Fouty

Chief Justice Menis Ketchum

CHARLESTON - The West Virginia Supreme Court of Appeals, in a ruling Tuesday, denied to reconsider its previous order suspending Kanawha County Magistrate Carol Fouty without pay pending disciplinary proceedings.

In its April 9 order, the state's high court suspended Fouty without pay after an investigation was done regarding her housekeeper, who was arrested for driving under the influence while driving Fouty's car.

Last week, the Court heard arguments on the sole issue of whether its order was properly entered.

In its per curiam opinion, the Court said both the state's Code of Judicial Conduct and existing case law support Fouty's continued suspension without pay.

"There is probable cause in this case to believe that Magistrate Fouty engaged in serious violations of the Code of Judicial Conduct," the justices wrote in their 14-page decision.

"The unilateral dismissal of a criminal charge, which she admits occurred in the Fisher case, is clearly improper. It directly relates to the administration of justice and the public's perception of the same.

"Arguably, this transgression alone may not warrant suspension without pay, however, the statement of charges contains multiple counts involving a variety of questionable judicial practices and activities, casting serious doubt on the integrity of the judicial system."

The justices continued, "The charges regard conduct calling into question the proper administration of justice as well as the judicial officer's public persona. As was recognized in the order of suspension, the seriousness of the present charges are further compounded by the existence of prior admonishments."

An investigation began after Fouty's housekeeper, Melea Dawn Fisher, was arrested on Feb. 27 for driving under the influence while driving the magistrate's car. Prior to the incident, Fouty had dismissed a drug charge against the woman and then hired her as her maid.

Fouty also released a man on a personal recognizance bond after the police had charged him with driving while under the influence of drugs. After he was released by Fouty, the man returned to his car and was arrested by police a second time.

The Judicial Disciplinary Counsel's formal charges, filed against Fouty April 10, also mention a man who needed an attorney. Fouty agreed to help the man if he would fix the concrete at her home.

The charges mention another man who did yard work for her in return for money needed to repay another man who paid his bail.

In addition, Fouty was previously admonished in December 2011 for violating canons of the Code of Judicial Conduct.

The Court noted that it is "not unsympathetic" to the financial hardship their decision imposes on the magistrate, but added that its "primary duty is to defend the integrity of the judicial system."

"Should the outcome of this disciplinary matter warrant, the magistrate may return to this Court to seek back pay," the justices wrote.

Fouty's attorney, Michael J. DelGiudice of Charleston law firm Ciccarello, DelGiudice and Lafon, argued last week that his client has already been out of work, without pay, for two months.

To be out of work for another two months -- losing another $10,000 in income -- until disciplinary proceedings begin, would really hurt her, he told the justices.

Teresa A. Tarr, counsel for the state's Judicial Investigation Commission, said last week that the disciplinary proceedings are currently scheduled for August.




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