De Novo Means De Novo: West Virginia High Court Refuses to Be Bound by Disciplinary Stipulations and Clarifies Status-Specific Reach of Judicial Conduct Rules in In re Boso

De Novo Means De Novo: West Virginia High Court Refuses to Be Bound by Disciplinary Stipulations and Clarifies Status-Specific Reach of Judicial Conduct Rules in In re Boso

Introduction

In a significant judicial discipline opinion, the Supreme Court of Appeals of West Virginia, per Justice Bunn, sanctioned Nicholas County Magistrate Elizabeth Boso for misrepresenting her residency while seeking appointment to a Kanawha County magistrate vacancy. Although the Judicial Hearing Board (JHB) had adopted a negotiated resolution in which Magistrate Boso admitted six violations of the West Virginia Code of Judicial Conduct, the Court exercised its plenary review power to pare those violations down to one—Rule 4.1(A)(9)—and still imposed a two-month suspension without pay, a censure, and costs.

The opinion does more than resolve a single case. It articulates a new, explicit rule about the Court’s role in disciplinary matters: even when the parties stipulate to facts or to violations of the Code of Judicial Conduct, the Court is not bound by those stipulations. The Court also clarifies the status-sensitive application of the Judicial Conduct Code—drawing bright lines between “judges,” “judicial candidates,” and “judicial candidates subject to public election,” and allocating different rules to each status. Those clarifications will shape charging decisions, stipulations, and sanction analysis in future West Virginia judicial discipline cases.

Summary of the Opinion

  • The Court expressly holds that it is not bound by parties’ admissions or stipulations to facts or to violations of the Code of Judicial Conduct and will independently determine whether those stipulations are legally and factually supportable.
  • Applying that de novo standard, the Court finds that five of six charged rule violations were inapplicable to Magistrate Boso’s status at the time of her conduct. She was a “judicial candidate” seeking appointment—not a “judge,” and not a candidate “subject to public election”—when she made the misstatements.
  • The Court sustains a single violation: Rule 4.1(A)(9), which prohibits a judge or judicial candidate from knowingly or recklessly making false or misleading statements. The falsehoods were Boso’s residency claims in her email to the appointing authority and on her vacancy application and résumé.
  • Despite reducing the violation count, the Court adopts the JHB’s recommended sanctions: suspension without pay for two months, a public censure, and costs of $618.45, emphasizing the seriousness of dishonesty in seeking judicial office.

Case Background

Magistrate Elizabeth Boso spent many years as a magistrate assistant in Nicholas and Kanawha Counties. She lived in Summersville (Nicholas County) since 2005 and briefly owned a Charleston condominium from 2021 until she sold it on June 9, 2023. In late 2023, anticipating a run for a Kanawha County magistrate seat, she sought to “rent” an address in Kanawha County—texting that she wanted to “rent a room … for an address until the election is over” and to “keep it … on the down low.”

On January 19, 2024, a Kanawha County magistrate resigned. On January 22, 2024, Boso emailed Chief Judge Maryclaire Akers to seek appointment, stating she had “maintained a residence in Kanawha” since 2021. Her appointment application and résumé listed a Dunbar address where she had never lived. She did not obtain the appointment and instead filed to run for magistrate in Nicholas County, using her long-standing Summersville address as her legal residence.

The Judicial Investigation Commission (JIC) filed charges alleging six violations. Boso, self-represented, admitted the allegations and rule violations in a negotiated agreement with Judicial Disciplinary Counsel (JDC); the Judicial Hearing Board recommended a two-month suspension without pay, a censure, and costs. The Supreme Court placed the matter on the argument docket and undertook de novo review.

