In the Matter of: Starcher
Annotate this Case
January 1995 Term
___________
No. 22248
___________
IN THE MATTER OF: HONORABLE LARRY STARCHER,
JUDGE, CIRCUIT COURT OF MONONGALIA COUNTY
___________________________________________________
DISCIPLINARY PROCEEDING
REPRIMAND
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Submitted: January 10, 1995
Filed: March 30, 1995
Charles R. Garten
Charleston, West Virginia
Judicial Disciplinary Counsel
Larry V. Starcher
Morgantown, West Virginia
Pro Se
This Opinion was delivered PER CURIAM.
Justice Brotherton did not participate.
Justices Cleckley and Fox, deeming themselves disqualified, did
not participate.
Judges Ranson and Berger sitting by temporary assignment.
Chief Justice Neely dissents and reserves the right to file a
dissenting opinion.
SYLLABUS BY THE COURT
1. "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).
2. "The initiation of ex parte communications by a judge
is strictly prohibited by Canon 3A(4) of the Judicial Code of
Ethics, 'except as authorized by law.'" Syl. pt. 2, In the Matter
of Kaufman, 187 W. Va. 166, 416 S.E.2d 480 (1992).
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." Syl. pt. 1, In the Matter of: Karr, 182 W. Va.
221, 387 S.E.2d 126 (1989).
Per Curiam:
This case is before this Court upon the recommendation of
the West Virginia Judicial Hearing Board that Judge Larry Starcher
of the Circuit Court of Monongalia County be admonished for a
violation of the West Virginia Code of Judicial Conduct. The
violation concerns an ex parte communication initiated by Judge
Starcher with an assistant prosecuting attorney concerning an on-
going criminal trial in Monongalia County. Judge Starcher,
pursuant to Rule 4.9 of the West Virginia Rules of Judicial
Disciplinary Procedure, filed a consent to the recommendation.
However, for the reasons expressed below, this Court concludes that
a reprimand, rather than the lesser sanction of admonishment, is
warranted.
I
The facts are not substantially in dispute. On December
16, 1993, Ms. Linda Gutsell, an associate of the law firm Spilman,
Thomas & Battle, was sitting in a room adjoining Judge Starcher's
chambers when she became aware of a telephone conversation taking
place between Judge Starcher, who had initiated the call, and an
assistant prosecuting attorney of Monongalia County. The telephone
conversation concerned the on-going criminal trial of State v.
Hawkins, in which the defendant was accused of sexually assaulting
several West Virginia University co-eds.
Judge Starcher admitted that the conversation occurred
and that it related to the State's upcoming closing argument in the
Hawkins trial. Specifically, Judge Starcher stated that during the conversation he advised the assistant prosecuting attorney that:
(1) the State should have some supporters present in the courtroom
during closing argument, e.g., the victims, a police officer and
some female attorneys, (2) the term "serial rapist" might be used
frequently, and (3) the assistant prosecuting attorney should be
more emotional before the jury.
By way of explanation, Judge Starcher described the
Hawkins trial as long and difficult and a trial during which he
became concerned that the defense was "taking over" the courtroom.
Moreover, during his testimony before the Judicial Hearing Board,
Judge Starcher indicated that his sympathy for the victims "no
doubt allowed [his] personal feelings to become injected into the
trial."
Ms. Gutsell reported the conversation to her law firm,
and the following day, December 17, 1993, Linda Gutsell and Paul
Edward Parker, III, of Spilman, Thomas & Battle, went to Judge
Starcher's chambers and informed him that the conversation with the
assistant prosecuting attorney had been overheard. The complaint
of the Judicial Investigation Commission suggests that Judge
Starcher expressed displeasure toward Ms. Gutsell, Mr. Parker and
the law firm concerning the pursuit of the matter. Judge Starcher,
however, denied that he threatened Ms. Gutsell, Mr. Parker, or the
law firm in any way.
In May, 1994, a complaint was filed against Judge
Starcher by the Judicial Investigation Commission with regard to
the telephone conversation between Judge Starcher and the assistant prosecuting attorney. Although several Canons of the Code of
Judicial Conduct are cited, the gravamen of the complaint, as well
as the provision relied upon by the Judicial Hearing Board for its
recommendation, is Canon 3B(7), which provides, in part:
A judge shall accord to every person who
has a legal interest in a proceeding, or that
person's lawyer, the right to be heard
according to law. A judge shall not initiate,
permit, or consider ex parte communications,
or consider other communications made to the
judge outside the presence of the parties
concerning a pending or impending proceeding
except that:
(a) Where circumstances require, ex parte
communications for scheduling, administrative
purposes, or emergencies that do not deal with
substantive matters or issues on the merits
are authorized; provided:
(i) the judge reasonably
believes that no party will gain a
procedural or tactical advantage as
a result of the ex parte
communication, and
(ii) the judge makes provision
promptly to notify all other parties
of the substance of the ex parte
communication and allows an
opportunity to respond.
