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IN THE CIRClJIT COURT OF KANA \VHA COTJNTY WEST ViRGINIA

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JAY LAWRENCE SMITH, an individual Plaintiff, v. Civil Action No. Honorable TERESA TARR, in her capacity as COli..'1selor f THE WEST VIRGINIA JUDICIAL INVESTIGATION C01-HvlISSION; and, THE WEST VIRGINIA JUDICIAL INVESTIGATION, a government agency Defendants

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COMPLAIl~T FOF DECLARATORY

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RELIEF

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

PARTIES 1. Virgi.~a. 2. Smith is a free-IaTlce legal researcher and journalist whose principal place of business Jay Lawrence Smith ("Smith") is a resident of Hurricane, Putnam County, West

is in South Charleston, Kfu'1.a\vha County, 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. 6.

This Court has jurisdiction over this matter and over the parties. 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. 8. Smith restates the allegations contained in Paragraphs 1-6 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.g with DeBlasio about various legal issues he

was involved with in Morgan County.

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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. 2012 25,
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.eourse of c 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 Rage's complaint was among those included in the second statement of charges

associatiop. dues.

filed ... ..31,2012 (.li;.ttached as Exhibits t;~B,"~'C;" s~D"and ~'E")=t Aug 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"Tfiation the existence of any complaints. of 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'm going to e-mail you as well, but I was calling, umm, I've been out of the office training, and I have to leave town tomorrow, umm, afternoon to go to Morgantown for an all day meeting on Friday, and I was wonderli'1g if you'd be kind enough to give me an extension on your FOIA request. As you're aware, we're a two-person shop, and, umm, you have asked for information that, urnm, for I guess like 20, umm, 20-some, urum, 27, pertaining to 27 individuals~It's gumg to take me a little bit ofrilli.e to get it tOg.ethCi", and I've just been out of the office, lLndI guess this just came in Monday afternoon so I'm calling to ask for an extension (Emphasis added). If would be so kind to let me know as to whether I can have one, I "vould appreciate it. Uillill, I have to be in Morgantown all day Friday, and I will not be back, umm, until Monday. Umm, so because, then I'll be out town the rest of the weekend I have to go to Hancock County, umm, so, to see my mother. So if you could let me know. It's (304) 558-0169, and I'm going to e-mail you as well. Thank you very much. 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. 24. FOIA request. Also, he was already a'\,vareof the admonishment issued against Yoder.

In a letter dated Oct. 5,2012, Smith responded to Tarr's Sept. 24 letter denying his 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. copy ofthe May 15,2012 order (Attached as Exhibit

After he did, Smith paid for a

"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. extraneous and superfluous. 33. request. In a letter dated Jan. 31, Smith made a final demfu'1don Tarr for l:'..is Sept. 7 FOIA These were lliil'1eCessary,

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

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 38.

"0" and "P").

In his final demand, Smith amended his original Sept. 7 request to include seven This included Donald H. Cookman, a

additional current and/or former judicial officers.

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.

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ay Vawrence Smith Pro se

5312 MacCorkle Ave., S.W. #238 South Charleston, WV 25309 (304) 397-6075 mslmediainc@yahoo.com

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JUDICIAL INVESTIGATION COMMISSION City Center East - Suite 1200 A 4700 MacCorkle Ave" SE Charleston, 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 Re: FOIA Request received on Monday, August 27, 2012. Dear DeBlasio:

Via: Facsimile Transmission @ (304) 947-7220 & U.S. Mail

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 current letter is a follow-up to your origindl FOIA received by this Office on July 18, 2012 and responded to by letter dated July 19, 2012. As I understand your most recent letter, you clarify that you are 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 the number 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 the Please be advised that three of the requested information for your review {See attached}. Judges have not been judicial officers for the entire ten years. As to any substantive details of any of the complaints, Disciplinary Procedure provides: Rule

2.4 of

the Rules of Judicial

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 c0l11plaint or investigationl explaining the procedural aspects of the complaint or investigation, or defending the right of the judge to a fair hearing. prior to the

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DeBlasio FOIA Request-2

August 31, 2012. Page 2

release of information confirming or denying the existence of a complaint or investigation, reasonable notfce shall be provided to the judge. Therefore, any information concerning substantive details and/or 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). However,Rule 2.7(c) oftlle Rulesof Judicial Disciplinary Procedure states that "[w]hen it has been determined that probable cause does exist but that formal disciplinf;; is not appropriate under the circumstances, [the Judicial Investigation] Commission shall issue a written admonishment to the respondent .... H This is the only form of discipline that can be meted Ol.lt by the Judicial 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 fonoat charges has been filed, the Judicial Hearing Board has jurisdiction. Rules 3 thrQugh 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 ... inforrn the public about the existence and operation of the judicial disciplinary system, the filing of formal charges, and the discipline imposed or recornmended 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 public record. Once again, can advise you that JudgeYoder received a public admonishment from the Judicial Investigation Commission with respect to Complaint No. 85-2011. A coPY of the admonishment was provided to you with my July 19, 2012 reply. No other admonishments have been issued with respect to any of the other named individuals. Since your last request for 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 the case. 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 Board records. No Statement of Chargeshas been issued against any of the remaining individuals,
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As to requests for "any and all lists and/or indexes," such is considered attorney work product and is therefore not subject to FOIA. Moreover, any lists or indexes would necessarily contain confidential information pursuant to Rule 2.4 of the Rules of Judicial Disciplinary
Procedure 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 THE LAST TEN YEARS FOR FOIA REQUEST Judge John C. Yoder (2012) (2011) (2010) (2009) 3 2 3 4

Judge David. H. Sanders (2012) (2011) (20IO) (2009) (2008) (2007) (2006) (2005) (2004) (2003) (2002) 1 1 2 I 0 1 4 2 0 1 1

Judge Christopher 'Wilkes (2012) (2011) (2010) (2009) (200S) (2007) (2006) (2005) (20t)4) (2003) (2002) 2 2 0 1 0 1 2 0 6 1 3

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

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

Judge Gray Silver, III (2012) 0

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

Family Court Judge 'William 'Watkins (2012) (2011) (2010) (2009) (2008) (2007) 8 7 5 3 2 1

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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

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Putnam County }}.

