In re the Honorable Judge Louise E. Goldston

FILED
November 19, 2021
No. 20-0742—In re Hon. Louise E. Goldston, Judge of the released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
13th Family Court District SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WOOTON, J., dissenting:
While I agree that Judge Goldston’s conduct resulted in violations of the
Code of Judicial Conduct and warrants discipline, I disagree with the censure issued by the
majority. I would issue an admonishment in lieu of censure and therefore respectfully
dissent. There can be little doubt that Judge Goldston improperly managed the entry into
Mr. Gibson’s home, particularly her threats of jail upon his objection, refusal to permit a
record to be made, and attempted seizure of Mr. Gibson’s cell phone. These actions alone
plainly warrant sanction. In the first instance, however, it is beyond dispute that her
underlying authority to conduct proceedings at his home in an effort to enforce her
previously issued order presents a legal rather than an ethical issue, the parameters of which
are subject to reasonable debate. Further, the convergence of these ethical and legal issues
has been influenced by a litany of ancillary issues which have emerged since Judge
Goldston and Judicial Disciplinary Counsel (“JDC”) reached an agreement as to resolution,
confounding the matter further. Therefore, while I agree that discipline is appropriate, in
view of the foregoing I would concur in the recommendation of the Judicial Hearing Board
(hereinafter “Hearing Board”) and relegate the matter to an admonishment. 1
However, I have no objection to the majority’s adoption of the $1,000 fine
1
recommended by the Hearing Board.
1
This proceeding clearly presents a far more complex overarching concern
than simple judicial misbehavior—perhaps more so than virtually any other judicial
disciplinary matter which has been presented to this Court. This case presents a
painstakingly fine distinction between whether the conduct herein is merely an ostensible
legal error committed by a judge in the course of her duties, or judicial behavior so lacking
in authority as to constitute an ethical violation. JDC argues strongly the Fourth
Amendment search and seizure implications of Judge Goldston’s conduct, the complete
absence of express authority for the “home visit,” and the lack of procedural due process
afforded to Mr. Gibson constitute ethical violations. Judge Goldston—and to a large extent
the amicus curiae The West Virginia Family Judicial Association (“WVFJA”)—contend
this was a mere error of law about the scope of her authority and, like any routine legal
error, is undeserving of discipline. These are both objectively reasonable, equally
defensible positions.
In fact, it is the responses to these debatable issues which belie any
suggestion that this case is easily resolved. It is a rare—if not unheard of—judicial
disciplinary case which yields twelve separate legal questions from the tribunal below after
receiving an agreed-upon sanction from JDC and the respondent judicial officer. These
legal issues were addressed with extensive briefing from the parties before the Hearing
Board. Despite this extensive academic analysis and debate, the nine-member Hearing
Board obtained no clarity on the issue, ultimately conceding that “although there was no
clear legal foundation for conducting the judicial view in question, the scope of a judicial
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officer’s inherent authority relative to judicial views is uncertain[.]” Even before this Court
the parties offer nearly 150 collective pages of briefing, with the JDC alone citing in excess
of seventy-seven cases, fifteen statutes, and twenty-four rules to address the issues
presented in this matter. Indeed, the majority issues two new points of law—including one
about the authority of a judicial officer to participate in executive branch “search”
functions—to support its resolution of the case. The depth of analysis and legal
machinations needed to fully address this matter speak to the complexity of issues.
This complexity is markedly heightened by the “white noise” surrounding
this matter’s presentation to the Court. Although this Court sits as an independent, final
arbiter of judicial discipline, disciplinary actions do not present themselves to the Court in
a vacuum. Such matters arrive at this forum colored by the subjective impressions,
individual judgments, and actions of those who have shaped them below. In this matter
the Court is presented with a picture which is confounded by an agreed sanction between
JDC and Judge Goldston (both of whom ostensibly later disavowed the agreement to some
degree), sharply divergent views of the Hearing Board, 2 and acrimonious allegations of
misconduct and bias in the disciplinary process itself—particularly with regard to the
participation of the amicus in this case. 3 The impact of these unusual and startling conflicts
2
A majority of the Hearing Board voted for admonishment and $1,000 fine. Two
minority members voted for censure and a $1,000 fine; one member—Judge Glen Stotler—
recommended dismissal of the charges.
3
See infra.
3
commands caution in a case which already requires the Court to parse a fine distinction
between legal error and ethical misconduct.