(emphasis added).
The complaint further suggests that Judge Starcher
violated the Code of Judicial Conduct by allegedly threatening to
take retaliatory action against Ms. Gutsell, Mr. Parker and their
law firm for pursuing the matter concerning the overheard
conversation.
The Judicial Hearing Board conducted an evidentiary
hearing and, on September 20, 1994, filed its Findings of Fact, Conclusions of Law and Proposed Disposition. Citing Canon 3B(7),
the Board concluded that Judge Starcher violated the Code of
Judicial Conduct by initiating an ex parte communication with the
assistant prosecuting attorney and advising the assistant
prosecuting attorney concerning the State's closing argument in the
Hawkins trial.
The Judicial Hearing Board recommends that Judge Starcher
be admonished with regard to the ex parte communication.
Furthermore, the Board recommends that the complaint be dismissed
with regard to Judge Starcher's alleged conduct toward Ms. Gutsell,
Mr. Parker and their law firm. Judge Starcher, pursuant to Rule
4.9 of the West Virginia Rules of Judicial Disciplinary Procedure,
filed a consent to the Board's recommendations. The Judicial
Investigation Commission, however, filed a general objection to the
recommendations.
II
As indicated in the brief of the Judicial Investigation
Commission, this case was conducted under the West Virginia Rules
of Judicial Disciplinary Procedure, which became effective on July
1, 1994. Unchanged, however, is the standard of proof that
allegations of a complaint in a judicial disciplinary proceeding
"must be proved by clear and convincing evidence." Syl. pt. 1, In
the Matter of: John Hey, Judge, No. 21676, ___ W. Va. ___, ___
S.E.2d ___ (Nov. 18, 1994); syl. pt. 4, In re Pauley, 173 W. Va.
228, 314 S.E.2d 391 (1983). Rule 4.5 of the current Rules states
that "[i]n order to recommend the imposition of discipline on any judge, the allegations of the formal charge must be proved by clear
and convincing evidence."
Moreover, we recognized recently in In the Matter of:
June Browning, Magistrate, No. 21863, ___ W. Va. ___, ___ S.E.2d
___ (Nov. 18, 1994), that "it is this Court's responsibility to
review the record in [such cases] de novo and determine if there is
clear and convincing evidence to prove the allegations in the
complaint." As this Court held 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, In re Pauley, supra. The findings of the Judicial
Hearing Board are "not binding on this Court." In the Matter of:
June Browning, Magistrate, supra n. 4.
The circumstances before this Court are somewhat similar
to those in In the Matter of: Kaufman, 187 W. Va. 166, 416 S.E.2d 480 (1992). In Kaufman, a circuit judge initiated a telephone
conversation with the president of Charleston Area Medical Center,
Inc., which corporation was a party to a civil action pending
before the judge. The circuit judge, in Kaufman, stated that he
placed the call in order to ensure that CAMC's president would
appear at the next scheduled court hearing. In addition, CAMC
indicated that the judge left the impression, through the telephone
conversation, that he was "unhappy" with CAMC's course of action in
the litigation.
In the Kaufman case, this Court adopted the
recommendation of the Judicial Hearing Board that the circuit judge
should be admonished. Specifically, this Court concluded that the
initiation of the telephone conversation by the judge constituted
an improper ex parte communication. Syllabus point 2 of Kaufman
states: "The initiation of ex parte communications by a judge is
strictly prohibited by Canon 3A(4) of the Judicial Code of Ethics,
'except as authorized by law.'" It was recognized in Kaufman that
"[i]n order to promote public confidence in the judiciary, courts
have imposed sanctions varying from reprimand to removal, against
judges held to have engaged in ex parte communications." 187 W.
Va. at 169-70, 416 S.E.2d at 483-84. It should be noted, however,
that, under the circumstances in Kaufman, two justices dissented,
indicating that no sanction against the circuit judge should be
imposed.
In the case before us, we recognize, as in Kaufman, that
a distinction exists between the fact that an ex parte
communication occurred, and the content of that communication. As
Kaufman states: "The very act of talking to one party without the
presence of the other creates an ex parte situation." 187 W. Va.
at 171, 416 S.E.2d at 485. Nevertheless, this Court would be
remiss in not considering the content of the communication between
Judge Starcher and the assistant prosecuting attorney. The
communication herein was more egregious than in Kaufman. It was
less ambiguous than the conversation between Judge Kaufman and the
president of CAMC. Here, Judge Starcher admittedly initiated the telephone conversation in order to advise the State upon the manner
in which its closing argument should be conducted in the Hawkins
trial.
