Smith v. Tarr, Et. Al. Appellate & Amici Curiae Briefs (WVSCA Case Number 13-1230)

STATE OF WEST VIRGINIA
At a regular term of the Supreme Court of Appeals, continued and held at

Charleston, Kanawha County, on December 9,2013, the following order was made and
entered:
Jay Lawrence Smith, an individual,
Plaintiff Below, Petitioner
vs.) No. 13-1230
Teresa Tarr, in her capacity as Counsel for
the West Virginia Judicial Investigation
Commission, and the West Virginia
Judicial Investigation Commission, a
government agency, Defendants Below,
Respondents
SCHEDULING ORDER
On a former day, to-wit, November 21, 2013, came the petitioner, Jay Lawrence
Smith, by Michael T. Clifford and Richelle K. Garlow, Law Office of Michael T.
Clifford and Richelle K. Garlow, and presented a timely and complete notice of appeal
from an order of the Circuit Court of"Kanawha County (Civil Action No. 13-C-483)
entered on October 23,2013, along with the two-hundred dollar ($200.00) filing fee. The
appeal has been placed on the docket as No. 13-1230, in accord with Rule 5(b) of the
Rules of Appellate Procedure ("R.A.P. 5(b)"), All filings related to this appeal must refer
to this Court's docket number and use the case caption set forth in this order.
The petitioner has not requested that a transcript be produced for purposes of
appeal.
The parties to this appeal are encouraged to agree on the contents of the appendix.
\!?
Pursuant to R.A.P. 7(e), if no agreement is reached, the petitioner must prepare a list of
the parts of the record that the petitioner intends to include in the appendix, along with a
list of any issues intended to be presented that were not included in the notice of appeal,
and serve the list on the respondents on or before February 3,2014.
The deadline for perfecting the appeal is February 24, 2014. The petitioner may
perfect the appeal at any time on or before the deadline for perfecting the appeal.
If the appeal is perfected, the respondents are hereby directed to file a
respondent's brief, or a summary response, on or before April 10,2014, or within forty-
five days of the date the appeal is perfected, if the appeal is perfected before February 24,
2014. Any reply brief deemed necessary shall be filed by the petitioner within twenty
days of receipt of the respondents 'brief.
SUMMARY of DEADLINES: Appeal No. 13-1230
Rule 7(e) List: February 3, 2014
Appeal Perfected: February 24, 2014
Respondent's Brief: April 10, 2014
Reply Brief: April 30, 2014
Once the deadline for filing a reply brief has passed, the appeal will be mature for
consideration by the Court pursuant to R.A.P. 5(h). The parties will be notified in writing
of any decision in the case.
A True Copy
Attest: Isl Rory L. Perry II, Clerk of Court
IN THE SUPREME COURlf OF APPEALS OF WEST VIRGINIA
CiliARLESTON
No. 13-1230
JAY LAWRENCE SMITH, an individual,
Plaintiff Below,
Petitioner
v.)
TERESA TARR, in her capacity as counsel
for the West Virginia Judicial Investigation
Commission, and the WEST VIRGINIA
JUDICIAL INVESTIGATION COMMISSION,
Respondents.
FROM THE CIRCUIT COURT OF KANAWHA COUNTY
13-C-483
BON. JUDGE FRED 1. FOX II, SENIOR STATUS JUDGE
Petitioner's Brief
Counsel for Petitioner, Jay TIawrenceSmith
Michael T. Clifford (WV Bar #750)
Counsel of Record
Richelle K. Garlow (WV Bar #9662)
LAW OFFICE OF MICHAEL T. CLIFFORD
723 Kanawha Boulevard, E. Ste. 1200
304-720-7660
Mclifherd@aol.com
ASSIGNMENTS OF ERROR
I. The Circuit Court erred in dismissing Petitioner's Complaint under West Virginia Rule
of Civil Procedure 12(b)(6) because Petitioner's Complaint set forth sufficient facts to support his
claims of violation of the Freedom of Information Act, and;
2. The Circuit Court erred in denying an award of counsel fees.
STATEMENT OF THE CASE
Petitioner Jay Lawrence Smith is aifree lance news reporter. On or about September 7,
2012, he requested from the respondents certain information relating to ethics complaints filed
against Judges, specifically the total numbers of ethics complaints against ten circuit judges and
seventeen family court judges. This action was commenced by the Petitioner pro se to compel
the respondents to provide the information, requested and for an award of counsel fees.
The defendants filed a Motion to Dismiss the Complaint under Rule 12(b)(6) of the West
Virginia Rules of Civil Procedure. After a hearing before Senior Status Judge Fred L. Fox II,
sitting by special assignment, the Court entered an Order granting the Motion to Dismiss under
Rule 12(b)(6). It is from this final Order dismissing the Complaint that the Petitioner appeals.
SUMMARY OF ARGUMENT
Petitioner's Complaint, which the lower court was obligated to take as true under Rule
12(b)(6), contended that his request for infDrmation was a lawful request for information which
the Judicial Investigation Commission selectively granted. As noted therein, the respondent's had
previously provided the same or similar information to another person, Keith DeBlasio. Petitioner
2
believes he has shown entitlement to the information, a reversal of the lower court, and an award
of counsel fees.
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Petitioner believes that the record and briefs in this case will provide the Court with all
necessary information needed to decide the issues, and therefore oral argument under Rev. R.A.P.
18(a) is not necessary unless the Court determines that other issues arising upon the record should be
addressed. Ifthe Court determines that oral argument is necessary, this case is appropriate for a Rule
19 argument and disposition by memorandum decision.
ARGUMENT
I. The Circuit Court erred in dismissing Petitioner's Complaint under West Virginia
Rule of Civil Procedure 12(b )(6) because Petitioner's Complaint set forth sufficient facts
to support his claims of violation of the Freedom of Information Act
The gist 0f this case is a rather simp Ieone, notwithstanding the elaborate arguments of defense
counsel. The sole question is whether records of judicial complaints are subject to the standards of
Chapter 29B of the West Virginia code, commonly known as the Freedom ofInformation Act. The
primary errors of Judge Fox were, first, in viewing the request as 9ne for informatio.n concerning
ethics complaints in which no probable cause was found, and, second, that the theory of the Daily
Gazette case has never been extended to judicial investigatory proceedings. The request for
information only concerned numbers, not copies ofthe complaints or the substance of the complaints,
whether probable cause was found or not.
Since 1985, Lawyer Disciplinary proceedings have been found to be open to public scrutiny.
In the Daily Gazette Company v. The committee on Legal Ethics a/the West Virginia State Bar, the
3
Supreme Court of West Virginia, over the opposition of the Committee on Legal Ethics, breached the
Cloak of confidentiality and ruled that" Under West Virginia Constitution art. III, 17, which
provides that "The courts of this State shall be open," there is a right of public access to attorney
disciplinary proceedings. The Court interPreted a State Bar by-law which provided:
All proceedings involving allegations of misconduct by or the disability of an attorney shall
be kept confidential until and unless a recommendation for the imposition of public discipline
is filed with the court by the committee on legal ethics, or the respondent attorney requests
that the matter be public, or the investigation is predicated upon a conviction of the
respondent attorney for a crime. All participants in the proceeding shall conduct themselves
so as to maintain the confidentiality of the proceeding. Any person who violates the
provisions of this section shall be guilty of contempt of the supreme court of appeals
(emphasis added). Daily Gazette Co., Inc. v. Committee on Legal Ethics.ofthe West Virginia
State Bar, 174 W. Va. 359, 326 S.E.2d 705 (1984)
Daily Gazette noted that the West Virginia State Bar was an administrative arm of the
Supreme court of Appeals; and further noted respondents' argument
The respondent defends this confidentiality rule on several grounds. First, the respondent
notes that confidentiality discourages attempts to use the process as a threat in order to obtain
an advantage in some collateral dispute. Second, the respondent states that confidentiality
protects lawyers from unwarranted injury to their professi(;mal reputations re~ulting from
frivolous or fabricated complaints. Third, the respondent contends that confidentiality restores
a degree of the protection lost in the grant of libel immunity to attorney disciplinary
complainants under article VI, 43 of the By-Laws. Finally, the respondent asserts that
confidentiality ensures that investigations into alleged unethical activity will not be impaired
by premature publicity. Although these justifications are not wholly without merit, they are
far outweighed by thepublic interest in access to attorney disciplinary proceedings (emphasis
added)
Accordingly, the Supreme Court held that
4
., the By-Laws and Rules and Regulations of the West Virginia State Bar which govern
public disclosure of lawyer disciplinary matters are unconstitutional under West Virginia
Constitution art. III, 17, when they fail to protect and vindicate the public's interest in the
integrity of the judicial system by unreasonably restricting access to information concerning
formal disciplinary actions against lawyers, integral parts of the judicial system ...
Subsequently, this Court has extended the application of disclosure to police internal investigation
review procedures. The Charleston Gazette d/b/a Daily Gazette Co. v. Smithers, _
W.Va. _' No. 12-0811 (2013).
no appreciable difference between the Court's analysis of the arguments of defense
counsel in Daily Gazette and the instant case. Here, the plaintiff sought records as to the number of
complaints filed against sitting members of the State Judiciary. Respondents argue that the sky will
fall if such records are disclosable. Respondents argue that a Supreme Court rule bars the release of
the information. In that the substantial public interest involved is the same, i.e. public access to
information pertaining to the substantial integrity of the Court system, the ruling herein should be the
same.
The final issue to be addressed is the constitutionality of Rule 2.4 ofthe Judicial Disciplinary
Procedure, upon which all ofrespondents' arguments are made.! To the extent that t~e State Bar
confidentiality rule was unconstitutional, and to the extent that the State Police internal investigation
rules are unconstitutional, so then is Rule 2.4 of the Judicial Disciplinary Rules. However, such
lThe 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 the ju~ge.
5
----------------------------
finding is not necessary so long as the Court synchronize the application of Rule 2.4 with the holdings
in Daily Gazette and The Charleston Gazette d/b/a Daily Gazette Co. v. Smithers. Again, in the
instant case, the petitioner did not ask for copies of the complaints; he merely asked for numbers of
the complaints.
Of special concern is the fact that the respondents had released the same or similar information
to one Keith DiBlasio. The lower court here stated that
"According to Defendants, they changed their policy to comply with the requirements of Rule 2.4.
This change in policy was not personal to the Plaintiff. Further, the Plaintiff's FOIA request and Mr.
DeBlasio's FOIA request do not appear to be related."
