In the matter of Judge Jim Douglas, the state Judicial Investigation Commission faces an incumbent duty to admonish itself.
That body exists to investigate and police the conduct of judges in West Virginia. Regarding Douglas, a Kanawha County Family Court judge elected in 2016, the commission ought to have heeded the admonition of Archie Bunker of 1970s television fame and stifled itself.
Last month, the commission publicly admonished Douglas for his emailed remarks to fellow Family Court judges and the Kanawha Bench Bar, composed of judges and family law attorneys.
After issuing a supplemental final order in a case remanded to him by the state’s Intermediate Court of Appeals, or ICA, Douglas in his Nov. 7 missive noted “the absence of family law scholarship and experience on the ICA.â€
The commission, or JIC, determined this violated the Code of Judicial Conduct, which, among other things, proscribes judges from undermining public confidence in the judiciary.
In fact, the JIC has accomplished precisely this by publicly admonishing Douglas.
Without the JIC, the public would be unaware of Douglas’ concerns about the appeals court and, therefore, could not have its confidence undermined. Douglas made his remarks only to a small group of colleagues. He explains in his objection to admonishment that “judicial candor within internal professional forums is not only permitted but often encouraged.â€
Had Douglas spoken in the public square, in a forum available to any or all — in a posting to social media, in a public meeting, on radio or television or in a newspaper opinion piece — the JIC’s concerns, real or ostensible, would gain credibility.
Rule 2.10 in the code prohibits judges from making “any public statement†that could affect the outcome of any case. Who made Douglas’ statement public? Not Douglas. The JIC did that. Its findings and the related details are a matter of public record. Douglas’ comments were otherwise made privately to professional colleagues. Without the JIC, the rest of the world would never know.
A distinction Douglas explains in his objection is critical. The code does not bar private candor any more than it would restrict a judge from addressing in court his or her thoughts on the legal merit of an argument or action. A difference exists between “intra-professional discussion†and “public speech.†That line was blurred in the collectively absent mind of the JIC.
Never mind the validity of Douglas’ comment about appeals court judges’ background in family law. Specifically, there was none. One of the appeals court judges in the case in question was a tax lawyer. Two others practiced civil litigation. None practiced family law.
Douglas’ remark was objectively true. He neither stated an opinion nor cast an aspersion. It is a fact that the state’s appeals court judges lacked experience and scholarship in family law. In so saying, Douglas inflicted no greater injury than he would have had he noted the color of their robes. One cannot harm the sky by calling it blue.
Indeed, if any harm has resulted, it has been to Douglas himself, as well as the public confidence the JIC claims interest in preserving. All who know Douglas well know him to be a man of deep knowledge and high integrity. He practiced family law for 40 years. Publicly admonishing him over private remarks constitutes an insult to an otherwise pristine reputation.
The commission has not alone erred. It has wronged one of the state judiciary’s stalwart figures. A public apology -- rather than a public admonishment -- is in order.
