CHARLESTON – Three Justices of the West Virginia Supreme Court of Appeals cleared Circuit Judge Andrew Frye of a damage claim from a former Mineral County magistrate court clerk he fired after her son filed to run for circuit clerk.

After a Feb. 24 hearing, Chief Justice Brent Benjamin and Justices Robin Davis and Thomas McHugh refused an appeal from Mary Lou Smith and son Greg Smith.

The Justices supported Circuit Judge Christopher Wilkes, who found last year that Frye fired the mother with absolute immunity and the son lacked standing to sue.

Justices Margaret Workman and Menis Ketchum, winners of last November's statewide election, would have heard the appeal.

At the hearing, Morgantown attorney Allan Karlin said if a county commissioner fired someone for the same reason it would violate the constitution.

He said the judiciary must follow the same rules as the executive.

He said Frye's motive was that Greg Smith filed to run against the circuit clerk.

Benjamin asked if Smith worked as a will and pleasure employee.

"There is no judicial immunity for firing an employee," Karlin said.

Karlin said he called Frye at trial. "No attorney in the state wants to go up against a judge he's going to be in front of," he said.

He started quoting Frye. Davis said, "We can read the transcript. Get on with your argument. What's your point?"

Benjamin asked if Frye expressed concern about harmony.

"That's not what he said," Karlin said. "He said it to Judge Jordan but he didn't say it at the hearing."

Davis said, "He didn't have to give a reason. Our laws says if you are an at will employee you don't have to give a reason."

Karlin said if the governor did it, it would be a constitutional violation.

Benjamin asked about the standing of the son.

Karlin said it was invasion of a legally protected interest, the right to run for office.

"He got to run," Ketchum said.

"It's the message it sends," Karlin said.

"I couldn't see his injury," Ketchum said.

Karlin said he caused his mother to lose her job.

"One of the oldest types of retaliation is to go after relatives," he said. "How do you think he felt?"

He said Frye understood he was doing wrong.

"Why would a witness say there was no reason?" Karlin asked. "He knew his real reason was probably not legal."

The Justices heard the case on the motion docket, a step short of oral arguments. On the motion docket they listen only to one side.

They don't issue an opinion on the motion docket. They post a result, skipping the names of the majority and placing anyone who disagrees in parentheses.

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