CHARLESTON – Debbie Plumley of Milton must wear a "scarlet letter" because the West Virginia Supreme Court of Appeals denied her a shot at redemption, Justice Joseph Albright protested.
Albright dissented Dec. 10 from three Justices who ruled in October that Plumley could not operate a health care home because of her 1987 incest conviction.
"The reality is that the lapse of judgment –- the criminal act of which she was guilty in 1987 -– arose out of a serious failure to protect her child from sexual assault by another person, for which she has expressed remorse and for which she has been punished by fairly lengthy imprisonment," Albright wrote.
Plumley served five years at Huttonsville correctional facility.
"The clear effect of the majority opinion is to announce that there can be no extenuating circumstances, no reasoned exceptions, no redemption!" Albright wrote.
Plumley tended residents at 1314 James River Turnpike for years before regulators found out she did. Inspectors found four residents in her care and told her that for four or more persons, she needed an assisted living license.
She discharged a resident, eliminating the need for a license. For an unlicensed home, she still had to submit to a background check, and the check found the conviction.
The Department of Health and Human Resources ordered her to close the home.
Plumley appealed to Cabell Circuit Court and won. Circuit Judge David Pancake declared last year that the home could stay open.
Pancake ruled that "indiscretions of a number of years gone by" should not reduce or take away Plumley's livelihood.
"She did not perform the incest," Pancake wrote, adding that she "permitted it to happen while intoxicated and while in a tumultuous period of her life."
The department appealed and won. Chief Justice Robin Davis and Justices Spike Maynard and Brent Benjamin reversed Pancake and reinstated the department's order.
Albright and Justice Larry Starcher dissented.
Benjamin wrote for the majority that Plumley presented no evidence about her livelihood, and added that it wasn't relevant anyway.
He wrote that Pancake exceeded his authority and substituted his judgment for that of the department.
Albright's dissent, on the other hand, praised Pancake for "courage and sagacity."
"The lower court could see what my majority colleagues could not," Albright wrote. "There simply was nothing in record which demonstrated any reasonable likelihood that this applicant, in these circumstances, had abused or would abuse or hurt the dependent population she sought to serve."
The majority, he wrote, denied the possibility "that a person can achieve redemption, can overcome failings, can become a productive, good citizen deserving of employment and, in this case, registration as a service provider to an aged dependent population."
He wrote, "Accordingly, her reward from this Court is to be awarded a 'Scarlet Letter.'"
Two days after Albright unloaded, Maynard shot back.
"My dissenting colleagues seem to forget that it was not Ms. Plumley, but her vulnerable child, who was victimized," Maynard wrote in a concurring opinion.
Maynard wrote that the majority did not preclude Plumley from pursuing all means of employment, nor did they preclude her from becoming a productive and good citizen.
"To protect the class of people for whom she desires to serve, however, Ms. Plumley must choose an alternative career path," Maynard wrote.