Mediation fails, schedule filed in case against Kanawha judges

CHARLESTON - After the two sides went through more than two hours of fruitless mediation, a federal judge filed on Tuesday a scheduling order in the case of a county employee who was fired by one retired and six current Kanawha Circuit judges.

Earl Osborne's suit alleges he was unfairly fired as the Home Incarceration Supervisor of the Kanawha County Home Incarceration Program, and U.S. Magistrate Judge Mary Stanley has set a Nov. 6, 2007, trial date.

According to Stanley's order, there will be a final settlement conference the previous day. The trial will be held before U.S. District Judge John T. Copenhaver, Jr.

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. In 2003, Copenhaver said all had immunity, but the U.S. Court of Appeals decided that the judges could be sued individually. Tucker and the commission were subsequently dropped as defendants.

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.

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.

On Nov. 14, Kanawha County Sheriff Michael Rutherford filed a motion to quash a subpoena he received that asked for the internal investigation report on Osborne's actions. He says it required him to produce the report in only 10 minutes and that if failed to "allow a reasonable period for compliance."

The motion was denied by Stanley, declaring it was moot.

"The Court has been advised by the parties that they agreed with Sheriff Rutherford and his co-counsel to re-issue the subpoena for a later time," Stanley wrote in her order.

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