Watkins' rulings challenged three times in 2011

February 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 as bond to secure Terry's appearance at a rescheduled
1"vrit

of prohibition in Putnam Circuit COlli-t chaHenging

\Vat-kh"'1S"

Qrder forfeiting $11~OOO father posted his

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. the child support hearing, but also hold a hearing on rorteiting the $11,000 bond without

In his writ, Hamm alleges Watkins erred in not only fuiling to reschedule giving him prior notice. Like Hamm mandamus John J. Black and Tammy and Stacy Kelley, accused accusing Watkins of foot-dragging

Watkins of legal mischief in their cases. Black, not once, but t\"ice last year f:tIled a writ of order fmding that another man was

on finalizing his divorce, and the Kelleys asked Hmt a stop be put to Watkins'

the futher of their daughter. Black's

and he be given custody of her. was filed a year ago. Tn it, he asked Judge O.c. "Hobby" Spaulding to order Watkins to finalize equitable distnbution of property

first writ of mandamus

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 on a qualified domestic relations order on their pensions. writ, and ordered '"Vatkins to hold a hearing on the final distnbution of properry within 30 days. For reasons

to make a detennination Records

show, Spaulding on Feb. 7 granted Black's

not immediately

clear, the hearing was not held until June 1. Through his attorney, Mark Kelley, Biack said "the family court's

When Watkins failed to make a mling by Oct. 24, Black filed his second writ of mandamus. 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 to perronTI his required duty." In granting Black's second Wlit

[Black] in the position of having to expend. for a second time, unnecessary

legal fees to force [Watkins]

Judge Phillip M. Stowers on Dec. 20 agreed saying Black "is entitled to have an order entered trom the June 1.2011 hearing." of mandamus. Stowers ordered \Vatkins to issue a fmal decision on the Black's fll'st writ of mandamus, Deweese property by Feb. 20.

Shorttv' after rending his decision in Black's reversal Records of Watkins'

Spaulding was asked to render a decision in the Kelley's was the father of their daughter, Chelsea Marie Kelley.

case. They were seeking a

order finding that James Lawrence

show, Deweese

filed a paternity suit on Jan. 5,2011 claitLJing he, and not Stacy, \,,'as Chelsea's birth certificate dated Sept. 6,2006. and an acknowledgement of patemit'j

('inher. The Kelleys, who were legally separated

at the

time, attached

both Chelsea's father.

Stacy signed the next day to their writ as evidence

Stacy was Chelsea's

Following a Feb. 16 hearing, in which Deweese next day entered an ex parte order on De\veese's interest, and determined Deweese

appeared

in person with his attorney, Rosa Juba-Plumley,

and Tammy via telephone and pro se, Watkins the best

behalf. In his order, Watkins said a genetic test to prove actual paternity would not be in Chelsea's

was her legal father. failed to name Stacy as a co-defendant in his paternity

Through their attorney, Tim Can'ico, the Kelleys objected to Watlcins' order on the grounds that Deweese 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 hearing on the issues," they said. In their writ, the Kelleys asked that Watkins' detennine patemity as required by statute, a meaningful fees. hearing to detelmine

and allowing for an appropriate

investigation and a meaningfhl final

Feb. 17 ex parte order be vacated, if Deweese is entitled to be Chelsea's

and Spaulding order a genetic test to psychological parent and an award of COlil1

costs and attomey

\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

\Y[lt ;;a;.,-ing "they have othcr adequate

Hn\V~~1/CL Spaulding on lvL.lrch.3 denied the Kelley"s'

rcrncdics a'vailable to theIn.'"

narnely an appeaL and :stay of the final

order.
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More Stories by La"rcncc Smith

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3111i13

Video sha.vs fanilyjudge

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3111/13

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Record

Nevertheless. "Vou're your life.

he continued to berate Arthur, and threaten Watkins said. "Please

to have him incarcerated. that.

T

personally responsible,"

understand

will resign this bench and

will personally see to it that you never see a free day in

"Do you understand?

You're

going to jai~" he added. "1 swear to God. down, and apologizes to LiUian and Wallace, and funnally begins the hearing. Though admitting to being

Three minutes into the hearing, Watkins gets camed "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 home. Also, he orders Arthur to pay Whitt $500 for his services by May 25. \Vhen Arthur says he doesn't 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. 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, to oversee the sale of the marital

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 cover expenses, including her fees. Toward the end of hearing, Watkins said because from Arthur's share of the proceeds from the sale oftne house to

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, he be prosecuted for violating the protectiv'e order," Watkins said. "Maybe a

"1 am going to refer this to the prosecuting

little tinle in the Western

attorney with a strong recommendation you out:'

Regional Jail will straighten

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

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 "All that I am asking is that the words that are embedded that have made and act upon them," Hage said. "There is much more that could be said" 'Equal Justice for All' be adhered to." behavior stemming mostly fromhJs

on the outside of the Putnam Count'! Courthouse

The complaint is the second Hage has filed against Wat.1Gns. One flled on Jan. 13 also accused refusal to listen to Hage's It is still under investigation. concerns about Lillian's health and the "permanent" protective

Watkins of unprofessional

order Wat.1cins signed restricting him from talking about it.

