Matter of Phalen
Annotate this CaseJanuary 1996 Term
_________
No. 22942
_________
IN THE MATTER OF:
CHARLES PHALEN, JR.,
FAMILY LAW MASTER FOR KANAWHA COUNTY
_______________________________________________________________
JUDICIAL DISCIPLINARY PROCEEDING
PUBLIC REPRIMAND AND COSTS
_______________________________________________________________
Submitted: June 25, 1996
Filed: July 3, 1996
Charles R. Garten
Charleston, West Virginia
Judicial Disciplinary Counsel
Michael C. Allen
Allen & Allen
Charleston, West Virginia
Attorney for Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "The purpose of judicial disciplinary proceedings is the preservation and
enhancement of public confidence in the honor, integrity, dignity, and efficiency of the
members of the judiciary and the system of justice." Syllabus, In the Matter of Gorby, 176
W. Va. 16, 339 S.E.2d 702 (1985).
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 Comm'n v. Dostert, 165 W. Va.
233, 271 S.E.2d 427 (1980).
3. "When the language of a canon under the [Code of] Judicial [Conduct] 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 judicial disciplinary proceeding arises from a recommendation by the
West Virginia Judicial Hearing Board that Charles Phalen, Jr., Family Law Master for
Kanawha County, be reprimanded for violating several provisions of the West Virginia Code
of Judicial Conduct. The violations concern ex parte communications with parties having a
proceeding pending before the family law master.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of this matter are not in dispute. In September of 1994, Mr. Phalen
conducted a hearing on a petition to modify child support. During the hearing, the husband
and wife mutually informed the family law master that the husband was suffering from
multiple sclerosis and, as a consequence, his income had decreased drastically. The parties
jointly agreed to and requested a reduction in child support payments due to the husband's
illness and decrease in income. The record indicates an order was entered reflecting the
agreement by the parties. However, before the order was communicated to the parties, Mr.
Phalen engaged in ex parte communications with both parties. Mr. Phalen first telephoned
the husband and arranged to visit his home for the purpose of informing him of a way in
which he could earn extra income. Mr. Phalen then visited the home of the husband and
attempted to get him to agree to become a sales representative for Amway.(1) The husband
listened to the family law master but made no commitment to sell Amway products.(2) When
the family law master left the husband's home, he left behind various Amway brochures and
a cassette.(3) The family law master next telephoned the wife and attempted to gain her
interest in selling Amway products. The wife, however, was resistant to the idea and would
not allow the family law master to visit her home.
On February 2, 1995, the husband filed a complaint with the West Virginia
Judicial Investigation Commission (Commission) alleging violations of the Code of Judicial
Conduct against Mr. Phalen due to the conduct indicated herein. An investigation into the
matter was conducted by the Commission. On June 15, 1995, a majority of the members of
the Commission determined that probable cause existed for a complaint to be filed with the
West Virginia Judicial Hearing Board (Board) charging Mr. Phalen with violating Canons
1, 2A, 2B, 3A, 3B(7), and 3B(11) of the Code of Judicial Conduct. The Board conducted
an evidentiary hearing on this matter on November 3, 1995. At that proceeding, the
Commission and the family law master entered into the record eleven stipulated facts,
wherein the family law master conceded to engaging in the conduct alleged against him.(4)
On December 28, 1995, the Board filed its Recommended Findings of Fact, Conclusions of
Law, and Proposed Disposition. The Board concluded: (1) The family law master used
information he obtained in a judicial hearing to attempt to promote his own personal
financial gain, and (2) he did not promote public confidence in the integrity and impartiality
of the judiciary by visiting the home of a litigant and attempting to have the litigant sell
Amway products.(5) The Board unanimously proposed that the family law master be
reprimanded. The brief of the Commission argues the evidence supports a finding that all
the charged canons were violated and the reprimand sanction should be approved by this
Court. In his response brief, the family law master agrees he should be reprimanded but
asserts his conduct only violated Canons 2 and 3B(11).
