MILLER, Justice:
This is a judicial disciplinary proceeding. The Judicial Hearing Board has recommended that we suspend Kermit W. Pau-ley, the respondent magistrate, for a period of six months as authorized by Rule III(C)(13)(a) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges, and Magistrates (hereinafter Disciplinary Rules). After an independent examination of the record, we adopt the disposition recommended by the Board.
The Board found that Pauley failed to comply with the provisions of W.Va.Code, 62-1-5 & 6, and thereby violated Canons 1, 2(A), 3(A)(1), and 3(A)(4) of the Judicial Code of Ethics.1 At the outset, we address Pauley’s argument that the Judicial Hearing Board should not have considered the Pauley case in view of an earlier recommendation made by the former Judicial Review Board.
By order of December 15, 1982, this Court made certain changes to the Disciplinary Rules.2 The name of the Judicial Review Board was changed to the Judicial Hearing Board (hereinafter Board).3 To ensure that pending cases would be properly completed, the order directed that all records, reports, and findings were to be transferred to the new Board.
When the new Board met and reviewed the Pauley case on February 10, 1983, it noted that no findings of fact or conclusions of law had ever been made in the case, as required by our Disciplinary Rules. See Rule II(B)(15) (1976) and Rule III(C)(13) (1982).4 The Board concluded that it now had that responsibility.
[477]*477We think the Board was correct in its action as findings of fact and conclusions of law are required so that we can have some understanding of the basis for its decision. See Tasker v. Mohn, 165 W.Va. 55, 267 S.E.2d 183, 190 (1980); In re Brown, 164 W.Va. 234, 262 S.E.2d 444, 446 (1980); Mountain Trucking Co. v. Public Service Commission, 158 W.Va. 958, 963, 216 S.E.2d 566, 569 (1975). We also note that the Board’s decision is not conclusive since this Court must make “an independent evaluation of the record and recommendations of the Judicial Review Board [now Judicial Hearing Board] in disciplinary proceedings.” Syllabus Point 1, in part, W.Va. Judicial Inquiry Commission v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980). Consequently, we find that Magistrate Pauley has suffered no substantial prejudice.
Turning to the merits of the case, the proceedings against Pauley arose out of his conduct when a person was arrested and initially brought before him. The relevant facts are that on March 17, 1981, Alfred Jackson, who later committed suicide in the Kanawha County Jail, was brought before Pauley by a state trooper at about 8:30 a.m. The trooper stated that he had arrested Jackson without a warrant for an attempted burglary. Upon bringing Jackson before the magistrate, the trooper then prepared an affidavit or complaint for an arrest warrant. Pauley decided that an arrest warrant should issue, but because no clerical assistance had arrived that morning the warrant was not typed until later that day. Pauley committed Jackson to jail before the warrant was typed.
The Board found that the arrest warrant was not completed at the time that the defendant was committed to the jail and that this violated W.Va.Code, 62-1-5, which provides in relevant part that “[w]hen a person arrested without a warrant is brought before a justice [magistrate], a complaint shall be filed and a warrant issued forthwith.”5 We have previously indicated that this provision requires in the case of a warrantless arrest that “the person arrested must be taken before a magistrate without delay, and a complaint must be filed and a warrant issued immediately.” West Virginia Judicial Inquiry Commission v. Casto, 163 W.Va. 661, 664, 263 S.E.2d 79, 81 (1979).
In Casto, the magistrate had a defendant before him on traffic violations based upon traffic citations issued by deputy sheriffs. The defendant paid a fine and costs and a few days later appeared and requested an appeal. In the process of preparing the appeal, the magistrate discovered that no arrest warrants had been issued and he then prepared them. However, the complaints for the warrants were not signed by the deputies until several months later and were dated back to the day that the defendant had paid the fine and costs.
It was this action that gave rise to a formal complaint against the magistrate. We declined to find a violation, since we concluded that the magistrate had not prejudiced the rights of the defendant, but was attempting to effect his appeal. We did characterize the magistrate’s procedure as error.
Here, a more egregious violation has occurred as the magistrate was not assisting the defendant when he failed to take the initial step of preparing the warrant. It would have been no great task for the magistrate to have written out the warrant. In Casto, we pointed out that “criminal actions in magistrate courts are instituted by the issuance of a warrant. W.Va. Code, 50-4-2.” 163 W.Va. at 664, 263 S.E.2d at 81. It is from the warrant that the defendant is apprised of the nature of the offense with which he is charged.