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.
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213

3111i13

Court orders Putnam fanilyjudge

to rule in divurce or be held in conterr;pt

I West

Virginia Record

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VVES'r

VIRGINlJ\-1...REC()RO

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

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" but also various pn)\-"islon of the Cc.Gc of j:idicial C ;)nduCL and \Ve~t

eW\ifecord. cornine"\6/245143-court- orders- putnam- famiIy-j OOg to- r ule- in-di\iOrce- or - be-hel d- 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 motions within one month of submission.'" Should he fail to render a decision contempt. Complaints pending Regardless of what happens in the Black case, Watkins still faces an investigation by the Judicial Investigation Commission into his conduct ITllfing Rage the 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
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

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
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Second set of ethics charge; filed against Watl<ins I West Virginia Record

,.-\

WEST VIRGINIA...LRECORD-~-

~T"

I;,

(1 friend wants to rebound wI

you)

Home )-} Ne;.vs y~ .

Second set of ethics charges fIled against Watkins

September 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, for pis actions befJre an ethics panel misconduct by jl.1diciaI officers~ ~(vbich acts like

aueL .in one inst:lrrce~_ made h'lternational headlines The Judicial1nvestigation Commission,

again \vill have to account

the arm of the state Supreme of charges accuses

Court that Investigates

on .:c\ug, 31 filed a L've-count state!uent an inrucnnent for disciplii1ary purposes:

against \Villla.ill Nt "Chip"

\'l atkins

III. The statenlent,

y\l atkms~ 58~ of 24 violations of the Canons of Jud.icial Ethics In cornpIamts Jo Larnbert and Ivfark Hath-urn. abrasive and fo\vi language

TIled against hit-n by Rev. /\xtnur D. Hage~ Sharon StL'lS0n~Robert Ha1-per~ Tarnrny \Tideos Hage~ Harper and La111ben accompanied

';."lith their con1pia1nts shov{mg Vlatkil1S usmg

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 IYfaiL becoll1e

distortec

has, to date_ been vie'"ved over

190.000 times, and vv"as

feattrred last month in the London Daitl

The video in Lambed's hearing ',vas [list broadcast "stupid \VOlnan" and
aSKs

./\ug. 28 jl1st over a year after it "vas held. In It: \Vatlcir.tS calls her a

her ~"Then \vhy are you shooting off your fat lTIouthT' a Scott Depot resident, and donlestic v]oience sut'/i\'or~ said her

In an inter-vie"",v \vith PutnamLive<coH1, \vhich posted the hearing in its entirery~ Lambert, encounter ~with\Vatkins \vas like being in an abusive relationship said. ;1 couldn't again.

~'l-Ie Inade Ine feel terfibie~'~ L,unbert

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," pubiisher~ and his estranged -WIfe,Doiores. Prior to then-

lIe

chided \~latkins for not tinlely reCl.1sjng hUl1self in the dIvorce between attorney.

Halbum: Putnal11LNe,con1's

malTiage in 199R, \Vatkins ~Nas Dolores~ bankn1ptc:y l\lso~ JIe said vVatkins \vas '\\Tong to characterize \Vatkins's conflict of interest.

Ballium in a Dec. 15,2011

letter as the "~south end of a Dorth-bound horsej'

\vhen he again addressed

Ul1hke the oth.ers, Stinson's the line ".vhen he referred

complaint 'vas fIrst made puone by release of the statement to the rather of her child. Zachary

of charges,

Tn her complaint f'11edI\1ay 3, Stmson

felt "\'Vatkins crossed

\V'ayne Pauley~ as a ~'dWllb shif' during a hearing for modification for parenting time. in his response \vrrh
l11y

Though \"'/atkins said he apologized for the con1ment, ~l use earthy language

he sho'.J\/ed little~ if any~ rel110rse

to Stinson~s con1plainL courts.

at times to make a point/' \Vatkins said. ;~lv1s.Stinson disagrees

decision. That's why vve have aj:'pe'llate

HThere is nothing that even remotely alleges an ethics "\iolation," he added. ~~The sad 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 appreciate 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.
it in the fun.1re that you

I \vould

this ill mInd and perhaps

do a little investigation

of your o"Vvn before you 'Naste

more vaillable court time,

J'

In concluding the statetnent~

Ire

said \7V:-atkins'beha'./lor "vas inappropriate. of an abject failure to treat litigants in his court room 'Nith the respect and dignity that the Canons require of

~T\Natkins'] beha',r!or exhibits a pattern and practice

blm.

Vy!atkins has 30 days to ans"ver the tr..ake a recommendation to the Court of\vhat

After that the Judicial Hearing Board v",jjjhold a hearing to determine punishment he desel,"\res.

if lIe

has rnade its case against him~ and

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 for Watkins to respond to a statement adrninistrative of charges

I West Virg inia Record

stemmed from an extraordinary
ntlillhTS

The <.\eadline is approaching

filed against him July 31. The statement

compliant

filed by Steve Canterbury~ the Courfs property between

director.., Ju~" 17 tor t\vicc ignoring orders by the Putnarn Circuit Court to issue

on division of domestic violence

John 1. 3/ack. and his ex-wife

Nancy. and failing to tirnely upload fma'! domestic violence protective

orders to the Court',

A.fter he \vas sCf'/ea \vith the statclTICnt of charges blamed the Blacks- attorneys,

on .Aug. 7~Viatldns vo\vcd to yigorously contest

It. In an rnter.ic\v

\vith The Charleston

C;azcttc~ \Vatkins from the Court in

Mark Kelley and Jim Cagle. for the delay in making the rulings. and a heavy caseload and lack of cooperation
fir1.'11

his lac k of diligence in dca ling \vith the

protcctr,,'-c orders.