A copy of respondent's response to Mr. DiBlasio is affixed to plaintiff's RESPONSE TO
MOTION TO DISMISS, in the Appendix. That response was dated August 31, 2012. Petitioner's
request was 7 days later and both seemed to request the same information. The information was
provided to Mr. DiBlasio, but not Mr. Smith. If, indeed, the policies were changed to comport with
Rule 2.4, it was the fastest administrative policy change, and quietest, in the history of the State of
West Virginia.
It is cle.ar then, that inasmuch as there is no statutory exception to the production of these
requested documents, that the Court should follow the tenor of the Supreme Court of Appeals
documented in Daily Gazette and direct the release of the records. It is doubly important where the
defendants choose to release the information to some members of the press but not others, as the
attached documents reflect that the requested information has been released to other members ofthe
press.
II. The Circuit Court erred in denying an award of counsel fees
6
As to the issue of counsel fees, the statute is clear that
29B-1-7. Attorney fees and costs.
Any person who is denied access to public records requested pursuant to this article and who
successfully brings a suit filed pursuant to ,section five of this article shall be entitled to recover his
or her attorney fees and court costs from the public body that denied him or her access to the records. '
The word "shall" leaves no room for further debate and, should petitioner prevail in this
proceeding, he is entitled to counsel fees and costs ..
CONCLUSION
The Ruling of the Circuit Court should be reversed and remanded for entry of an
order compelling disclosure of requested items, and awarding attorneys fees and costs, and
such other and further relief as the nature of his case may require.
JAY LAWRENCE SMITH
/11
',/1,'1 ','1 /II I j ,/
/ j j;tv{t/ l
II 1
IjUt
j
I
By counsel
Michael . Clifford (WVS #750)
Richelle K. Garlow (WVSB #9662)
723 Kanawha Blvd. East
Union Bldg., Suite 1200
Charleston, WV 25301
304-720-7660
304-720-7753 fax
7
TABLE OF AUTHORITY
WV CONSTITUTION
Art. 3, 17 4
WVRULES
W.V.R. C.P 12(b)( 6) 2,3
WV Rules JD P 2.4 5,6
WVSTATUTES
West Virginia Code29B-1-1 et seq 3,4
West Virginia Code29B-1- 7 7
WEST VIRGINIA CASES
Daily Gazette Co., Inc. v. Committee on Legal Ethics_of the
West Virginia State Bar, 174 W. Va. 359, 326 S.E.2d 705
(1984) 4,5,6
The Charleston Gazette d/b/a Daily Gazette Co. v. Smithers, _
W.Va. , No. 12-0811 (2013) 5,6
8
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of February, 2014, a true and accurate copy of
the foregoing Petitioner's Briefwas deposited in the U.S. Mail contained in postage-
paid envelope addressed to counsel for all other parties to this appeal as follows:
Stephanie J. Shepherd, Esquire
141Walnut Street
Morgantown, WV 26505
1
\'\[~i/
IN THE SUPREME COURT OF APPEALS OF WEST VI~I~IA
DOCKET NO.: 13-1230 I L~;,,:;;,;c~:;~
~ RO,,) J.... l' ::',',"
li~ . SUPR~'i;~,~g! =_'''''-'.';''''OL''''''''''-<---'
Petiti 0ner/P laintiff,
v.
Respondents/Defenda nts.
On Appeal From an Order
of the Kanawha County Circuit Court
13-C-483
RESPONSE BRIEF OF RESPONDENTS
Prepared By:
John M. Hedges (WV Bar ID 1662)
Stephanie J. Shepherd (WV Bar ID 9716)
Hedges Lyons & Shepherd, PLLC
141 Walnut Street
304-296-0123
,., Counsel for Respondents
TABLE OF CONTENTS
I. Statement of Case 1
II. Summa ry of Arg ument , 4
III. Statement Regarding Oral Argument 5
IV. Argument of Law 5
A. Standard of Review 5
B. The Circuit Court Properly Dismissed the Petitioner's
Complaint Pursuant to Rule 12(b)(6) of the Rules of Civil
Procedure, Because the Information Sought by the Petitioner
Was Exempt from Disclosure in Accordance with West
Virginia Code 29B-1-4(a)(5) 6
C. The Circuit Court Correctly Concluded that the Petitioner
Was Not Entitled to Attorneys Fees or Costs 16
V. Conclusion 17
II
TABLE OF AUTHORITIES
A. CASES
Charleston Gazette v. Smithers, 232 W. Va. 449,752 S.E.2d 603 (2013) 12
Chrystal R.M. v. Charlie A.L., 194 W. Va. 138,459 S.E.2d 415 (1995) 5
Daily Gazette Co., Inc. v. Committee on Legal Ethics of West Virginia State Bar,
174 W. Va. 359, 326 S.E.2d 705 (1984) 11
Forshey v. Jackson, 222 W. Va. 743, 671 S.E.2d 748 (2008) 5
Hechlerv. Casey, 175 W. Va. 434,333 S.E.2d 799 (1985) 6
Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648,453 S.E.2d
631 (1994) 7
Pritchard v. Crouser, 175 W. Va. 310, 332 S.E.2d 611 (1985) 14
State ex reI. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770,
461 S.E.2d 516 (1995) 5
Stern Brothers, Inc. v. McClure, 160 W. Va. 567, 236 S.E.2d 222 (1977) 8
B. CONSTITUTIONS, STATUTES AND RULES
W. Va. Canst., art. III, Section 17 11
W. Va. -Const., art. VIII, Section 3 8
W. Va. Const., art. VIII, Section 8 8
West Virginia Code 298-1-1 6
West Virginia Code 298-1-4(a) 6
West Virginia Code 298-1-7 16
West Virginia Code 55-17-3 .4
Rule 18(a)(4) of the Rules of Appellate Procedure 5
Rule 19 of the Rules of Appellate Procedure 5
Rule 2.4 of the Rules of Judicial Conduct.. 1
Rule 2.7(c) of the Rules of Judicial Conduct , 2
.\\.
III
,\3 '"
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure .4
Canon 1 of the Code of Judicial Conduct.. 13
Canon 2 of the Code of Judicial Conduct.. 13
Canon 3 of the Code of Judicial Conduct 13
iv
J. STATEMENT OF CASE
On September 7, 2012, the Petitioner, Jay Lawrence Smith requested
information from the West Virginia Judicial Investigation Commission (hereinafter "JIC")
pursuant to the West Virginia Freedom of Information Act (hereinafter "FOIA").
(Petitioner's App., p. 6). In particular, he identified ten circuit court judges and
seventeen family court judges by name and requested the total number of ethics
complaints filed against each of them. Id. The Petitioner indicated that he wanted the
"complaints filed by year," but he did not specify what years he was referring to in his
letter. Id. To be clear, he was not seeking information regarding cases in which the JIC
found that probable existed to formally charge the judge with a violation of the Code of
Judicial Conduct. His request concerned complaints in which it was determined that
probable cause did not exist - complaints that are not made public by the JIC.
Ms. Tarr reviewed the Petitioner's FOIA request, and she consulted with the
members of the JIC to determine whether it was proper to disclose the information he
requested. By letter dated September 24, 2012, Ms. Tarr informed the Petitioner that
the JIC would not be able to disclose the number of ethics complaints filed against
specific judicial officers. (Respondents'Supplemental App., pp. 14-17). She explained
that under Rule 2.4 of the Rules of Judicial Disciplinary Procedure, complaints against
judicial officers are confidential unless the JIC finds that probable cause exists to charge
a judge with a violation of the Code of Judicial Conduct. Therefore, the JIC was not
required to disclose how many ethics complaints have been filed against a particular
judicial officer. Id. Ms. Tarr did inform the Petitioner that the JIC could disclose
-
statistical data regarding how many ethics complaints had been filed in a given year. Id.
Further, when the JIG determines that there is probable cause to formally charge a
judicial officer with an ethics violation, the complaint is open for public review. Similarly,
if the JIG admonishes a judicial officer as provided in Rule 2.7(c) of the Rules of Judicial
Disciplinary Procedure then information regarding the case is made public.1
A volley of written correspondence followed Ms. Tarr's September 24th letter
denying the Petitioner's FOIA request. On October 5, 2012, the Petitioner sent Ms. Tarr
a letter rich in sarcasm and condescension that expressed his disagreement with the
JIG's position. (Respondents' Supplemental App., pp. 18-20). The Petitioner renewed
his FOIA request in this letter. He also clarified that he was seeking the number of
complaints filed against the previously identified judges from the date of their election or
appointment to the date of his FOIA request. !d.
In his complaint and in his opening brief to this Gourt, the Petitioner alleges that
the JIG previously disclosed the number of ethics complaints filed against seven
individual judicial officers over a ten-year period to Keith DeBlasio. (Petitioner's App., p.
6). Apparently, Mr. DeBlasio requested and was given information regarding the
number of ethics complaints filed against seven specific circuit judges. The Petitioner
requested information on some of the same judges as Mr. DeBlasio. Id. (Petitioner's
App., p. 7). Thus, he concluded that there was not a reasonable basis for the JIG to
grant Mr. DeBlasio's request, but refuse to provide him with like information. As
explained in the circuit court, after the FOIA response to Mr. DeBlasio, upon further
1 Rule 2.7(c) of the Rules of Judicial Disciplinary Procedure states, in part: When it has been
determined that probable cause does exist, but that formal discipline is not appropriate under the
circumstances, the Commission shall issue a written admonishment to the respondent, who has fourteen
days after its receipt to object. The written admonishment shall be available to the public.
consideration of the issue and the significance of Rule 2.4, the JIG felt it was required to
modify its position. (Petitioner's App., p. 42).
In a letter dated October 9, 2012, Ms. Tarr informed the Petitioner that the JIG's
position had not changed and it would not disclose the information he requested. She,
again cited the confidentiality requirement of Rule 2.4, and she explained that this rule
prevented disclosure of the details concerning ethics complaints and the investigation
into the merits of these complaints. (Respondents' Supplemental App., pp. 21-22). Ms.
Tarr also stated that the information the Petitioner requested was also arguably exempt
from disclosure pursuant to West Virginia Gode 29B-1-4(a)(2) and (8). Id. On
October 25, 2012, Ms. Tarr once again responded on behalf of the JIG. She indicated,
as she had in her two previous letters, that the information sought by the Petitioner was
not subject to disclosure. (Respondents' Supplemental App., p. 34).
Approximately three months later, by letter dated January 31, 2013, the
Petitioner expressed his extreme displeasure with the JIG's determination that the
information ,he sought was exempt from disclosure under FOIA. Further, he concluded
that the records could not properly be considered internal memoranda of the JIG. In this
correspondence, the Petitioner also requested the numb~r of ethics complaints filed
against seven additional judicial officers, presumably from the date of their election or
appointment to the date of his request. (Respondents' Supplemental App., pp. 35-37).
