CHARLESTON – A federal judge has called out a Charleston attorney for “sanctionable conduct” during court proceedings.
In a July 15 memorandum opinion and order, U.S. District Court Chief Judge Thomas E. Johnston said defense attorney Michael Mullins “materially misrepresented the law in hopes of skirting unfavorable binding authority.” Johnston gave Mullins 10 days to show cause as to why he shouldn’t be sanctioned for “materially mispresenting the law to this court.”
In the case, St. Albans couple Jason and Shanna Wickline accused various law enforcement officials of, among other things, violating their Fourth Amendment rights with an unreasonable search of their home. Johnston dismissed the claim against and removed the Kanawha County Commission as a defendant by saying the plaintiffs failed to allege sufficient facts to state a Monell claim and failed to allege law enforcement policies caused their Fourth Amendment rights to be violated. Kanawha County Sheriff Cpl. T.J. Cumberledge and three unnamed officers remain as defendants.
Mullins
| File photo
But after he handled that aspect of the case, Johnston turned his focus to Mullins’ actions.
While explaining the facts of the case, Johnston notes that the defendants’ counsel attached “a purported arrest warrant” for a woman the defendants said listed the plaintiffs’ address.
“While counsel correctly recognized that courts ordinarily cannot consider documents not attached to the complaint, they nevertheless assured the court that it would be appropriate to do so here,” Johnston wrote. “This would have been proper, counsel claimed, because ‘plaintiffs have expressly brought into question the existence and contents’ of the arrest warrant and it should therefore be treated ‘as if attached … to the complaint.’
“Tellingly, though, they cited no law supporting this novel theory of incorporation by reference – likely because that is not the law. … However, even if the court had taken the bait and erroneously treated this motion as one for summary judgment, the court still could not have found that the arrest warrant listed (the woman’s) address as plaintiffs’ home address – because counsel redacted the address on the provided warrant.”
Johnston goes on to chastise Mullins’ actions.
“Recognizing that this court might be inclined to apply the higher probable cause standard when ruling on the Fourth Amendment issue this case presented, defendant’s counsel said it would be a mistake to do so,” the judge wrote. “This would have been error, defendant’s counsel declared, because ‘courts have universally rejected any suggestion that (this) ‘reason to believe’ (standard) is anywhere near probable cause.’
“Citing only Pennington, a non-binding case from the West Virginia Supreme Court, defendant’s counsel claimed that there is a consensus among courts that the ‘reason to believe’ standard is ‘less stringent’ than probable cause.
“This couldn’t be further from the truth. Indeed, as Pennington itself recognized, courts are deeply divided on ‘the issue of what quantum of proof is necessary to satisfy this reason to believe standard.’”
Johnston notes that a dozen or so courts have accepted a position that the defendant’s counsel claimed no court had ever taken, including a “thorough, well-reasoned and binding opinion” known as United States v. Brinkley from the U.S. Court of Appeals for the Fourth Circuit that includes West Virginia.
“Brinkley thus binds this court and would have required the court to apply the probable cause standard when analyzing the Fourth Amendment issue here,” Johnston wrote. “But, in their briefing on the motion to dismiss, defendant’s counsel never once mentioned Brinkley. They instead tried to sweep Brinkley under the rug by pushing this court to follow Pennington – a non-binding state court case on the other side of the split – and claiming that courts’ universally’ agree with Pennington’s contrary, more-favorable holding.
“Doubtless, counsel did so thinking they could dupe this court into overlooking Fourth Circuit precedent, committing clear legal error and blessing a likely illegal search by applying a legal standard that the Fourth Circuit has unequivocally rejected. That takes nerve. …
“Did counsel expect the court to take their briefing as gospel? Did counsel not expect the court to (1) do its own research when deciding this motion, or (2) even bother reading the lone case they cited in support of their position?”
Either way, Johnston says counsel “crossed the line from zealous advocacy to flouting their unflagging duty of candor to the court.” He gave Mullins 10 days to show cause why he should not be sanctioned.
This isn’t the first time Mullins has been threatened with sanctions by an officer of the court.
In 2021, Charleston attorney Michael M. Cary filed a motion for sanctions against Mullins and his law firm Steptoe & Johnson after he accused Mullins of “character assassination” with false statements to a judge about Cary’s work ethic regarding a 2020 case they worked.
Cary accused Mullins of violating the West Virginia Rules of Civil Procedure and the Rules of Professional Conduct for telling a circuit judge Cary wasn’t much involved in the case. Cary said the judge reduced his guardian ad litem fee in the case because of Mullins’ false statements.
The parties reached a confidential settlement in the case, and Cary received all of the guardian ad litem fees he said he deserved.
Mullins declined to comment for this story.
According to the Steptoe & Johnson website, Mullins has worked for Steptoe & Johnson since 1998 when he graduated from the University of Richmond College of Law. His practice focuses on professional liability, long-term care, civil rights and defense of energy-based companies. He has been recognized by Best Lawyers for his medical malpractice defense work.
U.S. District Court for the Southern District of West Virginia case number 2:23-cv-799
