Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, January 11, 1992 TAG: 9201110184
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: RICHMOND LENGTH: Long
JUDGE CLEARED OF MISCONDUCT
The Virginia Supreme Court censured Judge Fred L. Hoback Jr. on Friday for what it called "clear and convincing evidence" that he once smelled of alcohol while at the Roanoke County courthouse.But three other charges of misconduct - which had outlined a more serious drinking problem and Hoback's alleged failure to address it - were dismissed by the court.
Although Hoback became only the fifth judge to be censured by the Supreme Court in 20 years, he and his attorney seemed relieved with the ruling.
Hoback had faced the possibility of losing his seat on the bench but instead received what is essentially a public reprimand. He will continue to hear cases in Juvenile and Domestic Relations Court in Roanoke, Roanoke County and Salem.
"I'm very pleased with the ruling, and I'm certainly glad this ordeal is over," Hoback said.
Because the court dismissed three complaints - and split 4-3 in upholding the fourth - Hoback's attorney, William Rakes, called it "almost a clean sweep in Judge Hoback's favor."
Rakes had said earlier that there is no evidence to show that Hoback ever was under the influence of alcohol while on the bench, and that the charges came from a small group of court workers in Roanoke County who do not like the judge.
"They did what they had to do," Hoback said when asked about continuing to work with the employees who complained of his drinking. "I have no animosity whatsoever."
In a rare open hearing on a complaint of judicial conduct, the Supreme Court found that in January 1991, Hoback "had an odor of alcohol about his person" while in a conference room of the Roanoke County Juvenile and Domestic Relations Court clerk's office.
Such behavior, the court found, violated two canons of judicial conduct: that state judges should uphold the integrity and independence of the judiciary and avoid impropriety or the appearance of impropriety in all activities.
Three Supreme Court justices differed with the finding.
"There is abundant evidence in the record that [Hoback] is an excellent judge, and a credit to the commonwealth and to the community which he serves," Justices A. Christian Compton, Elizabeth B. Lacy and Roscoe B. Stephenson wrote in a dissenting opinion.
"Testimony from attorneys and lay persons alike reveals that [Hoback] is patient, dignified, diligent, reliable, compassionate, fair, conscientious and competent in the performance of his judicial duties."
Compton, Lacy and Stephenson wrote that there was no "clear and convincing" evidence that Hoback acted improperly.
The court based its decision on more than 800 pages of often-conflicting testimony. Although some court officials testified that Hoback sometimes smelled of alcohol, others said they detected no odor of alcohol on his breath and that he did not seem impaired while on the job.
The complaint against Hoback was filed by the Judicial Inquiry and Review Commission, a state agency that held a closed-door hearing on the allegations last year before taking the rare step of sending the case to the Supreme Court. The commission's investigations of judicial misconduct are closed, except for the few cases that reach the high court.
Reno Harp III, counsel for the commission, was unavailable for comment after the court's decision.
The three complaints that were dismissed - and the court's reasons for finding that the commission failed to prove them - were:
In April 1991, Hoback was allegedly under the influence of alcohol while hearing cases in Roanoke County. That charge was brought after a juvenile intake officer complained of receiving a "blast of alcohol in the face," when Hoback declined to grant an order removing two boys from custody of their grandfather, who was under suspicion of driving drunk with the children in the car.
The charge was dismissed because the commission failed to prove it by clear and convincing evidence, the court's opinion stated. Rakes has said other people in the courtroom that day smelled no alcohol on Hoback's breath. Furthermore, Rakes has said, Hoback knew the facts of the April 26 case before he saw the emergency removal order and knew that social service workers had additional time to make a decision about the children.
Hoback also was charged with failing to cooperate with the commission during its investigation of his drinking, as required by state law.
Harp has said that complaints about Hoback's drinking persisted even after he agreed to receive treatment at the commission's urging, and that he was often slow in responding to the panel's inquiries.
However, the court ruled that the state law under which Hoback was cited applied to entities and people called before the commission - but not to the actual target of the investigation.
"This code section cannot be employed to penalize a judge who believes he is not guilty of misconduct and chooses to challenge the charges brought against him," the court ruled.
Hoback also was charged with lying to the commission. At one point in the proceedings, he conceded that he had a problem with alcohol. But he later denied it - telling the commission that his first admission was made only because he thought that was what the members wanted to hear.
"While [Hoback] rendered two subjective opinions which are inconsistent, this court's review of the testimony and the formal and informal hearings indicates that he was uncertain of the magnitude or extent of any problems he may have had with alcohol use," the court wrote in dismissing the complaint.
Minutes after the court's opinion was released, Hoback said he was looking forward to putting the case behind him.
"This has been quite an ordeal," he said. "It's been very stressful and certainly from a professional standpoint it's been embarrassing."
Asked if he no longer drinks, Hoback, 52, declined to comment.
The judge said he intends to seek reappointment by the General Assembly when his term expires in 1996. He has been a judge since 1978.
Rakes said the the censure is "something the appointing authorities could consider" when Hoback's term comes up for reappointment. But given the context of the Supreme Court's ruling, Rakes said, "I don't consider this to be a detriment."