By letter dated February 5, 2013, Ms. Tarr informed the Petitioner that the JIG would not
be disclosing the information he requested. (Respondents' Supplemental App., p. 45).
Thereafter, on February 8, 2013, the Petitioner sent a brief letter to the West
Virginia Attorney General's Office. (Respondents' Supplemental App., pp. 46-47).
3.
Presumably, the letter was meant to serve as the 30-day notice under West Virginia
Code 55-17-3 that he intended to file a civil suit against the JIC. He filed a FOIA
action on March 12,2013, in the Circuit Court of Kanawha County. He sought an order
requiring the JIC to disclose the information he requested. In addition, he sought a
declaration that the JIC's conduct was unlawful. The Petitioner requested an award of
attorney fees and the costs of prosecuting his complaint. Finally, he asked the circuit
court to order mandatory FOIA training for the Respondents. By order dated October
23, 2013, the Circuit Court, of Kanawha County granted the Respondents' motion to
dismiss the Petitioner's complaint. A timely notice of appeal was filed in this Court, and
the matter is nearly ripe for decision.
II. SUMMARY OF ARGUMENT
The Circuit Court of Kanawha County properly dismissed the Petitioner's
complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The
disclosure requirements of the West Virginia Freedom of Information Act are not
absolute. If information sought in a FOIA request is protected or deemed confidential by
a valid statutory provision then it is exempt from disclosure by West Virginia Code
298-1-4(a)(5). Via a FOIA request, the Petitioner asked the West Virginia Judicial
Investigation Commission to provide him with the total number of ethics complaints filed
against specific members of the State's judiciary. The Petitioner wanted ethics
complaints that were dismissed for lack of probable cause by the JIC. Rule 2.4 of the
Rules of Judicial Disciplinary Procedure requires the JIC to maintain confidentiality on
groundless complaints that are dismissed. This rule has the force and effect of a
statutory provision. Thus, it is clear that the information sought by the Petitioner is
4 .1;.
exempt from disclosure under FOIA, and the circuit court properly dismissed the
Petitioner's complaint.
III. STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case in accordance with the standard
established by Rule 18(a)(4) of the Rules of Appellate Procedure. If this Court deems
this case appropriate for oral argument, the narrow issue of law pertaining to a single
and unambiguous FOIA exception makes the matter suitable for Rule 19 argument and,
for the same reason, the case is appropriate for a memorandum decision.
IV. ARGUMENT OF LAW
A. Standard of Review
Appellate review of a circuit court's order granting a motion to dismiss a civil
complaint is de novo. State ex reI. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.
Va. 770, 461 S.E.2d 516 (1995). Under the theory of notice pleading, a plaintiff's
complaint should be construed liberally. Id. In this regard, "'[f]or purposes of the motion
to dismiss, the complaint is construed in the light most favorable to the plaintiff, and its
allegations are to be taken as true.'" Forshey v. Jackson, 222 W. Va. 743, 750, 671
S.E.2d 748, 755 (2008) (quoting John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161
W. Va. 603, 605, 245 S.E.2d 157, 158 (1978)). Further, this Court has held: "Where
the issue on an appeal from the circuit court is clearly a question of law or involving an
interpretation of statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.
M. v. Charlie A.L., 194 W. Va. 138,459 S.E.2d 415 (1995).
5
B. The Circuit Court Properly Dismissed the Petitioner's Complaint Pursuant
to Rule 12(b)(6) of the Rules of Civil Procedure, Because the Information
Sought by the Petitioner Was Exempt from Disclosure in Accordance with
West Virginia Code 29B-1-4(a)(5).
The purpose of the West Virginia Freedom of Information Act is to promote the
transparency of government and to give the citizenry access to information regarding
the conduct of public officials. W Va. Code 298-1-1.2 FOIA should be liberally
construed to effectuate the purpose of the Act. Hechler v. Casey, 175 W. Va. 434, 333
S.E.2d 799 (1985). Further, the exemptions to disclosure identified in West Virginia
Code 298-1-4 are to be strictly construed. Id.
Notwithstanding the liberal disclosure policy that underpins FOIA, there are
several categories of information that a government agency may properly refuse to
provide to a citizen or group, because these categories are specificallyexempt from
disclosure under section 4 of the Act. W. Va. Code 298-1-4(a).3 Applicable in the
2 West Virginia Code 296-1-1 states: Pursuant to the fundamental philosophy of the American
constitutional form of representative government which holds to the principle that government is the
servant of the people, and not the master of them, it is hereby declared to be the public policy of the state
of West Virginia that 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. The people, in delegating authority, do not give their public
servants the right to decide what is good for the people to know and what is not good for them to know.
The people insist on remaining informed so that they may retain control over the instruments of
government they have created. To that end, the provisions of this article shall be liberally construed with
the view of carrying out the above declaration of public policy.
3 West Virginia Code 296-1-4(a) states: The following categories of information are specifically
exempt from disclosure under the provisions of this article: (1) Trade secrets, as used in this section,
which may include, but are not limited to, any formula, plan pattern, process, tool, mechanism,
compound, procedure, production data or compilation of information which is not patented which is known
only to certain individuals within a commercial concern who are using it to fabricate, produce or
compound an article or trade or a service or to locate minerals or other substances, having commercial
value, and which gives its users an opportunity to obtain business advantage over competitors; (2)
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, unless the public interest by
clear and convincing evidence requires disclosure in the particular instance: Provided, That nothing in this
article shall be construed as precluding an individual from inspecting or copying his or her own personal,
medical or similar file; (3) Test questions, scoring keys and other examination data used to administer a
6
present matter, FOIA does not require the custodian of a public record to disclose
information if the "information is specifically exempted from disclosure by statute[.]" W.
Va. Code 298-1-4(a)(5). If the information sought falls within the purview of the
statute then it is exempt from disclosure under FOIA. See Ogden Newspapers, Inc. v.
City of Williamstown, 192 W. Va. 648, 453 S.E.2d 631 (1994).
In this matter, the Petitioner asked the JIC to provide him the total number of
ethics complaints that were filed against specific judicial officers from the date of their
licensing examination, examination for employment or academic examination; (4) Records of law-
enforcement agencies that deal with the detection and investigation of crime and the internal records and
notations of such law-enforcement agencies which are maintained for internal use in matters relating to
law enforcement; (5) Information specifically exempted from disclosure by statute; (6) Records, archives,
documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological,
paleontological and battlefield sites or constituting gifts to any public body upon" which the donor has
attached restrictions on usage or the handling of which could irreparably damage such record, archive,
document or manuscript; (7) Information contained in or related to examination, operating or condition
reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or
supervision of financial institutions, except those reports which are by law required to be published in
newspapers; (8) Internal memoranda or letters received or prepared by any public body; (9) Records
assembled, prepared or maintained to prevent, mitigate or respond to terrorist acts or the threat of
terrorist acts, the public disclosure of which threaten the public safety or the public health; (10) Those
portions of records containing specific or unique vulnerability assessments or specific or unique response
plans, data, databases and inventories of goods or materials collected or assembled to respond to
terrorist acts; and communication codes or deployment plans of law enforcement or emergency response
personnel; (11) Specific intelligence information and specific investigative records dealing with terrorist
acts or the threat of a terrorist act shared by and between federal and international law-enforcement
agencies, state and local law enforcement and other agencies within the Department of Military Affairs
and Public Safety; (12) National security records classified under federal executive order and not subject
to public disclosure under federal law that are shared by federal agencies and other records related to
national security briefings to assist state and local government with domestic preparedness for acts of
terrorism; (13) Computing, telecommunications and network security records, passwords, security codes
or programs used to respond to or plan against acts of terrorism which may be the subject of a terrorist
act; (14) Security or disaster recovery plans, risk assessments, tests or the results of those tests; (15)
Architectural or infrastructure designs, maps or other records that show the location or layout of the
facilities where computing, telecommunications or network infrastructure used to plan against or respond
to terrorism are located or planned to be located; (16) Codes for facility security systems; or codes for
secure applications for such facilities referred to in subdivision (15) of this subsection; (17) Specific
engineering plans and descriptions of existing public utility plants and equipment; (18) Customer
proprietary network information of other telecommunications carriers, equipment manufacturers and
individual customers, consistent with 47 U.s.C. 222; and (19) Records of the Division of Corrections,
Regional Jail Authority and the Division of Juvenile Services relating to design of corrections, jail and
detention facilities owned or operated by the agency, and the policy directives and operational procedures
of personnel relating to the safe and secure management of inmates or residents, that if released, could
be utilized by an inmate or resident to escape a facility, or to cause injury to another inmate, resident or to
facility personnel.
7
election or appointment to the date of his FOIA request. He sought ethics complaints
filed against these judges that were dismissed for want of probable cause by the JIC.
This information was not disclosed by the JIC, because Rule 2.4 of the Rules of Judicial
Disciplinary Procedure prohibits release of ethics complaints that do not result in the.
filing of formal charges, or an admonishment. Rule 2.4 states:
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 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.
Therefore, the information was not subject to FOIA's disclosure requirements,
because Rule 2.4 exempted or prevented its release. Notably, the fact that disclosure is
prohibited by a procedural rule and not a statutory provision adopted by the Legislature
is of not of any consequence. This Court has plenary rule-making authority regarding
the judiciary, and the rules promulgated by the Court have the force and effect of a
statute. W. Va. Const., art. VIII, 3; Stern Brothers, Inc. v. McClure, 160 W. Va. 567,
236 S.E.2d 222 (1977). Further, in specific reference to Court-promulgated ethics and
procedural rules governing judges, Article VIII, 8 of the West Virginia Constitution
states in relevant part: "When rules herein authorized are prescribed, adopted and
promulgated, they shall supersede all laws or parts of laws in conflict therewith, and
such laws shall be and become of no further force or effect to the extent of such
8
conflict." Thus, Rule 2.4 operates in the same manner as a statute, and it exempts from
disclosure the information sought by the Petitioner.
