Louis George, L.C.
414 11th Street
P. O. Box 282
Huntington, WV 25707
Attorney for Magistrate Eplin
Charles R. Garten
12 Capitol Street
Charleston, WV 25301
Attorney for the Judicial Investigation Commission
This Opinion was delivered PER CURIAM
Per Curiam:
This is a review of a judicial disciplinary proceeding
initiated against Ozell Eplin. The Judicial Hearing Board
("Board") found that Magistrate Eplin had violated Canons 1, 2,
3A(1), 3A(4) and 3C(1)(a) of the Judicial Code of Ethics when he
accorded special treatment to a criminal defendant in order to
court favor with a state senator. The Board recommended a six-month suspension without pay, and that Magistrate Eplin be assessed
the costs of these proceedings. An independent review of the
record presented compels us to accept the recommendation of the
Board.
The charges against Magistrate Eplin arose out of his
involvement in a criminal case filed by the State of West Virginia
against James T. Homonai. Mr. Homonai was involved in an
automobile accident in February, 1990 wherein he fled the scene
only to later return. Upon his return, Sergeant W. W. Adkins of
the Barboursville police department, who was investigating the
accident, arrested Mr. Homonai and charged him with "hit and run"
under W. Va. Code, 17C-4-2 [1951] and failure to maintain insurance
under W. Va. Code, 17D-2A-4 [1988]. Trial was thereafter set in
Mr. Homonai's case for March 21, 1990 in the Cabell County
Magistrate Court. Magistrate John Rice was assigned to hear
criminal cases on that day.
On the morning of March 21, 1990, State Senator Ned Jones
phoned Magistrate Eplin. Senator Jones informed Magistrate Eplin
that Mr. Homonai was an employee of Senator Jones, and that he was
making an inquiry on behalf of Mr. Homonai to determine the nature
and the consequences of the charges facing Mr. Homonai. Senator
Jones did not ask Magistrate Eplin to mete favorable treatment to
Mr. Homonai.
Magistrate Eplin subsequently sought out Sergeant Adkins
and requested that the "hit and run" charge be dropped to reckless
driving and that the failure to maintain insurance charge be
dismissed. Magistrate Eplin told Sergeant Adkins that he was
making the request as a favor to Senator Jones. Sergeant Adkins
informed Magistrate Eplin that both he and the victim of the
accident desired that the case against Mr. Homonai go to trial.
Mr. Homonai, represented by defense counsel, then moved
for a continuance of his trial, which was granted. Trial was re-set for April 25, 1990; Magistrate William Neal was scheduled to
hear the case.
On April 3, 1990, Mr. Homonai entered a guilty plea to
the hit and run charge before Magistrate Eplin. Mr. Homonai was
fined $100.00 and taxed $36.00 for costs as a consequence of his
guilty plea. Magistrate Eplin also dismissed the failure to
maintain insurance charge. The record shows that Magistrate Eplin
dismissed the failure to maintain insurance charge upon Mr.
Homonai's presentation of a valid insurance certificate. However,
it is undisputed that Mr. Homonai purchased the insurance on April
2, 1990--one day prior to the dismissal, and that the validity of
the insurance did not cover the date of the accident.
In order to accept the guilty plea and dismiss the no
insurance charge, Magistrate Eplin sought the acquiescence of
assistant prosecutor Margaret Brown. Magistrate Eplin informed Ms.
Brown that Charles Hatcher (the assistant prosecutor who
represented the State in Mr. Homonai's original court appearance on
March 21, 1990) had agreed to such a disposition of the case.
Based upon Magistrate Eplin's representation that Mr. Hatcher had
agreed to this "deal" with Mr. Homonai, Ms. Brown acquiesced on
behalf of the State.
When Sergeant Adkins discovered that Magistrate Eplin had
disposed of the case, he inquired of Ms. Brown and Mr. Hatcher why
he and the victim had not been consulted. Sergeant Adkins
discovered that Mr. Hatcher had not acquiesced to any deal with Mr. Homonai.
On July 5, 1990, Magistrate Eplin told Sergeant Adkins
that he was aware that Sergeant Adkins was angry with him over the
disposition of the Homonai case, and advised Sergeant Adkins that
he had disposed of the matter as a favor to Senator Jones. On July
31, 1990, Sergeant Adkins filed a complaint with the Commission
alleging that Magistrate Eplin had violated the Judicial Code of
Ethics in the manner by which he disposed of the Homonai case.
At the disciplinary hearing conducted before the Board on
August 29, 1991, the clerk of the Cabell County magistrate court
testified to the proper procedures to be used to allow one
magistrate to dispose of a case that another magistrate is
scheduled to hear. The clerk testified that the only proper ways
to accomplish such a transfer are (1) the granting of a continuance
by the scheduled magistrate; (2) the magistrate scheduled to hear
the case grants permission to another magistrate to hear the case,
or (3) an affidavit of prejudice is filed against the scheduled
magistrate, and an order is entered by the circuit court removing
that magistrate.
