CHARLESTON – The behavior of a family court judge accused of being less than candid during a disciplinary investigation “warrants her removal from the bench,” according to disciplinary counsel.
During January 23 oral arguments before the state Supreme Court, Special Judicial Disciplinary Counsel Rachael Cipoletti didn’t mince words when discussing the actions of 23rd Circuit Family Court Judge Deanna Rock.
“If we don’t have this case law, then we absolutely should because lawyers are routinely suspended by this court for violations of their honesty and their candor to this court, lying to disciplinary counsel, criminal contempt of court,” Cipoletti told the justices. “Witnesses are held in contempt of court for lying to courts. Why should this sanction for lying to judicial disciplinary council, in clear violation of the code, not result in being stripped of the bench that offers the same administration of an oath that she is unwilling to accept and unwilling to obey.
Rock
| File photo
“Leaving aside her uncontroverted role in the origin and the continued regurgitation of this unrepentant public assault of two members of the bar, her stunning lack of candor and honesty warrants her removal from the bench.”
Last year, the state Judicial Hearing Board said Rock violated the Code of Judicial Conduct by using or attempting to use her position to gain personal advantage or deferential treatment and by not being candid and honest with judicial and lawyer disciplinary agencies. It recommended a reprimand and for her to pay the cost of her disciplinary proceedings.
Rock is asking the Supreme Court to completely exonerate her, but Cipoletti and the JDC want an even harsher punishment that includes suspension without pay for the rest of her term, censure, a $5,000 fine and paying the cost of the proceedings. The Supreme Court will have final say on the discipline.
Formal charges were filed against Rock in November 2022. In later filings, Cipoletti wrote that Rock said she was concerned with an earlier Judicial Disciplinary Counsel matter involving now-retired Raleigh County Family Court Judge Louise Goldston regarding home views. As the then-president of the West Virginia Family Court Judicial Association, Rock was concerned how the issue could affect other family court judges.
Before a decision on Goldston was handed down, Rock and two other family court judges submitted letters to the JIC in support of Goldston. The JIC, in turn, told the JDC to tell the three judges that such letters violated three rules of the Code of Judicial Conduct and sent them letters warning them of the conduct.
After the JHB issued its recommended decision on Goldston in March 2021, fellow 23rd Family Court Circuit Judge Glen Stotler, who also was a member of the JHB at the time, wrote a letter that was sent to Evan Jenkins, who was then the Chief Justice of the state Supreme Court, the other Justices, legislative leaders and some state Supreme Court officials.
Stotler, who had dissented in Goldston’s JHB case, was critical of JDC in the letter, saying both Chief JDC Terri Tarr and Deputy JDC Brian Lanham engaged in serious misconduct during the Goldston investigation and another similar family court judge investigation. He said the JDC abused its power, deceived and manipulated judges, threatened judges to enter into agreements to avoid more strict penalties. Stotler said Tarr and Lanham should be investigated, seriously reprimanded and/or terminated.
In July, the JHB said Stotler had violated three rules of the Code of Judicial Conduct related to sending the letter. He was ordered to pay more than $3,500 for the cost of the investigation. He also informed the state Supreme Court and Gov. Jim Justice he was retiring at the end of 2023 for medical reasons.
Court filings say Cipoletti took Rock’s sworn statement in the Stotler investigation in January 2022. It says Rock testified she didn’t see or hear about the letter until March 25, 2021.
“This statement is false,” Cipoletti wrote. “This statement was not candid or truthful. The forensic data from (Rock’s) court-issued computer clearly proves the first draft of the Stotler letter was created on (Rock’s) computer on Friday, March 19, 2021, at 3:31 p.m.
“(Rock) admitted that the ‘Stotler letter’ was ‘not impactful’ to her until it was released in The West Virginia Record and she ‘started to hear a buzz about it’ and she thought, ‘Oh, this might’ve ruffled some feathers,’” Cipoletti’s filing states. “Although her memory was incomplete at her January (31, 2022) statement, (Rock) has since acknowledged she faxed the ‘Stotler letter’ to several Family Court Judges but denies that she faxed this letter to (The West Virginia Record).”
