Judicial hearing board recommends censure for Fouty
Jessica M. Karmasek Aug. 14, 2012, 5:00am
CHARLESTON - The West Virginia Judicial Hearing Board has recommended that the state Supreme Court of Appeals "publicly censure" former Kanawha County Magistrate Carol Fouty for violating the state Code of Judicial Conduct.
The board's nine-page order came days after it began reviewing a settlement agreement for Fouty, who resigned earlier this month.
In a one-page letter sent to the state Supreme Court Aug. 3, Fouty said she is stepping down due to "ongoing health problems" and wanting to spend more time with her family.
"I have been employed as a magistrate for the past 26 years and have worked continuously for and in the best interest of the people of this county," she wrote Chief Justice Menis Ketchum.
"My resignation is effective immediately."
In its order Monday, the board recommended the following discipline for Fouty:
* She immediately resign her position as magistrate;
* She not take office and serve as magistrate if elected in the November general election; and
* She pay costs in the amount of $6,387.89 at the rate of $100 per month.
Judge Lawrance Miller Jr., who serves on the state's Eighteenth Judicial Circuit and is acting as a hearing examiner for the board, continued, "Based upon the Respondent's failure to appear at the hearing; the Respondent's failure to acknowledge personal responsibility; the Respondent's failure to express contrition; the Respondent's conduct which gave rise to these proceedings; and the Respondent's history of violating the Code of Judicial Conduct, the board concludes that the recommended discipline as per the stipulations would be inadequate to preserve and enhance public confidence in the honor, integrity, dignity and efficiency of the members of the judiciary and the system of justice, and therefore recommends additional discipline and investigation as follows."
In addition to publicly censuring Fouty, the board recommended that the Supreme Court have Kanawha County Prosecutor Mark Plants' office investigate whether any criminal laws may have been violated in how bail bonds were obtained and approved.
Because of the additional recommendations, both parties will be given 14 days after the order was entered to file any written objections.
The board's recommendations then will be taken up by the state's high court, which will make a final decision in the matter.
Court spokeswoman Jennifer Bundy said last week there is no timeframe for when that decision will be made.
In June, the state Supreme Court denied to reconsider a previous order suspending Fouty without pay pending this month's disciplinary proceedings.
The Court suspended Fouty in April without pay after an investigation was done regarding her housekeeper, who was arrested for driving under the influence while driving Fouty's car.
In its June 12 follow-up ruling, the Court said both the state's Code of Judicial Conduct and existing case law supported Fouty's suspension without pay.
"There is probable cause in this case to believe that Magistrate Fouty engaged in serious violations of the Code of Judicial Conduct," the justices wrote in their per curiam decision.
"The unilateral dismissal of a criminal charge, which she admits occurred in the Fisher case, is clearly improper. It directly relates to the administration of justice and the public's perception of the same.
"Arguably, this transgression alone may not warrant suspension without pay, however, the statement of charges contains multiple counts involving a variety of questionable judicial practices and activities, casting serious doubt on the integrity of the judicial system."
The justices continued, "The charges regard conduct calling into question the proper administration of justice as well as the judicial officer's public persona. As was recognized in the order of suspension, the seriousness of the present charges are further compounded by the existence of prior admonishments."
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.
The Judicial Disciplinary Counsel's formal charges, filed against Fouty April 10, also mention a man who needed an attorney. Fouty agreed to help the man if he would fix the concrete at her home.
The charges mention another man who did yard work for her in return for money needed to repay another man who paid his bail.
In addition, Fouty was previously admonished in December 2011 for violating canons of the Code of Judicial Conduct.
In its June ruling, the Court noted that it was "not unsympathetic" to the financial hardship their decision imposed on the magistrate, but added that its "primary duty is to defend the integrity of the judicial system."
Fouty has asked that the $100 payments the board has recommended begin in January. She also plans to seek an award of her retirement benefits.
The former magistrate, herself, was not present at last week's hearing. She was represented by her attorney, Michael J. DelGiudice of Charleston law firm Ciccarello, DelGiudice and Lafon.
The board, in its order, took note of her absence.
"The Respondent did not appear at the hearing scheduled in this matter and neither the Respondent nor her counsel offered any explanation for her failure to appear," Miller wrote.
And although she has agreed not to serve if elected in the state's Nov. 6 election, Fouty's name may still remain on the ballot.
DelGuidice said last week that his client was in the midst of trying to have her name removed.
"My understanding is that Carol has completed the first step in having her name taken off the November ballot," he said following the hearing. "The second step is getting a certificate of withdraw."
DelGiudice said he thinks that must be done by Wednesday.
"From what I understand her name stays on the ballot, but any votes she receives won't be counted," he said.
The State Election Commission said at a separate meeting last week that it has reserved a "potential emergency meeting" for 10 a.m. Wednesday to take up the matter.
DelGuidice noted at the hearing last week that although Fouty has agreed not to accept the office of magistrate in the upcoming election -- if her efforts to either remove her name from the ballot or have any votes cast for her not counted -- the stipulation would not preclude her from again seeking the office in the future.
He also pointed out that her resignation, which was submitted prior to last week's hearing, was a result of both the stipulations and for health reasons.
"She wasn't in the greatest of health before," DelGuidice said, adding that the stress of the disciplinary proceedings hasn't helped.
Last week, Kanawha County Circuit Court Judge Louis "Duke" Bloom swore in Republican Kristen Vieweg to take Fouty's place.
Vieweg told reporters that her name would not be on the November ballot.