II.
DISCUSSION
We note at the outset that "[t]he purpose of judicial disciplinary proceedings
is the preservation and enhancement of public confidence in the honor, integrity, dignity, and
efficiency of the members of the judiciary and the system of justice." Syllabus, In the Matter
of Gorby, 176 W. Va. 16, 339 S.E.2d 702 (1985) (Gorby II). See In the Matter of Hey, 192
W. Va. 221, 228, 452 S.E.2d 24, 31 (1994) ("[j]udicial disciplinary proceedings are subjects
of the highest public concern"). In fulfilling this purpose, we require "that allegations of a
complaint in a judicial disciplinary proceeding 'must be proved by clear and convincing
evidence.'" In the Matter of Starcher, 193 W. Va. 470, 473, 457 S.E.2d 147, 150 (1995),
quoting Syl. pt. 1, In the Matter of Hey, supra; Syl. pt. 4, In re Pauley, 173 W. Va. 228, 314 S.E.2d 391 (1983). This standard of proof is embodied in Rule 4.5 of the Rules of Judicial
Disciplinary Procedure, which states: "In order to recommend the imposition of discipline
on any judge, the allegations of the formal charge must be proved by clear and convincing
evidence." Of course, the findings of the Board are "'not binding on this Court.'" Starcher,
193 W. Va. at 473, 457 S.E.2d at 150, quoting In the Matter of Browning, 192 W. Va. 231,
234 n.4, 452 S.E.2d 34, 37 n.4 (1994). Further, as we stated in Syllabus Point 1 of West
Virginia Judicial Inquiry Commission v. Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980),
it is the duty of this Court to "make an independent evaluation of the record and
recommendations of the Judicial [Hearing] Board in disciplinary proceedings." See also
Browning, 192 W. Va. at 234, 452 S.E.2d at 37, where we stated this Court has the
"responsibility to review the record in this case de novo and determine if there is clear and
convincing evidence to prove the allegations in the complaint." With the above principles
charting our course, we will proceed with a review of the facts of this case.
A.
Canon I:
Upholding the Integrity and Independence of the Judiciary
The first issue to be addressed is whether the evidence establishes that Mr.
Phalen violated Canon 1. The essence of Canon 1 is the requirement that a judge uphold the
integrity and independence of the judiciary.(6) Mr. Phalen argues his conduct did not violate
the "integrity and independence of the judiciary" for two reasons. First, he notes the parties
in the child support proceeding mutually agreed to a reduction in child support payments;
therefore, no controversy existed between the parties. Second, he contends the conduct
complained of occurred after the order was entered by the circuit court; therefore, the
proceeding itself was over.(7) Mr. Phalen's arguments display a misapprehension of the
import assigned to the phrase "integrity and independence of the judiciary." Mr. Phalen's
logic would allow every judge to engage in unlimited and unrestricted personal activities
with litigants the moment a final order is entered or when litigants reach a settlement
"mode."
We believe Canon 1 is far more potent and meaningful than Mr. Phalen would have it. No greater assault on the integrity and independence of the judiciary can be found than to have litigants exposed to judges soliciting them for whatever "fancy" judges might have. See In the Matter of Hey, 193 W. Va. 572, 457 S.E.2d 509 (1995) (sanctions imposed on judge for sexual harassment); In the Matter of Mendez, 192 W. Va. 57, 450 S.E.2d 646 (1994) (criminal and ethical sanctions imposed on magistrate for unlawful solicitation and acceptance of campaign funds); In the Matter of Gainer, 185 W. Va. 8, 404 S.E.2d 251 (1991) (ethical sanctions imposed on magistrate for sexual fondling of woman). We noted In the Matter of Gorby, 176 W. Va. 11, 14, 339 S.E.2d 697, 700 (Gorby I), modified on other grounds, 176 W. Va. 16, 339 S.E.2d 702 (1985):
"'"The office of judge is one in which the general
public has a deep and vital interest, and, because that is true, the
official conduct of judges, as well as their private conduct, is
closely observed. When a judge, either in his official capacity
or as a private citizen, is guilty of such conduct as to cause
others to question his character . . . , the people not only lose
respect for him as a [person] but lose respect for the court over
which he presides as well."'" Quoting In re Haggerty, 257 La.