Later, the JHB decision signed by Senior Judge Russell M. Clawges said the board found clear and convincing evidence for three violations of the Code of Judicial Conduct related to Rock’s denials to the Judicial Investigation Commission and her first sworn statement of non-involvement in the Stotler letter.
During the oral arguments before the Supreme Court, Cipoletti also cited a similar Louisiana case.
“There are very few things that are more egregious and would require a court to remove a judge from their bench more so than deliberately providing false information to a commission in the course of its investigation,” she said, citing 2003’s In Re King case. “Further reasoning, any discipline other than removal for blatant misrepresentations might well encourage others who were investigated by the commissions to prevaricate or develop faulty memories.”
Cipoletti told the Supreme Court “the facts in this case are quite twisty and rather voluminous.”
“Despite her sworn testimony that she had never seen or heard about the contents of the Stotler letter until she had received it along with the rest of the court and most of the Legislature, Judge Rock had, in fact, seen, reviewed and had discussed and made edit and corrections to this very letter prior to its publication to the addressees,” Cipoletti told the justices. “Despite her sworn testimony that she had never seen or heard about the contents of the letter after reviewing the draft letter on March 18, she gave her corrections to the letter to Judge Stotler’s staff member, specifically Miss Joy Campbell.
“Judge Rock’s edits were fully incorporated into the draft of the Stotler letter that was ultimately mailed to the addressees on or about March 25, 2021. Her input was rather important as it is undisputed that she is the only judicial officer that actually spoke to the two judicial officers whose allegations were outlined in the letter about the conduct.”
Cipoletti said Rock even mocked disdain and the suggestion she was involved in drafting the Stotler letter.
“In fact, she was so outraged by the mere insinuation that she was involved in the drafting of this letter despite her involvement, she used her feigned outrage to sustain yet again another assault on the integrity of judicial disciplinary council to the chair of the commission,” Cipoletti said. “The evidence established by clear and convincing evidence that her statements under oath to judicial disciplinary council in this matter were not in the spirit of cooperation, were not candid and were not honest. Respondent did not have a lapse of memory. She was not unequivocal in her testimony of January 2022, and this was not an inconsequential matter.”
Rock’s attorney told the court there is a big difference an intentional or knowing lie or misrepresentation and a lapse of memory, which is what he says applies here.
“The critical legal issue raised in this case has to do with standard applicable for the JDC to prove a violation,” Lonnie Simmons told the justices. “The case law that cited says that it has to be an intentional and knowing lie or misrepresentation. I did a lot of research on it.
“Between us in the briefing that we did, we didn’t find any case in the country that said that a judge who has a lapse of memory somehow has committed this horrendous ethical violation when they give an answer that they thought was correct at the time based upon what they recalled at the time.”
Simmons also noted Rock was being asked about events that happened close together 11 months after the fact.
“The email that was referenced when apparently the first version of the Stotler letter was emailed was on March 18,” Simmons said. “Judge Rock had no recollection of ever seeing it. Once it was shown to her like, ‘Here’s a piece of paper,’ she was like, ‘Yeah, OK, that was on my computer.’ But she had no recollection of looking at it.
“And then on March 24, that’s when it actually was faxed to her. She said there’s a typo on page 2 and you put 1956 in the parentheses and that was it. That was all she did. That was on the 24th. The final version of letter was dated the 25th, so Judge Rock received the letter that everybody got … a few days later.
“So here she is giving a sworn statement. She’s been told that it has something to do with Judge Stotler and ex-parte contacts that Judge Stotler had, so she read the rules of that. She had a lawyer. She certainly wasn’t advised by the lawyer to go ahead and lie under oath to the JDC. … That isn’t what she was told.”
Simply put, Simmons said, everyone has memory lapses. Even judges.
