Here is the petition for Writ of Mandamus we filed this morning with the West Virginia Supreme Court of Appeals, asking them to force the West Virginia Governor to follow West Virginia law in choosing between the three qualified candidates presented to him by the Wayne County Republican Executive Committee to fill the vacancy in the legislature left by the resignation of Del. Derrick Evans:
Basically, the State Republican party has usurped the powers and authority of the Wayne County Republican voters, by attempting to take away their authority to choose a list of three qualified candidates to present to the Governor to fill the empty seat in the House of Delegates following the January 9 resignation of Del. Derrick Evans.
The Governor was presented with a list of three qualified candidates on January 14. He had five days to choose from the list. Instead the new Acting Chair of the West Virginia Republican Executive Committee took over the process, and created a new list – this time removing one of the three names and inserting a new name. This disenfranchises the Republican voters of the 19th Delegate District in Wayne County. The law is clear however, and places this power solely on the Wayne County Republican committee members – all duly elected by voters in their precinct.
Why is this important? Wayne County hasn’t had a Republican delegate in 100 years. Now that they’ve got one, the Governor is seeking to replace the choices of the voters with his own guy – who is an unvetted, unknown entity, since he didn’t run in the November campaign. Even more importantly, West Virginia law is clear and unambiguous that the local party (and this applies to all parties) gets to make the decision on the list of three to present to the Governor. This was put in place for a reason. To allow it to be thrown to the wayside is to allow a transfer of power from the people at the local level to some smoke-filled back room full of politicians and politicos.
The first of my two clients in the federal civil rights lawsuit filed yesterday against the superintendent of Jefferson County Schools had her disciplinary hearing today, where the “evidence” was presented of her alleged involvement in the violence at the U.S. Capitol last Wednesday. Apparently the only evidence presented was a conspicuously-absent anonymous “report.” According to the attorney at the scene, Bondy Gibson, the superintendent who leveled the accusations, refused to provide a copy of the allegations, the name of the person making the allegation, or any of the social media posts the individual referenced.
Apparently, what actually happened, is that the Board office reviewed Pam McDonald’s social media page and came to the same conclusion that all have, which is that Pam did nothing wrong and broke no laws. Unfortunately, however, the damage has already been done, and our lawsuit will continue. For instance, here’s a screenshot of a TV news story from this morning about my two clients:
Here’s another disgusting media report from WVDM, which was the direct recipient of the leak from the Jefferson County Schools smearing my clients. It announced that my clients “participated in riots in Washington D.C.” Can you imagine, your friendly school bus drivers may have rioted through the Capitol?
In case anyone misunderstood, in the WDVM article above, this was the exact quote:
The statement details that Superintendent Bondy Shay Gibson was made aware on Friday of the staff members’ participation that left the Capitol Building in shambles.
It turns out that no such evidence exists, apparently. But what about the smear letter the superintendent wrote yesterday which was provided to WV Metro News, where she said this:
On Friday, January 8, 2021, I received such a report that two employees had posted threatening and inflammatory posts on their Facebook pages, had been present at the Electoral protest march on Wednesday that erupted in violence, and had violated our leave policy.
Wait, first . . . about the leave policy…. how would one go about reporting whether one of your employees violated your leave policy? Do random people have access to your employee personnel files? Or was this “person” who made the report “a friend” of yours. Sort of like the “friend” prefaced in embarrassing Dear Abby letters? Does this friend happen an office in the school administration building with a sign on the door saying something like, “Superintendent?”
Secondly, about the “threatening and inflammatory posts” my clients supposedly made….. Where are they? I’m sure they were just misplaced….. They must exist, right?
If the goal was to drag these ladies through the mud, merely for their political affiliation and viewpoints, I guess it was a job well-done. They received all sorts of well-wishes from the tolerant and compassionate commenters among us. If only someone saved some sort of record of the ugly comments which were directed at my two innocent clients in the comments section of these defamatory pieces….. That would be a great way, not only to document the ugliness of the situation, but also to hold accountable the nasty individuals behind the keyboards who so recklessly and maliciously love to destroy the lives of their fellow human beings, based only on political disagreement.
