smith v. tarr, et. al. foia lawsuit

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Civil Action No. /3, e ~j ~l9~Honorable '·?j',-UcLJ..H Judge

IN THE CIRClJIT COURT OF KANA \VHA COTJNTY WEST ViRGINIA, / ;., '"

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JAY LAWRENCE SMITH, an individualPlaintiff,

v.

TERESA TARR, in her capacity as COli..'1selforTHE WEST VIRGINIA JUDICIAL INVESTIGATION

C01-HvlISSION;and,THE WEST VIRGINIA JUDICIAL INVESTIGATION,a government agency

Defendants

COMPLAIl~TFOF DECLARATORY Al~DINJlJNCTIV J<.; RELIEF

Now comes the Plaintiff, Jay Lawrence Smith, who states as follows:

PARTIES

1. Jay Lawrence Smith ("Smith") is a resident of Hurricane, Putnam County, West

Virgi.~a.

2. Smith is a free-IaTlce legal researcher and journalist whose principal place of business

is in South Charleston, Kfu'1.a\vhaCounty, West Virginia.

3. Defendant Teresa Tarr ("Tarr") is a resident of Kanawha County, West Virginia and

was, at all times relevant hereto, the Counsel of the West Virginia Judicial Investigation

Commission.

4. Defendant 'Vest Virgiilia Judicial Investigation Commission CJIC") is a government

agency organized under the laws of the state of West Virginia with an address of 4700 MacCorkle

Ave., S.E., Suite 1200A, Charleston, WV 25304.

5. This Court has jurisdiction over this matter and over the parties.

6. As the conduct complained of, and as more particularly set forth herein, occurred in

Kanawha County, this matter is properly venued with this Court.

FACTUAL BACKGROUNj)

7. Smith restates the allegations contained in Paragraphs 1-6

8. On or about Aug. 31,2012, Smith received an electronic message from Keith William

DeBlasio ("DeBlasio"), a political activist, and resident from Cacapon in Morgan County.

9. At the time, Srr.dth was cOilliilur.death1.gwith DeBlasio about various legal issues he

was involved with in Morgan County.i"

10. Attached to DeBlasio message was a letter from Tarr dated the same day that she

tra..llsmitted to him via JIC's fax machine. Tarr's letter was her response to a Freedom of

Information Act ("'FOJA") request DeBlasio sent nc on Aug. 25,2012 asking for the nur.l1berof

ethics complaints filed against seven judicial officers in the last 10 years (Attached as Exhibit

"A").

11. DeBlasio's i~>.ug.25, 2012 FOLA.. request named several past and current circuit judges

from the eastern parillandle including the lIon" Jorlil C" Yoder ("Yoder"'), a former state senator

who at the time was making his fourth bid for a seat on the state Supreme Court ("the Court"), and

the Hon. Gina Groh, who 'lias appointed by President Barack Obfu'1la,and confirmed by the U.S.

Senate of fill a vacancy for the U.S. District Court for the Northern District of West Virginia.

12. Also, DeBlasio's request included Pu{narn Farrrily Law Judge William tvt "Chip"

Watkins III ("Watkins").

13. At the time of Tarr's letter, nc filed two separate statements of charges against

Watlilii.s allegiiig he committed 30 violations ofthe Code of Judicial Conduct. The filst statement

of charges returned against Watkins on July 31, 2012 stemmed from an extraordinary complaint

filed by Steven D. Canterbury ("Ca.nterbury"), director of the Court's AiliTJinistrative Office,

alleging since its implementation in 2009, Watkins failed to timely upload orders to the domestic

violence registry, and only after threatened with contempt charges by the COfu1 on July 5 did he

issue a ruling on two-year old motions for division of property in a divorce involving nc's

executive secretary, Nancy Black ("'Black").

14. At the time the first statement was filed, Smith had several articles published in The

West Virginia Record ("the Record") about Watkins' ethical transgressions, including a complaint

filed by Rev. Art Rage who alleged Watkins, during a May 23, 2012 hearing involving division of

marital assets between he and his estranged wife, Lillian, screfulled at him in L.1.ecourse of

accusing hlm of being behind an article that appeared the day before on PutnamLive.com about

Watkins, fu'1d his wife, Rhonda, previously beh'1g marrears on paying their homeov.llers

associatiop. dues. Rage's complaint was among those included in the second statement of charges

filed ...Aug..31,2012 (.li;.ttached as Exhibits t;~B,"~'C;" s~D"and ~'E")=t

15. In her letter to DeBlasio, Tarr made the following averment: "As I understand your

most recent letter, you clarifY you are asking for COl1fli"Tfiationof the existence of any complaints.

This not something I recall you specifically requesting in your previous letter. This Office f!!!!.

pro~Tide YOll~vith the lillilioer of evmplaints that Ju.dge Yoder, Ju.dge Saunders, Judge

Wilkes, Judge Groh, Judge Frye and Judge Watkins have received over the last ten years

(Emphasis added).

16. A week later, Smith sent Tarr a FOIA request seeking "The total number of

complaints filed by year .." against 27 circuit judges and family law judges/masters. The list

included the judges narned in DeBlasio's FOIA request (Attached as Exhibit "F").

17. Smith's FOIA request was sent via U.S. Mail.

18. On or about Sept. 12,2012, Till! responded to Smith's FOIA request by leaving a

message in his voice-mailbox. In her voice-message left at 5:14 p.m., Tarr said the following:

"lJhh.I~,Mr. Smith, this is Teri Tarr at the Judicial Investigation Commission, and I'mgoing to e-mail you as well, but I was calling, umm, I've been out of the office training, andI have to leave town tomorrow, umm, afternoon to go to Morgantown for an all daymeeting on Friday, and I was wonderli'1g if you'd be kind enough to give me an extensionon your FOIA request. As you're aware, we're a two-person shop, and, umm, you haveasked for information that, urnm, for I guess like 20, umm, 20-some, urum, 27, pertainingto 27 individuals~It's gumg to take me a little bit ofrilli.e to get it tOg.ethCi", and I've justbeen out of the office, lLndI guess this just came in Monday afternoon so I'm calling to askfor an extension (Emphasis added). If would be so kind to let me know as to whether I canhave one, I "vould appreciate it. Uillill, I have to be in Morgantown all day Friday, and Iwill not be back, umm, until Monday. Umm, so because, then I'll be out town the rest ofthe weekend I have to go to Hancock County, umm, so, to see my mother. So if you couldlet me know. It's (304) 558-0169, and I'm going to e-mail you as well. Thank you verymuch. Bye."

19. Later that day at 5:50 p.ll., Tfui sent a similar message to Smith via e-mail. \-Vhen

Smith granted the next day at 9: 15 a.m, Tarr replied 19 minutes later thanking him for the

extension and sa)ing she would ''work on it some mOTe\vhen I get back ~1onday and w-ill

dermitely have it to you in a reasonable time - which as I understand is now due at the end of the

month at li~e,rery latest (i\.tt&cned as Exhibit 6'G").

20. However, in a letter dated Sept. 24, 2012, Tarr denied Smith's Sept. 7 FOIA request.

In her letter, Tarr said pursuant to Rule 2.4 of the Rules of Judicial Disciplinary Procedure the

information he requested "is not subject to disclosure, but is considered confidential" (Attached

as Exhibit '~H").

21. Tarr's Sept. 24 letter is contrary to the Sept. 12 voice- and e-mail messages left with

Smith, and the Aug. 31 letter to DeBlasio granting him the information he requested.

22. Also, Tarr began her letter by noting among the information he requested included the

number of complaints filed since taking office against Yoder, Watkins and the Hon. Darren

Tallman, a fatuily law judge in \Vood County. Tat! concluded her letter by not only noting JIC

issued admonishments against Yoder and Tallman, but also they recently returned two statements

of charges agair..st Watkins.

23. As previously discussed in paragraph 14, Smith was already aware of the ethics

charges against \Vatkins. Also, he was already a'\,vareof the admonishment issued against Yoder.

24. In a letter dated Oct. 5,2012, Smith responded to Tarr's Sept. 24 letter denying his

FOIA request. In the letter, Smith said Tarr misconstrued his request as he was seeking the

number of complaints filed against the judicial officers he named, and not the outcome of the

investigatiorlS"(fittached as Exhibit "I").

25. Also, Smith reminded Tarr how she granted DeBlasio's FOIA request for similar

information, and in her Sept. 12 voice- and e-mail messages asked SInith for an extension of time

to fulfill his FOIA request.

26. In a letter dated Oct. 9, Tarr responded to Smith's Oct. 5 follow-up letter stating,

among other things, that after conferring with unnamed JIC members, she was standing by her

decision denying Smith's Sept. 7 FOIA request. She added that a recent decision Judge Bailey

rendered in The Charleston Gazette v. Col. Timothy Pack, superintendent a/the West Virginia

State Police (case number 10-C-1971) compliments not only Rule 2.4, but also Paragraphs 2 and 8

of Section 4 of the FOI law in keeping the information Smith requested confidential (Attached as

Exhibit" J").

27. Also, Tarr stated that it was not until mid-September that she learned of the Pack case.

28. Sometime after receiving Tarr's Oct. 9 letter, Smith went to the Kanawha Circuit

Clerk's Office to view the Pack case, and Judge Bailey's decision. After he did, Smith paid for a

copy ofthe May 15,2012 order (Attached as Exhibit "K")

29. In a second follow-up letter dated Oct. 19,2012, Smith informed Tarr Bailey's order

in Pack did not apply to his request as it addressed complaints filed against employees of an

executive branch of government. Additionally, Smith rerr..inded Tarr that "Judges are not

employees ... [but instead] part of a constitutionally created branch of government elected by

popular vote" (A.ttached as Exhibit "L").

30. Also, Smith reminded Tarr that as elected, public officials, judicial officers do not

have the same privacy interests as State Police troopers.

31. In a letter dated Oct. 25, Tarr responded to Smith's Oct. 19 second follow-up letter

stating that she was standing by her decision denyh"'1gSmith's request. Again, based on Pack,

Rille 2.4 and at least two exemptions of the FOI the information Smith seeks in his Sept. 7 request

"is not discoverable [sic]" (Attached as Exhibit "wi").

32. Attached to the letter was not only a copy of Judge Bailey's May 15 ru1ing in Pack,

but also Judge Stucky's July 5, 2005 order in Wells v. Garten, et. al. These were lliil'1eCessary,

extraneous and superfluous.

33. In a letter dated Jan. 31, Smith made a final demfu'1don Tarr for l:'..isSept. 7 FOIA

request. In it, he not only rebutted Tarr's reliance on Pack, but also Wells and the exemptions in

the FOI law to deny it (A.ttached as Exhibit "N").

34. In Wells, Judge Stucky granted a motion to dismiss filed by then-JIC Counsel Skip

Garten in a complaint for declaratorj and injunctive relief Danny Wells, a disgraced Logan County

magistrate filed to compel Garten to release the investigative file JIe maintained on him. In his

order, Judge Stucky cited Rule 2.4 as grounds for his dismissal.

35. As Smith attempted to previously impress on Tarr, he was seeking only the number of

complaints filed against the judicial officers, and not the outcome of the investigation.

36. Also, Smith pointed out the exemptions in Chapter 4 of the FOI do not apply to his

request as Paragraph 2 addresses "personal nature such as that kept in a personal, medical or

similar file" and Paragraph 8 deals with "Internal memoranda or letters received or prepared by

any public body."

37. The information Smith requested is none of these. Instead it is statistical data much

like Tarr provided Smith on Feb. 3,2012 in response to a Jan. 27, 2012 FOIA request for the total

number of complaints filed each year between 2001 and 2011 and on Feb. 14, 2013 in response to

the total number of complaints filed in 2012 (Attached as Exhibit "0" and "P").

38. In his final demand, Smith amended his original Sept. 7 request to include seven

additional current and/or former judicial officers. This included Donald H. Cookman, a

Hampshire County circuit judge Gov. Earl Ray Tomblin appointed in January to fill former state

Senator Walt Helmick's seat following his resignation to become state Agriculture Commissioner.

