BEFORE THE JUDICIAL HEARING BOARD OF WEST VIRGINIA

IN THE MATTER OF:

HONORABLE LOUISE E. GOLDSTON, SUPREME COURT NO. 20-0742

JUDGE OF THE 13TH FAMILY COURT JIC COMPLAINT NOS. 30& 33-2020

COMPLAINANT MATTHEW GIBSON’S AMICUS CURIAE BRIEF

Now comes Matthew Gibson, a Complainant in the above-styled matter, by and through

counsel, John H. Bryan, and respectfully requests that he be granted leave to file the incorporated

amicus curiae brief in response to the Post-Hearing Order issued by the Judicial Hearing Board

of West Virginia on January 20, 2021.

INTRODUCTION

This matter came on for hearing on January 15, 2021 for a final hearing via remote

technology. The Hearing Board was presented with a Settlement Agreement executed both by

Judicial Disciplinary Counsel and the Respondent. The parties agreed to the provisions of the

Settlement Agreement. Additionally, counsel for the Complainant, Matthew Gibson, also

addressed the Hearing Board and provided his recommendation that the provisions of the

Settlement Agreement be adopted by the Board and recommended to the Supreme Court of

Appeals for adoption in accordance with the agreed-upon provisions. During the hearing,

Judicial Hearing Board member, the Hon. Judge Stotler, a sitting Family Court Judge, raised a

concern that he did not want to create a legal precedent establishing that family court judges

could not engage in the so-called “home visits” which are described in the Formal Statement of

Charges against the Respondent herein. Following the meeting of the Hearing Board, a Post-

Hearing Order was issued requesting briefing of several questions similar to those posed by

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Judge Stotler during the final hearing. The Complainant Gibson desires to also submit a response

brief to the questions posed by the Board, by way of amicus curiae.

ARGUMENT

The questions posed by the Hearing Board primarily pertain to the question of whether

there are any provisions in the West Virginia Code or the Rules of Practice and Procedure for

Family Courts which authorize the so-called “home visits,” such as occurred to Mr. Gibson, as

described in the Formal Statement of Charges. The simple fact of the matter is that no statute or

rule can operate to authorize a warrantless search of a litigant’s home in violation of the Fourth

Amendment of the U.S. Constitution. No further discussion is necessary on the issue, unless

valid voluntary consent is provided by the homeowner litigant.

Respondent Judge Goldston, utilizing the threat of arrest by police officers, forcibly

entered, searched and seized Mr. Gibson’s home. The entry, search, and as well as the seizure,

were performed in conjunction with present law enforcement officers, including Judge

Goldston’s bailiff. Items were seized inside the home and thereafter removed. Mr. Gibson

demanded a warrant, but was told by Judge Goldston that she didn’t need one, and that he would

be arrested if he attempted to stop the search and seizure. Moreover, additional law enforcement

was called to the scene to participate.

Amendment IV of the U.S. Constitution provides that “The right of the people to be

secure in their persons, houses, papers and effects against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched and the persons or things to be

seized. Article III, Section 6 of the West Virginia Constitution provides for the same protections,

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almost verbatim. West Virginia state-level search warrants must be executed by the officer who

obtained the warrant within ten days of being issued. See W. Va. Code § 62-1A-4; State v.

Clements, 175 W. Va. 463 (1985).

“It is a basic principle of Fourth Amendment law that searches and seizures inside a home

without a warrant are presumptively unreasonable.” Brigham City v. Stuart, 547 U.S. 398, 403

(2006). The Supreme Court has ruled that no reasonable police officer could claim to be unaware

of the basic rule that, absent consent or exigency, a warrantless search of a home is

presumptively unconstitutional, and therefore would not be entitled to qualified immunity:

“[T]he right of a man to retreat into his own home and there be free from unreasonable
governmental intrusion’ ” stands “ ‘[a]t the very core’ of the Fourth Amendment,” Kyllo
v. United States, 533 U. S. 27, 31 (2001), our cases have firmly established the “‘basic
principle of Fourth Amendment law’ that searches and seizures inside a home without a
warrant are presumptively unreasonable,” Payton v. New York, 445 U. S. 573, 586
(1980). Thus, “absent exigent circumstances, a warrantless entry to search for weapons or
contraband is unconstitutional even when a felony has been committed and there is
probable cause to believe that incriminating evidence will be found within.” Id., at 587–
588 (footnote omitted). See Kyllo, 533 U. S., at 29.