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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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3111/13

Second set of ethics charg es filed ag ainst Watkins for Watkins to respond to a statement the Court's administrative of charges

I West Virg inia Record

stemmed from an extraordinary compliant orders to the Court's domestic violence

The '~eadline is approaching tllcd by Steve Canterbury. property between

regil7o;try.

filed against him July 31. The statement

director. July 17 lor t<-vicc ignoring orders by the Putnam Circuit Court to issue mlin,!s on division of

John 1. '3!ack. and his ex-wife

Nancy. and failing to timely upload fmal domestic violence pmtective

A-ftcr he \vas sCf'/eo \'lith the statclncnt blamed the Blacks' attorneys.
fu'1g

of charges

on .;A..ug. ~Viatkins 1/0\vcd to YIgofDusly contest 7

It. In an intervic\v \vith The Charleston

(!azcttc~ \Vatkins from the Court in

Mark Ke lley and Jim Cagle. for the delay in making the rulings. and a heavy caseload and lack of cooperation \vith the
fm..'11

his lac k of diligence in dca

protc:ctr"'-e orders.

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

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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 the following information: The total number of complaints filed by year against the following circuit judges and family law judges/masters: Circuit 1. 2. 3. 4. Alsop, Jack Evans, Thomas C. III Grah, Gina Facemire, Richard

5. Moats, Allen D.
6. Nibert, David W. 7. Saunders, David H. 8. Silver, Gray III 9. Wilkes, Christopher C. 10. Yoder, John Family 1. Ballard, Kenneth D. 2. Cornett, Rebecca 3. 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 A 12.Snyder, D. Mark 13. Swisher, Amy J. 14. Tallman, C. Darren 15. Watkins, William M. III 16. Whited, Larry S. 17.Wirtman, William T. Jr.

As required by the Act, I expect your response within five business days. Should you choose to deny all or part of this request, please cite the specific part of the Code for your deniai. Once this information is available, I can be reached at either the telephone number or addresses below. I thank you, Ms. Tarr, for taking the time to field this request, and look forward to your reply.

\
~"

,
}
I'

Sin~E3... ..
r...

f~1 \ /
~J.smith

y;'.. \.....

5312 MacCorkle Ave., S.W.

#238
South Charleston, 'fI.N 25309 mslmediainC@yahoo.com (304) 397-6075 Sent via U.S. Mail

3/11/13

Print

Subject: From: To: Date:

RE: FOIA request

Tarr, Teresa (Teresa.Tarr@courtswv.gov) mslmediainc@yahoo.com; Thursday, September 13, 20129:34 AM

you I unable to get

on the accomplished.
vvii

some last I did get your

on it sorne more as I understand is now
Have a good

also

to get

to go to
and will

I came in this
at

repiv. in a reasonable time vou

the month at the very

the extension,

From: MSL Media Enterprises

[mailto:mslmediainc@yahoo.com)

Sent: Thursday, September 13, 2012 9: 15 AM

To: Tarr, Teresa

Subject: Re: FOIA request

Ms. Tarr:

If you haven't already received my voice-message, I'm granting your request for an extension 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
1/2

about:blank

3/11/13

Print

From: "Tarr, Teresa"

To:
Sent: Wednesday, September 12,20125:51 Subject: FW: FOIA request PM

not

From: Tarr, Teresa

Sent: Wednesday, September 12, 2012 5:50 PM

To: 'mslmediiainc@yahoo.com' 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 COMMISSION City Center East - Suite 1200 A 4700 MaeCorkle Ave., SE Charleston, West Virginia 25304 (304) 558-0169 FAX (304) 558-0831

September 24, 2012 Lawrence J. Smith

5312 f\t1acCorkle Avenue, SW #238

South Charleston, WV 25309
Re: Dear Mr. Smith: 9/7/2012 FOIA Request.

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 deadline, which would have been Friday, September 14} 2012. the reply by the original

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 the Honorable 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 investigations conducted. 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 in Charleston 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 investigative material 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 employees frequently identified by internal review SYSTem;(3) a copy of central log complaints maintained by 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 Page 3

FOIA Response 24, 2012

September

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 through various 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. Regional Jail 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 or recommended 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 public record. 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 Page 4

FOIA Response 24, 2012

September

Please do not hesitate to contact me should you have any questions, concerns. Once again, thank you for the extension to reply to this FOIA request.

comments

or

Sincerely,

Teresa A. Tarr, Counsel Judicial Investigation Commission

Enclosures TAT/nb

5 Oct. 2012

Teresa Tarr, counsel Judicial Investigation Commission 4700 MacCorkle Ave., S.E.

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 of Information Act request for the number of yearly complaints fiied against 10 circuit and 17 family law judges/masters. It is viholly unacceptable. Needless to say, you totally misconstrued my request. Nowhere in it did I ask for the details and/or results of any investigation your office conducted into the judicial officers named.

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 state I'm seeking "The total number of complaints filed by year against the following circuit judges 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 easily contacted me, and asked for a clarmcation. Since my request was made to you, otherwise specif.ISd I'm seeking information jurisdiction, For at least three of the family Reep and Wmiam M. V'Jaoons ill - this goes appointed as family lawmasters. it should go without saying that unless from when they where under JIC's law judges - Michael J. Kelly, Cornelia A back to t~e 1990s when they were first

At least one of the circuit judges ! requested information about - Gina Groh - is no 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 was your confusion on what I was asking for. In an attempt to justify your confusion, you woo me 'with references to the Rules for Judicia! Disciplinary Procedure and vanous court rulings.

'\ 111

Your legal hocus-pocus may work on some people downtown or out in boondocks, but it won't work on me. On page three of your "response," you say that JIC is "only required to report overall statistics" adding that it is "not required to report statistics for each individual judicial officer in our reports." You add that "in order to gather this type of information we would hay~ to go through various logs, files and other data sources, which can be quite time consuming particularly for a two-person agency." This is disputed by the fact your two-person agency in August took the time to was seeking to least one other person. This included, give the same information among others, judges VVatkins and Yoder.