Recently, Cookman annOlLuced his intention to seek a full term in 2014.

39. However, on Feb. 5,2013, Tarr, once again denied Smith's request citing Rule 2.4,

Judge Bailey's decision in Pack and Paragraphs 2 and 8 in Section 4 of the FOI law (Attached as

Exhibit "Q")

40. Upon receipt ofTarr' s Feb. 5 letter, Smith on Feb. 8 filed a 30-day notice suit with the

state Attorney General's Office (Attached as Exhibit "R").

41. When the 30 days lapsed, Smith filed the instant suit.

ARGUMENTS

42. Smith restates the allegations in paragraphs 1-41.

43. The West Virginia FOI law, W. Va. Code 29B-1-3(1), states: "Every person has a

right to inspect or copy any public record of a public body in this State, except as otherwise

expressly provided by section four [29B-1-4] of this article."

44. Defendants have cited Paragraphs 2 and 8 as to why they are exempt from releasing

information Smith seeks in his FOIA request.

45. However, as previously stated Smith seeks no '''Information of a personal nature such

as that kept in a personal, medical or similar file." Also, it borders on the absurd how anyone, in

light of releasing similar information, can equate statistical data as an "internal memorandum."

46. Also, Article 1, Chapter 1 of the FOI law unequivocally states the Code is to be

"liberally construed" and "all persons are, unless otherwise expressly provided by law, entitled to

full and complete information regarding the affairs of government and the official acts of those

who represent them as public officials and employees."

47. Defendants have engaged in legal hocus-pocus by referring Smith to state statute and

case law that do not apply in this matter in a deliberate, intentional, but futile attempt to conceal the

information Smith has requested.

48. Smith's interest in this action outweighs any arguments for non-disclosure.

Moreover, the information requested is public.

WHEREFORE, the Plaintiff prays that this Court:

1. declare that the Defendant's refusal to disclose the records requested by Smith is

unlawful, especially in light ofthem granting DeBlasio's Aug. 25 FOIA request and Tart on Sept.

12 all but assuring him he would receive the information he requested;

2. grant injunctive relief, enjoining Defendants from fully, and properly disclosing

records without justification and ordering production to Smith of records improperly withheld;

3. grant a permanent injunction requiring the Defendants to undergo training for better

understanding ofW. Va. Code 29B;

4. award Smith his costs and reasonable attorney fees incurred in this action, as required

by W. Va. Code 29B-1-7; and

5. grant Smith such other relief as the Court may deem just and proper.

ij

ay Vawrence Smith

Pro se

5312 MacCorkle Ave., S.W.

#238

South Charleston, WV 25309

(304) 397-6075

[email protected]

nV\JI ..Jl1 LU1L/ i"!\.! UL. JU !U! VU VI unn tJVU 111'1 l'fiJ\. l1V, JU't J;JU UUJI 1. UU 1

JUDICIAL INVESTIGATION COMMISSIONCity Center East - Suite 1200 A

4700 MacCorkle Ave" SECharleston, West Virginia 25304

(304) 558-0169 • FAX (304) 558-0831

August 31, 2012

Keith William DeBlasio, Executive Director

, AdvoCare, Inc.P.O. Box 133

Hancock, MD 21750-0133

Via: Facsimile Transmission @

(304) 947-7220 & U.S. Mail

Re: FOIA Request received on Monday, August 27, 2012.

Dear DeBlasio:

This letter is in response to your FOIA request dated August 25, 2012, but received via

facsimile transmission on MondaYI August 27, 2012, at approximately 9:14 a.m. This currentletter is a follow-up to your origindl FOIA received by this Office on July 18, 2012 and respondedto by letter dated July 19, 2012. As I understand your most recent letter, you clarify that youare asking for confirmation of the ~xistence of any complaints. This is not something that 1

recall you specifically requesting in your previol.ls letter. This Office can provide you with thenumber of complaints that Judge Yoder, Judge Sanders, Judge Silver, Judge Wilkes, Judge Groh,

Judge Frye and Judge Watkins have received over the past ten years. I have attached therequested information for your review {See attached}. Please be advised that three of theJudges have not been judicial officers for the entire ten years.

As to any substantive details of any of the complaints, Rule 2.4 of the Rules of JudicialDisciplinary Procedure provides:

The details of complaints filed or investigations conducted by the Office ofDisciplinary Counsel shall be confidential, except that when a complaint hasbeen filed or an investigation has been initiated, the Office of Disciplinary

Counsel may release information confirming or denying the existence of ac0l11plaint or investigationl explaining the procedural aspects of the complaint orinvestigation, or defending the right of the judge to a fair hearing. prior to the

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l1.V\J! .J if L.U I L.! 1'1,1 UL.,.JU 1 m .u.u Vi Lnn <.JV.u 1111

DeBlasio FOIA Request-2

August 31, 2012.Page 2

1'l1.1> HV, .JU't .J.JU UU.JI 1, UUL.

release of information confirming or denying the existence of a complaint orinvestigation, reasonable notfce shall be provided to the judge.

Therefore, any information concerning substantive details and/or the investigation or dismissalthereof pursuant to Rule 2 of the Rules of Judicial Disciplinary Procedure is not subject to FOIA(See attached letter of 1/28/08 and 7/1/05 Order).

However,Rule 2.7(c) oftlle Rulesof Judicial Disciplinary Procedure states that "[w]hen ithas been determined that probable cause does exist but that formal disciplinf;; is notappropriate under the circumstances, [the Judicial Investigation] Commission shall issue awritten admonishment to the respondent .... H This is the only form of discipline that can bemeted Ol.lt by the Judicial Investigation Commission. Importantly, written admonishments are amatter of public record pursuant to Rule2.7(c}. Meanwhile, Rule 2.7(d) states that [w)hen it hasbeen determined that probable cause does exist, and that formal discipline is appropriate, theCommission shall file a formal charge with the Clerk of the Supreme Court of Appeals." Oncethe fonoat charges has been filed, the Judicial Hearing Board has jurisdiction. Rules 3 thrQugh3,12 of the Rules of Judicial Disciplinary Procedure set forth the JudIcial Hearing Board as anentity separate and apart from the Judicial Investigation Commission. Rule 3.11 gives theJudicial Hearing Board "the authority to ... inforrn the public about the existence and operationof the judicial disciplinary system, the filing of formal charges, and the discipline imposed orrecornmended on formal charges." Thus, Rules 2.7{c} and (d) and Rule 3.11 indicate thatadmonishments or matters brought before the Judicial Hearing Board are matters of publicrecord.

Once again, J can advise you that JudgeYoder received a public admonishment from theJudicial Investigation Commission with respect to Complaint No. 85-2011. A coPY of theadmonishment was provided to you with my July 19, 2012 reply. No other admonishmentshave been issued with respect to any of the other named individuals. Since your last requestfor information; a Statement of Chargeshas been issued against Judge Watkins. Unfortunately,I cannot provide you with a copy of those charges because our Office was conflicted off thecase. You may obtain the Statement of Ch",rgesby cot'ltading The Honorabl~ Rory L Perr,! II,Clerk of the Supreme Court of Appeals, Capitol Complex, 1900 Kanawha Boulevard East, ROOhi

E-317, Charleston, WV 25301. Mr. Perry is the official keeper of the Judicial Hearing Boardrecords. No Statement of Chargeshas been issued against any of the remaining individuals,

As to requests for "any and all lists and/or indexes," such is considered attorney workproduct and is therefore not subject to FOIA. Moreover, any lists or indexes would necessarilycontain confidential information pursuant to Rule 2.4 of the Rules of Judicial DisciplinaryProcedure and is therefore is also not subject: to FOiA for that reason.

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NillvffiER OF COMPLAINTS FOR THE FOLLOWING JUDICIAL OFFICERS FOR THELAST TEN YEARS

FOR FOIA REQUEST

Judge John C. Yoder

(2012) 3(2011) 2(2010) 3(2009) 4

Judge David. H. Sanders

(2012) 1(2011) 1(20IO) 2(2009) I(2008) 0(2007) 1(2006) 4(2005) 2(2004) 0(2003) 1(2002) 1

Judge Christopher 'Wilkes

(2012) 2(2011) 2(2010) 0(2009) 1(200S) 0(2007) 1(2006) 2(2005) 0(20t)4) 6(2003) 1(2002) 3

,l,"""""/ ...Jif l.lV.Li../ •.•..••• Ut..". • ....;/ .I..T.l. W"J.F VJ, J-,l11l1 UV.l.f J.t'T

Judge Gina Groh

(2012) 2(2011) 1(2010) 2 .(2009) 0(2008) 0(2007) 1

Judge Andrew Frye

(2012) 1(2011) 2(2010) 0(2009) 3(2008) 2(2007) 2(2006) 0(2005) 2(2004) 0(2003) 1(2002) 1

Judge Gray Silver, III

(2012) 0(20ll) 0(2010) 1(2099) 1(2008) 0(2007) 2(2006) 2(2005) 2(2004) 1(2003) 0(2002) 0

Family Court Judge 'William 'Watkins

(2012) 8(2011) 7(2010) 5(2009) 3(2008) 2(2007) 1

J. H.H. .L'tV. JU't J.JU VU..Jl 1. UU.J

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(2006) 1(200S) 0 "(2004) 2 .

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3/11/13 Watkins' rulings challenged three times in 20111 West Virginia Record

WEST VIRGINIfrRECORO--Last Update: 03/07/1302:24 pm

Home» News» Putnam County }}.

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Watkins' rulings challenged three times in 2011February 3. 2012 7:40 AM

By LAWRENCE SMITH

'\N1NFTELD - Records show Putnam Famitj Law Judge \Villiam Watkins' decisions were questioned in three other writs of mandamus or prohibition last year

including the same case twice.

Last month~ Scott Depot resident Teny Rarr-ull filed a 1"vrit of prohibition in Putnam Circuit COlli-t chaHenging \Vat-kh"'1S" Qrder forfeiting $11~OOOhis father posted

as bond to secure Terry's appearance at a rescheduled child support hearing. Ha= and his attorney, Joe Reeder, showed up late for a Nov. 17 hearing

believing it was for later in the afternoon when it was actnally in the morning.

In his writ, Hamm alleges Watkins erred in not only fuiling to reschedule the child support hearing, but also hold a hearing on rorteiting the $11,000 bond without

giving him prior notice.

Like Hamm John J. Black and Tammy and Stacy Kelley, accused Watkins of legal mischief in their cases. Black, not once, but t\"ice last year f:tIled a writ of

mandamus accusing Watkins of foot-dragging on finalizing his divorce, and the Kelleys asked Hmt a stop be put to Watkins' order fmding that another man was

the futher of their daughter. and he be given custody of her.

Black's first writ of mandamus was filed a year ago. Tn it, he asked Judge O.c. "Hobby" Spaulding to order Watkins to finalize equitable distnbution of property

in the ihivorce b-etvv'een he and his wife, Nancy.

According to court records. Watkins granted their divorce petition on Nov. 14.2008. Hovvever. along with the sale of their home, Black alleged Watkins had yet

to make a detennination on a qualified domestic relations order on their pensions.

Records show, Spaulding on Feb. 7 granted Black's writ, and ordered '"Vatkins to hold a hearing on the final distnbution of properry within 30 days. For reasons

not immediately clear, the hearing was not held until June 1.

When Watkins failed to make a mling by Oct. 24, Black filed his second writ of mandamus. Through his attorney, Mark Kelley, Biack said "the family court's

delay of nearly fi"-Iemonths in rendering a decision is um-easonable particularly given the length of time involved since the petition was originally filed, and puts

[Black] in the position of having to expend. for a second time, unnecessary legal fees to force [Watkins] to perronTI his required duty."

Judge Phillip M. Stowers on Dec. 20 agreed saying Black "is entitled to have an order entered trom the June 1.2011 hearing." In granting Black's second Wlit

of mandamus. Stowers ordered \Vatkins to issue a fmal decision on the Black's property by Feb. 20.

