CHARLESTON - Kanawha County Magistrate Ward Harshbarger III should be fined for his mishandling of a Domestic Violence Protection order connected to a case that involves Kanawha Prosecutor Mark Plants and his ex-wife, according to a state panel.
The West Virginia Judicial Hearing Board made the recommendation during a hearing Monday before Circuit Judge Lawrance S. Miller Jr., who was sitting as hearing examiner by designation for the board.
At the hearing, the parties presented stipulations and recommended discipline, which they jointly presented for the board's consideration, according to the order, which was filed Monday afternoon.
The board recommended Harshbarger receive a public censure pursuant to Rule 4.12 of the Rules of Judicial Disciplinary Procedure and that he receive a $2,000 fine.
With respect to its findings of fact, the board accepts and adopts the stipulations and recommended discipline admitted into evidence at the hearing and accepts the documentary evidence, according to the order.
"Finally, the board notes that Allison Plants, whose domestic violence petition precipitated the events which ultimately resulted in these proceedings, testified in support of the stipulations and recommended discipline," the order states.
The board found that at all times during the matters, Harshbarger was a duly elected magistrate serving Kanawha County and has served as a magistrate since 1981. Harshbarger has been the subject of judicial discipline on two prior occasions, once in 1984 and once in 1994.
In 1984, the Supreme Court censured Harshbarger for neglect of duty in violation of Canon 3 of the W.Va. Judicial Code of Ethics.
In 1994, the Supreme Court admonished Harshbarger for a violation of Canon 2A of the current Code of Judicial Conduct.
On March 13, the administrative director of the courts filed a complaint against Harshbarger for violations of the Code of Judicial Conduct.
On March 27, the report of Judicial Disciplinary Counsel was filed with the Chief Justice of the Supreme Court of Appeals and on April 10, an order was entered by the Supreme Court that stated that the court "is of the opinion that there is probable cause to believe that Respondent engaged in a serious violation of the Code of Judicial Conduct."
The investigation began into Harshbarger's conduct after allegations that he did not give the petition filed by Allison Plants against Mark Plants a full and fair review.
On Feb. 26, Allison Plants filled out the paperwork required to petition for an emergency domestic violence protective order against Mark Plants and gave the paperwork to Harshbarger's assistant, Melanie Rucker, who immediately took the paperwork to Harshbarger, according to the order.
Harshbarger did not ask Allison Plants or Michael Clifford, the attorney with Allison Plants, any questions about the DVP or ask for any additional information.
Instead, he informed them he could either deny the petition and Allison Plants could appeal the matter to circuit court, which could take time, or he could return the petition and they could take it to Family Court Judge Michael J. Kelly the next day for consideration.
The following day, Harshbarger openly discussed the DVP with a Dunbar police officer and a Charleston police officer.
The board also recommended that Harshbarger pay for the costs to investigate the claim against him in the amount of $3,790.78 and that he be ordered to pay the fine and costs at a rate of $321.71 per month over an 18-month period beginning July 1.