Chief Justice Menis Ketchum and Justice Brent Benjamin (Chip Ellis/Charleston Gazette)
Michael J. DelGiudice (Chip Ellis/Charleston Gazette)
From left, Justices Robin Davis, Ketchum and Benjamin (Chip Ellis/Charleston Gazette)
CHARLESTON – The West Virginia Supreme Court of Appeals on Wednesday listened to arguments over an order suspending Kanawha County Magistrate Carol Fouty without pay.
In an April 9 order, the state’s high court suspended Fouty without pay after an investigation was done regarding her housekeeper, who was arrested for driving under the influence while driving Fouty’s car.
On Wednesday, the Court heard arguments on the sole issue of whether its order was properly entered.
Teresa A. Tarr, counsel for the state’s Judicial Investigation Commission, explained that Fouty is alleging that the suspension without pay is causing her a financial hardship.
Tarr argued if the Court looks at the case law — she cited three specific cases — that it will show that financial hardship does not require the justices to change their position.
More importantly, the Court needs to look at the “total effects” of the case, she said.
“Are the allegations serious enough? Obviously, because you decided to suspend her without pay,” Tarr told the justices.
She pointed to past decisions, saying, “In those cases, you’re talking about one charge. In this case, we’re talking about five different charges.”
In addition, Tarr said Fouty has been disciplined four times on three occasions in the last 11 years. “At least two of those is similar to the counts she is charged with currently,” she said.
“I would argue, if you look at the case law and the aggregating factors, it would warrant suspension,” Tarr told the Court.
Justice Thomas McHugh said he is unaware of any criminal charges pending against Fouty, only an investigation.
Tarr, in response, explained that past decisions indicate that an indictment or such charges are not necessary to suspend without pay.
Michael J. DelGiudice of Charleston law firm Ciccarello, DelGiudice and Lafon, who argued on behalf of Fouty Wednesday, confirmed that no criminal charges are pending against his client.
Typically, when someone is suspended without pay it is because there are charges pending, he noted. This is not the case, he said.
DelGiudice also argued, citing certain rules, that the commission’s case against Fouty should only go back three to five years, instead of 11.
He also noted that his client has denied all but one count of the commission’s report, filed with the Court March 19.
In addition, he said there is no similar prior conduct, as the commission alleges.
“My client dismissed a citation for a misdemeanor drug offense, and she admitted she should not have done that,” DelGiudice told the justices.
“But it was not a felony, it was not a serious offense. And I’d like to note that it has been re-filed.”
An investigation began after Fouty’s housekeeper, Melea Dawn Fisher, was arrested on Feb. 27 for driving under the influence while driving the magistrate’s car. Prior to the incident, Fouty had dismissed a drug charge against the woman and then hired her as her maid.
Fouty also released a man on a personal recognizance bond after the police had charged him with driving while under the influence of drugs. After he was released by Fouty, the man returned to his car and was arrested by police a second time.
Still, Justice Margaret Workman told DelGiudice that the situations create a “very bad appearance.”
“She’s dismissing charges against them and they’re coming to her doorstep the next day,” Workman said.
DelGiudice admitted that the situations do create an appearance of impropriety, but claimed that Fouty — who he described as “not perfect,” but a “good magistrate” — was simply trying to help the people involved.
“She was trying to help someone who was downtrodden,” he told the Court. “Is that a reason to give someone a death sentence? I mean, that’s what you’re doing here.”
DelGiudice said Fouty has already been out of work, without pay, for two months. To be out of work for another two months — losing another $10,000 in income — until disciplinary proceedings begin would really hurt his client, he said.
“And I don’t know what’s going to happen after that. I don’t know how long it will take and how quickly a decision could come,” he told the Court. “And it’s an election year. You could, in essence, be affecting her income for four more years.”
Tarr countered that a magistrate is supposed to be “neutral” and “detached.”
“When you have people coming over to your house, it takes you out of that neutral and detached realm,” she told the Court.
Chief Justice Menis Ketchum expressed some concern that the suspension without pay and the timing of the disciplinary proceedings — currently scheduled for August — could make it difficult for Fouty trying to run for office.
Fouty, along with fellow Republicans Diana Graves, Bob Keller and Mike Sisson, advanced onto the state’s general election. All four will face the 10 Democratic candidates Nov. 6.
“I think Mr. DelGiudice makes a good point,” Ketchum said. “Would all of this be concluded before the election?”
Tarr could not say how long the disciplinary proceedings and a subsequent decision would take.
However, she noted that Fouty, who served as a magistrate from 1985 to 1991 and was re-elected in 1996, would be entitled to backpay if she is found not guilty.
According to the Court’s April 9 order, Tarr presented a report on a complaint against Fouty filed by Supreme Court Administrative Director Steve Canterbury.
“The Court is of the opinion that there is probable cause to believe the respondent has engaged or is currently engaged in a serious violation of the Code of Judicial Conduct,” the order stated.
“In addition, the Court notes that the respondent received a written admonishment in December 2011 for violating Canon 1A, 2A, 2B, 2B, 3B(1), and (2), and 3E(1)(a) of the Code of Judicial Conduct.”
The Judicial Disciplinary Counsel filed formal charges against Fouty a day later, on April 10.
The formal charges mention a man who needed an attorney, whom Fouty agreed to help if he would fix the concrete at her home. The charges also mention another man who did yard work for her in return for money needed to repay another man who paid his bail.
The state’s Judicial Investigation Commission is tasked with determining whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, which governs the ethical conduct of the judiciary.
The commission consists of nine members: three circuit judges, one magistrate, one family law master, one mental hygiene commissioner and three members of the public.
All commission members are appointed by the state’s high court.