Shorttv' after rending his decision in Black's fll'st writ of mandamus, Spaulding was asked to render a decision in the Kelley's case. They were seeking a

reversal of Watkins' order finding that James Lawrence Deweese was the father of their daughter, Chelsea Marie Kelley.

Records show, Deweese filed a paternity suit on Jan. 5,2011 claitLJing he, and not Stacy, \,,'as Chelsea's ('inher. The Kelleys, who were legally separated at the

time, attached both Chelsea's birth certificate dated Sept. 6,2006. and an acknowledgement of patemit'j Stacy signed the next day to their writ as evidence

Stacy was Chelsea's father.

Following a Feb. 16 hearing, in which Deweese appeared in person with his attorney, Rosa Juba-Plumley, and Tammy via telephone and pro se, Watkins the

next day entered an ex parte order on De\veese's behalf. In his order, Watkins said a genetic test to prove actual paternity would not be in Chelsea's best

interest, and determined Deweese was her legal father.

Through their attorney, Tim Can'ico, the Kelleys objected to Watlcins' order on the grounds that Deweese failed to name Stacy as a co-defendant in his paternity

suit as \lV'ellas service him notice of it, and did not allo",,' TarrilllY to see his order to lnake objections to it.

"The lower court entered a drastic order without complying with clear statutory requirements and allowing for an appropriate investigation and a meaningfhl final

hearing on the issues," they said. In their writ, the Kelleys asked that Watkins' Feb. 17 ex parte order be vacated, and Spaulding order a genetic test to

detennine patemity as required by statute, a meaningful hearing to detelmine if Deweese is entitled to be Chelsea's psychological parent and an award of COlil1

costs and attomey fees.

\M/fecord.comlnewsi241548-watkins-ruli ng s-challeng ed-three-times-in-2011 1/2

3111113 Wallins' rulings challenged three ti rres in 2011I WestVirgi nia Record

Hn\V~~1/CL Spaulding on lvL.lrch.3 denied the Kelley"s' \Y[lt ;;a;.,-ing "they have othcr adequate rcrncdics a'vailable to theIn.'" narnely an appeaL and :stay of the final

order.

Putnai11 Circuil Court case j!lllnhf'r." j l-C-¥ {Black ~,iTil of ntandatnus ii. j l-C'-65 (Kef!e:- ~~Fft

tnnnda nlUS Iii

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3111i13 Video sha.vs fanilyjudge )€lling at pastor I West Virginia Record

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VV E5T \II Rei IN IA -L. R,ECO RD

Video shows family judge yelling at pastor

\ thrc c·minute tirade

Christine \\'allact.: \\"it11 Legal ,;,-\.iGtj{ \Vest Virginia. that f\rthur bc herd in conternpt :"\)[~pcakin~ \vith third parries about Lillian's rncntai health in violation the

t}n a Putnarn County nc"'v\-Ssite rcgardin~ \Vatkins and hi" \yifc.

their annual fees. T11t' article Included a Dicn.rrc of the \\"at1.::ins' house,

realize

a il.l0H1CnL \\atkins say_

W\fecord .cominewsi244992-\ideo- shows- famil y-j udg e-yei Iing-at-pastor 1i3

3111/13 Videosh0w5 fanilyjudge~ling at pastor I WestVirginia Record

Nevertheless. he continued to berate Arthur, and threaten to have him incarcerated.

"Vou're personally responsible," Watkins said. "Please understand that. T will resign this bench and 1 will personally see to it that you never see a free day in

your life.

"Do you understand? You're going to jai~" he added. "1 swear to God.

Three minutes into the hearing, Watkins gets camed down, and apologizes to LiUian and Wallace, and funnally begins the hearing. Though admitting to being

"very upset," 'Watkins refuses to recuse himself from it.

A lull in the sronn

During the hearing, Vfatkins grants a motion by \Vallace to appoint Poca attorney Richard \\l11itt as the special commissioner to oversee the sale of the marital

home. Also, he orders Arthur to pay Whitt $500 for his services by May 25.

\Vhen Arthur says he doesn't have the money to pay him, Watkins returns to berating him by asking him how he eats. When Hage says he eats little to nothing,

Watkins cans him a liar.

"You're supposed to be a man of God," \Vatkins says in a raised voice. "How come you swear to teU the truth, but the very fIrst thing out of your mouth is a lie.

It's a lie. It's a damn lie. and you knovi it's a damn lie"

When Hage attempted to talk, Watkins screamed "Shut up! I didn't tell you to talkl Did I tell you to talk? What did T tell you right at the beginning of the

hearing? Are you deaf?"

Later in the hearing, Watkins granted a motion by Wa!!ace that nearly $1500 be deducted from Arthur's share of the proceeds from the sale oftne house to

cover expenses, including her fees. Toward the end of hearing, Watkins said because i\rtlmr's actions, or lack thereof, were an atterJJPt to "torpedo tlle deaf' in

violation of the protective order, he was going ask Putnam County Prosecutor Mark Sorsaia consider bringing criminal charges against Hage,

"1 am going to refer this to the prosecuting attorney with a strong recommendation he be prosecuted for violating the protectiv'e order," Watkins said. "Maybe a

little tinle in the Western Regional Jail will straighten you out:'

Rage's compiaint

In his complaint, Rage says Watkins' "actions on 5/23/12 were that of a mad mal1 out of control" Also, he said what occurred that day is typicalofthe abuse

he's received from Watkins during the previous ]8 months.

In concluding his complaint, Hage said unless action is taken against Watkins for his conduct, then the words etched on the Putnam Count'j Judicial Building will

be a "Shlbbo!eth."

"My prayer is that you wouid consider these statements that T have made and act upon them," Hage said. "There is much more that could be said"

"All that I am asking is that the words that are embedded on the outside of the Putnam Count'! Courthouse 'Equal Justice for All' be adhered to."

The complaint is the second Hage has filed against Wat.1Gns. One flled on Jan. 13 also accused Watkins of unprofessional behavior stemming mostly fromhJs

refusal to listen to Hage's concerns about Lillian's health and the "permanent" protective order Wat.1cins signed restricting him from talking about it.

It is still under investigation.

The West Virginia Record attempted to obtain a comment from Watkins concerning Hage' s complaint. However, he did not return repeated telephone calls by

presstime.

But he told the Charleston Daily Mail on Wednesday that he was referring to an article that appeared on a news site just before his hearing with the Hages.

He also told the Daily Mail he since has decided to recuse himself from the case.

''I've thought about that since that incident. I hate to impose something like this on somebody else, but I think I probably should get out of it," Watkins told the

Daily Mail, adding that he has written a request to the state S1.ipreme Court asking it to recuse him from future hearings with the Hages. He said he was not

sure if he had mailed the request.

This entry was posted in Nc\.vs. Putnam County_ Bookmark the pcrmalink.

More Stories by Lawrence Smith

• CIVIL FILINGS: Wood County

• CIVIL FILINGS: Mason County

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'Mf'ecord.comfnews/244992-l,ideo-shows-family-judge-}el1 ing-at-pastor

\\ ( II

213

3111i13 Court orders Putnam fanilyjudge to rule in divurce or be held in conterr;pt I West Virginia Record

~-n,VVES'r VIRGINlJ\-1...REC()RO

Court orders Putnam family judge to rule in divorce or be heldin contempt

Th.C". . .-... ;, ,-

Gu.n·~ dCCls;on ;:nrn:("~rust o'/cr a \""cd\.. ;J. net" a \-[(lc,! \\·a~:;D:1adl.:' PULl[lC

L P and dlnvn the jHdkia~ ladde 1"

of

ncrrorrn his l'ctRtircd duty."

\\hC[l

2x rcsnond.

is entitled to the rcliefrequcsteci in this rnaltcL

C onsurrrrion that states "justice shaH be ~ldr:1inistcrcd \v!thout sale. Jcniai or delay: " but also various pn)\-"islon of the Cc.Gc of j:idicial C ;)nduCL and \Ve~t

W\ifecord. cornine"\6/245143-court- orders- putnam- famiIy-jOOge- to- r ule- in-di\iOrce- or- be-held- i11- contempt 1/3

3/11/13 Court orders Putnam family judge to rule in di\Qrce or be held in contempt I West Virg inia Record

timely disposition of all cases assigned to them."

Specifically, the Court said Watkins' inaction clearly violated Trial Court Rule 16.06 that directs family law judges to enter orders on "'post-hearing motionswithin one month of submission.'"

Should he fail to render a decision Ql1 Black's motions by July ]0, Watkins will have to appear before the Court on Aug. 7 to argue why he should not be held in

contempt.

Complaints pending

Regardless of what happens in the Black case, Watkins still faces an investigation by the Judicial Investigation Commission into his conduct ITllfingthe Rage

hearing. During the la-minute hearing, Wat.'cinsat times screams so loud that what he says is distorted.

At one point, Watkins accuses Hage of being responsible for acts of vandalism that occurred to his home on Raintree Drive in the Brienvood subdivision in

Teays Valley following publication of the article.

Should he discover Hage was behind it, Watkins assures him hI will resign this bench and I will personally see to it that you never see a free day in your life."

One ofHage's parishioners, Paul Bentley, \VllO accompanied him to the hearing, also filed an ethics complaint against Watkins for ordering him to leave the

Putnam County Judicial Building for no apparent reason. The 'video not only shows Watkins ordering his bailiff to throw Bentley out, but also brought into the

courtroom h[i)fhe smiles" so as ''to answer what's so damn funny."

West Virginia Supreme Court of AppeaL, case number 12-0720

This entry was posted in News, State Supreme Court. Bookmark the permaHnk.

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• crVIL FILINGS: Wood County• CIVIL FILINGS: Mason County• CIVIL FILINGS: Jackson County• Jackson judge says hunter's writ improperly flied• Tree removal the subject of l\1asonlawsuit• W.Va. Muslim group seeks proper burial for Kanawha City man• Suits allegeKanawha Board of Education failed to protect students from molestation• Former State Bar secretary makes discrimination, invasion of privacy claims• Cop on cell phone caused fatal crash, woman alleges• Lawsuit: Airport authority's incompetence led to closing of Mountaineer Grading Co.

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3/11/13 Second set of ethics charge; filed against Watl<ins I West Virginia Record

~T",.-\ I;,

WEST VIRGINIA...LRECORD-~-

Home )-}Ne;.vs y~ .»

(1 friend wants to rebound wI

you)

Second set of ethics charges fIled against WatkinsSeptember 6, 20 j 2 R:39 A~\'i

By LA\~/RENCE SivfITH

CRARLESTOl..J - A Putnam faniily la\v ju.dge~s lli'1ruly beha\'Ior- \vhich has been uploaded multiple times to the Internet,

aueL .in one inst:lrrce~_ made h'lternational headlines - again \vill have to account for pis actions befJre an ethics panel

The Judicial1nvestigation Commission, the arm of the state Supreme Court that Investigates misconduct by jl.1diciaI officers~

on .:c\ug, 31 filed a L've-count state!uent of charges against \Villla.ill Nt "Chip" \'l atkins III. The statenlent, ~(vbich acts like

an inrucnnent for disciplii1ary purposes: accuses y\l atkms~ 58~ of 24 violations of the Canons of Jud.icial Ethics In cornpIamts

TIled against hit-n by Rev. /\xtnur D. Hage~ Sharon StL'lS0n~Robert Ha1-per~ Tarnrny Jo Larnbert and Ivfark Hath-urn.

\Tideos Hage~ Harper and La111ben accompanied ';."lith their con1pia1nts shov{mg V·latkil1S usmg abrasive and fo\vi language

in their bearings found their vvay on ~(ouTune. The video from the TvIa;/ 23 hearing in Rage ~s case, sho\ving \Vatkins

screaJYlJug so loud that the courtroOIT11-mcrophones becoll1e distortec has, to date_ been vie'"ved over 190.000 times, and vv"as

feattrred last month in the London Daitl IYfaiL

The video in Lambed's hearing ',vas [list broadcast ./\ug. 28 jl1st over a year after it "vas held. In It: \Vatlcir.tS calls her a

"stupid \VOlnan" and aSKs her ~"Then \vhy are you shooting off your fat lTIouthT'

In an inter-vie"",v\vith PutnamLive<coH1, \vhich posted the hearing in its entirery~ Lambert, a Scott Depot resident, and donlestic v]oience sut'/·i\'or~ said her

encounter ~with\Vatkins \vas like being in an abusive relationship again.

