WEST VIRGINIA RECORD

CHARLESTON – Citing matters that arose out of pre-trial conference, a Morgantown law firm has withdrawn as legal counsel for all the Kanawha Circuit judges named in pending civil suit in federal court.

On Dec. 11, John M. Hedges, filed a motion with U.S. District Judge John T. Copenhaver Jr. asking that he and his partners, William F. Byrne and Teresa Lyons, be allowed to withdraw as counsel-of-record in the civil suit Earl Osborne Jr. filed against all seven Kanawha Circuit judges for wrongful-termination in 2002. Except to say they came out of a November pre-trial conference, Hedges did not give any specific reasons why he and his partners wished to leave the case.

"Based on matters recently arising during the course of their representation of the Defendants," Hedges said in his motion, "as stated in court during the Nov. 1, 2007, pre-trial conference and in camera hearing, the undersigned counsel seek leave of the court to withdraw from further representation of the Defendants in this action."

In his motion, Hedges proffered substitute counsel for the judges. He asked that Elisabeth H. Rose take over for Charles E. King Jr., Paul Zakaib, James Stucky and Irene C. Berger, Michael J. Farrell and Charlotte A. Hoffman Norris for Tod J. Kaufman and Barbara Allen for Herman Canaday and Louis H. "Duke" Bloom.

Canaday retired from the bench in 2003, and was replaced by Jennifer Bailey Walker.

Court records show Rose, with the Fairmont law firm of Rose, Padden and Petty, and Farrell and Norris with the Huntington law firm of Farrell, Farrell and Farrell filed notices of appearance on Dec. 11. However, Allen, a managing attorney general, has yet to file her notice.

Nevertheless, on Dec. 20, Copenhaver granted Hedges' motion.

It is not clear at this point if the change in counsel will move back the scheduled trial date of April 8. In his Nov. 21 scheduling order, Copenhaver appeared eager to bring the case in some finality as said "appropriate sanctions may be imposed" for any lead counsel or representative who fails to appear for any "good faith" reason cannot be available for a final settlement conference on April 7.

With the exception of the two years it was on appeal, the case has entered its sixth year on the docket.

Disputed telephone conversation

According to court records, the case began on Oct. 15, 2002, when Osborne, the former supervisor for the Kanawha County home incarceration program, filed suit against not only the judges, but also the Kanawha County Commission and then-Sheriff Dave Tucker.

In his complaint and suit, filed with the assistance of Charleston attorneys C. Page Hamrick III and M. Timothy Koontz, Osborne said he was improperly terminated as supervisor on Oct. 12, 2001, for his alleged use of a racial slur. Osborne maintains he was denied due process since the only time he was made aware of the issue was when Tucker provided him a copy of the judges' administrative order.

"No defendant has provided any document, testimony or evidence whatsoever in support of the allegations and charges made against Plaintiff by Defendants." Hamrick and Koontz said in the compliant.

According to the order which Hamrick and Koontz included as an exhibit attached to the complaint, the judges alleged Osborne "has on at least one occasion, while speaking to an officer of the court in regards to an offender undergoing home confinement, uttered a racial slur while referring to such offender as 'just a no-good n-----.' "

Court records show the court officer to whom the judges were referring was Eric Hudnall, an assistant Kanawha County prosecuting attorney. In a sworn affidavit he included as an exhibit to his suit, Osborne acknowledges that while he was discussing the status of an offender, Malcolm Taylor, to Hudnell during an Aug. 27, 2001 telephone conversation, he never uttered a racial slur.

"I said 'Well, Malcolm Taylor is obviously no good and he sure didn't deserve home confinement,'" Osborne said in his affidavit. "Eric Hudnell is mistaken if he says I used the N-word on Aug. 27, 2001, in this telephone conversation -– or any conversation I've ever had with him."

The Commission, Tucker and the judges filed motions to dismiss the complaint against them on Nov. 12, Nov. 24 and Dec. 19, respectively. On Sep. 29, 2003, Copenhaver granted those motions.

Hamrick and Koontz appealed Copenhaver's decision to the 4th Circuit Court of Appeals in Richmond, Va. On Sep. 29, 2005, a three-judge panel in an unpublished, per curium opinion, remanded the case back to Copenhaver saying the suit could proceed against the judges in their individual capacities.

U.S. District Court for the Southern District of West Virginia, Case No. 02-CV-1250