Since your r.JVo-person agency had the time to give identical information to that person, then it can give it to me. That's the least your two-person agency can do to make up for the waste of taxpayer resources that was put into the preparation and submission of your legal Hturgy. I would like to condude by saying I'm disappointed in the deliberate deception in which you have engaged, fv1s.Tarr. When you asked for an extension of time to respond to my request due to you going out of town first to a training seminar in Morgantown then to visit family in Hancock County, graciously granted your request under 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 confer with higher-ups to devise a reason to deny it as one or more oUne judges listed is being shielded from scrutiny. Otherwise, you could've denied my request within the five-day statutory window without having to wait until returning to Charleston from your alleged trip.

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

Enclosures

5312 MacCorkle Ave., S.W. #238 South Charleston, W.,J 25309 mslmediainC@yahoo.com

(304) 397-6075
Sent via e-mail and U.S. Mail

JUDICIAL

INVESTIGATION COMMISSION Center East - Suite 1200 p, 4'700 ~l1ac~::orkle SE VVest 25304
4

558-0169

FA)(

October Lawrence J. Smith 5312 MacCorkle Avenue, SW #238 South ChariestonJWV 25309

9J

2012

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 office via United States mail on TuesdaYJOctober 9, 2012. In your letter you renew your FOIA request of September 7, 2012 in which you ask for the total number of complaints filed by year against (10) circuit court judges whom you reference by name. You also make the same request for seventeen (17) family court judges. In your current request you appear to indicate that you want the complaints for the judicial officers from the time of their election/appointment forward. I have conferred with members of the Commission, and they stand by the response of September 24J 2012. In your October 5, 2012 letter you ignore the recent decision of Charleston Gazette v. PackJ Kanawha Circuit Court Civil Action No. 10-C-1971 and the fundamental and new tenets arising out of that opinion. In that case, Judge Bailey stated that the State Police, among other things, did not have to turn over a copy of the annual 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. In other wordsJ Judge Bailey ruled that the State Police did not have to turn over the number of complaints received by individual employees and that such items were exempt pursuant to W. Va. Code 29B-1-4(2), (4) and (8) and because 81 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 Disciplinary ProcedureJthe information you seek is exempt from FOIA. As I explained to you in my previous letter, I was unaware of the Pack case until mid-September 2012. This

\\} II

Lawrence Smith FOIARequest of 10/5/12 October 9,2012 Page 2

concludes any further obligation of this Office arising under W. Va. Code 29B-l-l, et
seq. in connection with this records request. However, if there is another casethat you are aware of that has been decided in 2012 that contradicts Pack, please feel free to

advise me of the same and I will gladly inform the Commission and review your request in light of that opinion. Lastly, I again want to thank you for granting me the continuance in early SeptembeL ! am sorry that you now choose to interpret my request as something nefarious. 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 or concerns. Sincerely,

Teresa A. Tarr, Counsel Judicial Investigation Commission

TAT/nb

IN THE CIRCIJIT COtJRT OF KANAWHA COUNTY

THE CHARLESTON GAZETTE d/b/a DAILY GAZETTE COMPANY, Plaintiff,

',' v.

Civil Action No.: lO-C-19.11 Judge Bailey

'2.)

COLONEL TIMOTHY S. PACK Superintendent of the West Virginia State Police

Defendant.
ORDER 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-<\equests to the West Virginia State Police. Those three letters r 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 03.3

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

external citizen complaints, internal complaints or use of force incidents for each employee listed in the report 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 external citizen complaints, internal complaints or use of force incidents for each employee listed in the report 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.

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 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 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'Tlents requested 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

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 <'how a 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..T1dingf how the West Virginia State Police is handling complaints against its o 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

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-l4(2). 8. j.Jthough plmntiffhas requested reports <LTld data; 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.'I1ents which officers and civilians have been the subject of complaints of misconduct no matter how egregious, unfounded or potentially embarrassing. 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 J\1anns v. City of Charleston Police Department, 209 W.Va 620,

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

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 Complaints records

of the data provided

to the Internal Review Board, the Central Log of or Annual reports which are compiled from the

or any ort.!-:leQuarterly,

Bi-Annual

of the Proressional

Standards

Section.

Manns v. City of Charleston Police Child Protection Group v.

Department; 209 W.Va. 620, 626, 550 S.E.2d 598, 604 (2001). 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. 13 . .An individual

Sattler v. Holliday, 173 W.Va.471,

318 S.E.2d 50 (1984).

who is complaining

about the conduct of a member of the West Virginia State makes the complaint with the expectation

Police has a right or privacy. that all investigative material

Such an individual 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.ng investigation the Emited rights Investigation of a Professional Standards Section Complaint the employee during has

as set out in 81-10-8. or Inquiry.

Employee

Rights

and Conduct

an Internal

These limited rights include that the employee must be read their may be dismissed from employment for refusing to take a

Garrity rights,
polygraph

the employee

examination

when so ordered, the employee may be required to submit to medical, examinations, h"reemployee may be photographed, participate in a

psychological

or laboratory

line-up or submit to financial disclosure statements.

81 CSR 10.8.1 tlrrougb. 81 CSR 10.8.16.

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). Proiection Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541 (1986). 16.

Child

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. 620,550 S.E.2d 598 (2001).
(1986).