1, 29, 241 So. 2d 469, 478 (1970), quoting Stanley v. Jones, 201
La. 549, 562-563, 9 So. 2d 678, 683 (1942).
Mr. Phalen's conduct, as reflected by the stipulated facts of this case, made a
mockery of the integrity and independence of our judicial system. The husband sought legal
redress from a previously entered child support order that had become unduly burdensome
due to the negative effects of multiple sclerosis on his ability to work. The wife apparently
understood the husband's debilitating circumstances and agreed not to oppose his efforts to
obtain a reduction in child support payments. Mr. Phalen heard the evidence pertaining to
the financial difficulties of the husband and submitted a recommendation to the circuit court.
As far as the husband and wife were concerned, the income situation would be remedied by
an order approving a reduction in child support payments. This was all they sought from the
court. Mr. Phalen took unprecedented advantage of their situation by communicating with
the litigants before the litigants were made aware of the outcome of their proceeding. The
evidence is clear that, while the wife stood strong in rebuffing Mr. Phalen's Amway
proposition, the husband was intimidated by the circumstances in which Mr. Phalen made
his Amway pitch. The husband interpreted Mr. Phalen's communication to mean, in effect,
that he had to become an Amway representative if he wanted a favorable court order. This
truly unfortunate experience by the husband and wife with our legal system is distressing to
this Court. The implications of Mr. Phalen's conduct directly attacks and exposes to ridicule
the integrity and independence of the judiciary. The Commentary to Canon 1 states:
"Deference to the judgments and rulings of courts depends upon public confidence in the
integrity and independence of judges." How much "deference" would the public extend to
a judiciary that dispenses Amway recruits instead of justice? Mr. Phalen points out that he
holds the position of family law master on a part-time basis. This point has no relevancy to
egregious conduct that was inextricably linked to his official position as a family law master.
While he may hold the position part time, the integrity and independence of the office of
family law master is a full-time forum to the public. We touched upon this idea in Gorby
I, 176 W. Va. at 14, 339 S.E.2d at 700, quoting Syl. pt. 7, Matter of Bennett, 403 Mich. 178,
267 N.W.2d 914 (1978), where it was said that: "'[A] judge, whether on or off the bench,
is bound to strive toward creating and preserving the image of the justice system. . . .
Achievement of this goal demands that a judge, in a sense, behave as though he is always on
the bench.'"
B.
Canon 2A:
Avoiding Impropriety and the Appearance of Impropriety
We draw our attention next to Canon 2A. This canon requires that a judge avoid impropriety and the appearance of impropriety.(8) Mr. Phalen concedes in his brief that his conduct violated "Canon 2." This concession, of course, does not alter the duty of this Court in carrying out the task at hand. The Commentary to Canon 2A flushes out the broad demands of this provision in the following pertinent language:
"Public confidence in the judiciary is eroded by
irresponsible or improper conduct by judges. . . . A judge must
expect to be the subject of constant public scrutiny. A judge
must therefore accept restrictions on the judge's conduct that
might be viewed as burdensome by the ordinary citizen and
should do so freely and willingly."
