CHARLESTON - A federal judge recently denied the Motion to Dismiss filed by one retired and six current Kanawha Circuit judges, allowing a wrongful termination case concerning an alleged racial slur to proceed against them.

U.S. District Judge John T. Copenhaver Jr. issued a 29-page opinion on the motion Aug. 15. Copenhaver also denied Plaintiff Earl D. Osborne's motions to amend his complaint and reinstate claims previously ordered dismissed.

A timetable also was set for entry of a scheduling order. A scheduling conference will be held at 10 a.m. Oct. 6 in Charleston.

The case, filed in 2002 and having since been reviewed in Kanawha Circuit Court and the U.S. Court of Appeals in Richmond, Va., alleges that the judges' firing of Osborne, who worked as the Home Incarceration Supervisor of the Kanawha County Home Incarceration Program, was unlawful.

Osborne, who is represented by C. Page Hamrick III of Charleston and M. Timothy Koontz of Williamson, was fired in 2001 after allegations surfaced that he used a racial slur about a black man who was in the home confinement program. An assistant prosecuting attorney claimed Osborne called the man "just a no-good nigger."

Another allegation made against Osborne said that he illegally entered the home of another man subject to the home confinement program. Mark Held said he and girlfriend Robin Barker were naked in bed at the time, and Osborne ordered them out of bed and watched Barker gather her clothes.

The settlement of the subsequent lawsuit provided the couple with a combined $17,500.

Osborne says he never was given a hearing to clear his name against the allegation of using a racial slur, which he denies doing. He also denied any wrongdoing during the alleged incident at Held's home.

"The court concludes that Osborne has adequately alleged the violation of his Fourteenth Amendment right to procedural due process," Copenhaver wrote in denying the defendants' motion.

He added that, "The judges have not shown entitlement to qualified immunity at this stage of the case."

Those judges (Charles King, Paul Zakaib, Tod Kaufman, James Stucky, Irene Berger, Louis Bloom and now-retired Herman Canady, all of whom are represented by John Hedges and Teresa Lyons of Morgantown law firm Byrne, Hedges and Lyons) claimed their judicial and qualified immunity prevented them from being charged.

Copenhaver, who dismissed the case in 2003, sided with Osborne this time.

The original case was filed against the seven judges, the County Commission and then-Sheriff Dave Tucker. Copenhaver said all had immunity, but the U.S. Court of Appeals decided that the judges could be sued individually.

Hedges did not return a message seeking comment.

Judicial immunity

In explaining why the judges' motion was denied, Copenhaver calls the firing "a supervisory act" instead of one performed in the judicial capacity.

He cited a case that started in federal court in Illinois that was decided in 1988, Forrester v. White, to deny judicial immunity. That case involved a probation officer, Cynthia Forrester, who was fired by Howard White, a circuit judge.

She alleged gender discrimination as the reason for her termination but White was given immunity by the U.S. Court of Appeals for the Seventh Circuit. However, Judge Richard Posner dissented from the rest of the justices, and the decision was appealed to the Supreme Court.

That court sided with Forrester, holding that a state-court judge does not have absolute immunity from a damages suit for his decisions to demote and dismiss a court employee.

"Contrary to the judges' assertion, when viewed in a light most favorable to Osborne, the judges ordered that he be relieved forthwith and named his interim replacement," Copenhaver wrote. "These facts align very closely with those presented in Forrester. The court, accordingly, concludes that the judges are not entitled to judicial immunity."

However, the County Commission and Tucker were determined in the U.S. Court of Appeals to have been carrying out a judicial order when they signed it and were immune from litigation.

Qualified immunity

As for the judges' claim for qualified immunity, which states government officials are prevented from being sued over their performance of discretionary duties as long as no clearly established law was violated, Copenhaver says Osborne has satisfied the requirement for making an allegation.

Osborne claims he was denied the chance to defend himself against the charges that cost him his job and was unfairly attached the stigma of "racist" in the public eye.

Citing Ridpath v. Board of Governors of Marshall University, filed in federal court in Huntington by David Ridpath (he alleges being wrongfully defamed as a result of being made a scapegoat for the discovery of NCAA rules violations on the Marshall football team), Copenhaver concludes that Osborne's charge is appropriate.

"The contents of the administrative order were publicized and appeared in the local news media," Copenhaver wrote. "Osborne contends the stigmatizing charges were false and that his requests for a hearing to clear his name have been denied.

"Ridpath clarifies that, in late 2001, it was clearly established law that a public employer could not, in concert with a termination decision, falsely and publicly accuse one of its employees of possessing a stigmatizing character defect without providing both notice and an opportunity to heard."

Osborne's claims

Osborne sought to amend his complaint in attempt to add reinstatement to his position as Home Confinement Supervisor as a claim for relief.

However, Copenhaver says that's impossible. Whereas the ability to sue the judges individually reopened Osborne's case, it appears to have prevented him from regaining his job.

"Since the filing of the complaint, a party necessary for accomplishing the requested reinstatement of Osborne to his former position, namely the County Commission, has now exited the case," Copenhaver wrote.

"Additionally, the only parties to this action are the judges, each of whom is sued only in an individual capacity. In that limited capacity, the judges individually lack the authority to provide the approval of the circuit court."

Copenhaver also says Osborne has not taken the proper steps to reinstate claims that were previously dismissed in Kanawha Circuit Court by Judge George Scott, who was sitting by special designation.

Because Scott said Kanawha Circuit Court lacked the jurisdiction to proceed with the case, and Copenhaver originally decided that Osborne should take the case back to state court, Osborne says all of his original claims that were dismissed during his "whipsaw" between the two courts should be reinstated.

"The court deems it necessary for Osborne to move formally to amend his pleading to add these now-dismissed claims," Copenhaver wrote.

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