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

Child Proiecnon Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541

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

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

ENTERED:

h1 Cu..!v (5, 20 (Z

Prepared by:

John A. Hoyer (WVSB 7921) Virginia Grotiendieck. Lanham (WVSB 6900) Assistant Attorneys General 725 Jefferson Road
S0l1;th

Charleston, West Virginia 25309

y" one (304) 746-2100

. e (304) 746-2421

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. objections and exceptions ofPiaintiff are noted. The Clerk is directed to send c....ortifiedopies of this ORDER to counsel of record. c

The

ENTERED:

h1 tJulv (5, 20 (Z a T;'l PL. .. ~

Ho

tferBailey, ~ Prepared by:

J OM A. Hoyer (WVSB 7921)

Virginia Grotlendieck. Lanham (WVSB 6900) Assistant Attorneys General 725 Jefferson Road South Charleston, West Virginia 25309 _ " one (304) 746-2100 . e (304) 746-2421

19 Oct. 2012

Teresa Tarr, counsel Judicial Investigation Commissn 4700 MacCorkle Ave., S.E. 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. 5 Freedom of Information Act .:uest for the number of yearly complaints filed against 10 circuit 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 Circuit Judge Jennifer Bailey's ruling'fin Charleston Gazette v. Colonel Timothy S. Pack (Case number, 10-C-1971) prohibit l the Judicial Investigation Commission from disclosing the information I requested. In ,ncluding your letter, you say you would consider releasing it if I can site a case "that ha Ibsen decided in 2012 that contradicts Pack." I do not have such a inapplicable to my request. ;se. However, one is not needed as Pack is wholly

A plain reading of PaqJ<shows it speaks to complaints lodged vtI'ithan agency of the executive branch of gov t#Jment against its employees. in paragraph three of her ruling, 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 "was promulgated stating with s 'emeity the documents and records that would be disclosed to the public so that the pub ,0 has an understanding of how the West Virginia State Police is handling complain; .against its employees [emphasis added]. Judges are not ampl lYees. They are part of a constitutionally created branch of government elected by pop ;Iar vote. Also, in her ruling Ju ,se Bailey determined the release of the information could risk an invasion of privacy. 'C\,- elected officials, judges do not have the same privacy interests as State Police a rs. Furthermore, Judge . ailey denied the request on the grounds the information The Gazette "A/anted "has n. "Jer been subject to disclosure under FOIA and is specifically exempt from d' ;dosure because it is 'information of a pei'Sonal nature such ,

\\LIt

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

In addition to the inform nature," you publically disclos my request. Of course, in your you were unaware of the Pack mid-September.

,ion I requested containing nothing of "a personal . similar information just over a week priorto receiving ,etter you attempt to convince me that was in error since :se - which was decided in May - until, coincidentally, .
r

Finally, I don't need to ;mind you that decisions rendered in circuit court are not settled 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 high ranking 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 business days. I look forward to your reply.
~-..,

Sincerf(ly, tl',;

"

~y-~
~"j

,.;con

Lawr~hCe
; y
0-;

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

_<.5~-

5312 MacCorkleAve.,
#238

S.W.

South Charleston, 'IN 253091 mslmediainC@yahoo.com

(304) 397-6075
Sent via e-mail andU.S.Mai~

JUDICIAL INVESTIGATION COMMISSION City Center East - Suite 1200 A 4700 MacCorkle Ave., SE Charleston, VI/est Virginia 25304 (304) 558-0169 It FAX (304) 558-0831
October 25, 2012 Lawrence J. Smith 5312 r,,1acCorkle Avenue, SW

#238
South Charleston, WV 25309 Re; Dear ~v'lr. mith: S I am in receipt of your letter dated October 19, 2012 and sent via email after business hours on Friday, October 19, 2012. The email indicates that it was sent by you at 9:12 p.m. I first saw it on Monday, October 22, 2012. A hard copy of the email 'vvasreceived in the United States mail on Thursday, October 25,2012. In your letter you renew your FOIA request of September 7,2012 in which you ask for the total number of complaints filed by year against (10) circuit court judges whom you reference 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 judicial officers from the time of their election/appointment forward.
Please be advised that I have responded to this request
tVv'ice previously

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

and stH! stand by my

letters of September 24 and October 9,2012. Once again, the information you seek is not discoverable pursuant to FOIA based upon the previously discussed Rule 2.4 of the Rules of Judicial Disciplinary Procedure, 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. in connection with this records request.

~/Z/
Teresa A. Tarr, Counsel Judicial Investigation Commission TAT/nb

Sincerely,

\'M II

31 January 2013

Teresa Tarr, counsel Judicial Investigation Co City Center East Suite 1200 A
4700 MaeCorlde Av-e., S.E.

..on

Charleston, WV 25304

Dear Ms. Tarr:

I'm in receipt of your letter da Information Act request for th officers. I apologize for the be In your letter, you state "the' As you know - or should kno has been filed. That hasn't happened in his
I>

edreply.

Oct. 25 regarding to my Sept. 7 Freedo~ of umber complaints filed by year against lP7 judicial
'i
:\

,rmation you seek is not discoverable." ~ course not! that discovery does not begin until afte~ a civil action
11 \1

Ii

'. Not yet anyway.

"

Ii ii
Ij

Also, you continue to hide be'

your favorite straw men, the Wells andilpack cases of the open records law. Aside from <DcialDisciplimu:y Procedure RDle; inapplicable here. : fact they are exemptions ~

2 and 8 under Article 1, Chap which make reference to eithe unsettled law, Wells and Pack In Wells, Judge Stucky denied

IA request made by a disgraced LogaI1 County

magistrate Ruleaccess to says,'. ". ; estigative detailson him. The decisionor ~vestigations largely on for 2.4 that JIC's "[t]he files" of complaints filed based conducted by the Office of' . Counsel shall be confidential." l~ For the umpteenth time, my est is for the number of complaints mep against the judicial officer Nffi the II
1\

*
,]
;1

.I

lj

Ii

11

i;
i1

ii

i
;!

