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Tuesday, March 19, 2024

Albright , Starcher say suspended magistrate should be paid

Albright

Starcher

CHARLESTON -- A Braxton County Magistrate should be paid while on suspension for allegedly helping her son set up a jail inmate for retaliation, two state Supreme Court Justices say in a dissenting opinion.

On June 6, the Supreme Court ruled Carolyn Cruickshanks cannot draw her pay while on suspension. Justice Brent Benjamin wrote that opinion. Chief Justice Robin Davis and Justice Spike Maynard agreed.

However, in a June 27 dissent, Justice Joseph Albright said the majority opinion wasn't fair.

"This Court unquestionably has the disciplinary authority to withhold the pay of a judicial officer during suspension, but I remain equally committed in believing that the guiding force for exerting that power must be fairness determined by a balanced assessment of the circumstances," he wrote in his dissent. "That goal was simply not reached in the majority opinion, and the new syllabus point adopted by the majority does nothing to promote such a just and balanced evaluation."

Albright later wrote that Justice Larry Starcher joined in his dissenting opinion.

Cruickshanks was arrested March 12 and charged with conspiracy to commit an offense of retaliation against a state witness. Police said she visited son Jordan Grubb at Central Regional Jail on Feb. 7 and gave him an envelope.

Documents in the envelope showed that inmate Philip Dailey agreed to testify against Grubb. The documents exposed Dailey as a snitch. Next time Grubb phoned Cruickshanks, jail personnel recorded the call.

According to police, Cruickshanks said, "That was your plan, wasn't it?"

According to police, Grubb replied affirmatively and Cruickshanks said, "That's what he gets."

The Supreme Court of Appeals suspended her without pay three days after her arrest. She moved for suspension with pay.

"Any charge, true or false, that is filed against a judicial officer raises incertitude about the integrity of the judicial system," Albright wrote. "Being responsible for the regulation of the judicial system, when this Court is notified that a serious charge such as a criminal offense is lodged against a judicial officer, suspension from performing judicial duties is most certainly warranted to offset any public perception that the judicial system may be anything but fair and honest.

"The arrest in such cases establishes the probable cause to believe a serious violation of the Code of Judicial Conduct has occurred."

Albright wrote that he thinks a judicial officer in such cases should be suspended from duty until the matter is resolved to maintain public confidence in the judiciary.

"However, the additional sanction of taking away the officer's income based on no more information than a bald allegation is simply overkill," he wrote. "It mutates the regulatory function this Court should perform in addressing disciplinary matters into a punitive one at the very beginning of the case. That is improper."

At oral arguments May 9, attorney James Douglas of Sutton told Justices that Cruickshanks needed income so she could pay his fees.

The Justices didn't care.

"She can file a pauperis affidavit and seek court appointed counsel as any indigent defendant can," Justice Brent Benjamin wrote. He also noted that if Cruickshanks prevails in criminal and disciplinary actions, she will get back pay.

"Retaliation against witnesses strikes at the core of our system of justice," Benjamin wrote, adding that Cruickshanks claimed her actions were personal.

"Magistrate Cruickshanks, a judicial officer, cannot so conveniently shed the obligations of her office," Benjamin wrote.

In his dissent, Albright said there indeed may be times when a judicial officer's suspension will be without pay, but that must be determined on a case-by-case basis.

"I suggest that the determination about withholding pay should not be made until after the evidence has either been examined by an independent body, for example, when the officer has been indicted, an information has been filed by a prosecuting attorney on his oath of office after review of the evidence, or it otherwise becomes apparent that the charges have some sound basis and are not motivated by politics, retaliation or other improper intent," he wrote.

Albright also said he was "troubled" that the majority dismissed Cruickshanks' concern about losing income because "magistrates are among the lowest paid members of the judiciary."

"Losing a regular and sole source of income deserves more serious consideration than being told you have the hope to recoup the money at the end of what can be a lengthy process," he wrote. "Likewise, to off-handedly say that a court-appointed attorney may be available if the officer does not have the resources to retain a lawyer shows no genuine appreciation for the serious problem raised.

"I have to wonder what message such impassive treatment of a judicial officer relays to members of the general public about how the judicial system operates or will operate if they were to come before it."

Albright says he thinks the majority in this case might have jumped the gun.

"I fear that in its zeal to maintain the integrity of the judiciary, the majority actually is demonstrating unfairness in its regulation of the judicial system by acting before adequate evidence is adduced or is apparent," he wrote. "This fervor does little to promote public confidence in the reasoned fairness of the judiciary.

"As a result, while I concur with the majority opinion as to the authority of this Court to withhold the pay of a judicial officer, I steadfastly dissent from the majority's selection of criteria to make that determination and application of those factors to the magistrate in the instant case."

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