In re Fouty

728 S.E.2d 140, 229 W. Va. 256, 2012 WL 2226434, 2012 W. Va. LEXIS 312
CourtWest Virginia Supreme Court
DecidedJune 12, 2012
DocketNo. 12-0446
StatusPublished
Cited by4 cases

This text of 728 S.E.2d 140 (In re Fouty) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Fouty, 728 S.E.2d 140, 229 W. Va. 256, 2012 WL 2226434, 2012 W. Va. LEXIS 312 (W. Va. 2012).

Opinion

PER CURIAM:

The case is before the Court upon the May 10, 2012, request for hearing1 filed by Magistrate Carol Fouty, Magistrate for Kanawha County and respondent herein. By this Court’s order of April 9, 2012, Magistrate Fouty was suspended without pay from her position as magistrate pursuant to Rule 2.14(d)(2) of the Rules of Judicial Diseiplin[258]*258ary Procedure2 following a finding of probable cause that Magistrate Fouty has engaged or is currently engaged in a serious violation of the Code of Judicial Conduct, and further noting that the Magistrate previously had received a written admonishment in December 2011 for violating Canons 1A, 2A, 2B, 3A, 3B(1) and (2), and 3E(l)(a) of the Code of Judicial Conduct. Magistrate Fouty request ed a hearing on the issue of her suspension without pay, which request was granted by order of this Court dated May 14, 2012. With due consideration to arguments of the parties and a review of the record herein, this Court finds that the Code of Judicial Conduct3 and existing case law support Magistrate Fouty’s suspension without pay. Accordingly, the Court affirms the suspension without pay.

I. Factual and Procedural Background

Petitioner herein, Judicial Disciplinary Counsel (hereafter “Disciplinary Counsel”), alleges judicial misconduct of Magistrate Fouty in a five count Formal Statement of Charges. The charges are based on the March 6, 2012, complaint the Administrative Director of the Courts filed with Disciplinary Counsel as well as matters which surfaced during the investigation of the complaint, of which this Court was apprised by reports made by Disciplinary Counsel on March 19 and April 3, 2012. Following this Court finding that the reports established probable cause, Judicial Disciplinary Counsel filed a Formal Statement of Charges on April 9, 2012, as directed by this Court pursuant to Rule 2.14(c)(1). The allegations contained in each of the five counts of the Formal Statement of Charges is summarized below.

Count I. Fisher Citation Dismissal

A State Trooper issued a citation to Melea Dawn Fisher on December 31, 2011, charging her with the misdemeanor offense of simple possession of Alazopram (Xanax). The face of the citation reflected that Ms. Fisher had until January 30, 2012, to appear in magistrate court to address the charge. Before January 30, Magistrate Fouty was contacted and asked by a person not involved in the criminal action to dismiss Ms. Fisher’s ticket. The ticket was dismissed by Magistrate Fouty on January 30, 2012, without input or knowledge of any county prosecuting attorney or the State Trooper who issued the ticket.

In early February 2012, Magistrate Fouty hired Ms. Fisher at the request of a friend to work at the magistrate’s residence. At the time she worked for the magistrate, Ms. Fisher did not have a car. On February 27, 2012, Magistrate Fouty asked Ms. Fisher to use the magistrate’s car to run some errands for the magistrate. During this trip, the magistrate’s car stalled in a parking lot and would not start. Ms. Fisher first called the man who had driven her to the magistrate’s home to work, Mr. Estes, and then called the magistrate to inform her of the car problem. The magistrate said that she would have a tow track sent to the location. Before the tow track arrived, Ms. Fisher was able to get the car started. When Ms. Fisher drove the car from the parking lot, she went the wrong way on a city street where the two-lanes going in either direction are divided by a median strip. Ms. Fisher drove over the median strip to correct her error, at which point she was pulled over by a Charleston Police Officer who saw the erratic driving. The patrolman had Ms. Fisher exit the vehicle and perform standardized field sobriety tests. During this stop the patrolman determined that the brown container he saw Ms. Fisher push into her purse was a prescription bottle containing eleven Clonazepam (Klonopin) pills prescribed to someone other than Ms. Fisher. Mr. Estes, observing this series of events from a distance, called Magistrate Fouty to inform her that Ms. Fisher had been stopped by the police and to tell her that it looked like Ms. Fisher would be arrested. Magistrate Fouty asked Mr. Estes to put one of the officers at the scene on the phone. Neither of the officers complied.

Ms. Fisher was placed under arrest and transported to the police station. When Ms. Fisher’s purse was inventoried at the station, [259]*2590.6 grams of marijuana was found in a zippered container. As a result of the investigation and inventory, Ms. Fisher was charged with one misdemeanor count of first offense DUI and two misdemeanor counts of simple possession.

Magistrate Fouty called the magistrate court and spoke with the assistant of the magistrate on duty to ask about Ms. Fisher. The assistant said that Ms. Fisher had not yet been brought in for her initial appearance. Magistrate Fouty asked the assistant to ask the magistrate on duty if she would set a personal recognizance bond on Ms. Fisher at the initial appearance.4

At the same time that the arresting officer accompanied Ms. Fisher to magistrate court for the initial appearance, the State Trooper who had issued the citation to Ms. Fisher in December 2011 that Magistrate Fouty had dismissed was also present. The two officers began conversing and the Trooper informed the patrolman that he had cited Ms. Fisher with the misdemeanor offense of simple possession in December 2011. Hearing this, Ms. Fisher stated that the citation had been dismissed by Magistrate Fouty, which was confirmed by a cheek on the court’s computer system.

Disciplinary Counsel asserts the information set forth in Count I establishes that Magistrate Fouty has violated: Canon 1; Canon 2A; Canon 2B; Canon 3A; Canons 3B(1), (2), and (7); Canon 3E(l)(a); Canon 4A(1), (2), and (3) and Canon 4D(l)(b) of the Code of Judicial Conduct.

Count II. Shaffer Matter

Rodney P. Shaffer, Jr. was arrested on March 29, 2011, by the county sheriffs office for the felony offense of receiving stolen property. The charges were filed by criminal complaint in the magistrate court. Magistrate Fouty presided at Mr. Shaffer’s April 7, 2011, preliminary hearing at which Magistrate Fouty found probable cause to bind the case over to the grand jury. At some point after the preliminary hearing, Magistrate Fouty asked Mr. Shaffer to do some concrete work at her house. Disciplinary Counsel proposes that Magistrate Fouty’s conduct of asking Mr. Shaffer to perform concrete work at her house after she presided over his preliminary hearing represents violations of the same provisions of the Code of Judicial Conduct as Count I: Canon 1; Canon 2A; Canon 2B; Canon 3A; Canons 3B(1), (2), and (7); Canon 3E(l)(a); Canon 4A(1), (2), and (3) and Canon 4D(l)(b).

Count III. Wright/Johnson Matters

Disciplinary Counsel alleges that Magistrate Fouty has had ex parte communication with Earl Wright about lowering bonds on several defendants for whom Mr. Wright has “facilitated” bonds. As part of this charge it is alleged that Magistrate Fouty made arrangements with Mr. Wright to obtain people who had appeared before her to do yard work and other jobs at her home. Mr. Wright then benefitted from the arrangement when he was paid the bond fee these people owed him from the money the magistrate paid them for them work. Christopher A. Johnson was used as an example in the Statement of Charges as to how this arrangement was carried out.

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Bluebook (online)
728 S.E.2d 140, 229 W. Va. 256, 2012 WL 2226434, 2012 W. Va. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fouty-wva-2012.