It is the height of irresponsibility and impropriety for a judicial officer to solicit litigants to
sell Amway products or any other product. Mr. Phalen stood to gain financially from having
the husband and wife become Amway representatives. The thrust of Amway's attractiveness
to particular people, such as Mr. Phalen, is its pyramid-type scheme wherein a single
individual benefits from the person he recruits, as well as from his recruit's recruits and so
on down the pyramid. The financial stake Mr. Phalen held in this matter overshadows any
financial gain the litigants might have obtained from accepting his proposal. As we stated
succinctly in In the Matter of Neely, 178 W. Va. 722, 727, 364 S.E.2d 250, 255 (1987), "it
is improper for a judge to take advantage of his position to reap a personal benefit--or even
to appear to do so." The Open Courts Clause of Section 17 of Article III of the West
Virginia Constitution(9) does not permit, as a condition to access to the courts, that litigants
must help line the pockets of judicial officers by selling trinkets. In the Syllabus of Neely,
supra, we held: "A judge or justice violates Canon 2A . . . when he requires his secretary to
care for his child as a condition of employment, because such action creates the appearance
of impropriety and undermines public confidence in the judiciary." Mr. Phalen's pernicious
arrangement, if left unchecked, would not merely "undermine" public confidence in the
judiciary, it would "utterly destroy" such confidence.
C.
Canon 2B:
Using the Prestige of Judicial Office to Advance Private Interests
The next issue we must consider concerns Canon 2B. The gist of this canon
prohibits a judge from using the prestige of judicial office to advance private interests of the
judge or others.(10) See In the Matter of Boese, 186 W. Va. 46, 410 S.E.2d 282 (1991) (ethical
violation for magistrate to use her judicial position to threaten her ex-spouse). The evidence
is clear that Mr. Phalen had a direct monetary interest in recruiting people to sell Amway
products. The evidence is also equally clear that the litigants knew of Mr. Phalen only
because of his position as a family law master. In other words, Mr. Phalen's unfortunate
conduct was squarely centered on the prestige of his judicial office. Mr. Phalen's failure to
inform either litigant that a decision had been entered into the record of their case irrefutably
reveals that he was using the prestige of his judicial office to try and intimidate the litigants
into becoming his Amway recruits. The Commentary to Canon 2B provides guidance here
insofar as it admonishes that "[j]udges should distinguish between proper and improper use
of the prestige of office in all of their activities." (Emphasis added.) Using the prestige of
the office of family law master to recruit Amway "cogs" is categorically improper and
intolerable. "It represents a fundamental abuse of power that seriously undermines public
confidence in the integrity and impartiality of the judiciary." Hey, 193 W. Va. at 577, 457 S.E.2d at 515.
D.
Canon 3A:
Judicial Duties Take Precedence Over All Other Activities
We now proceed to determine whether Canon 3A was violated by Mr. Phalen's
conduct. Canon 3A requires judges to make their judicial duties a priority over all other
activities.(11) Mr. Phalen contends his conduct did not violate this canon. The Commission
argues to the contrary. It is the position of the Commission that the conduct of Mr. Phalen
"evidenced the family law master's failure to place his judicial duties over all of his other
activities." We disagree with the broad reach that the Commission wants to apply to this
canon. Canon 3A represents a general statement regarding a judge's duty to make judicial
affairs a priority. Specific germane matters are brought out in subsequent provisions of
Canon 3. A review of past decisions instructs us that Canon 3A (and its equivalent under the
Judicial Code of Ethics) never formed the basis of an independent violation by a judicial
officer.(12) Rather, Canon 3A provides the basis for sanctions only when used in conjunction
with other provisions of Canon 3. See Browning, supra (magistrate refused to cooperate in
working out a schedule for the court with the chief magistrate); In the Matter of Harshbarger,
173 W. Va. 206, 314 S.E.2d 79 (1984) (magistrate left his post prior to the end of his
scheduled shift at night court); In the Matter of Osburn, 173 W. Va. 381, 315 S.E.2d 640
(1984) (magistrate on duty remained at his home when a prisoner was brought to his office
for arraignment). We do not believe the conduct of Mr. Phalen is ripe for finding an
independent violation of Canon 3A. His conduct did not display an independent disregard
for putting his judicial duties above private activities. Had there been evidence, for example,
that Mr. Phalen cut short a judicial proceeding in order to visit the husband's home, then an
independent implication of Canon 3A would be confronting us.
