Marion family law judge not following circuit judge's order, Morgantown man says

By Lawrence Smith | May 22, 2012

FAIRMONT - A Marion family law judge is not only refusing to abide by a circuit judge's order compelling her to appoint a Monongalia County man an attorney in a contempt proceeding, but also say publically her reasons why.

Last month, The West Virginia Record reported on a possible precedent-setting case for the state's family law system. Marion Circuit Judge David R. Janes on April 9 granted a writ filed by John Kemet Shabazz-El, 48, of Morgantown, prohibiting contempt proceedings against him in Marion Family Court from continuing until Judge Amy Swisher appointed him an attorney.

"Having reviewed the petition, as well as the entire court file, this Court is of the opinion that the Marion County Family Court exceeded its legitimate powers by failing to provide Mr. Shabazz with counsel for the Feb. 7, 2012, contempt hearing," Janes said in his order.
"The order entered by the family court after the contempt hearing clearly imposes a restraint in Mr. Shabazz's liberty. Under the West Virginia Constitution, any court proceeding that constrains or potentially constrains a defendant's liberty requires the court to appoint the defendant an attorney if he cannot afford one."

In his order, Janes cited several decisions issued by the state Supreme Court including State ex. rel. Graves v. Daugherty, Smoot v. Dingess and Moore v. Hall that held a defendant's right to counsel "applies to contempt hearings, either civil or criminal." However, according to Shabazz-El, his appears to be the first time those decisions have applied to a case in the state's family law system since it was created by a 2000 constitutional amendment as part of a unified judicial system.

Following Janes' ruling, Shabazz-El says he filed a financial affidavit with the Marion Circuit Clerk to get the process started. However, since then, he says Swisher's office has been less-then-forthcoming in giving him a reason why he has yet to be appointed an attorney.

About a week after filing his affidavit, Shabazz-El says he called Swisher's office and spoke with her secretary who said they were working on his appointment. In a later follow-up call, he says the secretary told him they were seeking "guidance" from the state Supreme Court.

"That's what I've been getting is the waiting game," Shabazz-El said.

The Record attempted to obtain a comment from Swisher about the delay in appointing Shabazz-El an attorney. As of presstime, she refused to return repeated telephone calls.

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