“We’re talking about seeing a document on March 24 instead of 25 or 26,” he told the justices. “The idea that Judge Rock deliberately and intentionally lied about not seeing this letter earlier makes no sense. It wasn’t particularly important to her life or what she was doing.”
Justice Haley Bunn asked Simmons if he was suggesting that editing such a letter wouldn’t stand out for Rock.
“We have all struggled in this case what to call that,” Simmons said. “She proofread it. She just said there is a missing date, and she gave them the date. And there was a typo on page two. That was it. She didn’t substantively … I think that’s why I have trouble with the word ‘edit.’ …
“I’ve had my things edited. And that means someone really substantively is getting into the brief. But she just read it, and she pointed out two mistakes. And the only thing she did was when she was deposed or gave this sworn statement 11 months later, she simply didn’t recall that a couple of days before she received it, she had actually done this proofreading where she had found an error on page two and the date.”
Simmons also said the findings showed there was no intentional dishonesty by Rock, just a lack of candor.
“It’s like they wanted to use a different word,” he said. “They didn’t want to call her a huge liar under oath. They wanted to say, well, she didn’t have candor. The case law that I presented in the brief talks about candor, and for a judge to be held as to have violated the ethics rules for lack of candor, it has to be knowing and intentional. So if you simply didn’t recall at the time, that’s not the violation.”
Cipoletti disagreed, telling the court the rule does not “in any shape, form or fashion include the words knowingly or intentionally.”
“And I know this because the code of judicial conduct defines knowingly for us and uses it in several rules,” she said. “None of which are rules the respondent with charge with violating.
“So whether she knowingly did something or not – and I think the facts are evidently clear that she did – whether she did or she did not knowingly do something is not relevant to a finding of this rule violation. And if the court wanted the word knowingly in there, it’s clearly defined in the code, and they could’ve put it in there as they have it in other rules.”
Regardless, she said the rule requires judges to be cooperative, candid and honest with disciplinary authority.
“And it does seem as though we are expecting some almighty obligation on judges to be honest, but that’s because this court has routinely and exhaustingly said that honesty is preeminent in the practice of law,” Cipoletti told the justices. “It is, in fact, the fulcrum that the system of justice rests upon.
“So, why would they diminish the value of its judges to be honest and candid and cooperating in the disciplinary proceedings? And as far as her position that she had no reason to lie, she was well aware of the fact that, first of all, all of these allegations (against Tarr and Lanham) had been determined to be without merit. She was fully aware of the fact that Judge Stotler was under investigation, and there is a specific rule in the rules of professional conduct that indicates if a lawyer or a judge participates or assists another judge in violating the code, they too are in violation of the code.
“So, to argue that she had no reason to lie, because reviewing this letter, which is, by the way, already determined by this court to be a violation of the code, has no problem is not accurate or legally correct.”
Based on the suggestion that the issues and concerns of this case may only matter to family court judges, Justice Beth Walker ended oral arguments by asking Cipoletti if judges are held to a higher standard to uphold the public confidence regardless of whether the public seemingly cares or not.
“It is our obligation as lawyers, and a certainly heightened obligation of judges, to do so,” Cipoletti said. “It’s our position in the society to uphold the law, and … the judicial code works on the weekends, too. They can’t just take off their hats as judges. We can’t just takeoff our hats as lawyers. We always have the same obligations whether we are upset with how the baseball game ended and we post on Facebook or whether we are helping to attack two lawyers in a public forum. Whatever the case may be, we are lawyers, and we have responsibilities.
“And these allegations, they did impact the integrity of the judicial disciplinary system. They openly accused these two lawyers of fabricating results by using prosecutorial misconduct. If the entire disciplinary process is based on protecting the public and ensuring to the public, assuring to the public, that the integrity of the system and the integrity of judicial officers and the integrity of lawyers, is why we have this process, what other outcome could an attack on two lawyers have? How could it not impact the public?”
West Virginia Supreme Court case number 22-862 (Judicial Investigation Commission complaint 38-2022)