It would be a shame if some of them ended up getting sued and held accountable for their online bullying….. Just a thought.
You may have seen in the national news, and on social media, that the Superintendent of Jefferson County Schools, in Jefferson County, West Virginia, decided to come after school employees who attended the Trump Rally on January 6, 2020. At least two employees, both long-time school bus drivers, who attended the rally, and who never entered any prohibited areas near the Capitol, never witnessed violence, never participated in violence, destruction of property, trespassing, etc., were suspended on January 8, 2020, and remain suspended as of this time.
This afternoon we filed a federal Section 1983 civil rights lawsuit against the Superintendent, individually, for money damages. Here’s the filing:
This is a blatant attack on the core of the First Amendment: the right to assemble and protest in a traditional forum of public speech, such as the U.S. Capitol. These clients did not pass into any prohibited area that day. They committed no crime while in Washington D.C. They’re exercise of free speech had absolutely nothing to do with their employment as school bus drivers for Jefferson County Schools. They just so happened to have a political activist superintendent.
Police officers with the Chicago PD traumatize a nude woman, who was just minding her own business in her home, which is caught on Video via bodycams. Her lawyer then dismisses her case because he misunderstood the law. Oops. You may have seen this case in the news, but I go behind the headlines and examine the incompetence not reported in the news, and explain what the law is for civil rights lawsuits following search warrant cases where there’s a wrong address and plain ‘ole incompetence.
You have to either allege that the warrant was invalid, or if that can’t be done, you have to attack the affidavit supporting the warrant. To succeed, Plaintiffs must prove Defendants “deliberately or with a ‘reckless disregard for the truth’ made material false statements in [their] affidavit” which were necessary to the magistrate’s finding of probable cause. Miller, 475 F.3d at 627 (quotingFranks v. Delaware, 438 U.S. 154, 155–56 (1978). Or, Plaintiffs must show Defendants omitted “material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.’” Id.
“To determine materiality, a court must excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit would establish probable cause.” Id. (internal quotations removed). “If the ‘corrected’ warrant affidavit establishes probable cause, no civil liability lies against the officer.”
“Reckless disregard can be established by evidence that an officer acted with a high degree of awareness of a statement’s probable falsity,” meaning an officer had “serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. (internal quotations removed). For omissions, “reckless disregard can be established by evidence that a police officer failed to inform the judicial officer of facts [he] knew would negate probable cause.” Id. (internal quotations removed). However, negligence or innocent mistake “will not provide a basis for a constitutional violation.” Id. (quoting Franks, 438 U.S. at 171).
Here’s a long-overdue update on the James Dean case, out of Wayne County, West Virginia. If you’re wondering what has taken so long, the West Virginia Medical Examiner’s Office took over a year to issue the death certificate.
Yesterday afternoon we filed a federal civil rights lawsuit against the police officers involved in the viral video showing police (without a warrant) forcing my client, James Walkup, to crawl to his own front door, only to have his head smashed with a boot on his front porch. If you haven’t seen the video, here it is:
This happened in the Western end of Greenbrier County, West Virginia. And here’s the filed lawsuit, now pending in the Beckley Division of the Southern District of West Virginia. We made claims for unlawful search and seizure, as well as use of excessive force. The defendants are one Rainelle, WV police officer and two West Virginia State Troopers.
The Civil Rights Lawyer explains how and when a citizen can sue the police for excessive force under federal civil rights law. It seems that everyone has an opinion on police use of force in recent months. In this video, I’ll explain the law of excessive force, which dictates when a justified use of force becomes an unlawful use of force and a federal civil rights violation. This has been my primary practice area the past decade or so, so I’ll point out some of the practical lessons I’ve learned along the way.
This is a video about an encounter at the home of my client, Matt, in March of 2019, which occurred in Charmco, West Virginia, which is in Greenbrier County. It shows police arriving at his home to arrest a friend who was visiting him, who happened to have an outstanding warrant.
