Jessica Karmasek Aug. 5, 2015, 11:01am


CHARLESTON, W.Va. (Legal Newsline) - The leader of West Virginia’s Judicial Investigation Commission, in a guest column published in a state newspaper Wednesday, responded to calls for a probe into the commission's own makeup and structure following its decision in favor of a state Supreme Court justice.

Ronald Wilson, who serves as chairperson of the JIC and is a judge in West Virginia’s First Judicial Circuit, wrote in a Charleston Gazette-Mail column that the commission is “independent and proud of it.”

“Anyone who implies that we can be controlled by any person or political party is simply ignorant of the true facts,” he wrote.

Last month, a JIC ruling regarding an ethics complaint filed against Supreme Court Justice Robin Davis was made public.

Former gubernatorial candidate Bill Maloney filed the complaint in April over the relationship between Davis, her husband Scott Segal and Mississippi attorney Michael Fuller, who purchased a LearJet from Segal’s law firm.

The JIC’s investigation report was handed over to Maloney and Davis June 17; Davis authorized its release July 21.

Wilson shared in his column what he describes as “the rest of the story,” in particular taking issue with Maloney for violating a confidentiality rule for those filing complaints.

“The Commission and the complainants are prohibited from disclosing even the existence of a complaint. We live by this rule for two good reasons: Public release of a pending complaint not only hampers investigations, but it can also destroy the reputation of blameless judges,” Wilson explained.

“Allegations against judges are frequent in our system for redressing civil wrongs. Almost all judicial complaints are based upon a litigant’s unhappiness with a court ruling or result. However, judges’ rulings are not normally ethical violations, and the Commission cannot change the outcome of any case.”

Wilson contends Maloney released the complaint “knowing the political implications” and used the commission as a “political tool.”

“Maloney’s motivation for filing an ethics complaint that he immediately broadcast to the public in violation of our most solemn confidentiality rule could not be ignored,” Wilson wrote in his column. “However, the opinion is clear: although we took exception to what Maloney did and said, the matter was fully and fairly investigated and considered.

“Our decision was based on an analysis of the facts surrounding the sale of the plane, the campaign donations, the oral argument and the application of ethics law. Having found no ethical violation and knowing that judges are prohibited from publicly responding to complaints, the tenor of the opinion as it pertained Mr. Maloney’s actions and allegations and the vindication of Justice Davis’s actions was justified.”

Currently, the nine members of the JIC are appointed by the Supreme Court and then tasked with investigating allegations of judicial misconduct of the Supreme Court, as well as circuit judges and other judicial officeholders in West Virginia. Of the nine members, six are judges.

The Supreme Court established the commission to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges or to ascertain that a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.

The JIC, in this case, found that “there is no evidence to support a finding of probable cause that Respondent violated the Code of Judicial Conduct.”

Maloney has called the commission’s unanimous dismissal of the complaint “elitist.”

“One thing is clear, there are obviously still a different set of rules for the elitist class of career politicians who have grown to accept corruption and unethical actions as the norm in West Virginia,” Maloney said in a previous statement. “As we said many times on the campaign trail for governor in 2011 and 2012, ‘Wisdom doesn’t reside under that Golden Dome in Charleston, it resides in all of you -- the citizens of West Virginia.’

“One thing that definitely needs to change in West Virginia is getting rid of all self-appointed judicial investigation, ethics commissions, etc. that lack teeth. It’s really a joke to think they will properly police the very people responsible for their appointment.”

West Virginia Citizens Against Lawsuit Abuse, a legal reform group, has called the commission’s ruling “imprecise” and “factually incorrect.”

“The Judicial Investigation Commission has rendered a throwback to West Virginia’s darker days of back-room politics where the public interest is subordinated to political agendas,” WV CALA Executive Director Roman Stauffer said in a statement last month.

“The West Virginia Code of Judicial Conduct states, ‘A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.’ Justice Davis should have disclosed her husband’s financial relationship with a Mississippi personal injury lawyer, whom she awarded $17 million in fees in a ruling called ‘tortured’ and ‘shockingly result-oriented’ by Justice (Allen) Loughry.”

In February, attorneys for skilled nursing chain Manor Care asked for Davis to be disqualified from hearing a petition for writ of prohibition in an ongoing case against a former Manor Care-affiliated nursing home filed on behalf of the estate of Sharon Hanna, following a news report linking the justice to the plaintiff’s counsel.

In December, ABC News reported that plaintiff’s counsel in another nursing home matter, Fuller, of the McHugh Fuller Law Group from Hattiesburg, Miss., had purchased a Learjet from the Charleston-based Segal Law Firm, owned by Segal, for more than $1 million in 2011.

The ABC News story also reported that Fuller and other attorneys at the firm had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.

Last year, Davis authored the majority opinion in the Douglas case, upholding a jury verdict in favor of Fuller’s client, Tom Douglas, who alleged severe neglect led to the death of his 87-year-old mother, Dorothy. The ruling did, however, cut the punitive damages award from $80 million to nearly $32 million.

Davis has refused to recuse herself from the Hanna case. She has maintained she didn’t know the purchase price of the 2011 transaction until December when media coverage of the issue began.

WV CALA now wants state lawmakers to examine the JIC, pointing out that one of its members is a “major donor” to Davis.

According to campaign finance research conducted by the group, Wheeling attorney Robert Fitzsimmons and his coworkers have been major supporters of Davis’ political campaigns, contributing more than $10,000 to her re-election campaigns.

“How can West Virginians have confidence in this commission when one of its members is a close supporter and financial contributor to a judicial officer under investigation?” Stauffer asked. “How can they be confident that commissioners can reach an impartial decision when they have to try cases before judges they have investigated?

“The West Virginia Legislature should closely examine this commission to ensure it can make certain that our state’s judges meet the highest standards of judicial conduct.

“Our members need to know whether the current structure and makeup of the Judicial Investigation Commission best serves the interests of all West Virginians.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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