E.
Canon 3B(7):
Ex Parte Communications by a Judicial Officer
Concerning Pending or Impending Proceeding
We next look at whether Canon 3B(7) was violated by Mr. Phalen. This canon
proscribes ex parte communications by a judicial officer concerning a pending or impending
proceeding.(13) Mr. Phalen contends his conduct did not violate Canon 3B(7) because a final
order had been entered in the child support case. We reject this argument for the reasons
indicated in note 7, supra (the mere entry of the final order did not remove the case from its
status as a pending matter because the governing appeal period was not elapsed). The
Commission argues that Canon 3B(7) was violated even though the substance of the
communication may not have related to the litigation itself. The Commission cites language
from In the Matter of Kaufman, 187 W. Va. 166, 416 S.E.2d 480 (1992), to support its
position that mere ex parte communications with a party (except for the enumerated
exceptions contained in the canon), without regard to the substance of the communications,
are prohibited by Canon 3B(7).
In Kaufman a circuit judge initiated a telephone call to a party involved in a
proceeding pending before the circuit court. There was no dispute over the fact that the
circuit judge initiated the telephone call. However, there was conflicting evidence regarding
the substance of the telephone conversation. The circuit judge contended the conversation
did not involve the merits of the pending litigation. The party contacted testified the
conversation went to the heart of the pending litigation. This Court did not provide any
analysis on the distinction between ex parte communications that do not touch upon the
merits of a pending litigation versus ex parte communications that improperly address the
merits of a pending case. In unadorned and sweeping language, which the Commission
seizes upon to support its position, we stated: "The very act of talking to one party without
the presence of the other creates an ex parte situation." Kaufman, 187 W. Va. at 171, 416 S.E.2d at 485. This language standing alone does not support the position of the Commission
that this Court should not be concerned with the nature of ex parte communications for the
purpose of finding a violation of Canon 3B(7). Some support, however, for the
Commission's position is found in Syllabus Point 2 of Kaufman: "The initiation of ex parte
communications by a judge is strictly prohibited by Canon 3[B(7)] of the [Code of ] Judicial
[Conduct], 'except as authorized by law.'" This Syllabus Point has to be flushed out for
future utility. In addition to the actual enumerated exceptions to the prohibition of ex parte
communications found in Canon 3B(7), a nonenumerated qualification is embedded in the
canon. The canon expressly states that ex parte communications "concerning" pending or
impending litigation is prohibited. The use of the word "concerning" informs us that ex parte
communication that "does not concern" pending or impending litigation is a nonenumerated
exception to the canon's prohibition. "When the language of a canon under the [Code of]
Judicial [Conduct] 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). With this point in mind, it,
therefore, becomes important and necessary to analyze the content of Mr. Phalen's ex parte
communications with the litigants.
Based upon the stipulated evidence in this case, it is clear that during Mr.
Phalen's ex parte communications with both litigants he "did not mention the hearing, the
order, or anything about the [litigants'] divorce." In other words, the evidence in this case
shows Mr. Phalen only discussed selling Amway products with the litigants. The
proceedings the litigants were involved with "did not concern" Amway products. While the
latter conclusion is sound, it does not end the inquiry. In the final analysis, the litigation
itself involved decreased income by the husband, which translated into smaller child support
payments to the wife. The essence of Mr. Phalen's ex parte communications with both
litigants involved increasing their incomes. In other words, income was the heart of the
litigation and income was the heart of the ex parte communications. Reducing the
communications to this level leads to the conclusion that Mr. Phalen engaged in ex parte
communications which indirectly concerned a pending proceeding.
F.
CANON 3B(11):
Engaging in Business Inconsistent with Impartial Performance
of Judicial Officer
The final charge against Mr. Phalen is that his conduct violated Canon
3B(11).(14) This canon provides: "A judge shall not disclose or use, for any purpose unrelated
to judicial duties, nonpublic information acquired in a judicial capacity." In his brief, Mr.
