A Holiday Affair
The West Virginia Supreme Court of Appeals granted a writ to quash a subpoena of a judge in a bar discipline matter
Petitioner, the Honorable Timothy L. Sweeney, Judge of the Circuit Court of Pleasants County, seeks a writ of prohibition to prevent the Hearing Panel Subcommittee (“HPS”) of the West Virginia Lawyer Disciplinary Board (“LDB”) from enforcing its May 8, 2023 order and May 18, 2023 memorandum opinion directing Judge Sweeney to appear for a deposition and bring certain documents. This matter stems from consolidated lawyer disciplinary proceedings concerning several lawyers: Respondents Brian K. Carr, M. Paul Marteney, Harley O. Wagner, Justin Matthew Raber, Jay William Gerber, Jr., Ira Andre Richardson, and Jordan W. West (collectively “Attorney Respondents”). According to the LDB, these attorneys were involved with a program that the City of St. Marys, West Virginia, previously operated, called “Slow Down for the Holidays” (“the program”). Attorney Carr moved the HPS to depose Judge Sweeney because it was Judge Sweeney who informed the appropriate authorities of the program. The HPS granted the motion, and Attorney Carr served Judge Sweeney with a notice of deposition and a subpoena to provide testimony and certain documents. In response, Judge Sweeney moved to quash the subpoena, which the HPS denied. In support of his request for a writ of prohibition before this Court, Judge Sweeney argues that the judicial deliberative privilege applies to the requested deposition testimony and documents. For the reasons stated below, we grant the writ.
The judge had contacted the ODC concerning an attorney’s conduct; the attorney then issued a subpoena to the judge
In late 2020, the State of West Virginia charged Mary Ward with driving under the influence and knowingly or intentionally possessing a controlled substance without a valid prescription. Attorney Judith McCullough was appointed to represent Ms. Ward. During a pre-trial hearing, the State—acting through Attorney Carr, the Prosecuting Attorney of Pleasants County—offered to dismiss the pending charges against Ms. Ward in exchange for her making a payment of $1,500 in cash or gift cards to the program. Attorney McCullough communicated the offer to Ms. Ward. Despite Attorney McCullough’s recommendation to reject the offer, Ms. Ward directed her to accept it. After Ms. Ward accepted the offer and made the payment, the State, by Attorney Carr, moved to dismiss the charges.
Following the dismissal of Ms. Ward’s criminal charges, Attorney McCullough, concerned about her own conduct, spoke with several members of the legal community regarding the agreement and dismissal. Other attorneys cast doubt on the ethical propriety of the program and at least one suggested Attorney McCollough speak to a judge. Attorney McCullough then contacted Judge Sweeney, the only circuit judge in Pleasants County, to express her reservations about the program and disclose her actions regarding Ms. Ward’s case. Attorney McCullough had known Judge Sweeney in a professional capacity for several years.
After speaking with Attorney McCullough, Judge Sweeney called the Office of Judicial Disciplinary Counsel (“JDC”) and the Office of Lawyer Disciplinary Counsel (“ODC”) to inform them of the program. Judge Sweeney did not file a formal verified ethics complaint, and the ODC did not ask him to file one. The ODC initiated an investigation, and several attorneys, including Attorney Carr, self-reported their conduct to the ODC. Subsequently, the LDB filed formal statements of charges against the Attorney Respondents. In February 2021, this Court consolidated these disciplinary proceedings for discovery purposes.
The court
The HPS clearly erred when it ordered Judge Sweeney to submit to deposition and produce documents in the underlying disciplinary proceeding. See Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12. As explained below, we find that the testimony and records sought by the subpoena are protected by the judicial deliberative privilege…
Here, the Attorney Respondents assert that “[t]he testimony sought to be obtained from [Judge Sweeney] in this case involves the facts and circumstances surrounding the verbal report that he initiated . . . with [the] JIC and ODC[.]” The Attorney Respondents argue that the judicial deliberative privilege does not apply to the testimony they seek to compel because the information does not involve a judicial proceeding over which Judge Sweeney “presided or formulated an official judgment.” While Kaufman makes clear that the judicial deliberative privilege is not limitless, it does not mandate that the judicial officer asserting the privilege preside over the proceeding at issue.
Here
Applying the Hatcher principles to the present matter, while Judge Sweeney was not per se “disqualified” from providing testimony, guidelines must be followed. The Attorney Respondents were persistent in their quest to depose Judge Sweeney, a judicial officer. Consequently, pursuant to Syllabus point 6 of Hatcher, the HPS was required to hold a hearing to balance the interests involved when a judicial officer is asked to present testimony in a legal proceeding. Because the HPS failed to hold the required hearing, the Attorney Respondents were also unable to “show that the testimony [they] seek[] to introduce is material and favorable to [their] case [and] that the testimony is the only possible source of testimony on the relevant information[.]” Syl. pt. 6, in part, Hatcher, 221 W. Va. 5, 650 S.E.2d 104. Ultimately, the HPS clearly erred in requiring Judge Sweeney to appear for a deposition because the information that Attorney Carr sought regarding Judge Sweeney’s mental processes and his decision to verbally report conduct to the JIC and ODC was protected through the judicial deliberative privilege, and, to the extent that any information sought was outside of the privilege, the HPS failed to hold the mandatory hearing pursuant to Hatcher.
As a final matter, we turn to whether Judge Sweeney was required to provide the requested documents. The subpoena requested all documents “evidencing any report, notice, or communication” with the JIC and/or its counsel and the LDB and/or its counsel concerning the program. For the same reasons set forth above, the judicial deliberative privilege protects these documents.
Court records
Further, the subpoena also requests all documents regarding any misdemeanor criminal cases filed and adjudicated by the Magistrate Court of Pleasants County during the years 2018 through the present, “which involved in any way the referral, deferral, or dismissal of same so that a Defendant could participate in the ‘Slow Down for the Holidays’ program.” Judge Sweeney argues that he is not the proper custodian of these records “to whom such a request should be made.” We agree. This Court has previously explained that “magistrate court clerks are the statutorily designated custodians of magistrate court records.”
(Mike Frisch)