In addition, it is significant that Rule 2(a) of the
Administrative Rules for the Magistrate Courts of West Virginia
provides: "No magistrate may conduct hearings or enter orders in
a case assigned to another magistrate, except upon consent of the
magistrate to whom such case is assigned or upon order of the
Circuit Court or the Supreme Court of Appeals."
In Mr. Homonai's case, no affidavit of prejudice was
filed. The magistrate scheduled to hear the case on April 25,
1991, Magistrate Neal, testified that he did not authorize
Magistrate Eplin to dispose of the case. No continuance was
granted.
When Magistrate Eplin testified at the hearing, he denied
asking Sergeant Adkins to reduce the charges filed against Mr.
Homonai, and stated that he merely informed Sergeant Adkins that he
was making an inquiry on behalf of Senator Jones. He denied having
any conversation with Sergeant Adkins on July 5, 1990. Magistrate
Eplin further testified that he, and not Magistrate Rice, heard
criminal cases on March 21, 1990.See footnote 1 He testified that Mr. Hatcher
informed him of a plea bargain offered to Mr. Homonai's defense
counsel consisting of the terms to which he eventually allowed Mr.
Homonai to plead.See footnote 2
Magistrate Eplin further testified that he believed on
March 21, 1990 that his inquiry on behalf of Senator Jones may have
tainted his involvement in the case. Nonetheless, when Mr. Homonai
appeared on April 3, 1990, asking to accept the alleged plea offer,
Magistrate Eplin went forward and accepted the plea. Magistrate
Eplin asserts the he followed proper court procedures in accepting
the plea. He contends that, although he did not personally look at
the "magistrate's monthly schedule," he asked a clerk which
magistrate was scheduled to hear Mr. Homonai's case on April 25,
1990. The clerk gave him a name. Magistrate Eplin could not
recall which magistrate's name he was given, although he was
certain it was not Magistrate Neal. Magistrate Eplin contends that
he phoned this unknown magistrate, and that the unknown magistrate,
who was not scheduled to hear the case, gave Magistrate Eplin
permission to take the plea in his stead.
Following the hearing, the Board found that Magistrate
Eplin had violated Canons 1, 2, 3A(1), 3A(4), and 3C(1)(a) of the
Judicial Code of Ethics,See footnote 3 and recommended that he be suspended from
his duties without pay for a period of six months, and that he be
assessed the costs of the proceedings.
The standard of evidence necessary to prove allegations
of a complaint in a judicial disciplinary proceeding was stated in
syllabus point 4 of In Re Pauley, 173 W. Va. 228, 314 S.E.2d 391
(1983):
Under Rule III(C)(2) (1983 Supp.) of the
West Virginia Rules of Procedure for the
Handling of Complaints Against Justices,
Judges and Magistrates, the allegations of a
complaint in a judicial disciplinary
proceeding 'must be proved by clear and
convincing evidence.'
In making a determination whether the allegations have
been proved by "clear and convincing evidence," this Court is
required to make an independent evaluation of the Board's findings
and recommendations. We stated this requirement in syllabus point
1 of Matter of Crislip, ___ W. Va. ___, 391 S.E.2d 84 (1990):
'"The Supreme Court of Appeals will make
an independent evaluation of the record and
recommendations of the Judicial [Hearing]
Board in disciplinary proceedings." Syl. pt.
1, West Virginia Judicial Inquiry Commission
v. Dostert [165 W. Va. 233], 271 S.E.2d 427
(W. Va. 1980).' Syllabus, Matter of Gorby,
___ W. Va. ___, 339 S.E.2d 697 (1985).
Implicit in this requirement "is the right to accept or reject the
disciplinary sanction recommended by the Board." Matter of
Crislip, 391 S.E.2d at 85.
In the case before us, Magistrate Eplin contends that the
facts have not been proved by clear and convincing evidence. We
disagree. Magistrate Eplin's version of the facts differ in
significant respects from that of Sergeant Adkins, Assistant
Prosecutor Hatcher's, Mr. Homonai's defense counsel and Mr.
Homonai's deposition testimony.See footnote 4 Furthermore, Magistrate Eplin's
explanation of how he was granted permission to dispose of the
Homonai case by a phantom magistrate not assigned to the case
strains credulity to its limit.