Phalen indicates his conduct violated this canon. Pursuant to W. Va. Code, 48-2-27 (1994),
all matters pertaining to domestic relations cases "are confidential and not open for public
inspection[.]" The facts pertaining to the child support proceeding were confidential and
nonpublic information. The evidence is clear that Mr. Phalen learned of the litigants'
financial situation through the child support proceeding. This nonpublic information formed
the basis of Mr. Phalen's conduct in approaching the litigants with a proposal to sell Amway
products. Clearly, Mr. Phalen used nonpublic information for a personal reason that was
unrelated to his judicial duties.
III.
CONCLUSION
For the forgoing reasons, we dismiss the specific charge and allegation concerning Canon 3A. However, we find the charges relating to Canons 1, 2A, 2B, 3B(7), and 3B(11) are supported by clear and convincing evidence. Accordingly, based upon these findings, we issue a public reprimand and order Mr. Phalen to pay the costs of the proceedings.
Public reprimand and costs.
1. The record indicates Mr. Phalen's wife accompanied him to the husband's home.
2. The parties in this matter stipulated several facts, among them was the following
account of what the husband's testimony would have been:
"4. Petitioner would testify that he had to allow Mr. Phalen to visit him since he had not yet received the order for a reduction in child support. Further, [p]etitioner would testify that he agreed to allow the Family Law Master and his wife to come to see him, but he knew that he was not interested in whatever Mr. Phalen proposed. Further, petitioner would testify that Mr. Phalen did not mention the hearing, the order, or anything about the petitioner's divorce; but that he felt he had to do what the Family Law Master wanted until he had the court order in his hand. He felt that the Family Law Master could change his mind and not give the request for reduction in child support."
3. A few days after the visit from the family law master, the husband received the child support modification order.
4. Additionally, it was brought out at the hearing that the family law master had engaged in such conduct with at least one other litigant who was before him.
5. The Board's Conclusions of Law did not specify which canons the family law master violated. However, the language used by the Board clearly indicates a determination that the family law master violated Canons 2A and 3B(11).
6. Canon 1, in its entirety, 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 will be preserved. The provisions of this Code are to be construed and applied to further that objective."
7. Mr. Phalen is mistaken in believing that mere entry of the final order by the circuit court put an end to the litigation. First, it is not for this Court or Mr. Phalen as a family law master to assume that because the parties agreed to a reduction in child support payments, neither party would have a reason to appeal. The potential for appeal remained with the case until the expiration of the appeal period. Therefore, the case was fully in litigation at the time Mr. Phalen made his Amway overtures. Second, neither party to the litigation knew the circuit court had entered a final order. Only Mr. Phalen was aware of this fact. In the stipulated facts, the husband made it clear he only permitted Mr. Phalen to invade the privacy of his residence because he was afraid to say no to Mr. Phalen with the child support issue still in the balance. Indeed, the wife, who was accommodating the husband on the child support issue, rejected Mr. Phalen's offer.
8. Canon 2A, in its entirety, provides: "A judge shall respect and comply with the law, shall avoid impropriety and the appearance of impropriety in all of the judge's activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
9. 9Section 17 of Article III provides: "The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay."
10. Canon 2B, in its entirety, provides:
"A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or knowingly permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness."
11. Canon 3A, in its entirety, 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."
12. The Code of Judicial Conduct became effective January 1, 1993. Prior to that time, the Judicial Code of Ethics governed judicial conduct. Under the Judicial Code of Ethics, the current Canon 3A was a non-enumerated preamble to Canon 3.
13. Canon 3B(7) provides, in relevant 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[.]"
14. The Commission argues in its brief that Mr. Phalen's conduct violated W. Va. Code, 48A-4-2(c), which prohibits a family law master from "engag[ing] in any other business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of his or her duties as a judicial officer." This specific allegation was not presented to the Board as part of the charged violations against Mr. Phalen and, therefore, is not properly before this Court.
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