A magistrate assigned to the case of Kanawha County Prosecuting Attorney Mark Plants said he believes a county magistrate overstepped her bounds by changing the conditions of Plants’ bail.
Mercer County Magistrate Mike Flanigan wrote Thursday that Kanawha Magistrate Kim Aaron didn’t have the authority to modify the bail Plants was released on after being charged with violating a domestic-violence protective order.
Aaron granted the motion, filed by Plants’ attorney, Jim Cagle, making Plants’ bail similar to what a family court judge had ordered. Flanigan — who was appointed by West Virginia Supreme Court Chief Justice Robin Davis on March 21 to hear Plants’ case — called Aaron’s order “invalid” Thursday. He said a hearing would have to be set on Plants’ motion over bail.
In a memo addressed to Cagle and Special Prosecutor Sid Bell, Flanigan wrote, “No magistrate other than myself had any authority to enter Orders or take any action in this case.”
He pointed to a rule that says magistrates aren’t allowed to conduct hearings or enter orders in cases assigned to other magistrates, unless ordered by a higher court.
“Please be advised that I did not give consent to any magistrate to take any action on my behalf in regard to this case,” Flanigan’s letter, filed in Kanawha Magistrate Court, states. “Therefore . . . the improper action taken by Magistrate Aaron in granting the motion to modify bond conditions was, and is, invalid on its face.”
Aaron said Friday she didn’t know Flanigan had been appointed to the case when she granted Plants’ motion. She had arraigned Plants on March 18, and said she believed she still had jurisdiction over the case.
Normally, Aaron receives copies of Supreme Court orders in her email, but she said she never got anything stating that Flanigan had been appointed to the Plants case. She said a Supreme Court official contacted Kanawha Chief Magistrate Jack Pauley about her order Thursday.
Cagle also didn’t say Flanigan had been appointed when he asked Aaron to approve the motion, Aaron said. Cagle couldn’t be reached for comment Friday.
In his filing Thursday, Flanigan asked attorneys to let him know when they are available for a hearing on the bail motion. Motions such as the one Plants’ attorney filed usually are required to be heard within five days, but Flanigan wrote in his letter that an extension is in order because a “delay caused by the improper action of a magistrate to whom the case had not been assigned, constitutes ‘unavoidable cause.’”
Flanigan wrote that he’s available April 11, 14 and 16. If attorneys can’t agree on those dates, the hearing will be held April 18 in Charleston, he wrote.
A status hearing in the case is set for May 21 in Charleston.
Plants was charged March 18 with violating a domestic-violence protective order that was granted in February to his ex-wife, Allison Plants. The order said Mark Plants couldn’t have any contact with his ex-wife or their two sons. Police say Plants violated the order when he found his children in a vehicle outside a local pharmacy and stayed with them until their mother exited the pharmacy.
Plants was charged again Monday, this time with misdemeanor domestic battery. Police say Plants struck his 11-year-old son with a leather belt more than 10 times, leaving a 6- to 7-inch bruise on the boy’s thigh. Plants has said he’s not guilty of any crime and that he and his ex-wife had agreed that spanking, on occasion, is an appropriate form of discipline.
Flanigan also was assigned to hear that case, but not until after Kanawha Magistrate Tim Halloran approved the modified bail conditions Aaron already had put in place.
Each misdemeanor charge carries a penalty of up to one year in prison.
Plants, 37, a Republican, was first elected Kanawha prosecutor in 2008 and was re-elected in 2012.
Flanigan was appointed after Kanawha Family Court Judge Mike Kelly recused himself from hearing both charges.
Bell, a former McDowell County prosecutor, was appointed to prosecute Plants.
Cabell Family Court Judge Patricia Keller was assigned to handle the domestic-violence protective order. At a family court hearing in Cabell County earlier this month, an agreement was reached that said Plants would attend counseling sessions to have the order dismissed. Keller also ruled that Plants could have supervised visits with his two sons but that the boys aren’t allowed to stay overnight with him.
Reach Kate White at firstname.lastname@example.org or 304-348-1723.