\,~

"

In Pack, Judge Bailey denied to records regarding compI . The decision was based, in P One need not be a West Vi 0', in claiming that not only is a popular vote to a the proper p also those same public offi number of complaints filed ag
0

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

University College of Law graduate to ~ the absurdity plaint filed by citizen against a public 4flcial elected by lic oversight agency is an "internal me~randum," but rivacy would be harmed by the public l{lnowingonly the them regarding their public acts.!
'r

Also, in her ruI;ng Judge Bail 7, ur-Jlers her argument for denying the Gi;tzette's request on privacy grounds by saying ,e documents requested by Plaintiffba~ never been released to the public." Guess hat? On Augo 31 you 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
:1

,I

by that time was the subject

one, but two statements of charges.

,!

Furthermore, Judge Bailey sai e only way to mould the relief so as t, limit the e information in the format of the.Am!lal Statistical invasion of privacy is to provi , Plaintiff on June 2, 2010." Since JIC ~ and has Report ...[whichl was provid released statistical data, like . : y request last January for the total n*r of complaints between 2001 and 11that were received, completed, dismiS,sed and appealed, then there will be no blem releasing the information I requ~ed in my ,! Sept. 7 request.
"

;:

Finally, let me remind you tha cle 1, Chapter 1of the open records laiv unequivocally 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 as public officials and employees. e public has a right to know if JIC is ~ out its duty as a watchdog, and has no me the embodiment of the see-, sve4k- and hearno-evil monkeys. Therefore, since you not only , t to avoid the Supreme Court incurring pnnecessary liability in the midst of a , but also sullying its reputation as beiDk "the most , transParent of the three branc of government," I can then expect you t9 forward me the information I've request wi all deliberate haste. Also, I'm taking thif opportunity en current or former judicial officers. II to amend my request to incl
q

They are as follows:

!I.

II

1. Chamock-Smallridge, 2. Cookman, Donald H. 3. Fantasia, Annette 4. Frye, AndrewN., Jr. 5. Irons, Carol 6. Jordan, Philip B. 7. Nibert, Delores Jean Again, once the information . look forward to your reply.

. able, it can be sent to me at the acid.rfs below. I

,
F

IJ

Enclosuresg

5312 MacCorkle Ave., S.W. #238 South Charleston, WV 25309 mslmediainC@yahoo.com (g04J 397-6075 Sent via e-mail and U.S. Mail

JUDICIAL INVESTIGATION COMMISSION City Center East - Suite 1200 A 4700 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

South Charleston, WV 25309 Re: FOIA Requests received January 30, 2012.
Dear ~v1r~ Smith.

This letter is in response to your FOIA requests dated January 27, 2012, and received in this Office on Monday, January 30, 2012. In the first request you ask for statistical data regarding complaints filed with the Judicial Investigation Commission from January 1, 2001 through December 31, 2011. More particularly, you requested the following: U(l} the total number 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 total number of complaints that were dismissed, but appealed; and (5) the total number of complaints that resulted in a finding that a violation of the Code of Judicial Conduct occurred and the result:ng disciplinary action~" Lastly! you requested ({the dates, times, places and subject all evidentiary hearings conducted by the Judicial Investigation Commission from January 1, 2001, to the present and all scheduled for February 2012." With respect to Request Numbers 1 through 3 and Number 5, please see the information outlined below: 2001 On January 1, 2001, there were 26 complaints which remained pending before the Judicial Investigation Commission. During 2001, 214 new complaints were received for a total of 240 to be considered by the Commission. Of these 240 complaints considered, forty-seven 47 required formal investigations. One hundred and ninety-three 193 were dismissed when no probable cause was found; it was determined that the Commission had no jurisdiction in ~ complaints; Q

\\0"

Smith Page 3

FOIA Response 3, 2012

Letter

February

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 admonishments were issued pursuant to Rule 2.7(c).

On January 1, 2006, there were 72 complaints which remained pending before the Judicial Investigation Commission. During 2006, 192 new complaints were received for a total of 252 to be considered by the Commission. Of these 252 complaints considered, 49 required formal investigations. One hundred eight 180 were dismissed when no probable cause was found; it was determined that the Commission had no jurisdiction in 2. complaints; 1 complaint was tabled until further notice by the Commission; the Commission issued ~ admonishments pursuantto Rule 2.7(c). Seven Z complaints were sent to the Judicial Hearing Board pursuant to Rule 2.7(d) of the Rules of Judicial Disciplinary Procedure. 2007 On January 1, 2007, there were 32 complaints which remained pending before the Judicial Investigation Commission. During 2007, 196 new complaints were received for a total of 228 to be considered by the Commission. Of these 228 complaints considered, 33 required formal investigations. One hundred eight-seven 187 were dismissed when no probable cause was found; it was determined that the Commission had no jurisdiction in Z complaints; and there were no admonishments. One 1: complaint was sent to the Judicial Hearing Board pursuant to
Rule 2.7(d).

2008 On January 1, 2008, there were 32 complaints which remained pending before the Judicial Investigation Commission. During 2008, 174 new complaints were received for a total of 206 to be considered by the Commission. Of these 206 complaints considered, 31 required formal investigations. One hundred and thirty-two 132 were dismissed when no probable cause was found; it was determined that the Commission had no jurisdiction in Z complaints; Q complaints were 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 Judicial Hearing Board pursuant to Rule 2.7(d). 2009 On January 1, 2009, there were 33 complaints which remained pending before the Judicial Investigation Commission. During 2009, 159 new complaints were received for a total of 192 to

Smith Page 4

FOIA Response 3, 2012

Letter

February

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

On January 1, 2010, there 'vvere41 complaints which remained pending before the Judicial Investigation Commission. During 2010, 163 new complaints were received for a total of 204 to be considered by the Commission. Of these 204 complaints considered, 37 required formal investigations. One hundred and fifteen 115 were dismissed when no probable cause was found; it was determined that the Commission had no jurisdiction in 10 complaints; 0 complaint were withdrawn by the complainant with the approval of the Commission; and 1 admonishment 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 to be considered by the Commission. Of these 225 complaints considered, 54 required formal investigations. One hundred and twenty-four 124 were dismissed when no probable cause was found; it was determined that the Commission had no jurisdiction in . complaints; 0 complaint were \"Jithdrawn by the complainant with the approval of the Commission; there were 52 pending complaints at the end of 2011. Four admonishments were issued pursuant to Rule 2.7(c).