The policy and purpose of Rule 2.4 is sound and necessary. This Court is the
final arbiter regarding matters of the judiciary, and it has a vested interest in protecting,
'"
the integrity of the judiciary and the appearance of propriety among judicial officers for
the benefit of the public. By promulgating Rule 2.4, this Court recognized that not every
ethics complaint filed against a judicial officer is meritorious. In fact, some ethics
complaints have no basis in the Code of Judicial Conduct and are groundless attempts
to impugn the integrity of the judge or magistrate. Judges must make decisions, often
difficult ones, in every civil and criminal case before them. Generally speaking, half of
the parties that appear in court do not get the ruling they want. Some react to an
unfavorable ruling by filing baseless complaints that are maliciously motivated to
undermine the judge's reputation, or perhaps, attempt to force the judge off of their
case. Further, there is nothing in the rules that prevents one angry litigant from filing
numerous unfounded complaints against one judge.
The public's interest in this type of information is minimal, and it certainly does
not outweigh the need to maintain the independence alld integrity of the judiciary.
Thus, Rule 2.4 strikes an important balance between the public's right to information
regarding judicial officers, and this Court's obligation to protect the integrity of the
State's court system. A judicial officer should not be required to spend time explaining
or defending against unwarranted ethics complaints, because it would impede the
judicial process and prevent the judge from remaining detached and neutral. If and
when it is determined that there is probable cause to believe an ethics violation has
9
been committed by a judicial officer, Rule 2.4 does not prevent disclosure and the
complaint and the identity of the judge is open to public~review.
Moreover, Rule 2.4 of the West Virginia Rules of Judicial Disciplinary Procedure
is consistent with the protections other states provide to their judicial officers. The
majority of jurisdictions do not disclose or release identifying information about a judicial
officer in matters in which the ethics complaint has been dismissed as unfounded by the
state's judicial disciplinary body.4 In fact, only Arkansas and New Hampshire publicly
disclose the name of a judicial officer against whom a meritless complaint has been
filed. Further, it is important to note that West Virginia's rule regarding the disclosure of
judicial ethics complaints is one of the most liberal. The public's interest is protected;
4 48 of the 50 states have a procedural rule, statutory provision or constitutional provision that is
similar to the confidentiality requirement of Rule 2.4. With the exceptions of Arkansas and New
Hampshire and West Virginia, citations to the rule, statute or constituional provision for each state are:
Alabama Const. Art. 6, Amend. 581, 6,17; Rules 5, 6, 15 and 20 of the Alaska Judicial Conduct
Commission; Rule 9 of the Commission Rules of the Arizona Commission of Judicial Conduct; Rule 102
of the California Rules of the Commission of Judicial Performance; Rule 6.5 of the Colorado Rules of
Judicial Discipline; Conn, Gen. Stat. 51-45c, 51-51j and 51-511; Del. Const. Art. 4, 37; Rule 23 of the
Florida Rules of the Judicial Qualifications Commission; Rule 20 of the Georgia Rules of the Judicial
Qualifications Commission; Rule 8.4 of the Rules of the Supreme Court of the State of Hawai'i; Rules 30
and 32 of the Rules of the Idaho Judicial Council; Rule 5 of the Illinois Rules of Procedure of the Judicial
Inquiry Board; Rule 25 (VIII)(B) of the Indiana Rules of Court; Rules 52,5 of the Iowa Court Rules; Rule
607 of the Kansas Supreme Court; Louisiana Supreme Court Rule XXIII, 23, 26, 27 and 29(h); Rule 6
of the Maine Committee on Judicial Responsibility and Disability; Maryland Rule 16-810; Rule 5 of the
Massachusetts Rules of the Commission on Judicial Conduct; Michigan Court Rule 9.221; Minnesota
Court Rules, Professional Rule 5; Rule 4 of the Mississippi Commission on Judicial Performance;
Missouri Supreme Court Rule 12.21; Montana Code Annotated 3-1-1121; Nebraska Revised Statute 24-
726; Nevada Revised Statute 1.4683; New Jersey Supreme Court Rule 2: 15-4 and 2: 15-20; New Mexico
Const. Art, VI, 32; New York Judiciary Law 44-45; Rule 6 of the North Carolina Rules of the Judicial
Standards Commission; Rule 6 of the North Dakota Rules of the Judicial Conduct Commission; See Rule
V, 11(E) of the Supreme Court Rules for the Government of the Bar of Ohio; Rule 5 of the Oklahoma
Rules Governing Complaints on Judicial Misconduct; Rule 6 of the Oregon Rules of Procedure of the
Commission on Judicial Fitness and Disability; Constitution of the Commonwealth of Pennsylvania, Art. 5,
18(a)(8); Rhode Island General Law 8-16-4; Rule 12 of the South Carolina Rules for the Judicial
Disciplinary Enforcement; South Dakota Codified Laws 16-1-A; Rule 8 of the Tennessee Rules of
Practice & Procedure of the Board of Judicial Conduct; Tex, Gov, Code 33,032; Utah Code 78A-11-
112(3); Rule 6 of the Rules of Supreme Court for Disciplinary Control of Judges; Code of Virginia 17,1-
913; Rule 11 of the Washington Commission on Judicial Conduct Rules of Procedure; Wis, Admin, Code
JC 3.01; and Rule 10 of the Rules Governing the Commission on Judicial Conduct and Ethics.
10
and therefore, there is no reason to expand release of judicial ethics complaints in the
manner requested by the Petitioner.
In his opening brief to this Court, the Peti1:1onerargues that the circuit court
committed reversible error when it dismissed his complaint pursuant to Rule 12(b)(6). ,
He makes three arguments to support his request for a reversal of the lower court's
ruling. First, he claims that this Court's opinion in Daily Gazette Co.) Inc. v. Committee
on Legal Ethics of West Virginia State Bar, 174 W. Va. 359, 326 S.E.2d 705 (1984),
controls the present matter; and consequently, it should be resolved in the same
fashion. Related to this argument, the Petitioner questions the constitutionality of Rule
2.4 of the Rules of Judicial Disciplinary Procedure, but he does not expound on this
point. Therefore, the Respondents will not address this issue at length either. Rather,
the Respondents simply assert that the modest confidentiality provided by Rule 2.4 is
constitutionally sound and it does not violate the open courts provision of Article III, 17
of the West Virginia Constitution.
Next, the Petitioner makes a "what is good for the goose is good for the gander"
argument. He contends that the information he seeks should be disclosed, because the
JIC disclosed it one previous occasion. This argument can also be addressed in short
order. Disclosure of some of the information requested by the Petitioner on a previous
and unrelated occasion does not obviate Rule 2.4. The JIC has an obligation to adhere
to Rule 2.4 and it did so when, upon closer review of this rule, denied the Petitioner's
FOIA request. The Petitioner's argument appears as nothing more than: "He got it
before, so now I want it!" Mr. DeBlasio and the Petitioner are not children on the
11
playground and Mr. DeBlasio's receipt of information IS irrelevant to the legal issue
presented in this appeal.
Finally, the Petitioner cites this Court's recent decision in Charleston Gazette v.
Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013), and briefly argues this opinion.
requires reversal of the circuit court's ruling. However, as set forth below, this argument
fails to establish that the circuit court erred when it dismissed the Petitioner's complaint.
The cases cited by the Petitioner do not control disposition of this matter, as they do not
address the applicability of West Virginia Code 29B-1-4(a)(5), or the requirements of
Rule 2.4.
In Daily Gazette v. Committee on Legal Ethics, supra, this Court examined the
constitutionality of Article VI, 30 of the West Virginia State Bar By-Laws.5 Under this
provision, the State Bar was required to keep attorney disciplinary proceedings
confidential, unless there was a recommendation for public discipline.
When
considering the Dailey Gazette opinion, it is helpful to put this decision in the proper
context. In this regard, at the time of the case was decided, the State Bar had the
authority to privately reprimand a lawyer it found violated an ethical rule. Thus, there
were an appreciable number of attorney disciplinary matter~ that were resolved outside
of the public sphere. Obviously, the current rule on confidentiality in judicial disciplinary
proceedings has far more limitations than the by-law examined in Daily Gazette. In this
5 Now defunct, article VI, 30 of the West Virginia State Bar By-Laws stated: All proceedings
involving allegations of misconduct by or the disability of an attorney shall be kept confidential until and
unless a recommendation for the imposition of public discipline is filed with the court by the committee on
legal ethics, or the respondent attorney requests that the matter be public, or the investigation is
predicated upon a conviction of the respondent attorney for a crime. All participants in the proceeding
shall conduct themselves so as to maintain the confidentiality of the proceeding. Any person who violates
the provisions of this section shall be guilty of contempt of the supreme court of appeals. Any committee
member or any employee of the committee who violates this provision may be removed by the board.
12
regard, once a finding of probable cause is made against a judicial officer, the matter is
open to public scrutiny. Further, the JIC has no authority to privately reprimand a
judicial officer for a violation of an ethical rule. See Rule 2.7 of the Rules of Judicial
Disciplinary Procedure.
Moreover, Daily Gazette does not control resolution of this case. In Daily
Gazette, this Court focused on the role lawyers play in the court system when arriving at
its decision. Obviously, the role judges play in the court system can and should be
distinguished from the role lawyers play. Examination of these differences exposes the
frailties of the Petitioner's position, and illuminates the necessity of keeping meritless
judicial ethics complaints confidential to maintain the integrity of the judicial process.
One fundamental difference between a judge and a lawyer is the judge's role as a
detached decision-maker. Unlike lawyers, judges are expected to remain neutral and
uphold the independence of the bench in all proceedings. Canon 1, Code of Judicial
Conduct. The proper functioning of the judicial system and the public's perception of it
depends on the impartiality of our judicial officers. Canon 3, Code of Judicial Conduct.
Further, a judge is required to avoid the appearance of impropriety, and should not
engage in out-of court discussion about litigants or matters. that have come before the
court. Canon 2, Code of Judicial Conduct. Therefore, a judge should not, and in most
instances cannot, publicly comment on or defend himself or herself when information is
released to the public regarding groundless ethics complaints.
Further, the purpose for the protection provided to judicial officers by Rule 2.4
may be compared to the protections afforded from civil suit by the doctrine of absolute
judicial immunity. In this regard, the primary purpose of judicial immunity is not to shield
13
the judges, but rather, the protection is provided for the benefit of the public. Pritchard
V. Crouser, 175 W. Va. 310, 332 S.E.2d 611 (1985). As the Pritchard Court explained:
"Quite frequently, the cases requiring the greatest degree of judicial independence are
the cases that are most hotly contested and most controversial." 175 W. Va. at 314, ,
332 S.E.2d at 615. Therefore, judicial officers should be safeguarded from civil suit, so
they are free to rule independently. Id.
It is no surprise that judicial ethics complaints also tend to be made in hotly
contested cases by angry and often irrational litigants. As stated above, there is nothing
that prevents an angry litigant from filing multiple complaints against the same judge.
