West Virginia Record

Friday, September 20, 2019

Judicial Hearing Board recommends 30-day suspension for Wayne magistrate

Attorneys & Judges

By Kyla Asbury | Sep 4, 2019


WAYNE — The Judicial Hearing Board of West Virginia recommended a magistrate judge who violated the Code of Judicial Conduct is suspended for 30 days without pay.

The board also recommended the magistrate pay $2,000 in fines and pay the costs of the proceedings, according to the recommended decision.

The Judicial Disciplinary Counsel objected to the recommendations, noting that a public reprimand and a 30-day suspension are insufficient.

"This is a case about abuse of power and a repeated lack of candor," Teresa Tarr wrote in an objection.

Tarr recommended Wayne Magistrate David E. Ferguson be censured and suspended without pay for 15 months.

The recommendation for Ferguson came after an investigation into allegations he violated the Code of Judicial Conduct by interfering with a West Virginia Division of Natural Resources (DNR) undercover operation by allegedly telling an undercover officer to watch out because there were game wardens around.

The board found that the allegation was not sustained by clear and convincing evidence because, although the officer testified that Ferguson approached him and said that they needed to watch out because game wardens were around, the officer also told a fellow undercover officer that Ferguson knew who they were.

The board found it was unclear whether Ferguson's statement to the DNR was intended to encourage compliance with or facilitate a violation of the applicable fishing laws.

"With respect to the allegation that the Respondent violated the Code of Judicial Conduct by violating West Virginia's fishing laws, the Board finds that the allegation was sustained by clear and convincing evidence as the Respondent admitted at the hearing that he knew he was violating such laws, had entered a nolo plea and does not dispute violating the Code of Judicial Conduct in this regard," the recommendation states.

A third allegation that Ferguson violated the Code of Judicial Conduct by showing the DNR officer his Supreme Court identification card, the board found that the allegation was sustained by "clear and convincing evidence" because Ferguson's own father testified that Ferguson had placed several cards on the truck tailgate while being questioned by the officers.

DNR officers also testified that Ferguson displayed his Supreme Court identification card.

Ferguson's own testimony that the DNR officers may have seen the card as he was leafing through several cards in his wallet to retrieve his driver's and fishing licenses is not found to be credible, the board stated.

The board found no evidence regarding a fourth allegation that Ferguson violated judicial conduct by not identifying a third man who had been fishing with him and his father. Both men testified they didn't know the third man and that he was not fishing with them.

The board's recommendations will be taken into consideration by the West Virginia Supreme Court of Appeals on whether it agrees with the recommended discipline.

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Wayne Circuit Court West Virginia Supreme Court of Appeals

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