Indeed, the very disciplinary process in this matter finds itself under as much
scrutiny as the underlying conduct itself. As alluded to above, following the hearing before
the Hearing Board, JDC moved to disqualify Hearing Board member Judge Stotler from
the proceedings on the basis of the questions which he posed at the hearing; he refused
disqualification, denying any bias. Thereafter, Judge Stotler sent a letter to this Court
demanding an investigation into the conduct of JDC with respect to this matter, and in a
separate matter involving another family court judge. 4 Further, upon seeking amicus
curiae status, the WVFJA took a position in ostensible support of Judge Stotler’s criticisms
of JDC, referencing in its briefing certain “threats” made by JDC if it sought amicus status
in this matter, which JDC denied as characterized.
The process was further impacted by seemingly vacillating positions by JDC
with respect to Judge Goldston throughout the pendency of this matter. In its representation
to the Hearing Board, JDC stated that Judge Goldston was “completely cooperative,” yet
before this Court represented that Judge Goldston was only “somewhat cooperative.” Also
before this Court JDC suggested that Judge Goldston demonstrated a “distinct lack of any
remorse” due exclusively to the content of her briefing on the legal issues raised by the
4
Ultimately, however, the Judicial Investigation Commission found that JDC
engaged in no unethical or improper behavior.
4
Hearing Board—issues to which Judge Goldston was ordered to respond. 5 JDC’s
objection alone would have required respondent to engage in briefing and argument before
this Court about the propriety of her conduct. Her admissions below do not require her to
forfeit her ability to respond to issues raised by JDC for fear of being found unremorseful.
Further, despite entering into an agreement that it would accept the recommendation of the
Hearing Board, JDC immediately filed an objection with this Court upon receipt of the
Hearing Board’s recommendation. JDC nevertheless characterized Judge Goldston’s
subsequent objection as a violation of their agreement to yield to the Hearing Board’s
recommendation.
I reiterate the foregoing to explain my reluctance to assent to the majority’s
full-throated condemnation of Judge Goldston’s actions on the whole. I do not disagree
that her entry into Mr. Gibson’s home creates obvious Fourth Amendment issues which
any judicial officer should have recognized, if not beforehand, at least when Mr. Gibson
demanded a search warrant. Her response to Mr. Gibson’s Fourth Amendment objection—
to repeatedly threaten to jail him unless he relented in the warrantless entry and search—
plainly warrants discipline. And while her conduct demands reproach, one cannot turn a
5
In a similar reversal of position, JDC initially also asserted as error the Hearing
Board’s refusal to award costs in this matter. It argued that Judge Goldston agreed to be
responsible for costs despite the written agreement (presumably prepared by JDC) which
states, “[b]oth parties acknowledge and agree that neither the Judicial Investigation
Commission nor [JDC] incurred any costs as a result of the investigation[.]”
5
blind eye to what was clearly Judge Goldston’s good faith belief in her authority to
undertake the “home visit” in the first instance. 6
In this regard, I believe the majority has unfortunately squandered an
opportunity to clarify the precise legal errors committed under the contempt statute and
provide much-needed guidance as to the authority of a family court judge to conduct
proceedings outside of his or her courtroom. To hold merely that judges cannot perform
“searches” is too blunt a tool to be useful. West Virginia Code § 51-2A-9(b) (2012)
provides:
A family court judge may enforce compliance with his or her
lawful orders with remedial or coercive sanctions designed to
compensate a complainant for losses sustained and to coerce
obedience for the benefit of the complainant. Sanctions must
give the contemnor an opportunity to purge himself or herself.
In selecting sanctions, the court must use the least possible
power adequate to the end proposed. . . . Sanctions may
include, but are not limited to, seizure or impoundment of
property to secure compliance with a prior order[.]
(Emphasis added); see also W. Va. Code § 48-1-304(b) (2001) (“[I]f the court further finds
the person has the ability to purge himself of contempt, the court shall afford the contemnor
a reasonable time and method whereby he may purge himself of contempt.”). In this case,
however, Judge Goldston admitted that 1) she never held Mr. Gibson in contempt; 2) had
6
In addition, while I do not condone the improper entry and search of Mr. Gibson’s
home, the resultant damage was merely the retrieval of items which he had already been
ordered to produce and had willfully failed to do so. Regardless, the measure of harm to
Mr. Gibson can be meted out in other proceedings and need not be considered herein.