The judge should be able to remain neutral and detached while the complaints are
investigated. Similarly, if the complaints are dismissed, he or she should not be
required to explain why multiple ethics complaints were filed against him or her. Rule
2.4 provides this modest, but necessary protection.6 Therefore, there is sound reason
to keep judicial ethics complaints confidential until a proper investigation is conducted
and to maintain this confidentiality only if the complaint is meritless. If after investigation
probable cause is found, the information is always made public. Rule 2.4 is exceedingly
narrow, but for the good reasons discussed herein, it strikes ,aproper balance.
The Petitioner also cited for support this Court's recent decision in Charleston
Gazette v. Smithers} 232 W. Va. 449,752 S.E.2d 603 (2013). The Petitioner only briefly
commented on this decision, noting that it "extended the application of disclosure to
police internal investigation review procedures," and then erroneously implied that this
6 Defendants sentenced to prison by a judge, with time on their hands and motive to lash out at
the person who put them there, comes to mind as a good example of serial filers of judicial ethics
complaints.
14
Court found the police internal investigation rules to be unconstitutional. (Petitioner's
Brief, at p. 5). No rule was held unconstitutional in Smithers. Moreover, even the
Petitioner's limited reliance upon Smithers is misplaced. The Smithers decision
addressed three FOIA exceptions in the context of a refusal by the State Police to ,
disclose investigative records regarding complaints of police misconduct. The
disclosure exceptions at issue in Smithers were West Virginia Code 29B-1-4(a)
subparagraphs: (2) [invasion of privacy]; (4) [law enforcement investigation records];
and (8) [public agency internal memoranda]. The basis for non-disclosure as decided
by the circuit court in the instant case is limited to another of the FOIA statutory
exceptions, subparagraph (5) regarding "[i]nformation specifically exempted from
disclosure by statute." Rule 2.4 was properly found by the circuit court to have the
equivalent force and effect of a statute. This determination was rooted in this Court's
constitutional rule-making authority for all judicial proceedings. W. Va. Const., art. 8,
sec. 3. See also Stern Brothers, Inc. v. McClure, 160 W. Va. 567, 236 S.E.2d 222
(1977) (When a rule adopted by the Court conflicts with another statute or law, the rule
supersedes the conflicting statute or law.).
In Smithers, which was decided after the circuit cqurt dismissed the present
case, this Court did review the State Police legislative rules regarding the confidentiality
of internal investigations. But this review was appropriately confined to reconciling
these non-superseding rules with the FOIA privacy exemption. The circuit court's
decision in the instant case, however, turned upon an entirely different exemption
applicable under this Court's superseding rule-making authority. Even with this clear
exemption that made additional justification unnecessary, the circuit court further
15
observed that in adopting Rule 2.4 this Court struck a proper balance between public
access to information and the protection of the integrity of the judiciary which, in turn,
serves the best interests of the public.
As detailed in the circuit court's order, there are sound reasons to maintain the,
confidential nature of judicial ethics complaints when they are determined at the outset
to be lacking in probable cause. This Court was well aware of its decision 10 years
earlier in Daily Gazette Co., Inc. v. Committee of Legal Ethics, supra, when it found it
necessary to afford judicial officers, due to their unique role in the judicial process, this
narrow and limited protection since they are constrained to speak out in response to
public disclosures of complaints dismissed for lack of probable cause.
In this matter, the Petitioner requested the number of ethics complaints filed
against specific circuit court and family court judges from the date they were elected or
appointed to the date of his FOIA request. The JIC was not required to disclose this
information pursuant to West Virginia's Freedom of Information Act. Rule 2.4 requires
the JIC to maintain confidentiality on complaints that are dismissed due to lack of
probable cause. Therefore, the information sought by the Petitioner is exempt from
disclosure in accordance with West Virginia Code 298-1-4(a)(5). The circuit court
properly dismissed the Petitioner's complaint, and its ruling should be affirmed.
C. The Circuit Court Correctly Concluded that the Petitioner Was Not Entitled
to Attorneys Fees or Costs.
The Circuit Court of Kanawha County properly denied the Petitioner's request for
attorney fees and costs, because he did not bring a successful FOIA action. West
Virginia Code 298-1-7.
16
V. CONCLUSION
The Circuit Court of Kanawha County properly dismissed the Petitioner's
complaint pursuant to Rule 12(b)(6) of the Rules of Civil Procedure. Under Rule 2.4 of
the Rules of Judicial Disciplinary Procedure, the content of ethics complaints and the
identity of the judicial officer they are filed against are confidential, unless the JIC
determines that probable cause exists to formally charge the judge with a violation.
Therefore, the information sought by the Petitioner is exempt from disclosure in
accordance with West Virginia Code 29B-1-4(a)(5). The Petitioner failed to state a
valid request for relief in the circuit court, and the lower court's ruling should be affirmed.
TERESA TARR and
WEST VIRGINIA JUDICIAL
INVESTIGATION COMMISSION
Respondents
By Counsel
()
I / ,
'1/ Ii . I
/\ /"1J1:~P;'1~~/)' ,
\ / VJ '/ J ~/;' -
I' '"
, n. edges (\fIN Bar I 1662)
Stephanie J. Shepherd (WV Bar 10 9716)
Hedges Lyons & Shepherd, PLLC
141 Walnut Street
304-296-0123
Counsel for the Respondents
17
-8'
I, Stephanie J. Shepherd, do hereby certify that I served a true and correct copy
of the foregoing Response Brief of Respondents, upon Michael T. Clifford at 723
Kanawha Boulevard, East, Suite 1200, Union Building, Charleston, VW 25301 via U.S. ,
First Class Mail, postage prepaid, this 10th day of April 2014.
18
No. 13-1230
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
PetitionerlPlaintiff Below,
.~
v.
For the West Virginia Judicial Investigation
RespondentslDefendants Below.
MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
DEFENSE TRIAL COUNSEL OF WEST VIRGINIA
FOR DEFENSE TRIAL COUNSEL
OF WEST VIRGINIA
William D. Wilmoth (# 4075)
STEPTOE& JOHNSONPLLC
1233 Main Street, PO Box 751
Wheeling, WV 26003
(304) 233-0000
Christopher A. Lauderman (# 11136)
400 White Oaks Blvd.
Bridgeport, WV 26330
(304) 933-8180
-----------------------------~---- ---------
Pursuant to West Virginia Rule of Appellate Procedure 19, the Defense Trial Counsel
of West Virginia moves thIs Court for leave to file its brief in support of the Respondents
Teresa Tarr and the West Virginia Judicial Investigation Commission. The brief is being
submitted contemporaneously for filing, subject to this Court's approval, within the time
allowed to Teresa Tarr and the West Virginia Judicial Investigation Commission, as provided
in Rule 19. Because this brief will aid the Court in its decision, it is desirable as required by
Rule 19. Accordingly, the Court should grant the motion and enter an order directing the
Clerk to file the Defense Trial Counsel of West Virginia's brief.
The Defense Trial Counsel of West Virginia (DTCWV) is the voluntary civil
defense bar. Its member attorneys defend individuals and corporations in civil litigation are
committed to elevating the standards of West Virginia trial practice, supporting and
advocating for the adversary system of jurisprudence, and improving the quality of services
rendered by the legal profession to the citizens of West Virginia. DTCWV serves as the
"voice of the defense bar", and shares its perspective on important legal issues as and where
they arise. Such an issue is now before this Court, and the Defense Trial Counsel of West
Virginia writes to voice its strong belief that the unprecedented expansion of the West
Virginia Freedom of Information Act argued for by Petitioner threatens to undermine the
integrity of the state judiciary.
The Defense Trial Counsel of West Virginia respectfully suggests that the Court
should maintain its faithful adherence to the protection of the integrity of the West Virginia
2
State Judiciary. Therefore, the Court should affirm the judgment of the circuit court granting
Teresa Tarr and the West Virginia Judicial Investigation Commission's motion to dismiss.
WHEREFORE, the Defense Trial Counsel of West Virginia respectfully requests this
Court to grant its motion and enter an order directing the Clerk to file the Brief of Amicus
. Curiae Defense Trial Counsel of West Virginia.
Dated this tJfIt day of April, 2014.
1J~JL lJ:LL
STEPTOE&JOHNSONPLLC
Wheeling, WV 26003
(304) 233-0000
~
t~d ~
Chnstopher A. LaudefITIan (# 11136)
(304) 933-8180
Counsel for Amicus Curiae
Defense Trial Counsel of West Virginia
3
I hereby certify that, on April 9th, 2014, I caused the "Motion for Leave to File Brief
of Amicus Curiae Defense Trial Counsel of West Virginia" to be served upon all counsel of
record by depositing copies of the same, in the United States mail, postage prepaid, addressed
as follows:
Michael T. Clifford, Esq.
Richelle K. Garlow, Esq.
Law Office of Michael T. Clifford
723 Kanawha Blvd, E. Suite 1200
Counsel for Petitioner
Stephanie J. Shepherd, Esq.
141 Walnut Street
Counsel for Respondents
No. 13-1230
IN THE SUPREME COURT OF APPEALS OF WEST
Petitioner/Plaintiff Below,
".- .
v.