[478]*478The Board also found that Pauley did not follow the requirements of W.Va.Code, 62-1-6,6 in that he did not inform Jackson in plain terms of the nature of the complaint against him; of his right to counsel; of his right to remain silent, or of his right to a preliminary hearing. Furthermore, no effort was made to obtain an affidavit of indigency and Pauley did not provide Jackson with a reasonable means to communicate with an attorney or with at least one relative or other person for the purpose of obtaining counsel or arranging bail.
Pauley contends, however, that the evidence shows that when Jackson was brought before him he was uncooperative and refused to listen to his rights. The arresting officer testified that when Pauley tried to advise Jackson of his rights utilizing the standard rights form, Jackson said the police did not have anything on him and that he knew his rights and was not signing anything. The trooper said that Pauley did not continue to go through the rights form line by line and did not attempt to get Jackson’s signature.
Pauley testified that when Jackson was brought before him, he was upset about having been handcuffed too tightly. Pau-ley stated that the defendant would not talk to him or give him any address. He testified that he always advised defendants of their rights, but did not do so in this case because of Jackson’s statements and uncooperative demeanor.
Although Magistrate Pauley was confronted with an individual who may have been uncooperative, we do not believe that this can excuse his failure to follow the procedures prescribed by W.Va.Code, 62-1-6.
Free access — add to your briefcase to read the full text and ask questions with AI
MILLER, Justice:
This is a judicial disciplinary proceeding. The Judicial Hearing Board has recommended that we suspend Kermit W. Pau-ley, the respondent magistrate, for a period of six months as authorized by Rule III(C)(13)(a) of the Rules of Procedure for the Handling of Complaints Against Justices, Judges, and Magistrates (hereinafter Disciplinary Rules). After an independent examination of the record, we adopt the disposition recommended by the Board.
The Board found that Pauley failed to comply with the provisions of W.Va.Code, 62-1-5 & 6, and thereby violated Canons 1, 2(A), 3(A)(1), and 3(A)(4) of the Judicial Code of Ethics.1 At the outset, we address Pauley’s argument that the Judicial Hearing Board should not have considered the Pauley case in view of an earlier recommendation made by the former Judicial Review Board.
By order of December 15, 1982, this Court made certain changes to the Disciplinary Rules.2 The name of the Judicial Review Board was changed to the Judicial Hearing Board (hereinafter Board).3 To ensure that pending cases would be properly completed, the order directed that all records, reports, and findings were to be transferred to the new Board.
When the new Board met and reviewed the Pauley case on February 10, 1983, it noted that no findings of fact or conclusions of law had ever been made in the case, as required by our Disciplinary Rules. See Rule II(B)(15) (1976) and Rule III(C)(13) (1982).4 The Board concluded that it now had that responsibility.
[477]*477We think the Board was correct in its action as findings of fact and conclusions of law are required so that we can have some understanding of the basis for its decision. See Tasker v. Mohn, 165 W.Va. 55, 267 S.E.2d 183, 190 (1980); In re Brown, 164 W.Va. 234, 262 S.E.2d 444, 446 (1980); Mountain Trucking Co. v. Public Service Commission, 158 W.Va. 958, 963, 216 S.E.2d 566, 569 (1975). We also note that the Board’s decision is not conclusive since this Court must make “an independent evaluation of the record and recommendations of the Judicial Review Board [now Judicial Hearing Board] in disciplinary proceedings.” Syllabus Point 1, in part, W.Va. Judicial Inquiry Commission v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980). Consequently, we find that Magistrate Pauley has suffered no substantial prejudice.
Turning to the merits of the case, the proceedings against Pauley arose out of his conduct when a person was arrested and initially brought before him. The relevant facts are that on March 17, 1981, Alfred Jackson, who later committed suicide in the Kanawha County Jail, was brought before Pauley by a state trooper at about 8:30 a.m. The trooper stated that he had arrested Jackson without a warrant for an attempted burglary. Upon bringing Jackson before the magistrate, the trooper then prepared an affidavit or complaint for an arrest warrant. Pauley decided that an arrest warrant should issue, but because no clerical assistance had arrived that morning the warrant was not typed until later that day. Pauley committed Jackson to jail before the warrant was typed.
The Board found that the arrest warrant was not completed at the time that the defendant was committed to the jail and that this violated W.Va.Code, 62-1-5, which provides in relevant part that “[w]hen a person arrested without a warrant is brought before a justice [magistrate], a complaint shall be filed and a warrant issued forthwith.”5 We have previously indicated that this provision requires in the case of a warrantless arrest that “the person arrested must be taken before a magistrate without delay, and a complaint must be filed and a warrant issued immediately.” West Virginia Judicial Inquiry Commission v. Casto, 163 W.Va. 661, 664, 263 S.E.2d 79, 81 (1979).