Matt didn’t want to be involved one way or the other. He was afraid, so he turned on his phone and began recording and he laid down. He didn’t want to get shot. But they forced him to crawl to the door on his hands and knees. When he got there, he got head-stomped by the first officer.
They didn’t know he was recording. The second officer, a West Virginia State Police trooper, noticed the phone filming, and he covered it with his hands, and turned the phone off. The officers then deleted the video footage. But it was recovered.
The West Virginia Supreme Court of Appeals has charged a Raleigh County Family Court judge of 26 years with at least seven alleged violations of the Code of Judicial Conduct, after she admitted to visiting the home of litigants to investigate a property dispute.
The SCOA formally charged Judge Louise E. Goldston on Sept. 23 with violations to rules on compliance with the law, confidence in the judiciary, avoiding abuse of prestige of office, impartiality and fairness, external influences, competence, diligence and cooperating and extrajudicial activities, in general.
Goldston hears cases in Raleigh Family Court and Wyoming County Family Court.
Another interesting update….. Apparently there was a public admonishment against another Family Court Judge, who was recently elected to the bench, for doing a “home visit” in two instances, though both of those included lawyers who either requested the visit, or failed to object. The judge in that case mentioned that he never would have performed them had someone objected, and blamed Judge Goldston (from the video):
Respondent opined that he believed it was proper to visit litigants’ homes because a colleague had engaged in the same practice for several years. (The colleague, who is also the subject of a judicial disciplinary proceeding, recently engaged in a visit to a litigant ex-husband’s home to search for….
Discussion with my client, Matt Gibson, on having his house searched by a judge:
I did three TV interviews on Monday. I’ve only seen one, this one, which I thought turned out well – brutally honest:
BECKLEY, WV (WVNS) — Impartiality and fairness, complying with the law, avoiding abuse of office. These are only three of the seven rules Judge Louise Goldston is charged with violating during an incident in March.
Goldston oversaw a divorce case involving Matt Gibson. In order to find items Gibson allegedly neglected to maintain or turn over to the court, his attorney, John Bryan, said Goldston reportedly stopped the hearing and ordered all parties to immediately go to Gibson’s house.
“From day one that I looked at that video, I didn’t see any way that that was legal,” Bryan explained.
Even though Gibson is representing himself in the divorce case, he did hire John Bryan for action taken against the judge after the at-home search.
“Apparently this has been going on for 20 years and at least 10 other times this was done upon the motion of an attorney without the object of the other attorney,” Bryan said. “And what does that tell me? That maybe they were scared to challenge the judge, to challenge the system. I don’t know. I think that there are a lot of questions there that need to be answered.”
Read the formal statement of charges and my analysis:
Yesterday afternoon, the West Virginia Supreme Court of Appeals clerk’s office released the Formal Statement of Charges against Raleigh County, West Virginia Family Court Judge Louise E. Goldston – a 26 year Family Court judge. This is the judge caught on video searching the home of my client, Matt Gibson – threatening him with arrest if he didn’t allow her in. Here’s the post with the original video, as well as the update video, if you haven’t seen it. The charges state that on March 11, 2020, investigators opened a complaint, and that a subsequently second complaint was filed by my client, Matt Gibson.
For reference, I originally uploaded the video of the judge searching Matt’s property on March 10 – the day before the inception of the opening of the investigation. The video quickly went viral, and by the next day an investigation had essentially opened itself. In other words, the power of Youtube is great. In one day, it found its way into the eyeballs of the Judicial Investigation Commission, the only folks with the power to lodge judicial disciplinary charges against judges in West Virginia.
The Supreme Court of Appeals of West Virginia established the Judicial Investigation Commission to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges and to determine if a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.
If you want to report what you believe is judicial misconduct, or a civil rights violations committed by a judge, anyone can file a complaint with the JIC. Here’s the complaint form.
Any person may file an ethics complaint against a judge. However, a complaint that is filed more than two (2) years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct may be dismissed for exceeding the statute of limitations.
