CHARLESTON – The state Supreme Court has ruled in favor of a circuit court judge who sought a writ of prohibition to prevent him from having to testify and provide information for several lawyer disciplinary proceedings.
In a June 7 opinion, the justices said the state Lawyer Disciplinary Board’s Hearing Panel Subcommittee is prohibited from enforcing its May 2023 order and memorandum opinion directing Third Circuit Court Judge Timothy L. Sweeney to appear for a deposition and produce documents.
Sweeney had petitioned the Supreme Court regarding the lawyer disciplinary proceedings of attorneys Brian K. Carr, M. Paul Marteney, Harley O. Wagner, Justin Matthew Raber, Jay William Gerber Jr., Ira Andre Richardson and Jordan W. West. Those individuals are respondents in the case, as are the LDB, the office of Lawyer Disciplinary Counsel, the chairman and members of the LDB HPS as well as attorney Wells H. Dillon.
Sweeney
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The LDB says those attorneys were involved with a program the City of St. Marys Police Department previously operated called Slow Down for the Holidays. In the program, which usually ran from October to December, municipal court judges and the city attorney agreed to summarily dismiss with prejudice certain criminal charges if a person charged donated money, gift cards, toys or other things of value to benefit needy children and seniors during the holiday sseason. In 2018, the Pleasants County Sheriff’s Office joined the program, and two county magistrate also began participating.
Carr, who is Pleasants County’s prosecuting attorney, wanted the HPS to depose Sweeney because Sweeney had informed the appropriate authorities of the program. The HPS granted the motion, and Carr served Sweeney with a notice of deposition and a subpoena to provide testimony and certain documents. In response, Sweeney moved to quash the subpoena, which the HPS denied.
In support of his request for a writ of prohibition, Sweeney claimed the judicial deliberative privilege applies to the requested deposition testimony and documents.
In their opinion, the justices note they are not resolving any disputed facts
In late 2020, Mary Ward was charged with driving under the influence and possession of a controlled substance. Carr offered to dismiss the pending charges against Ward in exchange for her making a payment of $1,500 in cash or gift cards to the program. After Ward accepted the offer and made the payment, Carr moved to dismiss the charges. Following the dismissal, Ward’s appointed attorney Judith McCullough, concerned about her own conduct, spoke with several members of the legal community regarding the agreement and dismissal.
Other attorneys cast doubt on the ethical propriety of the program and at least one suggested she speak to a judge, so McCullough contacted Sweeney. He then called the Office of Judicial Disciplinary Counsel and the Office of Lawyer Disciplinary Counsel to inform them of the program. Sweeney is the only circuit judge in the Third Circuit, which includes Pleasants, Doddridge and Ritchie counties.
Sweeney did not file a formal verified ethics complaint, and the ODC did not ask him to file one. The ODC initiated an investigation, and several attorneys, including Carr, self-reported their conduct to the ODC. Subsequently, the LDB filed formal statements of charges against the attorney respondents. In February 2021, the Supreme Court consolidated these disciplinary proceedings for discovery purposes.
On March 3, 2023, Carr moved the HPS to depose Sweeney. The HPS granted the motion and directed the ODC to identify the individual who first asserted claims against Carr. The HPS further instructed that the deposition take place within 30 days of the order. In response, the ODC moved the HPS to reconsider its order arguing that, while Sweeney contacted the ODC regarding the program, he did not file a formal complaint and was not the complainant.
The ODC claimed the ODC itself is the complainant in this matter, and there was no good cause to depose a representative of the ODC. Carr opposed the ODC’s motion to reconsider. The HPS entered a second order on the motion to depose the complainant, finding that Sweeney and McCullough were the complainants and directing the depositions of Sweeney and McCullough be completed.
Carr served Sweeney with a notice of deposition and attached a subpoena requiring him to provide deposition testimony and produce any and all paper and/or digital/electronic files, documents, writings, e-mails, text messages, and notes, evidencing any report, notice, or communication with the Judicial Investigation Commission and its counsel, JDC, and the Lawyer Disciplinary Board and its counsel, ODC, concerning the program as well as any misdemeanor criminal cases filed and adjudicated by the Pleasants County Magistrate Court starting in 2018 that involved in any way the referral, deferral or dismissal of same so a defendant could participate in the program.
Sweeney, the ODC and the JIC each filed motions to quash the subpoena. In his motion, Sweeney argued that the documents and testimony sought are protected by the judicial deliberative privilege. On May 8, 2023, the HPS entered an order summarily denying the respective motions to quash and directing Sweeney to submit to a deposition by May 19, 2023, and produce the subpoenaed documents.
The HPS filed a memorandum opinion explaining its previous ruling by concluding that Sweeney’s involvement “was reporting the program to [the] ODC” and that this testimony does not fall within the judicial deliberative privilege. The HPS said the judicial deliberative privilege does not apply because Sweeney was not acting in his capacity as a judge in any of the attorney respondents’ cases when he reported these issues to the JDC and ODC. Sweeney then filed his petition for a writ of prohibition.
The Justice said the HPS “clearly erred” in ordering Sweeney to submit to the deposition and produce the documents.
“We find that the testimony and records sought by the subpoena are protected by the judicial deliberative privilege,” the opinion states. “While judicial officers may be compelled to give testimony and provide documents in certain circumstances, this court’s precedent limits those circumstances and places specific threshold requirements on the party seeking the testimony and documents.”
While judges are subject to the rule of law, the court said it can’t ignore the special status judges have in our judicial system “and the effect this difference has on the process.”
While noting judicial deliberative privilege is not limitless, the Justices say it does not mandate that the judicial officer asserting the privilege preside over the proceeding at issue.
“Sweeney contends that his report to the ODC was an official judicial act because he was acting pursuant to his obligation to comply with Rule 2.15 of the Code of Judicial Conduct, which requires a judge to take ‘appropriate action’ when the judge believes a lawyer’s conduct might be in violation of the Rules of Professional Conduct,” Justice Haley Bunn wrote in the opinion. “Under the circumstances presented in this case, we agree. …
“Ultimately, the HPS clearly erred in requiring Judge Sweeney to appear for a deposition because the information that attorney Carr sought regarding Judge Sweeney’s mental processes and his decision to verbally report conduct to the JIC and ODC was protected through the judicial deliberative privilege, and, to the extent that any information sought was outside of the privilege, the HPS failed to hold the mandatory hearing.”
Regarding the request to have Sweeney provide documents, the court agrees with Sweeney that he is not the proper custodian of those records.
West Virginia Supreme Court of Appeals case number 23-342