Analysis

Precedents Cited and Their Influence

  • W. Va. Jud. Inquiry Comm’n v. Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980): Reaffirmed that the Supreme Court makes an independent evaluation in disciplinary proceedings (Syllabus Pt. 1). This frames the Court’s power to look beyond the JHB’s recommendation and the parties’ stipulations.
  • In re Gorby, 176 W. Va. 16, 339 S.E.2d 702 (1985): Establishes that the purpose of judicial discipline is to preserve public confidence in the integrity and efficiency of the judiciary (Syllabus). This purpose guides sanction selection and the Court’s sensitivity to dishonest conduct.
  • In re Starcher, 202 W. Va. 55, 501 S.E.2d 772 (1998): Stipulated facts bind the parties and are deemed proven to the required standard, but Starcher does not force the Court to accept them. The Court builds on Starcher to announce that it is not bound by stipulations and may reject legal conclusions embedded in them.
  • In re Watkins, 233 W. Va. 170, 757 S.E.2d 594 (2013): Lists available sanctions under Rule 4.12 of the Rules of Judicial Disciplinary Procedure (Syllabus Pt. 6), anchoring the sanction menu the Court ultimately applies.
  • In re Cruickshanks, 220 W. Va. 513, 648 S.E.2d 19 (2007): Provides factors for considering suspension—impact on administration of justice, relation to public persona, violence/disregard of justice, criminal charges, and mitigating/aggravating circumstances (Syllabus Pt. 3). These factors steer the Court’s sanction analysis.
  • In re Browning, 192 W. Va. 231, 452 S.E.2d 34 (1994): Confirms the Court’s constitutional duty to independently evaluate the record and gives “substantial weight” (but not conclusive effect) to Board factfinding.
  • In re Baughman, 182 W. Va. 55, 385 S.E.2d 910 (1989): The Court retains prerogative to conduct an independent factual inquiry, reinforcing the breadth of de novo review.
  • Sister-state authority endorsing nonbinding stipulations in discipline:
    • Iowa: Iowa Sup. Ct. Att’y Disciplinary Bd. v. Lynch, 901 N.W.2d 501 (Iowa 2017).
    • Utah: In re Christensen, 304 P.3d 835 (Utah 2013).
    • Wisconsin: In re Ziegler, 750 N.W.2d 710 (Wis. 2008).
    • Oklahoma: State ex rel. Okla. Bar Ass’n v. McGee, 48 P.3d 787 (Okla. 2002).
    • Florida: In re Flynn, 397 So. 3d 39 (Fla. 2024) (rejecting a stipulation based on a legal misreading of the Code—persuasive in Boso for declining legally erroneous stipulations).
  • In re Rock, 249 W. Va. 631, 900 S.E.2d 57 (2024): Recent discipline for dishonesty to a disciplinary body by a sitting judge; used to calibrate sanction severity.
  • In re Callaghan, 238 W. Va. 495, 796 S.E.2d 604 (2017): Discipline for false campaign statements by a judicial candidate; informs the gravity of dishonest campaign-related speech.
  • Comm. on Legal Ethics v. Karl, 192 W. Va. 23, 449 S.E.2d 277 (1994): Articulates sanction purposes—public acknowledgment, deterrence, and maintaining judicial integrity, even when misconduct predates office.
  • State ex rel. Johnson v. Robinson, 162 W. Va. 579, 251 S.E.2d 505 (1979): Anti-superfluity canon used to show that candidate-specific rules would be redundant if all candidates were “judges” for Rule 1.2’s purposes.

Legal Reasoning

1) De novo review and nonbinding stipulations

The Court announces a new, explicit rule: it is not bound by parties’ admissions or stipulations to facts or to violations of the Judicial Conduct Code and will independently determine whether such stipulations are both legally and factually supported. This holding synthesizes Dostert’s independent review mandate, Starcher’s treatment of stipulated facts as binding only on the parties, and persuasive sister-state authority. The Court emphasizes that stipulations may reflect compromise, leverage, or strategy and may embed legal errors; therefore, blind acceptance could undermine consistency and integrity in judicial discipline.