~'l-Ie Inade Ine feel terfibie~'~ L,unbert said. ;1 couldn't beiieve a judge \vould act like that. ~·7

·""Youdon't expect a V~Testv"irginia tl1an to tear up a \:vornan.)~ she added~ ~'But \VilliarnNL ~Chfp~ \Vatkins doesn~t act like a man, he acts like a punkjackass,"

lIe chided \~latkins for not tinlely reCl.1sjng hUl1self in the dIvorce between Halbum: Putnal11LNe,con1's pubiisher~ and his estranged -WIfe,Doiores. Prior to then

malTiage in 199R, \Vatkins ~Nas Dolores~ bankn1ptc:y attorney.

l\lso~ JIe said vVatkins \vas '\\Tong to characterize Ballium in a Dec. 15,2011 J letter as the "~south end of a Dorth-bound horsej' \vhen he again addressed

\Vatkins's conflict of interest.

Ul1hke the oth.ers, Stinson's complaint 'vas fIrst made puone by release of the statement of charges, Tn her complaint f'11edI\1ay 3, Stmson felt "\'Vatkins crossed

the line ".vhen he referred to the rather of her child. Zachary \V'ayne Pauley~ as a ~'dWllb shif' during a hearing for modification for parenting time.

Though \"'/atkins said he apologized for the con1ment, he sho'.J\/ed little~ if any~ rel110rse in his response to Stinson~s con1plainL

~l use earthy language at times to make a point/' \Vatkins said. ;~lv1s.Stinson disagrees \vrrh l11y decision. That's why vve have aj:'pe'llate courts.

HThere is nothing that even remotely alleges an ethics "\iolation," he added. ~~Thesad thing is that in the time rye had to take to respond to Ihis nonsense means

that four hearings no\v have to be postponed.

;'Inasmuch as I no\v over 2600 hearings per year~ tl:"latnleans at least 8 people \vlH na"/E to \varr an additional 3 to 4 months to na.'ve their sase resoh'ed. I \vould

appreciate it in the fun.1re that you this ill mInd and perhaps do a little investigation of your o"Vvnbefore you 'Naste more vaillable court time, J'

In concluding the statetnent~ Ire said \7V:-atkins'beha'./lor "vas inappropriate.

~T\Natkins'] beha',r!or exhibits a pattern and practice of an abject failure to treat litigants in his court room 'Nith the respect and dignity that the Canons require of

blm.

Vy!atkins has 30 days to ans"ver the After that the Judicial Hearing Board v",jjjhold a hearing to determine if lIe has rnade its case against him~ and

tr..ake a recommendation to the Court of\vhat punishment he desel,"\res.

lMtfecord.cominevvs/246574-second-set-of-ethics-charg es- fiied-ag ainst-walki ns 1/2

3111/13 Second set of ethics charg es filed ag ainst Watkins IWest Virg inia Record

The <.\eadline is approaching for Watkins to respond to a statement of charges filed against him July 31. The statement stemmed from an extraordinary compliant

filed by Steve Canterbury~ the Courfs adrninistrative director.., Ju~" 17 tor t\vicc ignoring orders by the Putnarn Circuit Court to issue ntlillhTS on division of

property between John 1. 3/ack. and his ex-wife Nancy. and failing to tirnely upload fma'! domestic violence protective orders to the Court', domestic violence

A.fter he \vas sCf'/ea \vith the statclTICnt of charges on .Aug. 7~Viatldns vo\vcd to yigorously contest It. In an rnter.ic\v \vith The Charleston C;azcttc~ \Vatkins

blamed the Blacks- attorneys, Mark Kelley and Jim Cagle. for the delay in making the rulings. and a heavy caseload and lack of cooperation from the Court in

his lac k of diligence in dca ling \vith the fir1.'11 protcctr,,'-c orders.

More Stories by La\\l"Cnce Smith

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• CIVIL FILINGS: JacKson Coumy


• Tree removal the subject of Mason lawsuit

• W.Va. Muslim group seeks proper burial for Kanawha City man

• Suits allegc Kanawh,j &lard of Education lililed to protect stud •...nl~ from moleslmion

• Former State Bar secretary makes discrimination, invasion of privacy claims

• Cop on cell phone caused lata! crash. woman allegcs• Lawsuit: Airport authority's incompetencc led to closing of Mountaineer Grading Co.

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W\Kecord.comIneVvS/246574-second-set-of-elhics-charg es-liied-ag ainst-watIQns 212

3111/13 Second set of ethics charg es filed ag ainst Watkins IWest Virg inia Record

The '~eadline is approaching for Watkins to respond to a statement of charges filed against him July 31. The statement stemmed from an extraordinary compliant

tllcd by Steve Canterbury. the Court's administrative director. July 17 lor t<-vicc ignoring orders by the Putnam Circuit Court to issue mlin£,!son division of

property between John 1. '3!ack. and his ex-wife Nancy. and failing to timely upload fmal domestic violence pmtective orders to the Court's domestic violence

regil7o;try.

A-ftcr he \vas sCf'/eo \'lith the statclncnt of charges on .;A..ug.7~Viatkins 1/0\vcd to YIgofDusly contest It. In an intervic\v \vith The Charleston (!azcttc~ \Vatkins

blamed the Blacks' attorneys. Mark Ke lley and Jim Cagle. for the delay in making the rulings. and a heavy caseload and lack of cooperation from the Court in

his lac k of diligence in dca fu'1g \vith the fm..'11 protc:ctr"'-e orders.

Thi.:;.:.::nlr)' \••·.as posted m \1;:\\':;, Statt:' Supn:me CDUfL Bookmark the pt:nnaunk.

More Stories by La\\l"Cnce Smith

• CIVIL FILINGS: Wood County

• CIVIL FILINGS: Mason County

• CIVIL FILINGS: Jackson COUnly


• Tree removal ,he subject of Mason lawsuit

• W.Va. Muslim group secks proper burial for Kanawha City man

• Suits allege Kanawha &lard of Education failed to protcct students from molcslmion

• Former Slate Bar sE.'Cretary makes discrimination. invasion of privacy claims

• Cop on ccll phone caused lillal crash, woman alleges• Lawsuit: Airport authoriIy's incompetence k'd to closing of Mountaineer Grading Co.

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Wllfecord .comineVvS/246574-second-set-of-ethics-charg es-liied-ag ainst-wat!Qns 212

7 Sept. 2012

Teresa Tarr, counsel

Judicial Investigation Commission

4700 MacCorkle Ave., S.E.

Suite 1200 A

Charleston, V\N 25304

Dear Ms. Tarr:

Pursuant to the West Virginia Freedom of Information Act, I request access to thefollowing information:

• The total number of complaints filed by year against the following circuit judgesand family law judges/masters:

Circuit

1. Alsop, Jack2. Evans, Thomas C. III3. Grah, Gina4. Facemire, Richard5. Moats, Allen D.6. Nibert, David W.7. Saunders, David H.8. Silver, Gray III9. Wilkes, Christopher C.10. Yoder, John

Family

1. Ballard, Kenneth D.2. Cornett, Rebecca3. Dempster, Brian C.4. Fisher-Thomas, Constance J.5. Greenburg, David P.6. Jackson, Lori B.7. Jackson, Sally G.8. J<elly, Michael J.9. Montgomery, Robert M.10. Mullens, Sharon M. \\ Fit

11. Reep, Cornelia A12.Snyder, D. Mark13. Swisher, Amy J.14. Tallman, C. Darren15. Watkins, William M. III16. Whited, Larry S.17.Wirtman, William T. Jr.

As required by the Act, I expect your response within five business days. Should youchoose to deny all or part of this request, please cite the specific part of the Code foryour deniai.

Once this information is available, I can be reached at either the telephone number oraddresses below. I thank you, Ms. Tarr, for taking the time to field this request, andlook forward to your reply.

S..in~E3...r... y;'..\.....

\ \ ,~" }

I I'

f~1 \ /

~J.smith


#238

South Charleston, 'fI.N 25309

[email protected]

(304) 397-6075

Sent via U.S. Mail

3/11/13 Print

Subject: RE: FOIA request

From: Tarr, Teresa ([email protected])

To: [email protected];

Date: Thursday, September 13, 20129:34 AM

to get to go toI came in this

and will

the month at the very

also

at

on the some last

accomplished. I did get yourrepiv. vvii on it sorne more

you Iunable to get

in a reasonable time - as I understand is now

vou the extension, Have a good

From: MSL Media Enterprises [mailto:[email protected])Sent: Thursday, September 13, 2012 9: 15 AMTo: Tarr, TeresaSubject: Re: FOIA request

Ms. Tarr:

If you haven't already received my voice-message, I'm granting your request for anextension of time to respond to my request.

Lawrence Smith

Information consultants servlng the Virginias and Ohio

Public records research * Process serving * Asset/Heir location

24-hour phone/fax (304) 397-6075 \'(, II

about:blank 1/2

3/11/13

From: "Tarr, Teresa"To:Sent: Wednesday, September 12,20125:51 PMSubject: FW: FOIA request

Print

I not

From: Tarr, TeresaSent: Wednesday, September 12, 2012 5:50 PMTo: '[email protected]'Subject: FOIA request

Mr. Smith:

I left a message on your answering machine a little while ago. Your FOIA request came into the Office Monday

afternoon. I have been out at trainings. Tomorrow, I will be only in here part of the day, and I have to leave for

a meeting in Morgantown. The meeting will be an day Friday. I won't be back in the office until Monday and

am requesting additional time to respond to yom request. You have asked for information pertaining to 27

different individuals. I have to research the issue and if the information is the type to be delivered under FOIA it

will take some t-ogather the statistics because of the volmninous natlU"eof your request. As you are aware we

are a two person agency, and I am the only person who can respond to your request.

If you could let me know whether you would agree to an extension via email at yom earliest convenience.

Thank you for your consideration.

Sincerely,

Teresa Tarr.

about:blank 212

JUDICIAL INVESTIGATION COMMISSIONCity Center East - Suite 1200 A

4700 MaeCorkle Ave., SECharleston, West Virginia 25304

(304) 558-0169 • FAX (304) 558-0831

September 24, 2012

Lawrence J. Smith

5312 f\t1acCorkle Avenue, SW#238


Re: 9/7/2012 FOIA Request.

Dear Mr. Smith:

Thank you for extending my response deadline until the end of the month. I appreciate

your understanding with respect to the fact that we are a two-person agency and that I am the

only one able to respond to FOIA requests. Since i was out of the office most of last week for

work obligations it would have been difficult for me to submit the reply by the original

deadline, which would have been Friday, September 14} 2012.

In your request, you ask for /Jthe total number of complaints filed by year against ten(10) circuit court judges whom you reference by name including the Honorable John Yoder;

Judge of the 23rd Judicial Circuit. You make the same request for seventeen (17) family court

judges including the Honorable Darren C. Tallman} Family Court Judge for Wood County and theHonorable William M. Watkins} III, Family Court Judge for Putnam County. You do not

reference any timeframe. W. Va. Code § 298-1-3(4) provides that U[a]ll requests for

information must state with reasonable specificity the information sought.JI

Please be advised that the specific information you seek is not subject to disclosure but

is considered confidential. Rule 2.4 of the Rules of Judicial Disciplinary Procedure provides:

The details of complaints filed or investigations conducted by the Office of

Disciplinary Counsel shall be confidential} except that when a complaint has been

filed or an investigation has been initiated} the Office of Disciplinary Counsel may

release information confirming or denying the existence of a complaint or

"H II

Smith FOIA Response

September 24, 2012

Page 2

investigation, explaining the procedural aspects of the complaint or

investigation, or defending the right of the judge to a fair hearing. Prior to the

release of information confirming or denying the existence of a complaint or

investigation, reasonable notice shall be provided to the judge.

