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McDowell magistrate removal petition dismissed

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A judicial tribunal has dismissed a petition calling for the removal of McDowell County Magistrate Steve L. Cox.

The complaint, filed by Kevin Wade in April, had alleged “numerous counts of misconduct, malfeasance, neglect of duty, incompetence and/or gross immorality” by Cox, whom Wade said had denied at least two petitions for an order of protection from Sheriff Martin West, whom Wade accused of stalking and harassing him.

Cox said he denied those petitions because Wade had not proven reasonable cause, and also pointed out that Wade, then a member of the McDowell County Board of Education, would be in contact with the sheriff at county meetings. Wade appealed both orders to Circuit Court, which upheld Cox’s decision.

Wade also sought an order of protection from Sheriff’s Deputy Ron Blevins, alleging Blevins also was harassing him. Cox denied that order, later adding a notation that Wade “said he was going to call the Supreme Court and would be back in a few to pay fee.” He added the same phrase to one of the orders involving West.

In the removal petition, Wade indicated he was unaware Cox had penciled those comments into the margin of his order and alleged that in doing so Cox had filed a “fraudulent” order and made a “false entry” to a public document.

He also took issue with Cox personally verifying a petition for a protection order sought by an individual with limited literacy skills, alleging that because Cox had handwritten the information for the person “the petition is null and void” and “prejudicial to the administration of justice,” despite that individual’s affirmation of the facts.

Wade also alleged Cox had found probable cause for several criminal complaints brought by police without even reading the complaints, but the tribunal found that, “outside of the bare allegations, no other proof was offered to substantiate (Wade’s) claims.”

“This court finds and concludes that (Wade) has failed to provide any evidence to substantiate any of the alleged grounds for (Cox’s) removal from office,” the tribunal noted.

In their ruling, the three judges concluded Wade “failed to provide any evidence to substantiate any of the alleged ground for (Cox’s) removal from office.”

The court found that what Wade had characterized as “snide remarks” that altered the original orders “fail to rise to the level of being ‘fraudulent.’”

The text Cox had penciled into the margin “is akin to a note to the clerk (or even to himself) with regard to the fee that (he) was supposed to assess by checking the appropriate box due to the fact that he denied the petitions,” they wrote, adding that such modifications fall within a magistrate’s discretion.

“These notations were not an alteration of the facts in the cases or had any bearing on the evidence taken in the cases,” the tribunal ruled. “These notations did not change the substance of the orders, nor did they pertain to any matters material to the appeals filed therein.”

Likewise, the tribunal had no issue with Cox personally verifying a petition for protection on behalf of someone unable to fill out the form without assistance. Cox “assisted a barely literate member of the public ... by helping him fill out the form,” they said. “Notably, the documents clearly show that the individual himself verified the petition, not (Cox).”

They tribunal also said that, aside from Wade’s allegation, there was no evidence Cox had signed probable cause affidavits without reading them first.

“Clearly, this does not meet the high standard of clear and convincing evidence in this case,” the group said, adding details in Wade’s own complaint contradicted his assertion that Cox had not discussed the affidavits with the officers before signing them.

How the decision will impact two misdemeanor indictments returned by a McDowell County grand jury in June remains to be seen.

A special prosecutor only recently appointed to the case, Mercer County Prosecutor Steve Ash, said he hadn’t had time to review any documents pertaining to the case and, because the case is pending, could not comment.

Information that led to Cox’s indictment, however, had been presented to the grand jury by Wade, not the McDowell County Prosecutor’s Office.

That case was set for trial in October.

Serving on the tribunal were Senior Status Judge John L. Cummings, Senior Status Judge Charles M. Vickers and Mercer County Circuit Judge Omar J. Aboulhosn.