Groh v. Ramirez, 540 U.S. 551, 559 (2004) (citations omitted). These principles are equally

applicable to the search of Mr. Gibson’s home as occurred on March 4, 2020:

That rule is in keeping with the well-established principle that ‘except in certain carefully
defined classes of cases, a search of private property without proper consent is
“unreasonable” unless it has been authorized by a valid search warrant.’ Camara v.
Municipal Court, 387 U. S. 523, 528–529 (1967). See Steagald v. United States, 451 U. S.
204, 211–212 (1981); Jones v. United States, 357 U. S. 493, 499 (1958).” Ibid.

Id. 540 U.S. at 560 (2004).

The context of a search and seizure taking place in a setting outside of a “criminal”

investigation or prosecution doesn’t prevent the protections of the Fourth Amendment from

application to the Complainant’s home. This expectation exists not only with respect to

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traditional police searches conducted for the gathering of criminal evidence but also with respect

to administrative inspections designed to enforce regulatory statutes. See Marshall v. Barlow's,

Inc., 436 U.S. 307, 312-313, 98 S.Ct. 1816, 1820-1821, 56 L.Ed.2d 305 (1978). There’s a limited

exception for heavily-regulated industries, such as coal mines. In Lesueur-Richmond Slate Corp.

v. Fehrer, 666 F.3d 261 (4th Cir. 2012), the Fourth Circuit held that public officials may conduct

warrantless searches of coal mines in Virginia, pursuant to the authorization to do so in Virginia's

Mineral Mine Safety Act, Va. Code Ann. 45.1-161.292:54(B), only because mining is a “heavily

regulated industry” and because “certain conditions are met.” These conditions, set forth in the

Supreme Court case of New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636 (1987), require that

such an inspection program “provide a constitutionally adequate substitute for a warrant.” Id. at

702. The Fourth Circuit applied the Supreme Court’s holding in New York v. Burger, requiring a

statutory program in place to be subjected to analysis. See generally, New York v. Burger, 482

U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).

Even assuming that Family Court litigation was akin to inspections taking place in a

“heavily regulated” industry such as coal mining, there’s no statutory scheme in existence under

the provision of the West Virginia Code pertaining to family courts, nor in the rules of procedure,

which would fulfill the requirements set forth by the Supreme Court in New York v. Burger.

There’s no statutory scheme with due process and protections sufficient to substitute for a

warrant. See generally, Lesueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261 (4th Cir. 2012).

To the contrary, the factual allegations in the Formal Statement of Charges against Respondent

Judge Goldston, pursuant to the agreement of the parties, demonstrate otherwise - that there was

no procedure for due process protections akin to a warrant.

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 Furthermore, there can be no dispute that a “search” took place inside Matthew Gibson’s

home. For Fourth Amendment purposes, a “search” occurs when a government actor “physically

occupies private property for the purposes of obtaining information.” U.S. v. Jones, 565 U.S.

