Judges case will be mediated

CHARLESTON - The involved parties in a case against six current and one retired Kanawha Circuit Court judges and have decided to set up a mediation session before they proceed with the case.

Earl Osborne's suit alleges he was unfairly fired as the Home Incarceration Supervisor of the Kanawha County Home Incarceration Program and is in federal court for the Southern District of West Virginia.

The two sides will meet for mediation Nov. 22. If the issue is not resolved, they will meet six days later for a scheduling conference.

Osborne is represented by C. Page Hamrick of Charleston and M. Timothy Koontz of Williamson.

The judges (Charles King, Paul Zakaib, Tod Kaufman, James Stucky, Irene Berger, Louis Bloom and now-retired Herman Canady) are represented by John Hedges and Teresa Lyons of Morgantown law firm Byrne, Hedges and Lyons.

The two sides agreed to a period of informal Discovery before the mediation. Hamrick did not return a message seeking comment.

"If the case is not resolved, the parties retain the right to take another, more extensive deposition of each of those persons who were deposed and to engage in more thorough Discovery," the order says.

The case, filed in 2002 and having since been reviewed in Kanawha Circuit Court and the U.S. Court of Appeals in Richmond, alleges that the judges' firing of Osborne was unlawful.

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

In denying the judges' most recent motion to dismiss, Copenhaver said Osborne had adequately proven the judges, as individuals, were not entitled to judicial and/or qualified immunity.

U.S. District Court case number 2:02-cv-01250