The State Supreme Court has long held that the term "shall" imposes binding obligations

while the term "may" denotes permissible discretion. This means that there is a binding

obligation to keep the confidentiality with respect to the complaints filed or investigationsconducted. However, the release of information confirming or denying the existence of a

complaint is discretionary.

Therefore, any information concerning individual complaints and the investigation or

dismissal thereof pursuant to Rule 2 of the Rules of Judicial Disciplinary Procedure is not subject

to FOIA (See attached letter of 1/28/08 and 7/1/05 Order). Moreover, the Kanawha County

Circuit Court recently reinforced the concept that such records are not subject to FOIA when it

denied a request by a newspaper to obtain the discipline records of state police troopers inCharleston Gazette v. Pack, Kanawha Circuit Court Civil Action No. 10-C-1971. The Circuit Court

noted that "an individual who is complaining about the conduct of a member ... has a right to

privacy. Such an individual makes the complaint with the expectation that all investigativematerial is closely guarded." I came across this case just last week.

In Gazette/Pack, the newspaper actually made three separate requests. Among the

items sought were: (1) quarterly, yearly and bi-annuai reports produced by the agency's

internal review board for the past five years; (2) data provided by the internal review board

used to assist in determining if subordinates of certain supervisors tend to be employeesfrequently identified by internal review SYSTem;(3) a copy of central log complaints maintainedby State Police; (4) a copy of the annual statistical report concerning the Professional Standards

Section activities as directed by Legislative Rule 81-10.3.5; and (5) a copy of the yearly reports

for review produced by the Internal Review Board naming employees and the number of

external citizen complaints, internal complaints or use of force incidents for each.

The State Police provided the newspaper with a copy of the annual statistical report

concerning the Professional Standard activities but denied the remaining requests pursuant to

W. Va. Code §§ 29B-1-4(2L (4) and (8) and because 81 CSR10.6.2 mandated confidentiality with

respect to I/all documents and reports relating to the investigation of any complaint through

strict control of the Section's files." In deciding in favor of the State Police, the Court noted that

"the public's interest in disclosure of these records does not outweigh the government interest

in confidentiality." The Court also stated I/[t]he expectation of confidentiality is crucial to

continued reports of possible misconduct."

Smith FOIA Response

September 24, 2012

Page 3

As you will recall, you were provided with information from our annual statistical

reports by letter dated February 3,2012. Rule 5.6 of the Rules of Judicial Disciplinary Procedure

lists what statistics are to be kept by our Office. As you can see, we are only required to report

overall statistics. We are not required to report statistics for each individual judicial officer in

our reports. In fact, in order to gather this type of information we would have to go throughvarious iogs, files and other data sources, which can be quite time consuming particularly for a

two-person agency. See Syllabus Pt. 1, Affiliated Construction Trades Foundation v. RegionalJail and Correctional Facility Authority, 200 W.Va. 621, 490 S.E.2d 708 (1997) (WVFOIA does not

require the compilation of public records that do not exist).

Accordingly, based upon the foregoing, the information you seek is not discoverable

pursuant to FOIA. However, Rule 2.7(c} of the Rules of Judicial Disciplinary Procedure states

that U[w]hen it has been determined that probable cause does exist, but that formal discipline

is not appropriate under the circumstances, [the Judicial Investigation] Commission shall issue a

written admonishment to the respondent .... " This is the only form of discipline that can be

meted out by the Judiciai investigation Commission. importantly, written admonishments are a

matter of public record pursuant to Rule 2.7(c). Meanwhile, Rule 2.7(d) states that [w]hen it has

been determined that probable cause does exist, and that formal discipline is appropriate, the

Commission shall file a formal charge with the Clerk of the Supreme Court of Appeals." Once

the formal charges have been filed, the Judicial Hearing Board has jurisdiction. Rules 3 through

3.12 of the Rules of Judicial Disciplinary Procedure set forth the Judicial Hearing Board as an

entity separate and apart from the Judicial investigation Commission. Rule 3.11 gives the

Judicial Hearing Board "the authority to ... inform the public about the existence and operation

of the judicial disciplinary system, the filing of formal charges, and the discipline imposed orrecommended on formal charges." Thus, Rules 2.7{c} and (d) and Rule 3.11 indicate that

admonishments or matters brought before the Judicial Hearing Board are matters of publicrecord.

As you may be aware, our Office is conflicted off of any matters pertaining to Judge

Watkins. As I understand it, two Statement of Charges have been issued against him by Special

Counsel in recent months. You may obtain copies of the Statement of Charges brought against

Judge Watkins from the Supreme Court Clerk's Office. Judge Yoder and Judge Tallman have

been previously admonished by the Judicial Investigation Commission and I have attached

those documents to this letter. None of the other judicial officers have been admonished and

no Statement of Charges has ever been issued against any of them.

Smith FOIA Response

September 24, 2012

Page 4

Please do not hesitate to contact me should you have any questions, comments or

concerns. Once again, thank you for the extension to reply to this FOIA request.

Sincerely,

Teresa A. Tarr, Counsel


Enclosures

TAT/nb

5 Oct. 2012




Suite 1200A

Charleston, \IN 25304

Dear Ms. Tarr:

I'm in receipt of your letter dated Sept. 24 in response to my sept. 7 Freedom ofInformation Act request for the number of yearly complaints fiied against 10 circuit and17 family law judges/masters. It is viholly unacceptable.

Needless to say, you totally misconstrued my request. Nowhere in it did I ask forthe details and/or results of any investigation your office conducted into the judicialofficers inamed.

Enclosed you win find a copy of my FOIA request where I place brackets around,underline and highlight the information I'm seeking. I plainly and unambiguously stateI'm seeking "The total number of complaints filed by year against the following circuitjudges and famiiy law judgesfmasters" [emphasis added].

You give partial justifIcation for your denial to me not referencing any timeframe.If you were in anyway confused or unsure of the timeframe, you could've easilycontacted me, and asked for a clarmcation.

Since my request was made to you, it should go without saying that unlessotherwise specif.ISd I'm seeking information from when they where under JIC'sjurisdiction, For at least three of the family law judges - Michael J. Kelly, Cornelia AReep and Wmiam M. V'Jaoons ill - this goes back to t~e 1990s when they were firstappointed as family lawmasters.

At least one of the circuit judges ! requested information about - Gina Groh - isno longer under JiCs jurisdiction as she is now a U.S. District judge.

The heart of your justification for denying me the information I requested wasyour confusion on what I was asking for. In an attempt to justify your confusion, youwoo me 'with references to the Rules for Judicia! Disciplinary Procedure and vanouscourt rulings.

'\ 111

Your legal hocus-pocus may work on some people downtown or out inboondocks, but it won't work on me.

On page three of your "response," you say that JIC is "only required to reportoverall statistics" adding that it is "not required to report statistics for each individualjudicial officer in our reports." You add that "in order to gather this type of informationwe would hay~ to go through various logs, files and other data sources, which can bequite time consuming particularly for a two-person agency."

This is disputed by the fact your two-person agency in August took the time togive the same information Iwas seeking to least one other person. This included,among others, judges VVatkins and Yoder.

Since your r.JVo-person agency had the time to give identical information to thatperson, then it can give it to me. That's the least your two-person agency can do tomake up for the waste of taxpayer resources that was put into the preparation andsubmission of your legal Hturgy.

I would like to condude by saying I'm disappointed in the deliberate deception inwhich you have engaged, fv1s.Tarr. When you asked for an extension of time torespond to my request due to you going out of town first to a training seminar inMorgantown then to visit family in Hancock County, Igraciously granted your requestunder the naIve belief you would be forthcoming with the information.

Now, I'm of the opinion that your request for more time was just a ruse to conferwith higher-ups to devise a reason to deny it as one or more oUne judges Ilisted isbeing shielded from scrutiny. Otherwise, you could've denied my request within thefive-day statutory window without having to wait until returning to Charleston from youralleged trip.

Therefore, my Sept 7 request remains open. I expect to receive the informationI requested within five days of you receiving this !etier, and not one day more.

I look forward to your reply.

Enclosures 1


#238

South Charleston, W.,J25309

[email protected]

(304) 397-6075

Sent via e-mail and U.S. Mail

JUDICIAL INVESTIGATION COMMISSIONCenter East - Suite 1200 p,

4'700 ~l1ac~::orkleVVest

558-0169 4 FA)(

SE25304

October 9J 2012

Lawrence J. Smith

5312 MacCorkle Avenue, SW#238South ChariestonJWV 25309

Re: 10/5/2012 Letter pertaining to 9/7/2012 FOrA Request.

Dear Mr. Smith:

I am in receipt of your letter dated October 5, 2012 and received by this officevia United States mail on TuesdaYJOctober 9, 2012. In your letter you renew your FOIArequest of September 7, 2012 in which you ask for the total number of complaints filedby year against (10) circuit court judges whom you reference by name. You also makethe same request for seventeen (17) family court judges. In your current request youappear to indicate that you want the complaints for the judicial officers from the time oftheir election/appointment forward.

I have conferred with members of the Commission, and they stand by theresponse of September 24J 2012. In your October 5, 2012 letter you ignore the recentdecision of Charleston Gazette v. PackJ Kanawha Circuit Court Civil Action No. 10-C-1971and the fundamental and new tenets arising out of that opinion. In that case, JudgeBailey stated that the State Police, among other things, did not have to turn over a copyof the annual yearly reports for review produced by the Internal Review Board namingemployees and the number of external citizen complaints, internal complaints or use offorce incidents for each. In other wordsJ Judge Bailey ruled that the State Police did nothave to turn over the number of complaints received by individual employees and thatsuch items were exempt pursuant to W. Va. Code §§ 29B-1-4(2), (4) and (8) and because81 CSR10.6.2 mandated confidentiality. Therefore, based upon the holding of Pack, W.Va. Code §§ 29-B-1-4(2) and (8) and Rule 2.4 of the Rules of Judicial DisciplinaryProcedureJthe information you seek is exempt from FOIA. As I explained to you in myprevious letter, I was unaware of the Pack caseuntil mid-September 2012. This

\\} II

Lawrence Smith FOIARequest of 10/5/12October 9,2012Page2

concludes any further obligation of this Office arising under W. Va. Code § 29B-l-l, etseq. in connection with this records request. However, if there is another casethat youare aware of that has been decided in 2012 that contradicts Pack, please feel free toadvise me of the same and I will gladly inform the Commission and review your requestin light of that opinion.

Lastly, I again want to thank you for granting me the continuance in earlySeptembeL ! am sorry that you now choose to interpret my request as somethingnefarious. It was never my intent, and I am truly sorry that you believe otherwise.Please do not hesitate to contact me should you have any questions, comments orconcerns.

Sincerely,

Teresa A. Tarr, CounselJudicial Investigation Commission

TAT/nb

IN THE CIRCIJIT COtJRT OF KANAWHA COUNTY

THE CHARLESTON GAZETTE d/b/aDAILY GAZETTE COMPANY,

Plaintiff,

v.

COLONEL TIMOTHY S. PACKSuperintendent of the West Virginia State Police

Defendant.

ORDER

','

Civil Action No.: lO-C-19.11 '2.)