The Court of Criminal Appeals of Oklahoma, in Jones v.
State, 668 P.2d 1170 (Okla. 1983), awarded post-conviction relief
to a defendant in a felony case, where the trial judge had actively
attempted to help the district attorney develop trial strategy.
Citing a similar provision to our Canon 3B(7), the Court, in Jones,
stated: "When a trial judge initiates ex parte communication
suggesting various procedures to the prosecution, . . . the
accused's right to a hearing before an impartial judge is
nullified. A trial judge should never involve his personal views
in the hearing of a matter[.]" 668 P.2d at 1171-72. See also
State v. Finley, 704 S.W.2d 681, 684 (Mo. App. 1986) ("It was
improper for the trial judge to assume the prosecutor's role as an
advocate for the state[.]"); Justice Bernard Botein, Trial Judge p.
97 (Da Capo Press 1974) ("Problems arise when the judge ventures
across the line marking the traditional division of labor between
lawyer and judge."); Phoebe Carter, Annotation, Disciplinary Action
Against Judge for Engaging in Ex Parte Communication With Attorney,
Party or Witness, 82 A.L.R.4th 567 (1990).
As indicated above, Judge Starcher initiated an ex parte
communication in order to advise the State upon the manner in which
its closing argument should be conducted. The occurrence of the ex
parte communication and its content have not been disputed. The
provisions of Canon 3B(7) prohibiting such communication are also undisputed. As we held in syllabus point 1 of In the Matter of:
Karr, 182 W. Va. 221, 387 S.E.2d 126 (1989): "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."
This Court is aware that the Hawkins trial was, in fact,
long and difficult and that the ordeal of the victims had an impact
upon Judge Starcher. In the course of a criminal trial, "evidence
as to a defendant's activities may incite natural disgust, but it
could hardly be thought that a judge would be disqualified because
he reacted as would anyone else." 46 Am. Jur. 2d Judges 170
(1969). "We could not, if we would, get rid of emotions in the
administration of justice. The best we can hope for is that the
emotions of the trial judge will be sensitive, nicely balanced,
subject to his own scrutiny." Jerome Frank, "Justice and
Emotions," in Handbook for Judges p. 53 (American Judicature
Society 1984). Nevertheless, this Court in Louk v. Haynes, 159
W. Va. 482, 500, 223 S.E.2d 780, 791 (1976), emphasized that where
there is temptation "not to hold the balance nice, clear and true
between the State and the accused, a judge should recuse himself."
Rule 4.12 of the Rules of Judicial Disciplinary Procedure
provide that the Supreme Court of Appeals "may impose any one or
more of the following sanctions for a violation of the Code of
Judicial Conduct: (1) admonishment; (2) reprimand; (3) censure;
(4) suspension without pay for up to one year; (5) a fine of up to
$5,000[.]" Specifically, Rule 4.12 states that a reprimand "constitutes a severe reproof to a judge who has engaged in conduct
which violated the Code of Judicial Conduct."
With regard to Judge Starcher's alleged conduct toward
Ms. Gutsell, Mr. Parker and their law firm on December 17, 1993, no
evidence of any threat appears in the record. Nor does the record
contain evidence that Judge Starcher before or after the meeting
with Ms. Gutsell and Mr. Parker exhibited bias toward those
attorneys or the law firm. The testimony indicates frustration by
Judge Starcher with himself when he realized the import of the
previous day's conversation with the assistant prosecuting
attorney. The members of the Judicial Hearing Board were "much
closer to the pulse of the hearing" concerning that issue, and we
adopt the Board's recommendation to dismiss that aspect of the
complaint with regard to Judge Starcher's conduct on December 17,
1993. In the Matter of June Browning, supra n. 4.
As discussed above, however, the December 16, 1993, ex
parte communication of Judge Starcher with the assistant
prosecuting attorney was more egregious than the communication in
the Kaufman case. Upon all of the circumstances herein, this Court
concludes that a reprimand, rather than the lesser sanction of
admonishment, is warranted.
As a final note of importance, we wish to emphasize that
this matter, although quite serious, is but a single episode in
Judge Starcher's long and distinguished judicial career. The
Morgantown area constitutes one of the busiest and most difficult
circuits in West Virginia, and Judge Starcher has been a hard working judge in that circuit for more than seventeen years. His
comments before the Judicial Hearing Board, that he works long
hours and tackles complicated problems, were well spoken. It is
commendable that Judge Starcher made a public admission and apology
concerning the incident in question.
Upon all of the above, Judge Starcher is hereby
reprimanded with regard to the ex parte communication of December
16, 1993.
Reprimand.
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