicated state would be a circumstance which would create in
reasonable minds the perception that the judge's ability to carry
out his judicial responsibilities with integrity, impartiality, and
competence was impaired.
This Court has rather consistently recognized that its
role in a judicial ethics proceeding is to evaluate the record
developed and to assess the recommendation of the Judicial Hearing
Board in light of that evaluation. As stated in syllabus point 1
of West Virginia Judicial Inquiry Commission v. Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980): "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 syl. pt. 1, Matter of Crislip, 182 W. Va. 637, 391 S.E.2d 34
(1990); syllabus, Matter of Gorby, 176 W. Va. 11, 339 S.E.2d 697
(1985).
After evaluating the facts in the present case, we
believe that the record does clearly and convincingly show that
Judge Hey engaged in the conduct charged by the Judicial
Investigation Commission. In fact, in the proposed settlement
agreement, and in his statement before the Judicial Hearing Board,
Judge Hey unquestionably has acknowledged that he engaged in the
conduct charged and recognizes that the conduct was inappropriate.
Under the circumstances, sanctions against Judge Hey are
appropriate.
We note that Rule 4.12 of the Rules of Judicial
Disciplinary Procedure, effective July 1, 1994, outlines the
sanctions that this Court may generally impose, which include:
(1) admonishment; (2) reprimand; (3)
censure; (4) suspension without pay for up to
one year; (5) a fine of up to $5,000; or (6)
involuntary retirement for a judge because of
advancing years and attendant physical or
mental incapacity and who is eligible to
receive retirement benefits under the judges'
retirement system or public employees
retirement system.See footnote 3
The sanctions which Judge Hey has voluntarily agreed to
accept in the proposed settlement agreement exceed the sanctions
which this Court might appropriately impose under this Rule. We,
however, note that in addition to the sanctions which this Court
may impose under Rule 4.12, Rule 4.10 of the Rules of Judicial
Disciplinary Procedure provides legal authority for the Court to
impose other sanctions if the parties agree to those sanctions.
Rule 4.10 specifically provides, in part: "If the parties [in a
judicial disciplinary matter] consent to the recommended
disposition, the matter shall be filed with the Supreme Court of
Appeals for entry of an order consistent with the recommended
disposition[.]" As has been stated previously, the Judicial
Investigation Commission and Judge Hey have agreed, and Judge Hey
has, in effect, consented to, the imposition of the sanctions
contained in the proposed settlement agreement.
In this Court's opinion, the conduct admitted by Judge
Hey was egregious and deplorable. It represents a fundamental abuse of power that seriously undermines public confidence in the
integrity and impartiality of the judiciary. Under ordinary
circumstances, the Court would be inclined to impose the most
severe sanction permitted by Rule 4.12 of the Rules of Judicial
Disciplinary Procedure. Although the award of disability has, to
a degree, limited the available alternatives, we note that, in many
respects, the agreement, in fact, imposes severe sanctions such as
assessing a fine of Ten Thousand Dollars, and taxing costs, which
may amount to almost Twenty Thousand Dollars. Additionally,
Special Counsel for the Judicial Investigation Commission has
indicated that the victims concur in the agreement, which relieves
them of the embarrassment of publicly testifying about the details
of their sexual harassment.
For the reasons stated, the settlement agreement entered
into between the parties to this proceeding is accepted, adopted,
and ratified, and this proceeding is dismissed.
Agreement accepted, adopted,
and ratified, and proceeding
dismissed.
Footnote: 1
Informal complaints had previously been filed by
aggrieved parties with the Judicial Investigation Commission and
had been investigated by the Commission.Footnote: 2
Article VIII, § 8 of the West Virginia Constitution,
which is quoted in n. 3, infra, authorizes this Court to censure
or temporarily suspend a circuit judge for violation of the
ethical standards of judicial conduct which it adopts. The
constitutional provision does not authorize the Court to remove a
circuit judge from office, nor does it authorize this Court to
suspend the disability retirement benefits of a judge who has
been found to be entitled to such benefits by the Governor and
who has left the bench.
As indicated in the body of the opinion, the parties
have not raised the propriety of the payment of disability
benefits to Judge Hey, and without thoroughly exploring the
issue, the Court believes that, given the constitutional
authority of the Governor, there are substantial constitutional
impediments to the Court's suspending, even temporarily, a
circuit judge's disability retirement benefits after the benefits
have been granted by the Governor, and after the judge has left
the bench.Footnote: 3
This rule, and the other Rules of Disciplinary
Procedure, were adopted by this Court pursuant to the authority
granted to it by article VIII, section 8 of the West Virginia
Constitution which provides, in relevant part:
Under its inherent rule-making power, which is hereby declared, the supreme court of appeals shall, from time to time, prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics, and a code of regulations and standards of conduct and performances for justices, judges and magistrates, along with sanctions and penalties for any violation thereof, and the supreme court of appeals is authorized to censure or temporarily suspend any justice, judge or magistrate having the judicial power of the State, including one of its own members, for any violation of any such code of ethics, code of regulations and standards[.]
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