In Casto, the magistrate had a defendant before him on traffic violations based upon traffic citations issued by deputy sheriffs. The defendant paid a fine and costs and a few days later appeared and requested an appeal. In the process of preparing the appeal, the magistrate discovered that no arrest warrants had been issued and he then prepared them. However, the complaints for the warrants were not signed by the deputies until several months later and were dated back to the day that the defendant had paid the fine and costs.
It was this action that gave rise to a formal complaint against the magistrate. We declined to find a violation, since we concluded that the magistrate had not prejudiced the rights of the defendant, but was attempting to effect his appeal. We did characterize the magistrate’s procedure as error.
Here, a more egregious violation has occurred as the magistrate was not assisting the defendant when he failed to take the initial step of preparing the warrant. It would have been no great task for the magistrate to have written out the warrant. In Casto, we pointed out that “criminal actions in magistrate courts are instituted by the issuance of a warrant. W.Va. Code, 50-4-2.” 163 W.Va. at 664, 263 S.E.2d at 81. It is from the warrant that the defendant is apprised of the nature of the offense with which he is charged.
[478]*478The Board also found that Pauley did not follow the requirements of W.Va.Code, 62-1-6,6 in that he did not inform Jackson in plain terms of the nature of the complaint against him; of his right to counsel; of his right to remain silent, or of his right to a preliminary hearing. Furthermore, no effort was made to obtain an affidavit of indigency and Pauley did not provide Jackson with a reasonable means to communicate with an attorney or with at least one relative or other person for the purpose of obtaining counsel or arranging bail.
Pauley contends, however, that the evidence shows that when Jackson was brought before him he was uncooperative and refused to listen to his rights. The arresting officer testified that when Pauley tried to advise Jackson of his rights utilizing the standard rights form, Jackson said the police did not have anything on him and that he knew his rights and was not signing anything. The trooper said that Pauley did not continue to go through the rights form line by line and did not attempt to get Jackson’s signature.
Pauley testified that when Jackson was brought before him, he was upset about having been handcuffed too tightly. Pau-ley stated that the defendant would not talk to him or give him any address. He testified that he always advised defendants of their rights, but did not do so in this case because of Jackson’s statements and uncooperative demeanor.
Although Magistrate Pauley was confronted with an individual who may have been uncooperative, we do not believe that this can excuse his failure to follow the procedures prescribed by W.Va.Code, 62-1-6. After the magistrate has explained the defendant’s rights and the defendant has refused to sign the form, then the magistrate should indicate on the form that the defendant refused to sign it, but had been advised of his rights. Moreover, the magistrate should ensure that counsel will be appointed by marking the appropriate box. Our system is designed to expect more than a perfunctory effort in explaining the initial mandatory rights form.7
W.Va.Code, 62-1-6, is couched in mandatory language and imposes a legal duty on magistrates to comply with its requirements as we discussed in State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1981). See also State v. Mason, 162 W.Va. 297, 249 S.E.2d 793 (1978).
Magistrates by virtue of their legal duties play an extremely important initial role in the criminal justice system in this State. Magistrates must make every effort to advise citizens of their rights and to ensure that no person is unnecessarily incarcerated in jail. In this case, Magistrate Pauley committed Jackson to jail without completing the proper intake papers, resulting in a failure to afford him counsel and a prompt disposition of the charge.
Other courts have held that the deliberate failure to follow mandatory criminal [479]*479procedures constitutes a violation of the Judicial Code of Ethics, Matter of MacDowell, 57 A.D.2d 169, 393 N.Y.S.2d 748 (1977); Matter of Cieminski, 270 N.W.2d 321 (N.D.1978), or mandatory hearing and reporting procedures, Matter of Ross, 428 A.2d 858 (Me.1981); Matter of Holder, 74 N.J. 581, 379 A.2d 220 (1977); Matter of Hardt, 72 N.J. 160, 369 A.2d 5 (1977); Matter of Guay, 101 Wis.2d 171, 303 N.W.2d 669 (1981).
We hold that the Board’s finding that the Judicial Code of Ethics has been violated is supported by clear and convincing evidence as required by Rule 111(C)(2) of the Disciplinary Rules. See Syllabus Point 4, In re: Herbert L. Pauley, 173 W.Va. 228, 314 S.E.2d 391 (1983). We, therefore, adopt the Board’s recommendation that Magistrate Pauley be suspended for six months without pay.
Complaint Sustained.