6
not heard “his side” before going to his home; and 3) gave him no opportunity to purge
himself of any such contempt, in violation of statute. 7
Further, as to Judge Goldston’s position that the “home visit” was a mere
continuation of the proceedings, her failure—and refusal to allow Mr. Gibson—to record
the proceedings was fatal to her effort. There is nothing which prohibits Judge Goldston
from conducting proceedings outside of her courtroom; however, those proceedings must
still comply with the applicable procedural rules. See W. Va. Code § 51-2A-8(c) (2017)
(“Hearings before a family court shall be recorded electronically.”); W. Va. R. Fam. Ct.
Proc. 5 (“Proceedings in family court shall be recorded electronically on tapes or other
electronic recording media.”). As to Mr. Gibson’s attempt to record the proceedings, Judge
Goldston had authority to permit him to create a record—particularly in absence of an
official record. Rule 8 of the Rules of Family Court Procedure expressly grants a family
court authority to permit unofficial recordings: “Unless prior permission is granted by the
family court, no person shall be permitted to make photographs, video recordings, sound
recordings, or any other form of recording of proceedings[.]” (emphasis added). Certainly
7
It appears Judge Goldston believed she had contempt power to compel Mr.
Gibson’s compliance with the entry pursuant to West Virginia Code § 51-2A-9(a)(3): “[A]
family court judge may . . . [p]unish direct contempts that are committed in the presence
of the court or that obstruct, disrupt or corrupt the proceedings of the court.” However, as
an experienced judicial officer, Judge Goldston should have recognized the distinction
between obstruction of the proceedings and valid objections to the underlying process. By
offering a ruling with adequate notice to the parties, reduced to appealable order, there is
little chance the two scenarios would have been confused.
7
permitting an unofficial recording as a matter of practicality is vastly preferable to the
absence of any reviewable record.
More fundamentally, Judge Goldston’s procedure—by summarily
undertaking the visit without notice to the parties upon proper, appealable order—deprived
Mr. Gibson of the opportunity to lodge an objection or seek relief from Judge Goldston’s
intended entry into his home. It also deprived Judge Goldston herself of the opportunity
to consider Mr. Gibson’s objection, which was properly couched in terms of the
constitutionality of her entry into his home and the ethical issue of making herself a witness.
Finally, my reluctance to join in the majority’s censure of Judge Goldston’s
conduct stems not only from my discomfit about the nature of the underlying conduct and
the circumstances surrounding the proceedings, but from a firmly held belief that this Court
owes a measure of deference to the Hearing Board’s recommendation. Unquestionably
this Court has the authority to impose any discipline it deems appropriate, irrespective of
the Hearing Board’s recommendation. However, having the authority to “overrule” the
Hearing Board does not speak to the wisdom of so doing. Like any fact-finding tribunal,
the Hearing Board has the benefit of first-hand observation of the litigants and as such is
“much closer to the pulse of the hearing to resolve such issues as credibility and conflict
of facts.” Matter of Browning, 192 W. Va. 231, 234 n.4, 452 S.E.2d 34, 37 n.4 (1994).
Accordingly, this Court has noted that “[s]ubstantial consideration . . . should be given to
the findings of fact of the Hearing Board.” Id.8
This deference to the Hearing Board should not, in my view, be limited only
to its factual findings, but should extend equally to its discretion in assessing discipline,
where no misapprehension of the law or facts exist. As we have explained: “To ignore the
Hearing Board’s findings would render its important adjudicatory role a useless gesture,
deprive the parties of peer review, and deprive this Court of the most important benefit, the
Hearing Board’s collective and evaluative judgment.” In re Hamrick, 204 W. Va. 357,
359, 512 S.E.2d 870, 872 (1998) (quoting Browning, 192 W.Va. at 234 n.4, 452 S.E.2d at37 n.4). In this case, five of the eight participating members of the Hearing Board
recommended admonishment, two recommended the more severe sanction of censure, and
one recommended dismissal of the charges. The “collective and evaluative judgment” of
the Hearing Board, while divided, determined that an admonishment best served the
objectives of judicial discipline. There is nothing before us which would suggest that this
recommendation requires enhancement.
Therefore, in view of the foregoing, while I do not take issue with the
majority’s analysis on the whole, I believe the circumstances surrounding this disciplinary
proceeding, as well as the nature of the underlying conduct, militate firmly in favor of
admonishment. Accordingly, I respectfully dissent.
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