Then, even though covid hit, the investigation apparently proceeded, and 6 months later the charges dropped (which was yesterday, 10/2/20). I just happened to be traveling when the charges came out, so it wasn’t really until this morning that I was able to digest them.The Formal Statement of Charges alleges that:
FAMILY COURT JUDGE GOLDSTON violated Rule 1.1 (compliance with the law), Rule 1.2 (confidence in the judiciary), Rule 1.3 (avoiding abuse of prestige of office), Rule 2.2 (impartiality and fairness), Rule 2.4(B) (external influences), Rule 2.5 (competence, diligence and cooperation) and Rule 3.1(A), (B), (D) (extrajudicial activities in general) of the Code of Judicial Conduct….
In other words, the JIC concluded that the judge failed to comply with the law, committed actions which undermines confidence in the judiciary,abused the prestige of her office, was impartial and unfair, allowed external influences on her actions, was incompetent, un-diligent (is that a word?) and uncooperative, and engaged in extrajudicial activities. According to the charges, these home “visits” (searches) have been going on “over the past twenty years.”
Over the past twenty years as a Family Court Judge, Respondent has been engaging in the practice of visiting homes of litigants appearing in front of her. Respondent went to the litigants’ homes to either determine if certain disputed marital property was present and/or to supervise the transfer of disputed property. Respondent admitted to conducting these home visits in her capacity as a Family Court Judge on eleven separate occasions in different cases.
In every instance except Mr. Gibson’s case, all of Respondent’s home visits were prompted by a motion by a litigant’s attorney and not objected to by the opposing party and will full knowledge of the purpose therein. Most of the Respondent’s home visits occurred during a court hearing in the case. A party’s attorney would move the Court to leave directly from the bench and accompany the parties to the home. After granting the motion, Respondent would meet the parties at the home.
The JIC interviewed the judge and asked her what authority she had to engage in this practice:
On July 22, 2020, Judicial Disciplinary Counsel took Respondent’s sworn statement. Respondent admitted that she failed to inform Mr. Gibson of the purpose of the home visit while the parties were in the courtroom and that she did not give him any opportunity to object thereto until everyone was at his house.
Respondent opined that she believed it was proper to visit litigants’ homes. Respondent likened the practice to a jury view or similar continuation of the court proceeding and stated that as a finder of fact it was necessary to determine whether a party could be held in contempt for not turning over personal property as previously ordered by the Court.
When asked, Respondent could provide no statute, rule or case that gave her the authority to conduct home visits. Respondent also acknowledged that there was nothing in the contempt powers that gave her the authority to conduct a home visit. Respondent confessed that she never held anyone in contempt prior to going to the home and that she failed to enter any order subsequent to the visit reflecting what had happened at the residence, whether any items had been secured and/or whether or not a party was in contempt.
I was absolutely correct when I first reviewed the video. There was no legal basis upon which a judge could search a home as was portrayed in the video. The fact that this judge had been doing it for the past 20 years, was not itself justification. Instead, this sobering fact proves that many former Family Court litigants are absolutely correct when they rant about corruption and unlawfulness. Over the past 20 years, at least 10 other victims have been subjected to this in this judge’s “courtroom,” subjected to unlawful “home visits” upon the motion of an attorney, and without objection from any other attorney.
I wonder how many of these visits involved this one particular attorney involved in this video? After all, it was this attorney who left a voice message for Mr. Gibson the night before the search, offering $5,000 in exchange for foregoing what would essentially be a Family Court anal probing:
This whole thing reeks to me, and sounds a lot like a “pay to play” style judicial experience. Had he paid 5 grand, he could have avoided being lucky number 11? Time will tell, hopefully. Roots run deep in a 20 year period inside one particular court. Perhaps this had something to do with a local Family Court attorney going on TV following my initial TV appearance with my client, to say that I was wrong, and that “home visits” were a perfectly legal Family Court practice. Yeah, okay…..