RespondentslDefendants Below
BRIEF OF AMICUS CURIAE DEFENSE TRIAL COUNSEL
OF WEST VIRGINIA IN SUPPORT OF RESPONDENTS
Wheeling, WV 26003
(304) 233-0000
Christopher A. Lauderman (# 11136)
(304) 933-8180
(Counsel for Amicus Curiae
Defense Trial Counsel
of West Virginia)
------------------------
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE 1
INTRODUCTION AND SUMMARY OF ARGUMENT 2
FACTUAL BACKGROUND 2
STANDARD OF REVIEW 4
ARGUMENT 4
The Right of Access to Information Regarding the Judiciary is Qualified in order
to Protect the Judiciary from Frivilous and Unfounded Complaints that will Harm
the Independence and Reputation of the Judicial Branch 4
I. The Freedom of Information Act has Defined Limits .4
II. Limits on Access Extend to the Judiciary 5
III. By Promulgating Rule 2.4 Subsequent to Issuing The Daily Gazette
Company, Inc. v. The Committee on Legal Ethics of the West Virginia
State Bar, the Supreme Court Recognized the Constitutionality of the
Rule 6
IV. Alternatively, If the Court Concludes that Judges and Attorneys Should be
Treated the Same, the Court Should Determine that No Information
Regarding Frivilous Complaints Must be Released 6
CONCLUSION 7
11
CASES
Appalachian Regional Healthcare, Inc. v. West Virginia Department of Health
and Human Services, 232 W. Va. 388, 752 S.E.2d 419 (2013) 3
Conley v. Gibson, 355 U. S. 41 (1957) 3
The Daily Gazette Company, Inc. v. The Committee on Legal Ethics o/the West
Virginia State Bar, 174 W. Va. 359, 326 S.E.2d 705 (1984) .4,5,6
Hawkins v. Ford Motor Co., 211 W. Va. 487, 566 S.E.2d 624 (2002) 1
.Mey v. Pep Boys-Manny, Moe &Jack, 228 W. Va. 48, 717 S.E.2d 235 (2011) 3
Smith v. Tarr, 13-C-483 (Cir. Ct. Kanawha Cnty, 2013) 3
State ex reI. Chemtall v. Madden, 216 W. Va. 443, 607 S.E.2d 772 (2004) 1
State ex reI. Herald Mail Company v. Hamilton, 228 W. Va. 48, 717 S.E.2d 235
(1980) 4
STATUTE
W. Va. Code 29B-1-1 2,4
W. Va. Code 29B-1-4( a)( 5) 4
RULE
Rule of Judicial Disciplinary Procedure 2.4 2, 4, 6
CONSTITUTION
W. Va. Canst. art. III, 17 4
W. Va. Canst. art. V, 1 4
W. Va. Const. art. VIII, 3 4
111
INTEREST OF AMICUS CURIAE
The Defense Trial Counsel of West Virginia is an organization of over 500 attorneys who
engage primarily in the defense of individuals and corporations in civil litigation in West
Virginia. The Defense Trial Counsel of West Virginia is an affiliate of the Defense Research
Institute ("DRI"), a nationwide organization of over 23,000 attorneys committed to research,
innovation, and professionalism in the civil defense bar. Although it does not routinely seek
leave to file amicus briefs, the Defense Trial Counsel of West Virginia is interested in the issue
before the Court regarding the constitutionality of Rule of Judicial Disciplinary Procedure 2.4
because of the DTCWV's position generally advocating that West Virginia interpret and apply
its laws, both statutory and otherwise, in a consistent and uniform manner and apply statutes in a
clear, consistent, and common-sense fashion to effectuate their purpose. For example, in State ex
rel. Chemtall v. Madden, 216 W. Va. 443, 607 S.E.2d 772 (2004), DTCWV submitted a brief
asking the Court to apply West Virginia's class action rules in a fashion similar to equivalent
federal rules. Likewise, in Hawkins v. Ford Motor Co., 211 W. Va. 487, 566 S.E.2d 624 (2002),
DTCWV submitted a brief in support of a manufacturer's assertion that the plain language of
West Virginia's Unfair Trade Practices Act did not apply to self-insured entities. Both positions
were ultimately adopted by the Court.
I
INTRODUCTION AND SUMMARY OF ARGUMENT
Freedom of information is undeniably one of the core values of our republican form of
government. But public access to all information relating to the Government has never been part
of that core value. For that reason, state legislatures, including West Virginia's legislature, have
provided exceptions to their statutory acts regarding freedom of information. The reasoning is
simple enough. In order to protect certain institutions such as the judiciary from harm to its
reputation and independence-factors crucial to sustaining a healthy, vibrant, republican form of
government-groundless, baseless, unfounded, and frivolous complaints may be excepted from
the reach of freedom of information acts.
This brief argues that pursuant to West Virginia law, unlimited access to judicial
information does not exist. Rule 2.4 of the Rules of Judicial Disciplinary Procedure is
Constitutional. Accordingly, for this reason, discussed in more detail below, the Court must
affirm the Circuit Court's dismissal of Petitioner's Complaint.
FACTUAL BACKGROUND
Pursuant to West Virginia's Freedom of Information Act ("FOIA"), W. Va. Code 29B-
1-1, Petitioner, Jay Lawrence Smith, a freelance news reporter, filed a Freedom of Information
Act request with Respondents, Teresa Tarr and the West Virginia Judicial Investigation
Commission. Petitioner requested information regarding the total number of ethics complaints
filed against ten circuit judges and seventeen family law judges. Tarr refused to disclose the
information sought in Petitioner's FOIA request citing Rule 2.4 of the Judicial Disciplinary
Procedures. Rule 2.4 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 he existence of a complaint or
2
investigation, explaining 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 the judge.
Petitioner then initiated this civil action, asserting that he had the right to information
regarding the number of complaints filed against judges, even if those complaints had no basis
and were frivolous. Respondents filed a motion to dismiss, which the Circuit Court granted.
Petitioner then filed the present appeal.
STANDARD OF REVIEW
The Supreme Court of Appeals of West Virginia reviews a Circuit Court's dismissal of a
complaint pursuant to West Virginia Rule of Civil Procedure 12(b)(6) de novo. Appalachian
Reg'l Healthcare, Inc. v. W Va. Dep't of Health & Human Res., 232 W. Va. 388,752 S.E.2d
419, 424 (2013). The "purpose of a motion under Rule l2(b)(6) is to test the formal sufficiency
of the complaint." Mey v. Pep Boys-Manny, Moe & Jack, 228 W. Va. 48, 52, 717 S.E.2d 235,
239 (2011). Although the Supreme Court of the United States has abandoned the standard, the
Supreme Court of Appeals of West Virginia continues to apply the test set forth in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, in West Virginia, a court "should not dismiss
a complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief." Mey, 228 W. Va. at 52. Where, as here, the
court can grant no relief under any set of facts that could be proved consistent with the
allegations, dismissal for failure to state a claim is proper. Id..
This appeal further requires the Court to interpret a rule and statute. The Court reviews
de novo a question involving the interpretation of a statute. Appalachian Reg'l Healthcare, 232
W. Va. at 424.
3
S.E.2d 544 (1980). Moreover, the Section extends to other types of judicial and quasi-judicial
proceedings.
One of the quasi-judicial proceedings covered under the open courts provision is attorney
disciplinary proceedings. The Daily Gazette, 174 W. Va. at 365. In extending the open courts
provision to attorney disciplinary proceedings, the Supreme Court of Appeals reasoned that the
public should know when attorneys are charged with disloyalty to the court. For only with
possession of this knowledge can people intelligently deal with the legal profession's members
and entrust business to them. Id. The Court emphasized that people must be able to observe for
themselves that the self-governance process is impartial and effective. Accordingly, the Court
concluded that once a complaint of unethical conduct in an attorney disciplinary proceeding is
dismissed for lack of probable cause, the public has a right of access to the complaint and the
findings of fact and conclusions of law which are presented in support of the dismissal.
But the Court also clearly stated that "the public's right of access is not absolute." Id. at
364 n.9. The Court recognized that certain cases and exceptional circumstances may warrant
limited closure. For the reasons discussed below, information regarding unfounded judicial
complaints is one of those certain cases.
II. LIMITS ON ACCESS EXTEND TO THE JUDICIARY.
The Defense Trial Counsel of West Virginia recognizes that this Court has already
decided this issue with respect to attorneys. Although a party easily can argue that the logic of
The Daily Gazette applies with equal force to members of the judiciary, such an assumption is
not correct upon a close examination of the Court's decision. The Daily Gazette Court
recognized the reputational and investigatory justifications to restrict disclosure of information
pertaining to complaints during the initial investigatory stage, but concluded that as to attorneys,
the justifications are limited. The accompanying footnote reads that "[t]he reporting of the
5
existence of groundless or frivolous complaints after there has been a decision to dismiss them as
such poses no real threat to the reputations of attorneys." The Daily Gazette, 174 W. Va. at 367
n.17.
Judges are unique. Attorneys and judges play very different roles in our judicial system ..
Unlike attorneys, judges face real threats to their reputations with the reporting of the existence
of groundless or frivolous complaints. Judges are not advocates. Rather, they are the face of the
justice system. Where judges have engaged in misconduct, the public has a right to know about
the circumstances. And the Rule provides for such reporting. In promulgating Rule 2.4, the
Court achieved the appropriate balance between reporting to the public and preserving the
integrity and independence of the judiciary in light of frivolous complaints.
III. BY PROMULGATING RULE 2.4 SUBSEQUENT TO ISSUING THE DAILY
GAZETTE COMPANY INC. v: THE COMMITTEE ON LEGAL ETHICS OF THE
WEST VIRGINIA STATE BAR, THE SUPREME COURT RECOGNIZED THE
CONSTITUTIONALITY OF THE RULE.
Ten years after issuing its decision in The Daily Gazette, Rule 2.4 was adopted. Smith v.
Tarr, 13-C-483 (Cir. Ct. Kanawha Cnty, 2013). By Promulgating Rule 2.4 Subsequent to issuing
The Daily Gazette, the Supreme Court recognized the Constitutionality ofthe Rule.
IV. ALTERNATIVELY, IF THE COURT CONCLUDES THAT JUDGES AND
ATTORNEYS SHOULD BE TREATED THE SAME, THE COURT SHOULD
DETERMINE THAT NO INFORMATION REGARDING FRIVIOLOUS
COMPLAINTS MUST BE RELEASED.
In the alternative, if the Court concludes that judges are not unique and instead like
attorneys, the Defense Trial Counsel of West Virginia respectfully requests that the Court
determine that information regarding frivolous complaints be withheld uniformly with respect to
both judges and attorneys. The policy arguments mentioned above apply to attorneys as well as
judges.
6
CONCLUSION
For the reasons stated above, the Defense Trial Counsel of West Virginia joins
Respondents in requesting that this Court affirm the judgment of the Circuit Court.
Respectfully submitted,
LJ~.fj. w:L4t.
STEPTOE & JOHNSON PLLC
Wheeling, WV 26003
(304) 233-0000
Dated: April 9th, 20,1 4
7
~j~
Christopher A. Laude ~
STEPTOE &JOHNSON PLLC
(304) 933-8180
(Counsel for Amicus Curiae
Defense Trial Counsel
of West Virginia)
No. 13-1230
Petitioner/Plaintiff Below,
v.
Respondents/Defendants Below
I hereby certify that on April 9th, 2014, I caused true and correct copies of the
foregoing Brief of Amicus Curiae Defense Trial Counsel of West Virginia to be served on the
following parties by depositing copies of the same, in the United States mail, postage prepaid,
addressed as follows:
.,.
723 Kanawha Blvd, E. Suite 1200
Counsel for Petitioner
Stephanie 1. Shepherd, Esq.
141 Walnut Street
Counsel for Respondents
No. 13-1230
JAY LAWRENCE SMITH,
Plaintiff Below,
Petitioner,
v.
JUDICIAL INVESTIGATION
COMMISSION,
Defendants Below,
Respondents.
MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE ON
BEHALF OF THE WEST VIRGINIA JUDICIAL ASSOCIATION
Carte P. Goodwin (WVSB #8039)
Goodwin & Goodwin, LLP
300 Summers Street
Suite 1500
Telephone: (304) 346-7000
Facsimile: (304) 344-9692
cpg@goodwingoodwin.com
The West Virginia Judicial Association
1
COMES NOW the West Virginia Judicial Association (hereinafter the "Association"), by
counsel, and pursuant to Rule 30 of the West Virginia Rules of Appellate Procedure, hereby moves
this Court for leave to file a brief amicus curiae in support of the Respondents, Teresa Tarr and
the West Virginia Judicial Investigation Commission. A brief has been filed conditionally
herewith in accordance with the provisions of Rule 30.
The Association is a voluntary association of West Virginia state court judges. This case
turns on whether the Freedom of Information Act, W. Va. Code 29B-l-l et seq., compels
disclosure of certain disciplinary records of state judicial officers. Accordingly, the resolution of
this case is of interest to the Association, as it could have significant implications for the
Association's members. Additionally, the Association has often been granted leave by this Court
to file briefs amicus curiae in cases in which its members have an interest. 1
Furthermore, the Association, as an association of West Virginia state court judges, has a
unique perspective on the potential impact the resolution of this case could have on the state's
judiciary. The Association provides the Court vvith a vievvpoint that neither of the parties C8.J.~
provide and one that is necessary to consider when the Court is balancing the public's interest in
access to information with a competing and equally compelling public interest in preserving
judicial independence.
The Association believes that its participation in this matter as amicus curiae will provide
the Court with useful assistance in its deliberations and decision in this matter. Accordingly, the
Association respectfully submits that its motion should be granted, and the proposed brief tendered
herewith should be directed to be filed.
J See, e.g., Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009); State ex rei. Kaufman
v. Zakaib, 207 W.Va. 662, 535 S.E.2d 727 (2000); State ex rei. Farley v. Spaulding, 203 W.Va. 275, 507
S.E.2d 376 (1998); State ex reI. Frazier v. Meadows, 193 W.Va. 20, 454 S.E.2d 65 (1994).
2
WEST VIRGINIA JUDICIAL ASSOCIATION
~
C e P. OOdWl B #8039)
Goo in & Goodwin, LLP
300 Summers Street
Suite 1500
Telephone: (304) 346-7000
Facsimile: (304) 344-9692
3
No. 13-1230
!
f,.,~ RORY l. PEFf;Y ii, CJL-t;'~"-
SUPRWE COURT DE ;y,:," "
IN THE SUPREME COURT OF APPEALS OF WEST VtReI-N:X'x:sc'
JAY LAWRENCE SMITH,
Plaintiff Below,
Petitioner,
v.
JUDICIAL INVESTIGATION
COMMISSION,
Defendants Below,
Respondents.
,---:.::
BRIEF OF THE WEST VIRGINIA JUDICIAL ASSOCIATION
AS AMICUS CURIAE IN SUPPORT OF THE RESPONDENTS,
TERESA TARR AND WEST VIRGINIA JUDICIAL INVESTIGATION COM:l\HSSION
Carte P. Goodwin (WVSB #8039)
300 Summers Street
Suite 1500
Telephone: (304) 346-7000
Facsimile: (304) 344-9692
cpg((j),goodwingoodwin.com
The West Virginia Judicial Association
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ii
I. IDENTITY AND INTEREST OF THE ASSOCIATION 1
II. DISCUSSION OF LAW 1
III. CONCLUSION 8
11
Page
Constitution
West Virginia Constitution, art. VIII 3 2
West Virginia Constitution, art. VIII 8 2, 3
Statutes
W. Va. Code 29B-1-1 et seq 1
W. Va. Code 29B-1-2 4, 6
W. Va. Code 29B-1-3 2
W. Va. Code 29B-1-4 1, 3
W. Va. Rule of Judicial Disciplinary Procedure 2.4 2
Cases
Affiliated Const. Trades Foundation v. Regional Jail & Correctional Facility Author.,
200 W.Va. 621, 490 S.E.2d 708 (1997) 2
Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009) 1
Daily Gazette Co., Inc. v. W Va. Bd of Me d., 177 W.Va. 316, 352 S.E.2d 66 (1986) 3,4
Daily Gazette Co., Inc. v. Comm. Of Legal Ethics ofW Va. State Bar,
174 W.Va. 359, 326 S.E.2d 705 (1984) 3
Philyaw v. Gatson, 195 W.Va. 474, 466 S.E.2d 133 (1995) .4
State ex reI. Farley v. Spaulding, 203 W.Va. 275, 507 S.E.2d 376 (1998) 1
State ex reI. Frazier v. Meadows, 193 W.Va. 20,454 S.E.2d 65 (1994) 1
State ex reI. Garden State Newspapers, Inc. v. Hoke,
205 W.Va. 611, 520 S.E.2d 186 (1999) 5
State ex reoHerald Mail CO. V. Hamilton, 165 W.Va. 103,267 S.E.2d 544 (1980) 5, 6
State ex reI. Kaufman V. Zakaib, 207 W.Va. 662, 545 S.E.2d 727 (2000) 1,5
State ex reI. Wyant V. Brotherton, 214 W.Va. 434, 589 S.E.2d 812 (2003) 6, 7
111
State Farm Fire & Casualty Co. v. Prinz, 231 W.Va. 96, 743 S.E.2d 907 (2013) .2
Orders
Order Granting Motion to Dismiss, Civ. Act. No. 13-C483
(Kanawha Cir. Ct. Oct. 23, 2013) 3,4
Secondary Source
Bastress, Robert M., The West Virginia State Constitution: A Reference Guide (1995) 3
IV
I. IDENTITY AND INTEREST OF THE ALLIANCE
The West Virginia Judicial Association (hereinafter the "Association")1 is a voluntary
association of West Virginia state court judges. In cases in which its members have an interest, it
has often been granted leave by this Court to file briefs amicus curiae.2
This case turns on whether the Freedom ofInformation Act ("FOIA" or "the Act"), W. Va.
Code 29B-l-l et seq., compels disclosure of certain disciplinary records of state judicial officers.
Accordingly, the resolution of this case is of interest to all of the members of the Association,
which urges this Court to exercise caution in formulating a resolution to the instant case. Because
of the special role that the judicial branch plays in our tripartite system of government, this Court
has always tread carefully in applying the Freedom of Information Act to judicial communications
and judicial records. The Association submits this amicus brief to urge this Court to apply the
same level of care and caution in the instant case.
II. DISCUSSION OF LAW
Although well established that FOIA is intended to generally promote transparency in
government, the Legislature has recognized that transparency has practical limits. Hence, it has
exempted several categories of documents from public disclosure, including "information
specifically exempted from disclosure by statute." W. Va. Code 29B-1-4(a)(5). In the instant
case, Petitioner sought the "total number of complaints" by year filed against certain circuit court
1No counsel for a party authored this brief in whole or in part. No counselor party made a monetary
contribution intended to fund the preparation or submission ofthis brief. No one other than the West
Virginia Judicial Association made a monetary contribution to the preparation or submission of this brief.
2 See, e.g., Associated Press v. Canterbury, 224 W.va. 708, 688 S.E.2d 317 (2009); State ex reI. Kaufman
v. Zakaib, 207 W.va. 662, 535 S.E.2d 727 (2000); State ex reI. Farley v. Spaulding, 203 W.Va. 275, 507
S.E.2d 376 (1998); State ex reI. Frazier v. Meadows, 193 W.Va. 20, 454 S.E.2d 65 (1994).
1
and family courtjudges.3 Rule 2.4 of the West Virginia Rules of Judicial Disciplinary Procedure,
however, requires Respondent Judicial Investigation Commission to keep the details of such
complaints filed against judicial officers confidential at that stage of the disciplinary proceeding:
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
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.
As a rule adopted by this Court pursuant to its plenary constitutional authority, Rule 2.4 has the
force and effect of a statute and supersedes any conflicting statutes or regulations. See W. Va.
Const., art. VIII 3, 8.
The authority to promulgate such rules was directly granted to the Court, by the people, in
the Constitution; hence, that authority is not subject to modification by the Legislature. This Court
has the sole "power to promulgate rules for all cases and proceedings, civil and criminal, for all of
the courts of the State relating to writs, warrants, process practice and procedure, which shall have
the force and effect oflaw." W. Va. Const. art. VIII 3; see syl. pt. 2, State Farm Fire & Casualty
Co. v. Prinz, 231 W.Va. 96,743 S.E.2d 907 (2013). Likewise, the Constitution "confers rule-
3 For purposes of convenience, this brief generally characterizes Petitioner's FOIA request as a "request
for documents," or alludes to the "documents sought by Petitioner," and so on. By his own admission,
however, Petitioner is seeking information rather than public records. FOIA gives every person the "right
to inspect or copy any public record of a public body in this state, except as otherwise expressly provide by
section four of this article." W. Va. Code 29B-1-3(1). As the right granted by the Act is to "inspect and
copy," the public record necessarily needs to be in existence before a person can exercise that right. See
Affiliated Const. Trades Foundation v. Regional Jail and Correctional Facility Authority, 200 W.Va. 621,
624,490 S.E.2d 708, 711 (1997) (citation omitted) ("There is no obligation under the State FOIA to create
any particular record, but only to provide access to a public record already created and which is 'retained'
by the public body in question."). As a result, the Petitioner's underlying request failed to comply with the
requirements of the Act and was therefore improper to begin with.
2
making powers on the West Virginia Supreme Court of Appeals to govern the conduct of judicial
officers and sets forth the procedures for disciplining and removing those who violate the conduct
codes." See W. Va. Const. art. VIII 8; Bastress, Robert M., The West Virginia State Constitution:
A Reference Guide 215 (1995).
Simply put, the confidentiality requirements of Rule 2.4 -like all rules prescribed, adopted,
and promulgated by this Court pursuant to its constitutional rule-making authority - have the force
and effect oflaw. W. Va. 29B-I-4(a)(5)'s use of the word "statute" is therefore of no moment,
inasmuch as the Legislature could not strip this Court of its constitutionally granted authority over
the judiciary, even if it were so inclined. As the Circuit Court noted:
The fact that Rule 2.4 is not a statutory provision enacted by the Legislature is of
no consequence in this matter. The West Virginia Supreme Court has plenary rule-
making authority, and the rules it adopts have the force and effect of a statute.