Judge Bailey

Came the Plaintiff, The Charleston Gazette, d/b/a Dailey Gazette Company, by counsel

Sean P. McGinley and Robert M. Bastress, III and the Defendant by counsel, Virginia

Grottendieck Lanham, for hearing on Plaintiff's Motion for Summary Judgment on September 1,

2011, Having reviewed all of the pleadings in this matter and having heard argument of counsel,

the following Findings of Fact and Conclusions of Law are made in this matter:

FINDINGS OF FACT

1. By letters dated May 25,2010 Gary Barb, stmv;.rTIterfor the Charleston Gazette,

submitted three separate FOL-<\requests to the West Virginia State Police. Those three letters

requested the following information:

A. The fIrst request sought~

1. A copy of the information available to the general public regarding the

procedures to be followed in registering complaints against the State Police or

. its employees as directed by Legislative Rule 81-10-3.7

\\K II

2. A blank copy of the Personnel Complaint Form required in Legislative Rule

81-10-5.2

3. A list of the members of the Superintendent -appointed Internal Review Board

as directed in Legislative Rule 81-10-9.1

B. The second request sought:

1. A copy of the data provided to the Internal Review Board that is used to assist

that body in determining if subordinates of cer.aln supervisors tend to be

employees frequently identified by the internal review system, as directed by

Legislative Rule 81-10-9.5

2. A copy of the central log of complaints maintained by the West Virginia State

Police Professional Standards Section as directed by Legislative Rule 81-1 0

3.3

C. The third request sought:

1. A copy of the Annual Statistical Report concerning the Professional Standards

Section's activities as directed by Legislative Rule 81-10-3.5

2. A copy of the quarterly reports for review produced by the Internal Review

Board naming employees as mentioned in Legislative Rule 81-10-9.1. This

report should include but is not limited to information regarding the number of

external citizen complaints, internal complaints or use of force incidents for

each employee listed in the report

3. A copy of the bi-annual reports for review produced by the Internal Review

Board naming employees as mentioned in Legislative Rule 81-10-9.1. This

report should include but is not limited to information regarding the number of

2



4. A copy of the yearly reports for review produced by the Internal Review Board

naming employees as mentioned in Legislative Rule &1-10-9.1. This report

should include but is not limited to information regarding the number of



2. On June 2,2010, the West Virginia State Police responded by answering the question

regarding who was appointed to the Internal Review Board and by providing documents in

response to the information available to the general public, a blank:Personnel Complaint

Form and the Annual Statistical Report concerning the Professional Standard Section's

activities. The West Virginia State Police denied the remaining five requests based upon the

fact that this information is to be kept confidential pursuant to 81 CSR 10.6.2 and the

exemptions set out in W.Va. Code 29B-1-4(2).

3. Plaintiff and Defendant exchanged correspondence regarding this matter. Plaintiff was not

satisfied with the response provided by the West Virginia State Police and filed this action.

4. A Vaughn Index has been created and produced showing that the First, Second, Third and

Fourth Quarter Reports each contain at least 11 sections of information; each Bi-Annual

Report contains 8 sections of infurmation; each Annual Report contains 9 sections of

information; and the Central Log of Complaints alone contains over 1200 entries.

5. The Quarterly, Bi-Annual and Yearly reports of the Internal Review Board are a compilation

of all of the complaints received by the Professional Standards Section broken down into

specific categories to assist the Internal Review Board in the early identification system.

3

6. The central log of complaints is a system of tracking each complaint and contains all of the

information concerning the complaint including personal and identifying information

concerning the subject ofthe complaint, the investigator, the supervisor, unit number,

location code, exact dates, narratives and disciplinary action taken.

7. The information contained in the above records includes all employees, -both uniformed

members and civilian employees. Further, complaints against either civilian employees OT

uniformed members also include traffic accidents.

8. Tne information requested is used for personnel fuld effective management of personnel.

9. The individuals named in these reports, which include civilian personnel could be referred to

People Works, the employee assistance program, they may also be referred for remedial

training, OT some type of review.

10. The data provided to the Internal Review Board to assist them could include actual

Professional Standards Investigations which are clearly exempt from disclosure, or other

personal and private information. Such information could differ with each review.

1.1. The dOClli'Tlentsrequested by Plaintiffhave never been released to the public.

12. The only way to mould the relief so as to limit the invasion of individual privacy is to

provide the information in the format oft.'1e Annual Statistical Report. The Annual

Statistical Report was provided to Plaintiff on June 2, 2010.

13. All public documents related to professional standards investigations were provided to

Plaintiff on June 2, 2011.

14. Even with the names redacted the information requested can.be manipulated to determine

which employees are the subject of complaints as well as who filed the complaint

4

CONCLUSIONS OF LAW

1. The West Virginia State Police is a statutorily created law enforcement agency whose

mission is the '"statewide enforcement of criminal and traffic laws with emphasis on

providing basic enforcement and citizen protection from criminal depredation throughout the

state and maintaining the safety of me state's public streets, roads and highways." W.Va.

Code § l5-2-12(a).

2. The West Virginia State Police Professional Standards section was created pursuant to State

ex rei Billy Ray C. v. Skaffwhich directed that rules and regulations be promulgated to outline

<'howa citizen may notify the Superintendent of alleged misconduct by a State Police officer

and the specific procedures to be followed to ensure that a thorough investigation is conducted

by an impfu-tial and neutral party!' State ex rei Billy Ray C v. Skaff, 190 W.Va. 504,438

S.E.2d 847 (1993).

3. In compliance with this directive, Legislative Rule 81 CSR 10 was promulgated stating Vv'ith

specificity the documents and records that would be disclosed to the public so that the public

has an understa..T1dingof how the West Virginia State Police is handling complaints against its

employees.

4. The Officer in Charge of the Professional Standards Section shall "ensure the confidentiality

or all documents and reports relating to the investigation of any complaint through strict

control of the Section's files." 81 CSR 10.3.3

5. The West Virginia Freedom of Infonnation Act is set out in W.Va. Code §29B-l-l et.seq.

6. There is no dispute that the Freedom of Information Act provides the public with a broad right

of access to public records. "Under the Act, a public record includes any writing in the

possession of a public body that relates to the conduct of the public's business which is not

5

specifically exempt from disclosure." Hechler v. Casey, 175 W.Va. 434,333 S.E.2d 799

(1985).

7. The records requested are records of the West Virginia State Police Professional Standards

Section which contain «information of a personal nature such as that kept in a personal,

medical or similar file" which are exempt from disclosure as set forth in W.va. Code §29B-l-

4(2).

8. j.Jthough plmntiffhas requested reports <LTlddata; the records requested still contain personal

information concerning the employee as well as specifics concerning the allegations and thc

outcome of the investigation. This information, reports and data are compiled to assist the

Internal Review Board in analyzing the information for the early identification system but this

is not information generated pursuant to routine administration or oversight because it is

limited to information compiled as part of an inquiry into specific allegations of vi.olations of

code, policy or rule. 81 CSR 10.9

9. To release the requested information would clearly result in a substantial invasion of privacy

because it will be clear from reviewing the requested doclL.'I1entswhich officers and civilians

have been the subject of complaints of misconduct no matter how egregious, unfounded or

potentially embarrassing. J\1anns v. City of Charleston Police Department, 209 W.Va 620,

550 S.E.2d 598 (2001)

lO. The West Virginia Supreme Court of Appeals has held that the invasion of privacy exemption

to FOIA applies to records regarding the outcome of a law enforcement agency's internal

investigations. There is no value in embarrassing individuals because they are alleged to have

engaged in some type of misconduct. The primary purpos.e of the invasion of privacy

exemption to the Freedom of Information Act is to protect individuals from the injury and

6

embarrassment that can result from the unnecessary disclosure of persQnal information.

Syllabus Point 6, Hechler v. Casey, 175 W.va. 434, 333 S.E. 2d 799 (1985).

11. In reviewing the information that is requested it is clear that the public interest does not

require the disclosure of the data provided to the Internal Review Board, the Central Log of

Complaints or any ort.!-:leQuarterly, Bi-Annual or Annual reports which are compiled from the

records of the Proressional Standards Section. Manns v. City of Charleston Police

Department; 209 W.Va. 620, 626, 550 S.E.2d 598, 604 (2001). Child Protection Group v.

Cline, 177 W.Va. 29,350 S.E.2d 541 (1986) .

.12. The public's interest in disclosure of these records does not outweigh the government interest

in confidentiality. Sattler v. Holliday, 173 W.Va.471, 318 S.E.2d 50 (1984).

13 . .An individual who is complaining about the conduct of a member of the West Virginia State

Police has a right or privacy. Such an individual makes the complaint with the expectation

that all investigative material is closely guarded. 81 CSR 10. Manns v. City of Charleston

Police Department, 209 W.Va. 620,550 S.E.2d 598 (2001); Child Protection Group v. Cline,

177 W.Va. 29, 350 S.E.2d 541 (1986).

14. Du.....-J.ngthe investigation of a Professional Standards Section Complaint the employee has

Emited rights as set out in §81-10-8. Employee Rights and Conduct during an Internal

Investigation or Inquiry. These limited rights include that the employee must be read their

Garrity rights, the employee may be dismissed from employment for refusing to take a

polygraph examination when so ordered, the employee may be required to submit to medical,

psychological or laboratory examinations, h"reemployee may be photographed, participate in a

line-up or submit to financial disclosure statements. 81 CSR 10.8.1 tlrrougb. 81 CSR 10.8.16.

7

15. Beginning with the actual complaint through the investigation and conclusion of the matter all

investigative materials are to be treated with the strictest or confidence. 'The expectation or

confidentiality is crucial to continued reporu: of possible misconduct." _Manns v. City of

Charlesion Police Depanment, 209 "W.Va. 620, 626, 550 S.E.2d 598, 604 (2001). Child

Proiection Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541 (1986).

16. Plaintiff is requesting material that has never been subject to disclosure under FOLI\. and is

specifically exempt from disclosure because it is "information of a personal nature such as

that kept in a personal, medical or similar file, if the public disclosure thereof would constitute

an unreasonable invasion of privacy" W.Va. Code §29B-1-4(4). Further the records requested

also "fit into the categories of "Internal memoranda or letters received or prepared by any

public body' which are exempt pursuant to W.Va. Code §29B-1-4(8) and in some cases the

information sought contains "records of law enforcement agencies that deal with the detection

and investigation of crime and internal records and notations of such law enforcement agency

which are maintained for internal use in matters relating to law enforcement" and are exempt

pursuant to W.Va. Code 29(B)-1-4(4). Tnerefore, the information sought is not, nor should it

be, available from another source and there is no way to mould the relief so as to limit the

invasion of individual privacy. Manns v. City of Charles ion Police Department, 209 W.Va.

620,550 S.E.2d 598 (2001). Child Proiecnon Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541

(1986).

CONCLUSION

Each of the documents at issue in this matter are exempt from disclosure pursuant to the

West Virginia Freedom of Information Act, specifically the exemptions contained in W.va.

Code §29B-1-4(2), (4) and (8). The requested records are a compilation of information contained

8

in Professional Standards files which contain personal information, the disclosure of which has

been determined to constitute an unreasonable invasion of privacy. The documents requested

also contain "internal memoranda or letters received or prepared by any public body." Some of

the documents may also contain records of law enforcement agencies that deal with the detection

and investigation of crime and internal records and notations of such law enforcement agency

which are maintained for internal use in matters relating to law enforcement."

WHEREFOR F, for the re.asans stated above, Plaintiff's Motion for SUmIDfu7 Judgment is

DENIED and the Court ORDERS that this Complaint be DISMISSED with prejudice. The

objections and exceptions of Plaintiff are noted.

-TheClerk is directed to send certified copies of this ORDER to counsel of record.

ENTERED: h1 Cu..!v (5, 20 (Zo

Prepared by:

John A. Hoyer (WVSB 7921)Virginia Grotiendieck. Lanham (WVSB 6900)Assistant Attorneys General725 Jefferson Road

S0l1;th Charleston, West Virginia 25309y" one (304) 746-2100

. e (304) 746-2421

9

in Professional Standards files which contain personal information, the disclosure of which has

been determined to constitute an unreasonable invasion of privacy. The documents requested

also contain "internal memoranda or letters received or prepared by any public body." Some of

the documents may also contain records or law enforcement agencies that deal with the detection

and investigation of crime and internal records and notations or such law enforcement agency

which are maintained for internal use in matters relating to law enforcement."

¥lHEP...EFORE5 for the re-asons statee above, Plaintitrs Motion for Sunrrna..-ry Judgment is

DENIED and the Court ORDERS that this Complaint be DISMISSED with pr~udice. The

objections and exceptions ofPiaintiff are noted.

The Clerk is directed to send c....ortifiedcopies of this ORDER to counsel of record.