BECKLEY, WV (WOAY) – UPDATE: On Thursday, we ran a story about a Raleigh County man involved in a contempt case after a finalized divorce whose recording of a family court judge went viral. Matt Gibson claimed the search of his home was against his 4th Amendment rights. Because the judge and the opposing attorney cannot comment on ongoing litigation, local family attorney [let’s call him JOHN DOE] is speaking out saying Judge Louise Goldston was doing her job and doing it legally.
“What I think is most important to know about this is when you see a video on YouTube, when you see a Terry search, when you see something and immediately it doesn’t match what we’ve always seen on television that doesn’t make it wrong,” he said. “Because they didn’t do it that way on Law and Order doesn’t mean that a judge that has decades of experience is breaking the law.”
It looks like I was right, and he was wrong. So, he said the judge wasn’t allowed to respond, so he was responding on her behalf? Why is that, I wonder? That’s a rhetorical question, of course. Is he saying that she asked him to respond and defend her publicly? Another good point that the JIC makes in the statement of charges, is that if the judge, and her local family court lawyers, are going to characterize her actions as a lawful component of a judicial proceeding, then they have some issues to consider:
Respondent admitted that she never had any clear or written procedures for conducting a home visit, including but not limited to, when the proceeding should be utilized and how the process should take place. She also acknowledged that she never took a court reporter to the scene.
Upon reflection, Respondent agreed that the practice could make her a potential witness to a future proceeding which could then result in her disqualification. Respondent further agreed that family court judges run the risk of disqualification if he/she were to become a witness in a subsequent proceeding pertaining thereto.
Respondent also agreed that the burden of proof in a contempt proceeding rests not with the Family Court Judge but with the moving party. She agreed that it is the moving party’s responsibility to provide evidence in support of his/her contention that the other side has failed to produce the items in question. Respondent admitted to improperly putting herself into the role of litigant.
Like I said during the TV interview, the reason I’ve never heard people complain about having their homes searched by judges before, is because that’s not what judge do – judges don’t search homes. This judge was acting in the role of a litigant. So it was basically like Trump debating both Biden and Chris Wallace in the first presidential debate. That’s not how it’s supposed to work. The opposing attorney is supposed to submit evidence and prove his case. Here you had a judge doing both of these things, and then engaging in an unlawful search of one party’s home, on behalf of the other party. Why? That’s yet another rhetorical question of course. If the other 10 victims were represented by lawyers, why didn’t they object?
And then there’s the 800 pound gorilla in the room: the Sheriff’s Department assisting the judge in these actions. On how many of these 10 other searches were they present? The statement of charges also notes that the bailiff (a sheriff’s deputy) forced Mr. Gibson to stop his recording, and that he himself started to record what happened inside the home:
Upon Respondent’s arrival at Mr. Gibson’s property, Mr. Gibson had a bystander video record the initial interactions outside the house between Respondent and the parties. Mr. Gibson also secretly recorded several minutes of audio of the initial interaction on his cell phone.
When the video and audio recording were discovered by Respondent, she ordered both recordings stopped. However, once inside the house, Respondent’s bailiff used his phone to record both video and audio of the separation of marital assets.
Where is this video, and why hasn’t it been produced? I heard through the grapevine, that following my initial uploading of the Youtube video, that the Sheriff of that county sent around a memo to the effect of, “no more going anywhere with a judge….” Of course, the JIC doesn’t investigate law enforcement, nor discipline them. You might find this shocking, but there is no state agency or commission which investigates law enforcement officers in the way that judges, and even lawyers, are investigated (there’s a pending disciplinary complaint against the lawyer who was involved here as well).
The only consistent investigator of law enforcement misconduct in West Virginia is me, sadly. Those who were involved in the search of my client’s house will be explaining their actions. I can’t put people in jail, nor discipline them, so we’ve pretty much come full circle. I have to demand money damages for my client, and they’ll have the opportunity to avoid what’s coming their way. It ain’t pretty, but that’s the relief available. Unless someone wants to deputize me as a special federal prosecutor or something…..