Matter of Kaufman

416 S.E.2d 480, 187 W. Va. 166, 1992 W. Va. LEXIS 81
CourtWest Virginia Supreme Court
DecidedApril 2, 1992
Docket20107
StatusPublished
Cited by14 cases

This text of 416 S.E.2d 480 (Matter of Kaufman) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Kaufman, 416 S.E.2d 480, 187 W. Va. 166, 1992 W. Va. LEXIS 81 (W. Va. 1992).

Opinions

BROTHERTON, Justice:

In this disciplinary proceeding, the respondent, the Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, was directed to appear before this Court on January 14, 1992, and show cause why an order should not be entered imposing the sanctions against him which were proposed by the West Virginia Judicial Hearing Board on October 22, 1991. “The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial (Hearing) Board in disciplinary proceedings.” Syl. pt. 1, West Virginia Judicial Inquiry Commission v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980).

We begin with a brief review of the facts in this case. Charleston Area Medical Center, Inc., (CAMC) filed a complaint against the respondent on January 16, 1991, alleging several violations of the Judicial Code of Ethics in connection with a phone call the respondent made to the President of CAMC, Philip H. Goodwin, on December 18,1990. The telephone call pertained to a case which was pending before Judge Kaufman, Dairyland Insurance Company v. Mary A. Barker, et al., Civil Action No. 90-C-3016.

The plaintiff in that case was an infant who was injured in an accident involving a vehicle that was insured by Dairyland Insurance Company to a liability coverage limit of $20,000. Dairyland filed an inter-pleader action in the Circuit Court of Kana-wha County, requesting that it be permitted to deposit monies with the court and be relieved of future obligations. However, at a hearing on October 29, 1990, CAMC objected when a motion to award the plaintiff the entire $20,000 was made by an assistant prosecuting attorney and the plaintiffs guardian. The court then agreed to give CAMC and other interested medical providers time in which to file additional memoranda and address the issue of why the plaintiff should not receive all of the insurance proceeds, to the exclusion of the interests of the medical care providers. CAMC filed its written objections on November 13,1990. The next hearing was set for January 8, 1991.

In the interim, however, because the plaintiff was without money during the holidays, her guardian ad litem requested an emergency hearing, which was set for 7:30 a.m. on December 18, 1990. Notice was given to all parties, but CAMC counsel did not appear. The hearing lasted for approximately forty-five minutes, during which time it was agreed that $500 of the interpleaded funds would be disbursed to the plaintiff within two days and that she would receive an additional $500 within two weeks.

Shortly after the hearing concluded, CAMC counsel Jonathan Nicol arrived and apologized to the court for having overslept that morning. Judge Kaufman told Nicol to be present at the next hearing, which had already been scheduled for January 8, 1991, and to bring his client, Philip H. Goodwin, the President of CAMC. Judge Kaufman states that he told Nicol to make sure that Goodwin had his calendar free and would be available to appear at the hearing. He also states that he indicated that he would call Goodwin himself and follow up the conversation with a letter of confirmation to all parties, including Goodwin. Nicol denies that Judge Kaufman stated his intention to call Goodwin. However, there is testimony of a deputy clerk and a bailiff which confirms the respondent’s statements.

[168]*168Judge Kaufman telephoned Mr. Goodwin on December 18, 1990. He states that he made this call in order to ensure that Goodwin would appear at the next hearing because CAMC’s attorney, Nicol, had no experience in handling that particular type of proceeding. According to Judge Kaufman, he explained the background of the case, the nature of the issues involved, and its current posture. This was done in response to Goodwin’s statement that he didn’t know anything about the case. However, Judge Kaufman states that he did not address any of the substantive issues involved in the case.

On December 19, 1990, Goodwin directed a memo to Marshall A. McMullen, Jr., General Counsel for CAMC, in which he reported Judge Kaufman’s phone call and asked for his “review and analysis of the circumstances involved_”1 The Judicial Investigation Commission contends that this memo represents the “best evidence” of the overall impression created by the phone call. In the memo, Goodwin stated, “I had a pleasant conversation with Judge . Kaufman, however, the message was pretty clear that he wanted CAMC to alter its course regarding attempting to collect on a bill for services rendered to a young lady injured in an automobile accident.” At another point in the memo, Goodwin said:

On a number of occasions during the conversation, he indicated he intended to call me to appear in this hearing (for what purpose I am not sure) if some other arrangement or course of action could not be worked out. It was obvious he did not want to have the hearing and that he felt CAMC was taking inappropriate action in attempts to receive some of the proceeds from this settlement. He indicated, of course, that any of the parties had a right to due process, but made some reference that if this was a place that CAMC intended to test the validity of a ruling from his court and the Supreme Court, “this was not the case or issue to do it on.”

Goodwin subsequently testified that “[m]y interpretation of the call was that it was clear that the judge was unhappy with our action in this case, and it was intended to cause me to review the case, and withdraw our action in the case as it related to the attempts to collect the bill.”

The day after his call to Goodwin, on December 19,1990, Judge Kaufman sent a letter to all the parties to the case, addressed “To Whom It May Concern,” advising as follows:

As the record of the hearing at 7:30 a.m. on December 18, 1990 will reflect, Charleston Area Medical Center, Inc., by counsel, was duly noticed and did not appear. Primarily because of CAMC’s objections, the Court had its second hearing in the guardian-ad-litem proceeding. Now, a third hearing on the same matter has been set down on January 8, 1991 at 1:30 p.m.
Counsel for CAMC is hereby directed that CAMC President Philip Goodwin be present at this hearing and shall attend. The purpose of this hearing, among other things, is to further make a record for reconsideration in this case.
Finally, CAMC has filed literally tens of default judgment actions in this Court this term, suing scores of patients throughout the County for monies allegedly owed and this Court has bent over backwards to be accessible to CAMC as it has to all litigants this term. However, CAMC is not entitled and will not be given preferential treatment in this case and should be on notice that if they miss another hearing on January 8, 1991, [169]*169then they may well be dismissed from this present suit.

CAMC perceived Judge Kaufman’s conduct in the Dairyland case to be unethical, and filed a complaint with the Judicial Investigation Commission of West Virginia on January 16, 1991, requesting a full investigation of the matters contained in its complaint.

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Bluebook (online)
416 S.E.2d 480, 187 W. Va. 166, 1992 W. Va. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-kaufman-wva-1992.