ENTERED: h1 tJulv (5, 20 (Za

.•. PL.T;'l ~

tferBailey, ~VHo

9

Prepared by:

JOM A. Hoyer (WVSB 7921)Virginia Grotlendieck. Lanham (WVSB 6900)Assistant Attorneys General725 Jefferson Road

South Charleston, West Virginia 25309_ ¥" one (304) 746-2100

. e (304) 746-2421

19 Oct. 2012


Judicial Investigation Commissn


Suite 1200 A

Charleston, WV 25304

Dear Ms. Tarr:·

I'm in receipt of your Ie dated Oct 9 in response to my resubmitted Oct. 5Freedom of Information Act .:uest for the number of yearly complaints filed against 10circuit and 17 family law jud !masters. I thank you for your prompt reply.

In your letter, you agai . deny my request on the grounds that Kanawha CircuitJudge Jennifer Bailey's ruling'fin Charleston Gazette v. Colonel Timothy S. Pack (Casenumber, 10-C-1971) prohibit l the Judicial Investigation Commission from disclosing theinformation I requested. In ,ncluding your letter, you say you would consider releasingit if I can site a case "that ha Ibsen decided in 2012 that contradicts Pack."

I do not have such a ;·se. However, one is not needed as Pack is whollyinapplicable to my request.

A plain reading of PaqJ<shows it speaks to complaints lodged vtI'ithan agency ofthe executive branch of gov t#Jment against its employees. in paragraph three of herruling, Judge Bailey says, fo Jowing the state Supreme Court's ruling in SER Billy Ray C.v. Skaff, 190 W. Va. 504, 43: ·8£. 2d 847 (1993), legislative Rule 81 CSR 10 "waspromulgated stating with s 'emeity the documents and records that would be disclosedto the public so that the pub ,0 has an understanding of how the West Virginia StatePolice is handling complain; ·.against its employees [emphasis added].

Judges are not ampl lYees. They are part of a constitutionally created branch ofgovernment elected by pop ;Iar vote.

Also, in her ruling Ju ,se Bailey determined the release of the information couldrisk an invasion of privacy. 'C\,- elected officials, judges do not have the same privacyinterests as State Police a rs.

Furthermore, Judge . ailey denied the request on the grounds the informationThe Gazette "A/anted "has n. "Jerbeen subject to disclosure under FOIA and isspecifically exempt from d' ;dosure because it is 'information of a pei'Sonal nature such,

r\\LIt

as that is kept in a personal, m jeal or similar file, if the public disclosure thereof wouldconstitute an unreasonable inv '.ion of privacy.''',

l

In addition to the inform ,ion I requested containing nothing of "a personalnature," you publically disclos .similar information just over a week priorto receivingmy request. Of course, in your ,etter you attempt to convince me that was in error sinceyou were unaware of the Pack :se - which was decided in May - until, coincidentally,mid-September. .

r

Finally, I don't need to ;mind you that decisions rendered in circuit court are notsettled law. In fact, the Pack !~ is pending appeal to the Court. I would think JIC,which is part of the judicial bra~cll, and prides itself as being, in the words of one highranking Court officiai, '"the most transparent of all the three branches of government"

would err on the side of openrnfss until directed otherwise.

Once again, my Sept. 71request remains open, and due within five businessdays. I look forward to your reply.

~-..,

Sincerf(ly, "tl',;

~y-~~"- j

,.;con

''-c;\LL.~,/!Lawr~hCe J. Smith

; y 0-;

",-/'_<.5~-

5312 MacCorkleAve., S.W.

#238

South Charleston, 'IN 253091

[email protected]

(304) 397-6075

Sent via e-mail andU.S.Mai~

\

JUDICIAL INVESTIGATION COMMISSION

City Center East - Suite 1200 A4700 MacCorkle Ave., SE

Charleston, VI/est Virginia 25304(304) 558-0169 It FAX (304) 558-0831

October 25, 2012

Lawrence J. Smith

5312 r,,1acCorkleAvenue, SW#238South Charleston, WV 25309

Re; 10/19/2012 Letter pertaining to 9/7/2012 FOIARequest.

Dear ~v'lr.Smith:

I am in receipt of your letter dated October 19, 2012 and sent via email after business hours onFriday, October 19, 2012. The email indicates that it was sent by you at 9:12 p.m. I first saw it onMonday, October 22, 2012. A hard copy of the email 'vvasreceived in the United States mail onThursday, October 25,2012. In your letter you renew your FOIArequest of September 7,2012 in whichyou ask for the total number of complaints filed by year against (10) circuit court judges whom youreference by name. You also make the same request for seventeen (17) family court judges. In a follow

up letter to your original request you appear to indicate that you want the complaints for the judicialofficers from the time of their election/appointment forward.

Please be advised that I have responded to this request tVv'ice previously and stH! stand by my

letters of September 24 and October 9,2012. Once again, the information you seek is not discoverablepursuant to FOIA based upon the previously discussed Rule 2.4 of the Rules of Judicial DisciplinaryProcedure, the 7/1/2005 Order in Kanawha Circuit Court Case No. 05-Misc-159, Charleston Gazette v.

Pack, Kanawha Circuit Court Civil Action No. 10-C-1971 and/or W. Va. Code §§ 29-B-1-4(2) and (8).This concludes any further obligation of this Office arising under W. Va. Code § 29B-I-I, et seq. inconnection with this records request.

Sincerely,

~/Z/Teresa A. Tarr, CounselJudicial Investigation Commission

TAT/nb \'M II

31 January 2013


Judicial Investigation Co ..on

City Center East

Suite 1200 A

4700 MaeCorlde Av-e., S.E.

Charleston, WV 25304

Dear Ms. Tarr:

\,~"

'. Not yet anyway.

.I

I'm in receipt of your letter daInformation Act request for thofficers. I apologize for the be

In your letter, you state "the'As you know - or should knohas been filed.

That hasn't happened in his I>

Oct. 25 regarding to my Sept. 7 Freedo~ of

! umber complaints filed by year against lP7judicialedreply. 'i

:\

,rmation you seek is not discoverable." ~ course not!that discovery does not begin until afte~ a civil action

11

\1

Ii"IiiiIj

Also, you continue to hide be' your favorite straw men, the Wells andilpack cases

which make reference to eithe <DcialDisciplimu:y Procedure RDle; exemptions2 and 8 under Article 1,Chap of the open records law. Aside from : fact they are

unsettled law, Wells and Pack inapplicable here. ~In Wells, Judge Stucky denied IA request made by a disgraced LogaI1 County

magistrate for access to JIC's ". ; estigative files" on him. The decision *basedlargely on Rule 2.4 that says,'. "[t]he details of complaints filed or ~vestigationsconducted by the Office of' . • Counsel shall be confidential." 1\

l~

est is for the number of complaints mep against theII,]

;1

ljIi

11

i;

i1

iii

;!

For the umpteenth time, myjudicial officer Nffi the

OIA request made by The Charleston dkzeue for access

: submitted to the State Police's internal feview board.on W. Va. Code §29B-1-4(2) and (8). i1, .

In Pack, Judge Bailey deniedto records regarding compI .The decision was based, in P

One need not be a West Vi 0', University College of Law graduate to ~ the absurdityin claiming that not only is a i plaint filed by citizen against a public 4flcial elected bypopular vote to a the proper p lic oversight agency is an "internal me~randum," butalso those same public offi 0 , rivacy would be harmed by the public l{lnowingonly thenumber of complaints filed ag them regarding their public acts.!

, t to avoid the Supreme Court incurring pnnecessary• , but also sullying its reputation as beiDk "the most,

of government," I can then expect you t9 forward me

all deliberate haste. Also, I'm taking thif opportunityen current or former judicial officers. II

q

Furthermore, Judge Bailey saiinvasion of privacy is to provi

Report ... [whichl was providreleased statistical data, like .complaints between 2001 andappealed, then there will be noSept. 7 request.

e only way to mould the relief so as t, limit thee information in the format of the.Am!lal Statistical

, Plaintiff on June 2, 2010." Since JIC ~ and has

: y request last January for the total n*r of11that were received, completed, dismiS,sed and

blem releasing the information I requ~ed in my,!"

;:

Finally, let me remind you tha °cle 1,Chapter 1of the open records laivunequivocally states that the ,e is to be "liberally construed" and "all *rsons are,unless otherwise expressly pro .: ed by law, entitled to full and complete puormation~rding the affairs of gove nt and the official acts of those who rep1tesent them aspublic officials and employees. e public has a right to know if JIC is ~ out itsduty as a watchdog, and has no me the embodiment of the see-, sve4k- and hear-no-evil monkeys.

, 'r

Also, in her ruI;ng Judge Bail 7, ur-Jlers her argument for denying the Gi;tzette's requeston privacy grounds by saying ,e documents requested by Plaintiffba~ never been

:1

released to the public." Guess hat? On Augo31you released the numb+r of complaints

lodged with JIC against many : the judicial officers I listed in my Sept. ~ request,including judges Yoder, a sta . preme Court candidate at the time, and Watkins, who,I

by that time was the subject 0 one, but two statements of charges. ,!

Therefore, since you not onlyliability in the midst of atransParent of the three brancthe information I've request wito amend my request to incl

They are as follows:

!I.

I I

1. Chamock-Smallridge, e2. Cookman, Donald H.3. Fantasia, Annette4. Frye, AndrewN., Jr.5. Irons, Carol6. Jordan, Philip B.7. Nibert, Delores Jean

Again, once the information . . able, it can be sent to me at the acid.rfs below. Ilook forward to your reply.

,

IJF

Enclosuresg


#238


[email protected]

(g04J 397-6075

Sent via e-mail and U.S. Mail

JUDICIAL INVESTIGATION COMMISSION

City Center East - Suite 1200 A4700 MacCorkie Ave., SE

Charleston, \Nest Virginia 25304(304) 558-0169 • FAX (304) 558-0831

February 3, 2012

Lawrence 1. Smith

5312 MacCorkle Avenue, SW#238


Re: FOIARequests received January 30, 2012.

Dear ~v1r~Smith.

This letter is in response to your FOIArequests dated January 27, 2012, and received inthis Office on Monday, January 30, 2012. In the first request you ask for statistical dataregarding complaints filed with the Judicial Investigation Commission from January 1, 2001through December 31, 2011. More particularly, you requested the following: U(l} the totalnumber of complaints filed each year; (2) the total number of complaints completed each year;(3) the total number of complaints completed each year that were dismissed; (4) the totalnumber of complaints that were dismissed, but appealed; and (5) the total number ofcomplaints that resulted in a finding that a violation of the Code of Judicial Conduct occurredand the result:ng disciplinary action~" Lastly! you requested ({the dates, times, places and

subject all evidentiary hearings conducted by the Judicial Investigation Commission fromJanuary 1, 2001, to the present and all scheduled for February 2012."

With respect to Request Numbers 1 through 3 and Number 5, please see theinformation outlined below:

2001

On January 1, 2001, there were 26 complaints which remained pending before the JudicialInvestigation Commission. During 2001, 214 new complaints were received for a total of 240 tobe considered by the Commission. Of these 240 complaints considered, forty-seven 47 requiredformal investigations. One hundred and ninety-three 193 were dismissed when no probablecausewas found; it was determined that the Commission had no jurisdiction in ~ complaints; Q

\\0"

Smith FOIA Response Letter

February 3, 2012

Page 3

was found; it was determined that the Commission had no jurisdiction in 13 complaints; 1:

complaint was withdrawn by the complainants with the approval of the Commission; and ladmonishments were issued pursuant to Rule 2.7(c).

On January 1, 2006, there were 72 complaints which remained pending before the JudicialInvestigation Commission. During 2006, 192 new complaints were received for a total of 252 tobe considered by the Commission. Of these 252 complaints considered, 49 required formalinvestigations. One hundred eight 180 were dismissed when no probable cause was found; itwas determined that the Commission had no jurisdiction in 2. complaints; 1 complaint wastabled until further notice by the Commission; the Commission issued ~ admonishmentspursuantto Rule 2.7(c). Seven Z complaints were sent to the Judicial Hearing Board pursuant toRule 2.7(d) of the Rulesof Judicial Disciplinary Procedure.