400, 404 (2012). In the Southern District of West Virginia, this definition has been applied to the

context of administrative “verifications” of addresses of individuals on the West Virginia Sex

Offender Registry, which as in the matter sub judice, occurred in an administrative (rather than

“criminal”) investigation:

A search occurs when a government actor "physically occupie[s] private property for the
purpose of obtaining information." U.S. v. Jones, 565 U.S. 400, 404 (2012).…

Here, defendants accept, arguendo, that the entry of plaintiffs' home on May 13, 2014 was
a search for Fourth Amendment purposes. Defs.' Reply Pls.' Resp. n.1. Indeed, the facts in
this case support such a finding. Defendants Powers and Minor entered the Carpenter
home to collect information. Whether that information was collected for the verification of
Mr. Carpenter's sex offender registration or for an impending Family Court proceeding,
the actions of the defendants fall plainly within the scope of a Fourth Amendment search.

See Carpenter v. Perry, et al., Civil Action No. 2:16-CV-04199, Mem. Op. & Order at 19 (S.D.

W.Va. 2017). Moreover, in the Carpenter case, the Southern District found that despite the

government having a strong interest in protecting the public from sex offenders, that interest did

not excuse a policy or practice of warrantless searches of their residences:

The privacy right of plaintiffs to be secure in their own home is at the core of the Fourth
Amendment, and though the government certainly has an interest in protecting the public
from sex offenders by collecting and releasing public information about those offenders
this does not allow for warrantless entry into private residences. Therefore, the entry of
State Police into the Carpenter home for the purpose of performing a sex offender
registration verification of one not under supervision is an unreasonable search under the
Fourth Amendment and does not meet a valid special needs exception.

Carpenter at 32 (S.D. W.Va. 2017).

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 There can be no doubt that a litigant’s home is entitled to heightened Fourth Amendment

protections. The Supreme Court has long placed special emphasis on the home:

Since we hold to the "centuries-old principle of respect for the privacy of the home,"
Wilson v. Layne, 526 U. S. 603, 610 (1999), "it is beyond dispute that the home is entitled
to special protection as the center of the private lives of our people," Minnesota v. Carter,
525 U. S. 83, 99 (1998) (Kennedy, J., concurring). We have, after all, lived our whole
national history with an understanding of "the ancient adage that a man's house is his
castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of
the Crown," Miller v. United States, 357 U. S. 301, 307 (1958) (internal quotation marks
omitted).

Georgia v. Randolph, 547 U.S. 103, 114, 115, 126 S. Ct. 1515 (2006).

CONCLUSION

Therefore, there can be no doubt that such a “home visit” as performed by Respondent

Judge Goldston, or as perhaps anticipated by Judge Stotler, implicates the Fourth Amendment.

Should there be voluntary consent for such a visit, then the Fourth Amendment would be

satisfied, and one could turn to the West Virginia Code and applicable rules of procedure, in

order to ascertain whether such a visit would be appropriate or in compliance with the rules.

However, to the extent that voluntary consent is not obtained, a “home visit” would fall within

the definition of a “search” for purposes of the Fourth Amendment, and would be presumptively

unconstitutional, absent a warrant or applicable exception.

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MATTHEW GIBSON
By Counsel

/s JOHN H. BRYAN
John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com
Counsel for Matthew Gibson

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 BEFORE THE JUDICIAL HEARING BOARD OF WEST VIRGINIA

IN THE MATTER OF:

HONORABLE LOUISE E. GOLDSTON, SUPREME COURT NO. 20-0742

JUDGE OF THE 13TH FAMILY COURT JIC COMPLAINT NOS. 30& 33-2020

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on February 16, 2021, a copy of the

COMPLAINANT MATTHEW GIBSON’S AMICUS CURIAE BRIEF, was served on the

parties to this case by U.S. Mail and email as set forth below:

Andrew S. Nason, Esq.

Counsel for Judge Louise E. Goldston, Respondent
andyn@peppernason.com

Teresa A. Tarr, Esq.

Teresa.Tarr@courtswv.gov

Brian J. Lanham, Esq.

Brian.Lanham@courtswv.gov

Ancil Ramey, Esq.

Ancil.Ramey@Steptoe-Johnson.com

/s John H. Bryan
John H. Bryan (WVSB # 10259)

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