2) Status-sensitive application of the Judicial Conduct Code

The decision rigorously distinguishes among “judge,” “judicial candidate,” and “judicial candidate subject to public election,” insisting that charging and analysis track the actor’s status at the time of each act:

  • “Judge” versus “judicial candidate”: The Code’s Application section and Terminology provisions make these distinct. Boso was not a “judge” when she emailed the appointing authority and filed her application; thus the “judge-only” rules did not apply to her then.
  • Rule 4.1 (Political and campaign activities of judges and judicial candidates in general): Applies to all judicial candidates—including those seeking appointment. The Court sustains a violation of Rule 4.1(A)(9) because Boso knowingly made false or misleading statements about maintaining a Kanawha County residence and provided a Kanawha address where she had never resided.
  • Rule 4.2 (Political and campaign activities of judicial candidates in public elections): The text expressly limits Rule 4.2 to candidates “subject to public election.” Boso’s misstatements occurred when she was seeking appointment, not when she was an election candidate; therefore Rule 4.2 did not apply. The Court declines to accept the parties’ stipulations to Rule 4.2 violations as they rested on a legal misreading of the Code’s scope.
  • Rules 1.1 and 1.2 (Compliance with law and promoting confidence; avoiding impropriety): These rules, by their terms, apply to “judges.” Boso was a layperson judicial candidate when she spoke and filed; neither the Statement of Charges nor JDC’s briefing established a legal basis to apply these rules to non-judge candidates. The Court rejects JDC’s argument that they operate as universal “catch-alls,” pointing to the Code’s structured, status-specific architecture and the presence of candidate-focused provisions elsewhere in the Code.
  • Rule 2.16(A) (candor to disciplinary authorities): Also a “judge-only” rule. Neither Boso’s response to the complaint (February 12, 2024) nor her sworn statement (May 23, 2024) occurred after she was sworn into judicial office. The Court therefore finds Rule 2.16(A) inapplicable. Even analyzing the statements under Rule 4.1(A)(9), the record does not support that she lied to the JIC/JDC about the timing of her rental agreement or her efforts to find lodging.

3) The sustained violation: Rule 4.1(A)(9)

The Court identifies two false or misleading statements made while Boso was a “judicial candidate” for appointment:

  • Her email to Chief Judge Akers stating she had maintained a residence in Kanawha County since 2021, despite selling her condominium in June 2023 and never thereafter maintaining a Kanawha residence.
  • Her vacancy application and résumé listing a Dunbar address as her “home address” and suggesting Kanawha residence when she had never lived there.

On those facts—admitted by Boso and corroborated by texts and documents—the Court finds a violation of Rule 4.1(A)(9). It notably avoids deciding whether a candidate for appointment must satisfy the statutory residency requirement applicable to elected magistrates, because the charge here involves truthfulness about residency, not eligibility per se.

4) Sanctions

The Court reaffirms the sanction options under Rule 4.12 (admonishment, reprimand, censure, suspension without pay up to one year, fines up to $5,000, involuntary retirement, and costs). Applying the Cruickshanks factors, the Court centers its analysis on:

  • The effect on public perception of the administration of justice: dishonesty in seeking judicial office “strikes at the very heart” of judicial authority.
  • The relation to the judicial officer’s public persona: although the misconduct predated office, it bears on public confidence in the office Boso now holds; timing does not immunize misconduct from sanction.

Balancing those considerations with mitigating factors (cooperation, remorse, years of service, no prior discipline), the Court calibrates the sanction using recent comparators:

  • In re Rock: reprimand for a sitting judge’s dishonesty to JDC about involvement with a controversial letter.
  • In re Callaghan: two-year suspension for a judicial candidate’s false campaign flyer that arguably affected an election outcome and accompanied by scant remorse.

The Court situates Boso’s case between Rock and Callaghan: the misrepresentation resembles Rock in scale but the objective—professional advancement through appointment—echoes Callaghan’s threat to institutional integrity. Consequently, the Court adopts the Board’s recommended discipline notwithstanding the reduction to a single violation:

  • Suspension for two months without pay;
  • Public censure;
  • Costs of $618.45.

