Kanawha magistrate apologizes for mishandling Plants protection order
Kanawha County Magistrate Ward Harshbarger apologized Monday and admitted that he mishandled the domestic violence petition the Kanawha County prosecuting attorney’s ex-wife tried to obtain against the prosecutor.
The state Judicial Investigation Commission filed charges against Harshbarger last month, alleging the longtime magistrate didn’t follow proper procedure when Allison Plants petitioned for a domestic violence protective order against her ex-husband, Kanawha prosecutor Mark Plants. Harshbarger also talked about the confidential petition in front of police officers who had nothing to do with the case.
“I’m not going to do it again, I assure you,” Harshbarger, 59, told Preston Circuit Judge Lawrance Miller, the chairman of the state Judicial Hearing Board.
Judges with the hearing board met after Monday’s hearing and agreed to a recommendation from Teresa Tarr, attorney for the Judicial Investigation Commission, and Harshbarger’s attorney, Bill Forbes, on an appropriate punishment — a public censure and a $2,000 fine for Harshbarger, who would also pay the $3,790 cost of the investigation.
Harshbarger didn’t give the petition filed by Allison Plants against Mark Plants “a full and fair review,” the state Judicial Investigation Commission wrote in a statement of charges.
Allison Plants said Monday she thought the proposed discipline against Harshbarger was fair.
After she found a significant bruise on her 11-year-old son’s leg, she alerted police and applied for a domestic violence protective order. She told police Mark Plants had inflicted too harsh a punishment on the boy. Police investigated and Plants now faces two misdemeanor charges.
Allison Plants appeared before Harshbarger on Feb. 26 and filled out the paperwork for an emergency domestic violence protective order against Mark Plants. She handed over the proper paperwork to Harshbarger’s assistant, Melanie Rucker, who immediately took the paperwork to Harshbarger, according to the filing.
Harshbarger says he decided to deny the petition before he realized it was against Mark Plants, the charges state.
“He indicated that he was going to deny it because the alleged abuse was a form of parental correcting,” the charges state. “When he learned that the matter involved Prosecutor Plants, he stated, ‘I’m not going to grant this.’ ”
The charges also allege Harshbarger gave Allison Plants the wrong information about how to appeal her petition. Instead of telling her to appeal to family court, he told her it would then go to a circuit court judge. However, Harshbarger didn’t act on the petition at all. Forbes said that Harshbarger believed by not granting or denying the petition, it gave Allison Plants the opportunity to try to get a second opinion faster.
“He said he could stamp it denied and I could appeal it, or hand it all back to me and that I could take it the next day to [Judge] Kelly,” Allison Plants said during the hearing Monday.
Kanawha County Family Court Judge Mike Kelly granted her an emergency protection order the next day. The charges note that Kelly granted the order having the same information Harshbarger did, but with one additional paragraph of information.
“The magistrate has to make a decision and that decision is either to grant the petition or to deny the petition,” Tarr said.
“What he did was in good spirit but was technically wrong,” Forbes said.
When Harshbarger is inclined to deny a domestic violence petition, he uses this “convoluted process” about 30 percent of the time, Tarr said.
Plants was charged March 18 with violating Kelly’s order. On March 31, the prosecutor was charged with domestic battery over the same events that gave rise to the protection order.
“Obviously everybody thought Magistrate Harshbarger was looking after Plants and we’ve proved that absolutely did not happen,” Forbes said after the hearing.
Tarr told the judge that Harshbarger was upset by the media stories about Mark Plants and talked in front of police officers from Dunbar and Charleston about why he was inclined to deny Allison Plants’ request. The officers had no involvement in her case.
Dunbar Police Sgt. Chad Shafer testified Monday that he talked with Harshbarger and his assistant about the case in front of a woman he had arrested for probably 15 to 20 minutes.
Rucker showed a picture from the protection order to the officers, Tarr said. Harshbarger didn’t chastise her for revealing the confidential photograph, but instead told the officers that didn’t provide enough evidence to grant the order, according to Tarr.
Supreme Court administrator Steve Canterbury filed a complaint March 13 with the investigation commission alleging Harshbarger had “engaged in serious violations” of the judicial code of conduct.
Tarr previously recommended that Harshbarger be removed from handling all domestic violence petitions until the charges against him are resolved, but Supreme Court justices couldn’t agree on that last month. Justices Robin Davis and Allen Loughry wanted to suspend Harshbarger without pay. Justice Menis Ketchum said the magistrate shouldn’t be punished unless the charges are proven against him. Justice Margaret Workman said that removing Harshbarger from domestic violence cases — effectively removing him from the night shift rotation at magistrate court — would reward him for his alleged misconduct.
Tarr noted that Harshbarger, who has been a Kanawha magistrate since 1981, has been the subject of judicial discipline twice before and that’s why a public censure was being recommended.
In 1984, the Supreme Court censured Harshbarger for neglect of duty after he left his shift early before night court had ended. In 1994, Harshbarger was admonished for going to a polling place where he was not registered to vote while the polls were still open.
“We’re basically here asking for understanding and mercy and not anything else,” Forbes said Monday.
Reach Kate White at email@example.com or 304-348-1723.