(Order Granting Motion to Dismiss, Civ. Act. No. 13-C-483, 4 (Kanawha Cir. Ct. Oct. 23, 2013).)
Thus, Rule 2.4 satisfies the exemption set forth in W. Va. Code 29B-I-4(a)(5) and precludes the
disclosure of the records sought by Petitioner~
In this regard, this Court's decision in Daily Gazette Co., Inc. v. Comm. of Legal Ethics of
W Va. State Bar, 174 W.Va. 359, 326 S.E.2d 705 (1984), is readily distinguishable. There, this
Court confronted the disclosure of documents related to disciplinary investigations of licensed
attorneys in the face of a State Bar by-law that purported to keep all such documents confidential
"until and unless a recommendation for ... discipline is filed with the court(.]" Id. at 363, 326
S.E.2d at 709. This Court invalidated the by-law, finding it unconstitutional insofar as it failed "to
protect and vindicate the public's interest in the integrity of the judicial system by unreasonably
restricting access to information concerning formal disciplinary actions against lawyers(.]" Id. at
368, 326 S.E.2d at 714; see also syl. pt. 2, Daily Gazette Co. v. W Va. Bd. of Med., 177 W.Va.
3
316, 352 S.E.2d 66 (1986) (extending rationale to disclosure of disciplinary files of licensed
physicians, concluding that once the Board determines that probable cause does not exist, "the
public has a right of access to the complaint ... and the findings of fact and conclusions of law
supporting the dismissal.").
By contrast, Rule 2.4 serves a broader - and far more important - purpose than the
aforementioned regulatory provisions that sought to shield the disciplinary records of licensed
professionals from public scrutiny. Lawyers are licensed and supervised by the judiciary, but they
are not the judiciary itself. Rule 2.4, on the other hand, strikes "a balance between the public's
right to access and this Court's constitutional obligation to protect the integrity of the judiciary and
the appearance of propriety with judicial officers." (Order Granting Motion to Dismiss 5.) As the
Circuit Court observed:
[U]nlike attorneys who are chosen by their clients, judges are elected officials that
do not control the parties that come before them. By the very nature of the process,
judges are likely to make one party unhappy, which results in frivolous complaints
being filed. It is these fundamental concerns and policies that make the findings of
t1-.", Sllnrprnp r'\.11rt ;"" Dn;7" G/Y"'effn "f4Pga ...rl;...."n o+tOfn0"H rl;ClE"';~l;'Y'\a"'y "t"\ .. rH' ..ppr1;1"\TS L.J....I."" UPJ..ltodJ.J.V '-"VUJ. iJ.J. UHf U~ ,,~.1..... .U. U.1J.5 UL,\,. .11.'""') UJ.":>V.l.pJ..J..l.1..l 1l.1.VV'-'''''U..LJ.J.5
clearly distinguishable from judicial disciplinary proceedings.
Id.
In other words, it is the singular nature of the judicial branch that underlies the controlling
distinction drawn by the Circuit Court. As this Court has observed,
Since the powers and functions, and indeed the entire structure, of the judicial
branch are unique and unlike any other department of government, the rules
regulating those powers and functions must, of necessity, be adapted to recognize
those differences.
Philyaw v. Gatson, 195 W.Va. 474, 477, 466 S.E.2d 133, 136 (1995).
Obviously, the express language of FOIA includes the "judicial department" in the
definition of those public agencies subject to the Act. W. Va. Code 29B-1-2(3) (defining "public
4
body" as "every state officer, agency, department, including the executive, legislative and judicial
departments"). Nevertheless, because of the distinctive role of the judicial branch, the application
of FOIA to the judiciary presents concerns that are largely absent in accessing public information
from other governmental branches and agencies. Simply put, "[j]udges and judicial officers, are
in a different position [from administrative decision makers], and are deserving of special
protections." Kaufman, 207 W.Va. at 669,535 S.E.2d at 734. The Court succinctly observed that:
While recognizing that judges are subject to the rule of law as much as anyone else,
this Court cannot ignore the special status that judges have in our judicial system,
and the effect this difference has on the process.
Kaufman, 207 W.Va. at 668,535 S.E.2d at 733.
Because of the "special status" that the judiciary occupies, both the Legislature and this
Court have recognized that the public's right to information often must be balanced against - and
sometimes must cede to - the exceptionally compelling public interest in maintaining the integrity
of the judicial process. The judiciary's need for confidentiality has therefore often trumped
attempts to rigidly apply FOlp1 or other means to ex~~ine certainjudicial records.
Indeed, this Court has concluded that certain considerations - including the fair
administration of justice, the constitutional rights of criminal defendants, and the need to protect
the integrity of the judicial process - may justify limiting the public's access to court proceedings
or documents. See e.g., syi. pt. 6, in part, State ex rei. Garden State Newspapers, Inc. v. Hoke, 205
W.Va. 611, 520 S.E.2d 186 (1999) ("The qualified public right of access to civil court proceedings
guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is
subject to reasonable limitations imposed in the interest of the fair administration of justice or other
compelling public policies."); syi. pt. 1, State ex rei. Herald Mail Co. v. Hamilton, 165 W.Va. 103,
267 S.E.2d 544 (1980) ("Article III, Section 14 of the West Virginia Constitution, when read in
5
light of our open courts provision in Article III, Section 17, provides a clear basis for finding an
independent right in the public and press to attend criminal proceedings. However, there are limits
on access by the public and press to a criminal trial, since in this area a long-established
constitutional right to a fair trial is accorded the defendant.").
Given this backdrop, it becomes clear that the application of FOIA to judges is simply
different: it raises different questions, it involves different processes, and it requires different
considerations. No case better exemplifies these differences than this Court's holding in State ex
reZ. Wyant v. Brotherton, 214 W.Va. 434, 589 S.E.2d 812 (2003). In Brotherton, two inmates
sought to use the Freedom of Information Act to obtain documents from a circuit court for the
purpose of preparing petitions for writs of habeas corpus. Among the documents sought by the
petitioners were copies of the underlying indictments, trial transcripts, sentencing orders and the
like - all of which appeared to satisfy even the strictest interpretation of FOIA's definition of a
public record: "(A]ny writing containing information relating to the conduct of the public's
See \V. Va. Code 29B-1-2(4). And
yet, the Court refused to compel disclosure pursuant to FOIA, instead deferring to the judiciary's
own procedures and prerogatives. Pointing to the judicially established rules governing post-
conviction proceedings, the Brotherton court concluded that these rules must override FOIA:
Consequently, we hold that an inmate may not use the Freedom ofInformation Act,
W. Va. Code 29B-1-1 et seq., to obtain court records for the purpose of filing a
petition for writ of habeas corpus. Instead, an inmate is bound to follow the
procedures set out in the Rules Governing Post-Conviction Habeas Corpus
Proceedings in West Virginia for filing a petition for writ of habeas corpus and to
obtain documentation in support thereof.
Brotherton, 214 W.Va. at 440,589 S.E.2d at 818.
The Brotherton holding is particularly notable in light of the Court's explicit
acknowledgement that its holding conflicted with the more generalized provisions of the Freedom
6
ofInformation Act and internal court rules regarding public access to court documents. Id n.l3,
589 S.E.2d at 818 n.l3 ("We recognize that Rule 10.04 of the West Virginia Trial Court Rules
permits access to court files and other court records under the FOIA. While this rule is in conflict
with our interpretation today of the Habeas Corpus Rules, the Habeas Corpus Rules are more
specific in the realm of habeas corpus proceedings, and thus, must govern our decision."). Indeed,
there can be little dispute that the requested court documents fell within the Freedom of
Information Act's definition of "public records," and it is unlikely that any of the exemptions
articulated in W. Va. Code 29B-I-4 could have been relied upon to justify nondisclosure. As
Justice Albright observed plainly in his dissenting opinion, "I see no basis in the provisions of
FOIA for denying the request." Id. at 441,589 S.E.2d at 819 (Albright, J., dissenting).
Fortunately, however, the majority did not so confine its analysis; instead, it explored the
intricacies of the Act and attempted to balance the manner in which the Act should be applied to
judicial proceedings - where the public's interest in access is confronted with a competing and
holding may be limited to its particular facts, the import of Brotherton rests in its subtle recognition
of the singular nature of the judicial branch. The principle underlying Brotherton is that the
inherent nature of the judicial process - and the specific responsibilities of those justices and judges
charged with administering the process - do not lend themselves easily to the rote application of a
statutory scheme like the Freedom of Information Act.
The Association does not suggest that FOIA's legislative intent should be circumvented
through specious reasoning or by judicially carving out the "judicial department" from the Act.
To the contrary, public documents containing information relating to the conduct of the public's
7
-- --------------------
business should - subject to the application of available exemptions and privileges - be disclosed.
However, as the instant dispute suggests, the relevant inquiry is rarely that simple.
The Association therefore urges caution. Although undoubtedly complex in their own
right, FOIA disputes involving the disciplinary records oflicensed attorneys and physicians or the
travel records of a cabinet secretary - and the corresponding analysis and legal interpretation
necessary to resolve such disputes - simply do not raise the type of concerns presented by the
instant case. Given the constitutional dynamics at play here, this Court should uphold the
confidentiality provisions of Rule 2.4 and affirm the Circuit Court's well-reasoned decision finding
the requested documents exempt from disclosure under FOIA; to do otherwise would invite
disruption and discord into the sanctity of the judicial process.
III. CONCLUSION
For these reasons, the West Virginia Judicial Association supports the position of
Respondents Teresa Tarr and the West Virginia Judicial Investigation Commission and urges this
to Court affirm the Circuit Court's October 23,2013 Order.
ASSOCIATION
Ca p~Goodwin (WVSB #8039)
300 Summers Street
Suite 1500
Telephone: (304) 346-7000
Facsimile: (304) 344-9692
8
I, Carte P. Goodwin, certify that I served the foregoing "Motion for Leave to File a
Brief of Amicus Curiae on behalf of the West Virginia Judicial Association" and "Brief of the
West Virginia Judicial Association as Amicus Curiae in Support of Respondents, Teresa Tarr and
the West Virginia Judicial Investigation Commission" this 10th day of April, 2014, by placing true
and correct copies thereof in the United States Mail, postage prepaid, and addressed as follows:
723 Kanawha Boulevard, E. Ste. 1200
Charleston, West Virginia 25301
(Counsel for Petitioner)
Stephanie Shepherd, Esq.
John Hedges, Esq.
Hedges Lyon and Shepherd, PLLC
141 Walnut Street
Morgantown, West Virginia 26505-5421 ~ (Counsel for Respondents) / /
Carte .
9

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