The Volokh Conspiracy

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No Judicial Immunity for Judge's "Field Trip" to Lead Search of Litigant's House


From Judge Frank Volk's decision yesterday in Gibson v. Goldston (S.D. W. Va.), which is now on appeal (for more, see In re Goldston (W. Va. 2021)):

On September 18, 2018, Mr. Gibson appeared before Family Court Judge Louise Goldston in his divorce action. Judge Goldston granted the parties' divorce and adopted their property settlement agreement.

On September 26, 2019, Kyle Lusk, the attorney for Mr. Gibson's soon-to-be-ex-wife, filed a Petition for Contempt, alleging defects in the property disbursement. On March 4, 2020, a hearing was held on this contempt petition. Judge Goldston sua sponte halted the hearing, requested Mr. Gibson's home address, and ordered the parties to reconvene at Mr. Gibson's home in ten minutes without explanation as to why the home visit was necessary.

On the approximately ten-minute drive from the courthouse to Mr. Gibson's home, Mr. Gibson and his girlfriend, Sharon Masual, researched how to move to disqualify Judge Goldston. Upon arrival at the home, Mr. Gibson and Ms. Masual began video recording. Mr. Gibson then immediately approached Judge Goldston and moved to disqualify her on the grounds she had become a potential witness. Judge Goldston denied the motion as untimely.

Mr. Gibson informed Judge Goldston that she was not going inside his house without a search warrant; she replied, "oh, yes, I will." Judge Goldston continued, "let me in that house or [the bailiff] is going to arrest you for being in direct contempt of court." Judge Goldston admitted to threatening Mr. Gibson with arrest if he refused to allow her and others into his home. Additionally, Bailiff McPeake testified that he witnessed Judge Goldston threaten Mr. Gibson with arrest, and that as a sworn, on-duty police officer with arrest powers, he would have been obliged to effect the arrest.

Judge Goldston realized that Mr. Gibson was attempting to record the interaction; she ordered the recording ceased on the grounds that family court proceedings may not be recorded. Bailiff McPeake testified that he was standing with Judge Goldston and Mr. Gibson in the front yard near the gazebo when Judge Goldston ordered him to take possession of Mr. Gibson's cell phone based upon her belief he was yet attempting to record audio. Judge Goldston told Mr. Gibson to stop recording and directed him to surrender his cell phone to Bailiff McPeake.

Mr. Gibson did not consent to the seizure of his cell phone. Bailiff McPeake nevertheless filmed the search of Mr. Gibson's residence using his personal cell phone "for the protection of everyone involved," including at one point filming the interior of Mr. Gibson's gun safe. Judge Goldston was unaware until after this incident that Bailiff McPeake was recording. After he disclosed to Judge Goldston that he had recorded the incident, Judge Goldston told him that recording was improper, and he should not do it again.

Before seizing Mr. Gibson's cell phone, Bailiff McPeake radioed for backup law enforcement assistance. Before the backup arrived, Judge Goldston, Bailiff McPeake, Mr. Lusk, and Mr. Gibson's ex-wife entered Mr. Gibson's residence and began searching. Deputy Bobby Stump also aided in the search and seizure of the disputed property at the direction of Judge Goldston once he arrived at Mr. Gibson's residence. The search lasted approximately twenty (20) to thirty (30) minutes and involved various parts of the house. Many different items of personal property were seized from Mr. Gibson's residence without his consent, only some of which were later returned. Law enforcement created no contemporaneous inventory of the items taken or any police report.

When a small portion of video footage of the aforementioned events was publicized, the Judicial Disciplinary Counsel received two complaints against Judge Goldston. On September 18, 2020, the West Virginia Judicial Investigation Commission issued a Formal Statement of Charges, filed with the Supreme Court of Appeals of West Virginia, which revealed Judge Goldston admitted to conducting similar "home visits" in her capacity as Family Court Judge on at least eleven (11) separate occasions. She ultimately reached a settlement with the Judicial Disciplinary Counsel, "'admitted her wrongdoing,' and agreed to recommend to the Judicial Hearing Board and the Supreme Court of Appeals that she be censured and fined $5,000 as an appropriate sanction for her violations." [The sanction was apparently reduced to $1,000.]

Gibson sued Judge Goldston, and the court rejected the judge's absolutel immunity defense:

Judicial immunity is a form of absolute immunity. "Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages." "Although unfairness and injustice to a litigant may result on occasion, it is 'a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.'" "[J]udicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial." …

[But] a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity….. "[W]hether an act by a judge is a 'judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." … Further, it is not "the particular act in question" that is scrutinized, otherwise "any mistake of a judge in excess of his authority would become a 'nonjudicial' act[ ] because an improper or erroneous act cannot be said to be normally performed by a judge." …

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." While "the issuance of a search warrant is unquestionably a judicial act," the execution of a search and seizure is not. Indeed, searches are so quintessentially executive in nature that a judge who participates in one acts "not … as a judicial officer, but as an adjunct law enforcement officer." Lo-Ji Sales, Inc. v. New York (1979). While Lo-Ji Sales did not address judicial immunity, the Supreme Court expressed that a judicial officer presiding over a criminal case who personally "conducted a generalized search [of a store] under authority of an invalid [search] warrant … was not acting as a judicial officer but as an adjunct law enforcement officer." Judge King observed likewise writing for the panel in United States v. Servance (4th Cir. 2005), stating "it is elementary that a judge can overstep his responsibilities and compromise his judicial neutrality if, by way of example, he serves as a leader of a search party." Judge Goldston was not engaged in an act normally performed by a judge….

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….

Congratulations to John H. Bryan, who represents the plaintiff.