With respect to Request Number 4, Rule 2.7 of the Rules of Judicial Disciplinary Procedure governs the review of complaints. There is no mechanism in the Rulesror an appeal of a dismissed complaint. Therefore the answer to Request Number 4 for years 2001 through 2011 is zero. Please be advised that the information set forth above is a matter of public record and comports with what this Office can release. However, Rule 2.4 of the Rules of Judicial Disciplinary Procedure provides that "(t]he 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 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

Smith Page 5

FOIA Response 3, 2012

Letter

February

the judge." 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). With respect to your last unnumbered request concerning Judicial Investigation Commission hearing information, the Judicial Investigation Commission does not hold evidentiary hearings. Evidentiary hearings are conducted by the Judicial Hearing Board. Rule 2.7(c) states that "[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 .... " 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 hasjurisdiction. 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. Rules 4 through 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 the Judicial Investigation Commission from January 1, 2001, through February 2012, the answer is zero because the Judicial Investigation Commission does not hold evidentiary hearings -- only the Judicial Hearing Board conducts evidentiary hearings. The Judicial Hearing Board holds hearings on an individual complaint by complaint basis and not based on subject matter and no records are kept based on subject matter. Lastly, the Judicia! Investigation Commission does not maintain statistical data/records as to the dates, times and locations of Judicial Board Hearings. See Syllabus Pt. 1] Affiliated Construction Trades Foundation v. Regional Jail and Correctional Facility Authority] 200 W.Va. 621,490 S.E.2d708 (1997) (WVFOIAdoes not require the compilation of public records that do not exist). Sincerely,

Teresa A. Tarr] Counsel Judicial Investigation Commission

JUDICIAL INVESTIGATION COMMiSSION City Center East - Suite 1200 A 4700 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 South Charleston, WV 25309 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 Commission following: between of ethics complaints lodged with the Judicial Investigation in 2012. The information shall include, but not be limited to, the

(1) the total number of complaints filed, including a breakdown 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) the total number of complaints that resulted in a finding that a violation of the Code of Judicial Conduct occurred, and a subsequent statement of charges was issued. 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 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

(ill

lawrence Smith 1/28/13 February 14, 2013

Page 2

FOIA Request

hundred and ninety-two (192) complaints were dismissed when no probable cause was found. It was determined that the Commission had no jurisdiction in two (I) complaints.1 Zero (ill complaints were withdrawn by the complainant with the approval of the Commission. There were seventy-two (W pending 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 Hearing Board for hearings. Of those nine, two (l) complaints were extraordinary proceedings brought pursuant to Rule 2.14 of the Rules of Judicial Disciplinary Procedure. The remaining seven (21 complaints proceeded through the Judicia! Investigation Commission and on to the Judicial Hearing Board pursuant to Rule 2.7 of the Rules of Judicia! Disciplinary Procedure. Lastly, the Commission issued two admonishments.3 With respect to your request NO.3, there is no appeal or reconsideration process contained in the Rules 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) (WVFOIA does not 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,

Teresa A. Tarr, Counsel Judicial Investigation Commission

This figure The figure Board as no 3 This figure

1 2

is not included in the 192 Complaints for the complaints pending at the end final decision had been made in them is also not included in the number of

that were closed. of2012 includes the 9 complaints sent on to the Judicial Hearing by the State Supreme Court before the end of2012. complaints dismissed in 2012.

JUDICIAL INVESTIGATION COMMiSSION City Center East - Suite 1200 A 4700 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

South Charleston, WV 25309 Re: Dear Mr. Smith: 1/31/2013 Letter pertaining to 9/7/2012 FOIA Request.

i am in receipt of your letter dated January 31,2013 and sent via emai! after lJusinesshours on the same day. The email indicates that it was sent by you at 8:46 p.m. I first saw it on Friday, February 1, 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 number of complaints filed by year against (10) circuit court judges whom you reference 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 judicial officers from the time of their election/appointment forward. You also add seven additional judicial officers to the list for a total request for information involving 34 judicial officers.
Please be advised that I have responded to this request on three previous occasions and still stand by my letters of September 24, October 9, and October 25, 2012. Once again, the information you seek is not discoverable pursuant to FOIA and is privileged and/or exempted based upon the previously discussed Rule 2.4 of the Rules of Judiciai Disciplinary Procedure, the 7/1/2005 Order in Kanawha Circuit Court Case No. 05-Misc-159, Charleston Gazette v. Pack, Kanawha Circuit Court Civil Action No. lO-C1971 and/or W. Va. Code 29-8-1-4(2) and (8). Please be advised that I am using and have used discoverable in the general sense of the term and not as it relates to the West Virginia Rules of Civil Procedure. 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,

Teresa A. Tarr, Counsel Judicial Investigation Commission TAT/nb

\\Q"

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 a civil action against the West Virginia Judicial Investigation Commission in Kanawha Circuit Court either on or after March 11, 2013.

cc: Steven D. Canterbury, director, Office of the Administrative Court 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

Director, Supreme

5312 MacCorkle Ave., S.W.

#238
South Charleston, WV 25309

(304) 397-6075
mslmediainc@yahoo.com Sent via e-mail and certified U.S. Mail Certified Mail No. 7012 0470 0000 63111230