Suspended Wayne magistrate's suit against Supreme Court moved to Kanawha County

By Chris Dickerson | Jul 31, 2007


CHARLESTON – Suspended Wayne County Magistrate Tommy Toler has moved his lawsuit against the state Supreme Court of Appeals to Kanawha County.

Toler claims the Court did not make contributions to his retirement and disability insurance plans and for exceeding the scope of their authority under Judicial Disciplinary Rules. He originally filed the suit in Wayne County on Aug. 17, 2006, but the complaint was dismissed earlier this year because of venue issues.

Toler was indicted by a Wayne County grand jury on July 7, 2004, on eight felony counts of sexual abuse, a count of demanding a bribe and a misdemeanor count of indecent exposure. Despite the pending charges, he was re-elected to a four-year term a few months later.

He was acquitted by a Wayne County jury in February 2005, but suspended for four years by the Supreme Court in July 2005 and fined $20,000 for violating judicial ethics. The Supreme Court did grant Toler nearly a year of back pay.

According to a lawsuit filed July 26 in Kanawha County, Toler claims he suffered aggravations of pre-existing conditions and stress because of the suspension "such that the Plaintiff was unable to work." He was awarded disability on June 8, 2006, the suit says.

He also claims the Supreme Court went to far when it suspended him, saying it was "in excess of their authority under the Rules of Judicial Disciplinary Procedure" and that it "clearly violate(d) the plaintiff's established Constitutional and Statutory Rights."

"These decisions of the West Virginia Supreme Court and the State of West Virginia were arbitrary and capricious and without factual basis," the complaint states.

Toler also alleges the Supreme Court did not "provide support staff such that the plaintiff was required to meet with people alone in the middle of the night." He also says the Court required him "to be in situations that caused him extreme physical and emotional harm, stress, humiliation, aggravation, annoyance and damage to his reputation in the community, and in past and future medical expenses and loss of income."

In his suit, Toler says the Supreme Court's actions exceeded its scope of authority; suspended him for a period that exceeded the time permitted under Judicial Disciplinary Rules; fined him more than was allowed under those rules; suspended him past the end of his current term, essentially making him ineligible to run again in 2008; and violated his Constitutional Rights.

Toler claims he has suffered a loss of income, a diminished earning capacity, loss of contract benefits, incurred medical bills and injuries and will continue to incur medical bills in the future, personal injuries and aggravation of pre-existing conditions, pain and suffering, annoyance and aggravation, diminishment of his reputation in the community and extreme mental and physical suffering."

Toler had been accused of demanding sexual favors from women whose cases were before him while he was performing his official duties as magistrate at the Wayne County Courthouse. The state Judicial Hearing Board recommended sanctions against Toler.

In July 2005, four women testified before the state Judicial Hearing Board.

The first woman, a Wayne County corrections officer, said that while she and Toler were alone in the magistrate's office, Toler put his hand and his finger on her breasts before asking if he could "go downtown on her." The woman took that as a solicitation for oral sex.

A second woman testified that Toler told her, while she and her husband were going through divorce proceedings, that he would help her get a lawyer and make sure her husband paid dearly. Then, the witness said, Toler grabbed her blouse and pulled it along with her bra, exposing her breasts. She said Toler also grabbed her between her legs and told her he wanted to have sex with her.

All of this occurred, the woman testified, minutes after Toler had awarded the couple's home to the husband and gave the woman four hours to remove her belongings.

A third woman testified that while she was discussing a case with Toler, he grabbed her breasts with both hands before she told him to stop. The woman said Toler then laughed before he tried that again. She then left his office.

A fourth woman said she went to Toler to fill out a domestic violence petition after a fight with her boyfriend. She said Toler asked her if she liked sex and if she was any good at performing oral sex. When the woman left the office, Toler followed her onto the elevator and kissed her on the mouth. He then grabbed her hands and told her he wanted to show her something. Then, the woman said, Toler forced her hands between his legs, held her hands to his crotch and asked if she liked his penis. She then pulled away and left the building.

Toler has denied the allegations.

Toler officially resigned in April 2006, according to state Supreme Court Administrator Steve Canterbury. That was just before Toler was granted disability retirement benefits by the state Consolidated Public Retirement Board.

In his request for disability retirement, Toler blames a deterioration of his health as the reason.

"I have diabetes and (a) thyroid tumor," he wrote. "Rupture in my stomach, numbness in both arms and shoulders … arthritis all over by body. Very serious emotional and stress problem. Also high blood pressure, cholesterol and triglycerides."

Toler unanimously was suspended by the state Supreme Court last year for violating judicial ethics after he was accused of inappropriate sexual contact with four women while performing his official duties as magistrate at the Wayne County Courthouse.

In his request for disability retirement, Toler blames a deterioration of his health as the reason.

Toler's suspension extends beyond Dec. 31, 2008, which is when his current term ends. His seat will be up for election in November 2008.

Toler is represented by Donald R. Jarrell of Wayne.

Kanawha Circuit Court case number: 07-C-1549

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