It is clearly established that a magistrate can violate
Canon 3 of the Judicial Code of Ethics by failing to adhere to
court rules or administrative procedures. As we stated in syllabus
point 5 of Matter of Crislip, supra: "A magistrate's violation of
court rules or related administrative procedures can result in
disciplinary action." Canon 3 can also be violated when a
magistrate makes an ex parte dismissal of a traffic violation
without good cause being shown. As we stated in syllabus point 4
of Matter of Crislip, supra: "An ex parte dismissal by a
magistrate of a criminal or civil case, without authorization by
statute or rule or without other good cause shown, is a violation
of Canon 3 of the Judicial Code of Ethics."
We conclude, after reviewing the entire record, that the
allegations against Magistrate Eplin have been proven by clear and
convincing evidence. By his favorable treatment to Mr. Homonai in
response to a state senator's inquiry, Magistrate Eplin failed to
uphold the high standards of integrity and independence required of
the judiciary by Canon 1 of the Judicial Code of Ethics. By
intervening on Mr. Homonai's behalf and attempting to persuade
Sergeant Adkins to dismiss and reduce the charges, and enticing
assistant prosecutor Brown to agree to the plea agreement by
falsely stating that prosecutor Hatcher had agreed to the deal
previously, Magistrate Eplin failed to avoid impropriety and the
appearance of impropriety in violation of Canon 2 of the Judicial
Code of Ethics. Through circumvention of normal magistrate court
procedures in an attempt to curry favor with a state senator,
Magistrate Eplin was swayed by a partisan interest or fear of
criticism in violation of Canon 3(A)(1). Magistrate Eplin also
violated Canon 3(A)(1) by his ex parte dismissal of the "no
insurance" charge without good cause being shown, thereby failing
to remain faithful to the law and failing to maintain professional
competence. Magistrate Eplin's disregard for the interests of the
victim, the complaining officer, and the State by his authorization
of the plea agreement without the input of those legally interested
parties was a violation of Canon 3(A)(4). Finally, through his
failure to disqualify himself after intervening on behalf of Mr.
Homonai with Sergeant Adkins, Magistrate Eplin allowed his
impartiality to be questioned in violation of Canon 3(C)(1).
We find the recommended penalty of six months' suspension
without pay appropriate under the circumstances. Therefore, we
have determined that Magistrate Eplin should be suspended without
pay for six months and be required to pay the costs of the
proceeding.
Mr. Hatcher denied having any private conversation with
Magistrate Eplin on March 21, 1990. He denied offering any plea
bargain to Mr. Homonai. Mr. Homonai's trial counsel denied
entering into any plea agreement with Mr. Hatcher.
Strangely, neither Mr. Hatcher nor Mr. Homonai's defense counsel was asked who heard criminal trials that day. Magistrate Rice did not testify. One witness, the husband of the victim of Mr. Homonai's accident, did testify that Magistrate Rice heard criminal trials on March 21, 1990.
An independent and honorable judiciary is
indispensable to justice in our society. A
judge should participate in establishing,
maintaining, and enforcing, and should himself
observe, high standards of conduct so that the
integrity and independence of the judiciary
may be preserved. The provisions of this Code
should be construed and applied to further
that objective.
Canon 2 provides:
A. A judge should respect and comply with he
law and should conduct himself at all
times in a manner that promotes public
confidence in the integrity and
impartiality of the judiciary.
B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the
prestige of his office to advance the private
interests of others; nor should he convey or permit
others to convey the impression that they are in a
special position to influence him. He should not
testify voluntarily as a character witness.
Canon 3 provides, in pertinent part:
The judicial duties of a judge take
precedence over all his other activities. His
judicial duties include all the duties of his
office prescribed by law. In the performance
of these duties, the following standards
apply:
A. Adjudicative Responsibilities.
(1) A judge should be faithful to the law
and maintain professional competence in
it. He should be unswayed by partisan
interests, public clamor, or fear of
criticism.
. . . .
(4) A judge should accord to every person
who is legally interested in a
proceeding, or his lawyer, full right to
be heard according to law, and, except as
authorized by law, neither initiate nor
consider ex parte or other communications
concerning a pending or impending
proceeding. A judge, however, may obtain
the advice of a disinterested expert on
the law applicable to a proceeding before
him if he gives notice to the parties of
the person consulted and the substance of
the advice, and affords the parties
reasonable opportunity to respond.
. . . .
C. Disqualification
(1) A judge should disqualify himself in
a proceeding in which his impartiality
might reasonably be questioned, including
but not limited to instances where:
(a) he has a personal bias or prejudice
concerning a party, or personal knowledge
of disputed evidentiary facts concerning
the proceeding;
It is noteworthy that Magistrate Eplin explained why he permitted Mr. Homonai to enter a guilty plea without defense counsel's presence in very concrete terms. He explained that Mr. Homonai advised him that defense counsel would require an extra $300.00 for a second court appearance. Both Mr. Homonai and his defense counsel testified that defense counsel was paid in full for all proceedings at the time he was retained, and that further payment was not an issue in counsel's non-appearance on April 3, 1990.