by Richard W. Millar, Jr.

In this column, I deal with a trifecta of things I don’t usually encounter and know little about:
West Virginia, Family Law, and searches.
And, not necessarily in that order.

What I am about to report started with a West Virginia divorce between someone named Matthew Gibson and his now ex-wife whom I will simply refer to as Mrs. Gibson. The divorce led to a property distribution agreement that was approved by Judge Louise E. Goldston of the Thirteenth Family Court Circuit. So far so good.

A year or so later, the former Mrs. Gibson filed a Petition for Contempt in which she averred that Mr. Gibson had breached the distribution agreement by failing to return some items and damaging others before returning them. At that point, things went south in a hurry.

A hearing was held before Judge Goldston on the contempt petition. The former Mrs. Gibson was represented by an attorney and Mr. Gibson was in pro per. During Mrs. Gibson’s testimony, the judge interrupted and asked Mr. Gibson for his address, which he gave her. Judge Goldston then recessed the hearing and ordered the parties to meet her at Mr. Gibson’s home. She didn’t say why and Mr. Gibson had no opportunity to object.

“Judge Goldston, the bailiff, Gibson, his ex-wife, and her attorney all piled into their cars for the ten-minute drive over. Gibson rode with his new girlfriend, and the two spent the drive researching the procedure for disqualifying a judge.”

The judge and her bailiff were the last to arrive and were met with Mr. Gibson’s oral motion to disqualify her on the ground that she had become a witness in the case. She denied the motion as “untimely” whereupon Mr. Gibson said that she could not come into the house without a search warrant. “She responded laconically, ‘Oh yeah I will.’”

Realizing that Mr. Gibson was recording events, the judge ordered him to stop “on the grounds that parties may not record family law proceedings.” She told everyone that she would take them to jail if they didn’t turn off their phones.

The bailiff, no doubt sensing that things were sliding downhill, called the Sheriff’s Office for backup, but the judge did not wait and entered Mr. Gibson’s house with the ex-wife, her attorney, and the bailiff to “look for the contested items.”

Mrs. Gibson identified some pictures and the judge said, “Take ‘em.” She found some yearbooks and the judge said, “Get ‘em.” When Mrs. Gibson said there were some DVDs downstairs, the judge said, “go in there and pick the ones you want.” As she “sifted through the DVDs . . . Judge Goldston sat in a rocking chair, shoes off, supervising and giving orders.”

While the bailiff had surreptitiously recorded about seven minutes, there was no contemporaneous record of what was taken, no police report, and no order authorizing the search.

This might have all gone by the boards, but, as befits the age in which we live, the audio and video taken by Mr. Gibson and his girlfriend were uploaded on the internet.

Judge Goldston was reported to the West Virginia Judicial Investigation Commission which resulted in a settlement agreement with a recommended disposition. The recommendation was rejected by the Judicial Hearing Board resulting in an appeal to the Supreme Court of Appeals of West Virginia which held, in so many words, the judge had conducted a search which was “the activity of the executive department” and that judges may not exercise executive powers. The court imposed a “censure and a fine of $1000.”

If you thought that would have been the end of everything, you would have been wrong. Mr. Gibson sued Judge Goldston for a variety of constitutional violations seeking compensatory and punitive damages as well as equitable relief.

Judge Goldston moved for summary judgment contending absolute judicial immunity. The district court denied her motion, finding that her activity was “quintessentially executive.”

She, of course, appealed. And lost again. This time with a written opinion from the United States Court of Appeal for the Fourth Circuit. The appellate court found that the search of the home and seizure of its contents were executive, not judicial acts, and thus her activities were not eligible for the protection afforded by judicial immunity.

“At the outset, we note that Judge Goldston’s visit to the Gibson’s home had none of the usual trappings of a judicial proceeding. She was not in a courtroom, nor was she wearing a robe. For much of the interaction she wasn’t even wearing shoes.”

As the court summed it up, “[judges] do not double duty as sheriffs.”

If they do, they better wear shoes.

Richard W. Millar, Jr. is tired and retired. He can be reached at dickmillar9@gmail.com.