Breaking news today in the federal civil rights lawsuit against Family Court Judge Louise E. Goldston, which alleges constitutional violations for her search of my client’s house in March of 2020…. Just today, the Federal Court issued an order denying the judge’s claim of judicial immunity, ordering that the jury trial is on for Tuesday. As the order acknowledged, the West Virginia Supreme Court already found Judge Goldston’s conduct to be in violation of the law:
Thereafter the Supreme Court of Appeals concluded Judge Goldston exceeded her judicial powers in searching Mr. Gibson’s residence in violation of the Code of Judicial Conduct. See In re Goldston, 246 W. Va. 61, 866 S.E.2d 126. A censure and fine resulted. Id.
The opinion went on to address Judge Goldston’s arguments that she was merely holding a Family Court hearing inside Mr. Gibson’s home, and that she should be immune from liability. The Court pointed out the obvious flaws in her argument, stating:
The crux of Judge Goldston’s argument is that her actions were taken during the course of adjudicating a Family Court dispute. She contends that, assuming she exceeded her authority, her actions were judicial in nature and hence subject to judicial immunity.
As noted, the Court examines the nature of the act and not the actor. The nature of the act was a warrantless search of Mr. Gibson’s residence and a warrantless seizure of his property. The twofold inquiry is (1) whether a search of a residence was an act normally performed by a judge, and (2) the expectations of the parties, namely, whether Mr. Gibson was dealing with Judge Goldston in her judicial capacity. Respecting the first prong, does a judge normally execute a search warrant or personally search a residence? To quote Judge Posner, “[t]o ask the question is pretty much to answer it.” Nelson v. Streeter, 16 F.3d 145, 148 (7th Cir. 1994). While “the issuance of a search warrant is unquestionably a judicial act,” see Burns v. Reed, 500 U.S. 478, 492 (1991), the execution of a search and seizure is not….
Judge Goldston was not engaged in an act normally performed by a judge.
Respecting the second prong, Mr. Gibson doubtless dealt with Judge Goldston in her judicial capacity at the outset of the March 4 contempt hearing. The situation changed markedly, however, once the field trip began. Once Judge Goldston invited herself to the residence, began her warrantless search, and then seized private property, the die was cast. Nevertheless, Judge Goldston notes (1) a bailiff was in attendance, (2) the search was recorded much like a judicial proceeding, and (3) Mr. Gibson and his ex-wife made motions during the process. She asserts all of this demonstrates the parties dealt with her as a judge.
The contentions do not withstand minimal scrutiny. Mr. Gibson’s motion for disqualification arose out of Judge Goldston acting as a witness rather than a judge. Further, the recording of the search — which Judge Goldston attempted to halt — is in no way equivalent factually or legally to an electronically transcribed or recorded judicial proceeding. Judge Goldston recognized as much in her deposition. Judge Goldston has thus failed to demonstrate either of the two required prongs.
Here’s the full memorandum opinion and order:
The Court also ruled that the Raleigh County Commission, i.e., the Raleigh County Sheriff’s Office, is also going to trial on the issue of whether they adopted and maintained a policy of illegal Family Court judicial searches of litigants’ homes, which ultimately led to the search of Mr. Gibson’s home on March 4, 2020. The Court correctly noted that the deposition testimony of the two bailiffs indicates the existence of such a policy:
For instance, according to the record, Bailiff McPeake sought out a Raleigh County supervisor prior to his first home search as a bailiff in Raleigh County Family Court, seeking assurance that he was within department policy prior to doing so. Bailiff McPeake was told by Sergeant Aaron Lilly that he was authorized to participate and that they “do that from time to time.” Even after the March 4, 2020 event, Bailiff McPeake testified that there has been no policy change as to family court judges searching parties’ homes. Bailiff McPeake, who continues to serve as bailiff for Judge Goldston, has not been instructed by his supervisor, Lieutenant Dave Stafford, to refrain from similar conduct in the future.
Additionally, Deputy Stump, who established during his deposition that he was a supervisor for the Raleigh County Commission, testified that he had visited the homes of litigants with Judge Goldston “numerous times.” Deputy Stump explained that the sheriff’s department policy for bailiffs is whatever policy a judge told him — “no questions asked.” He noted that, even after the March 4, 2020 incident, there has been no policy change within the department about bailiffs going to the homes of litigants. Indeed, Deputy Stump asserts that, “if Judge Goldston told me today to go to the house, I’d be the first one there.”
The record gives rise to a genuine issue of material fact respecting whether the Raleigh County Commission had the required municipal policy of allowing officers to participate in home searches with family court judges of the type here challenged.
Shortly after the issuance of the order, Judge Goldston filed a notice of appeal, as well as a motion for stay of the trial, pending her appeal on the denial of judicial immunity. I’m currently researching the legal issues surrounding her attempt to stop the trial and immediately appeal to the Fourth Circuit. I will be filing a formal response with the Court tomorrow morning, and will provide an update on whether the trial is on as soon as a decision is made.
Boy I wish I could do things like this under the color of law.
What happened to the judge’s appeal to the court of appeals? Was there a stay issued?