2007

On January 1, 2007, there were 32 complaints which remained pending before the JudicialInvestigation Commission. During 2007, 196 new complaints were received for a total of 228 tobe considered by the Commission. Of these 228 complaints considered, 33 required formalinvestigations. One hundred eight-seven 187 were dismissed when no probable cause wasfound; it was determined that the Commission had no jurisdiction in Z complaints; and therewere no admonishments. One 1: complaint was sent to the Judicial Hearing Board pursuant toRule 2.7(d).

2008

On January 1, 2008, there were 32 complaints which remained pending before the JudicialInvestigation Commission. During 2008, 174 new complaints were received for a total of 206 tobe considered by the Commission. Of these 206 complaints considered, 31 required formalinvestigations. One hundred and thirty-two 132 were dismissed when no probable cause wasfound; it was determined that the Commission had no jurisdiction in Z complaints; Q complaintswere withdrawn by the complainants with the approval of the Commission; and ~admonishments were issued pursuant to Rule 2.7(c). One 1: complaint was sent to the JudicialHearing Board pursuant to Rule 2.7(d).

2009

On January 1, 2009, there were 33 complaints which remained pending before the JudicialInvestigation Commission. During 2009, 159 new complaints were received for a total of 192 to


February 3, 2012

Page 4

be considered by the Commission. Of these 192 complaints considered, 70 required formalinvestigations. One hundred and seventeen 117 were dismissed when no probable cause wasfound; it was determined that the Commission had no jurisdiction in ~ complaints; 1. complaintwas withdrawn by the complainant with the approval of the Commission; and noadmonishments were issued.

On January 1, 2010, there 'vvere41 complaints which remained pending before the JudicialInvestigation Commission. During 2010, 163 new complaints were received for a total of 204 tobe considered by the Commission. Of these 204 complaints considered, 37 required formalinvestigations. One hundred and fifteen 115 were dismissed when no probable cause wasfound; it was determined that the Commission had no jurisdiction in 10 complaints; 0 complaintwere withdrawn by the complainant with the approval of the Commission; and 1admonishment was issued pursuant to Rule 2.7(c).

2011

On January 1, 2011, there were 39 complaints which remained pending before the Judicia!Investigation Commission. During 2011, 186 new complaints were received for a total of 225 tobe considered by the Commission. Of these 225 complaints considered, 54 required formalinvestigations. One hundred and twenty-four 124 were dismissed when no probable causewasfound; it was determined that the Commission had no jurisdiction in §. complaints; 0 complaintwere \"Jithdrawn by the complainant with the approval of the Commission; there were 52pending complaints at the end of 2011. Four 1admonishments were issued pursuant to Rule2.7(c).

With respect to Request Number 4, Rule 2.7 of the Rules of Judicial DisciplinaryProcedure governs the review of complaints. There is no mechanism in the Rulesror an appealof a dismissed complaint. Therefore the answer to Request Number 4 for years 2001 through2011 is zero.

Please be advised that the information set forth above is a matter of public record andcomports with what this Office can release. However, Rule 2.4 of the Rules of JudicialDisciplinary Procedure provides that "(t]he details of complaints filed or investigationsconducted by the Office of Disciplinary Counsel shall be confidential, except that when acomplaint has been filed or an investigation has been initiated, the Office of DisciplinaryCounsel may release information confirming or denying the existence of a complaint orinvestigation; explaining the procedural aspects of the complaint or investigation, or defendingthe right of the judge to a fair hearing. Prior to the release of information confirming ordenying the existence of a complaint or investigation, reasonable notice shall be provided to


February 3, 2012

Page 5

the judge." Therefore, any information concerning individual complaints and the investigationor dismissal thereof pursuant to Rule 2 of the Rules of Judicial Disciplinary Procedure is notsubject to FOIA(See attached letter of 1/28/08 and 7/1/05 Order).

With respect to your last unnumbered request concerning Judicial InvestigationCommission hearing information, the Judicial Investigation Commission does not holdevidentiary hearings. Evidentiary hearings are conducted by the Judicial Hearing Board. Rule2.7(c) states that "[w]hen it has been determined that probable cause does exist, but thatformal discipline is not appropriate under the circumstances, [the Judicial Investigation]Commission shall issue a written admonishment to the respondent .... " Rule 2,7(d) states that[w]hen it has been determined that probable cause does exist, and that formal discipline isappropriate, the Commission shall file a formal charge with the Clerk of the Supreme Court ofAppeals." Once the formal charges have been filed, the Judicial Hearing Board hasjurisdiction.Rules3 through 3.12 of the Rulesof Judicial Disciplinary Procedure set forth the Judicial HearingBoard as an entity separate and apart from the Judicial Investigation Commission. Rules 4through 4.13 govern hearings conducted by the Judicia! Hearing Board.

Therefore, with respect to the number of evidentiary hearings held or to be held by theJudicial Investigation Commission from January 1, 2001, through February 2012, the answer iszero because the Judicial Investigation Commission does not hold evidentiary hearings -- onlythe Judicial Hearing Board conducts evidentiary hearings. The Judicial Hearing Board holdshearings on an individual complaint by complaint basisand not based on subject matter and norecords are kept based on subject matter. Lastly, the Judicia! Investigation Commission doesnot maintain statistical data/records as to the dates, times and locations of Judicial BoardHearings. See Syllabus Pt. 1] Affiliated Construction Trades Foundation v. Regional Jail andCorrectional Facility Authority] 200 W.Va. 621,490 S.E.2d708 (1997) (WVFOIAdoes not requirethe compilation of public records that do not exist).

Sincerely,

Teresa A. Tarr] CounselJudicial Investigation Commission

JUDICIAL INVESTIGATION COMMiSSION

City Center East - Suite 1200 A4700 MaeCorkle Ave., SE

Charleston, West Virginia 25304(304) 558-0169 • FAX (304) 558-0831

February 14, 2013

Via: Email and U.S. Mail

5312 MacCorkie Avenue, SW#238


Re: FOIA Request of January 28, 2013.

Dear Mr. Smith:

This letter is a follow up to my emai! of February 1, 2013 and my letter of February 4, 2013,

wherein ( advised you that ( would respond to the above FOIA request on or before February is, 2013.

In your request, you asked for the following:

The status of ethics complaints lodged with the Judicial Investigation

Commission in 2012. The information shall include, but not be limited to, the

following: (1) the total number of complaints filed, including a breakdown

between ordinary and extraordinary complaints; (2) the total number of

complaints dismissed; (3) the total number of complaints dismissed, but either

appealed and/or reconsidered; (4) the total number of complaints that resulted

in a finding that a violation of the Code of Judicial Conduct occurred; and (5) thetotal number of complaints that resulted in a finding that a violation of the Code

of Judicial Conduct occurred, and a subsequent statement of charges wasissued.

With respect to Request Numbers 1, 2,4 and 5, please see the information outlined below:

2012 Annual Statistics:

On January 1, 2012, there were fifty-two (ill complaints which remained pending before the

Judicial Investigation Commission. During 2012, two hundred and five (205) new complaints were

received for a total of two hundred and fifty-seven (257) to be considered by the Commission. Two of

the new complaints received in 2012 were submitted by the Administrative Director of the Courts

pursuant to the extraordinary proceedings provision (Rule 2.14) of the Rules of Judicial Disciplinary

Procedure. Of these 257 complaints considered, sixty-seven (§l1 required formal investigations. One

lawrence Smith 1/28/13 FOIA RequestFebruary 14, 2013

Page 2

hundred and ninety-two (192) complaints were dismissed when no probable cause was found. It wasdetermined that the Commission had no jurisdiction in two (I) complaints.1 Zero (ill complaints werewithdrawn by the complainant with the approval of the Commission. There were seventy-two (Wpending complaints at the end of 2012.2 Probable cause was found on eleven (ill complaints. Of those,nine (.2l complaints were the subject of statement of charges that were sent on to the Judicial HearingBoard for hearings. Of those nine, two (l) complaints were extraordinary proceedings brought pursuantto Rule 2.14 of the Rules of Judicial Disciplinary Procedure. The remaining seven (21 complaintsproceeded through the Judicia! Investigation Commission and on to the Judicial Hearing Board pursuantto Rule 2.7 of the Rules of Judicia! Disciplinary Procedure. Lastly, the Commission issued twoadmonishments.3

With respect to your request NO.3, there is no appeal or reconsideration process contained in theRules of Judicial Disciplinary Procedure. See Syllabus Pt. 1} Affiliated Construction Trades Foundation v.Regional Jail and Correctional Facility Authority, 200 W. Va. 621} 490 S.E.2d 708 (1997) (WVFOIAdoesnot require the compilation of public records that do not exist).

This concludes any further obligation of this Office arising under W. Va. Code § 298-1-1, et seq.in connection with this records request.

Sincerely,


1 This figure is not included in the 192 Complaints that were closed.2 The figure for the complaints pending at the end of2012 includes the 9 complaints sent on to the Judicial HearingBoard as no final decision had been made in them by the State Supreme Court before the end of2012.3 This figure is also not included in the number of complaints dismissed in 2012.

JUDICIAL INVESTIGATION COMMiSSION

City Center East - Suite 1200 A4700 MacCorkle Ave., SE

Charleston, 'Nest Virginia 25304(304) 558-0169 • FAX (304) 558-0831

February 5, 2013

Lawrence J.Smith

5312 MacCorkle Avenue, SW#238


Re: 1/31/2013 Letter pertaining to 9/7/2012 FOIARequest.

Dear Mr. Smith:

i am in receipt of your letter dated January 31,2013 and sent via emai! after lJusinesshours onthe same day. The email indicates that it was sent by you at 8:46 p.m. I first saw it on Friday, February1, 2013. A hard copy of the email was received in the United States mail on Monday, February 4, 2013.In your letter you renew your FOIA request of September 7, 2012 in which you ask for the total numberof complaints filed by year against (10) circuit court judges whom you reference by name. You alsomake the same request for seventeen (17) family court judges. In a follow up letter to your originalrequest you appear to indicate that you want the complaints for the judicial officers from the time oftheir election/appointment forward. You also add seven additional judicial officers to the list for a totalrequest for information involving 34 judicial officers.

Please be advised that I have responded to this request on three previous occasions and stillstand by my letters of September 24, October 9, and October 25, 2012. Once again, the information youseek is not discoverable pursuant to FOIAand is privileged and/or exempted based upon the previouslydiscussed Rule 2.4 of the Rules of Judiciai Disciplinary Procedure, the 7/1/2005 Order in Kanawha CircuitCourt Case No. 05-Misc-159, Charleston Gazette v. Pack, Kanawha Circuit Court Civil Action No. lO-C

1971 and/or W. Va. Code §§ 29-8-1-4(2) and (8). Please be advised that I am using and have useddiscoverable in the general sense of the term and not as it relates to the West Virginia Rules of CivilProcedure. This concludes any further obligation of this Office arising under W. Va. Code § 298-1-1, etseq. in connection with this records request.

Sincerely,

TAT/nb


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8 February 2013

Patrick Morrisey, attorney general

West Virginia Attorney General's Office

State Capitol Bldg. 1

Rm.26-E

Charleston,~2S30S

Dear Attorney General Morrisey:

Pursuant to W. Va. Code §SS-17-3(a), this letter serve as notice of my intent to bring acivil action against the West Virginia Judicial Investigation Commission in KanawhaCircuit Court either on or after March 11, 2013.

cc: Steven D. Canterbury, director, Office of the Administrative Director, SupremeCourt of Appeals of West Virginia

Del. Tim Miley, chrmn., House Judiciary Cmte.

Del. John N. Ellem, minority chrmn., House Judiciary Cmte.

Sen. Corey Palumbo, chrmn., Senate Judiciary Cmte.

Sen. David Nohe, minority member


#238

South Charleston, WV25309

(304) 397-6075

[email protected]

Sent via e-mail and certified U.S. Mail

Certified Mail No. 7012 0470 0000 63111230

smith v. tarr, et. al. foia lawsuit

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