Impact

The opinion has immediate and systemic effects on judicial discipline in West Virginia:

  • Stipulations and negotiated resolutions: Parties can no longer assume that admissions or stipulations to facts or violations will be accepted. The Court will test both legal applicability and factual sufficiency under de novo review. This encourages careful charge selection and precise stipulations tied to the actor’s status at the time of each act.
  • Status-driven charging discipline: The decision compels JIC/JDC to align each rule charged with the respondent’s status at the moment of the conduct:
    • Rules 1.1 and 1.2: apply to “judges,” not to layperson candidates.
    • Rule 2.16(A): applies to sitting judges; does not reach judges-elect or non-judges.
    • Rule 4.1: applies to all “judicial candidates,” including appointive candidates.
    • Rule 4.2: applies only to candidates “subject to public election,” not to appointive candidates.
    Errors in this mapping can lead to dismissal of counts even if the respondent admits them.
  • Sanctions despite fewer counts: Reducing violations does not necessarily reduce consequences. Where misconduct harms public confidence—especially dishonesty in seeking judicial office—suspension and censure remain available and appropriate.
  • Appointment versus election frameworks: The Court signals that truthfulness rules (Rule 4.1) adequately police misstatements in appointment contexts. It does not decide whether statutory residency for elected magistrates applies to appointments, leaving that question for another day.
  • Campaign and appointment ethics: Using an address “for the address” without actual residence is a misrepresentation when employed to create an impression of residency. The Court’s treatment underscores that the appearance of scrupulous honesty is paramount for those seeking a judicial robe.

Complex Concepts Simplified

  • De novo review: The Court looks at the case afresh, without deferring to the parties’ stipulations or the Board’s legal conclusions, and reaches its own independent judgment.
  • Stipulations in discipline: Agreements between the respondent and disciplinary counsel about facts or violations. After Boso, they bind the parties but not the Court, which may reject them if legally inapplicable or inadequately supported by the record.
  • Judge vs. judicial candidate vs. candidate subject to public election:
    • Judge: A person sworn into judicial office and performing judicial functions. Rules 1.1, 1.2, and 2.16(A) apply to them.
    • Judicial candidate: Anyone seeking selection to judicial office by election or appointment. Rule 4.1 applies.
    • Candidate subject to public election: A judicial candidate running in an election; Rule 4.2 applies only to them.
  • Rule 4.1(A)(9): Prohibits false or misleading statements by judges and judicial candidates. In Boso, it was violated by misrepresenting residency in materials submitted to the appointing authority.
  • Censure: A formal, public condemnation by the Court that the judge has violated the Code of Judicial Conduct—more severe than a reprimand, often paired with suspension or other sanctions.
  • Residence vs. domicile: Legal concepts often used to determine where a person “lives” for official purposes. The Court avoided deciding eligibility based on residence; instead, it focused on the truthfulness of Boso’s statements purporting to establish residence.

Conclusion

In re Boso is a landmark in West Virginia judicial discipline for two reasons. First, the Court cements its de novo authority over disciplinary stipulations: it will not be bound by admissions in charging documents or negotiated agreements and will reject violations grounded in legally inapplicable rules. Second, the Court clarifies that the Judicial Conduct Code operates by status: some rules bind only judges, others bind all judicial candidates, and still others bind only candidates in public elections.

On the merits, the Court finds that Magistrate Boso violated Rule 4.1(A)(9) by misrepresenting her residency in pursuit of a magistrate appointment and imposes a two-month suspension without pay, a censure, and costs. The opinion underscores that the judiciary depends on public trust—a trust eroded when those who seek judicial power shade the truth. Going forward, disciplinary charging decisions must be tightly matched to a respondent’s status at the time of each act, and negotiated resolutions must be grounded in the precise reach of the Code, because de novo means de novo.

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