Ethics charges filed against Kanawha magistrate

CHARLESTON -- A Kanawha County magistrate who refused to grant the ex-wife of the county's prosecuting attorney a domestic violence petition has had formal ethics charges filed against him.

Ward Harshbarger III had the charges filed against him April 11 by Judicial Disciplinary Counsel Teresa Tarr, and those charges were made public Wednesday by the state Supreme Court of Appeals.

The state Judicial Investigations Commission says Harshbarger didn't give the filing against Prosecutor Mark Plants "a full and fair review." The formal statement of charges also claims Harshbarger and assistant Melanie Rucker discussed Allison Plants' petition in front of and with people not involved in the case.

The statement claims Administrative Director of the Courts Steve Canterbury filed a complaint and supporting memorandum against Harshbarger on March 13 alleging "serious violations of the Code of Judicial Conduct" related to the incident. It also says the Judicial Disciplinary Counsel filed a report March 27 with Chief Justice Robin Jean Davis, and that the Supreme Court entered an order April 10 stating there was "probable cause to believe (Harshbarger) has engaged in a serious violation of the Code of Judicial Conduct."

The Supreme Court order remanded the matter back to the Judicial Investigation Commission demanding that "formal charges be filed ... forthwith."

Harshbarger's troubles began after Allison Plants said she had found a bruise on her 11-year-old son, saying her ex-husband had punished the child too harshly. She applied for the domestic violence protective order. After a police investigation, Mark Plants now faces two misdemeanor charges.

But, Allison Plants appeared Feb. 26 before Harshbarger after filling out the paperwork required to get an emergency domestic violence protective order. She allegedly gave the paperwork to  Rucker, who took it to Harshbarger. The documents claim Harshbarger said he decided to deny the petition before he realized it was against Mark Plants.

“He indicated that he was going to deny it because the alleged abuse was a form of parental correcting,” the charges state. “When he learned that the matter involved Prosecutor Plants, he stated, ‘I’m not going to grant this.'"

The following day, Kanawha Family Court Judge Mike Kelly granted Allison Plant an emergency domestic violence protective order. Plants was charged March 18 with violating the order. On March 31, he was charged with domestic battery in relation to the incident.

After Kelly granted Allison Plants’ emergency protection and it became known that State Police were investigating Mark Plants, Harshbarger and Rucker openly discussed the case, according to the Judicial Investigation Commission with Dunbar and Charleston police officers who were not involved in the matter.

Harshbarger has violated canons of the judicial code of conduct that say judges shall uphold the integrity and independence of the judiciary; avoid impropriety and the appearance of impropriety, and perform their duties impartially and diligently, among others, the charges state.

The charges also show that Harshbarger, who has been a magistrate since 1981, has been disciplined twice before. In 1984, the Supreme Court censured Harshbarger for neglect of duty after he left his shift early before night court had ended. And in 1994, he was reprimanded for going to a polling place where he was not registered to vote while the polls were open.

Earlier this month, the state Supreme Court couldn't decide whether to remove Harshbarger temporarily from handling all domestic violence petitions until these charges are resolved.

Tarr had made that recommendation to the Supreme Court. Davis and Justice Allen Loughry wanted to suspend him without pay, and Justice Menis Ketchum said he shouldn’t be punished until the charges are proven against him. And Justice Margaret Workman said taking Harshbarger off domestic violence cases would reward him by basically removing him from the night shift magistrate court rotation.