Peyton

CHARLESTON – In the midst of an already dramatic election year, the state Supreme Court has agreed to hear the appeal of a disputed election from one Putnam County municipality held last year.

On June 11, less than one year since the 2007 Hurricane municipal election, the Court voted 4-1 to hear Sam Cole's challenge to the inclusion of disputed early-voting ballots in the race. The case was one of 21 the Court had on its motion docket Tuesday.

Voting against hearing the case was Chief Justice Elliott E. "Spike" Maynard.

In a lawsuit he filed July 6, with the assistance of Winfield attorneys David O. Moye and Lisa M. Moye, Cole, a retired assistant state Treasurer. questioned the legitimacy of early-voting ballots cast in the election. Prior to counting the early-voting ballots, Cole had an 85-vote lead over his opponent, Hurricane businessman and then-councilman Scott Edwards.

After the early ballots were counted, the lead swung back in Edwards' favor giving him a 25-vote victory.

In his suit, Cole said the early-voting ballots were "improperly included by the Defendants in determining the successful candidate for mayor" because those ballots "were not placed in secrecy envelopes with a seal."

After hearing arguments in the case on Sept. 13, Putnam Circuit Judge O.C. "Hobby" Spaulding referred the issue back to the Hurricane City Council to consider at its next regularly scheduled meeting on Oct. 1.

Two days after Spaulding's ruling, Edwards filed a writ of prohibition to stop the council from rendering a decision.

Putnam's other circuit judge, Ed Eagloski, granted the motion, and set Oct. 26 for a show-cause hearing.

During the hearing, Edwards' attorney, Harvey D. Peyton, said Spaulding improperly referred the issue back to the city council. Instead, Peyton said Spaulding should have dismissed the suit because of "black letter law" in time and manner in which an election is to be contested.

Because notice of Cole's suit was sent to the City of Hurricane via certified mail, and not served on Edwards personally, and that it came one day after statutory 10-day notice to contest an election, Peyton argued Cole's suit was invalid. Citing Supreme Court rulings in the cases of Morrison v. Reporter and State ex. rel. Stanley v. the Wayne County Court, Peyton said case law could not be any more clearer on contesting an election.

Eagloski agreed, and entered a final order prohibiting the city council from further consideration of the election.

On Jan. 25, Cole filed his petition for appeal. In the petition, Lisa Moye argued that because both civil actions involved the same parties and the same issues, Eagloski's decision allowed Edwards to "forum shop." Also, she cited the Court's 1986 ruling in Palumbo v. the Kanawha County Court in which it found election statutes should be "liberally construed in order that the will of the people in the matter of choosing their public officers may not be defeated by merely technical objections."

Prior to leaving for vacation Wednesday, Peyton said he was not surprised that the Court would accept Cole's appeal. In fact, Peyton said he's looking forward to potentially making history.

"It will make for interesting argument," Peyton said. "However, I believe that when the full record is properly presented and both sides are given the opportunity to state their positions the ruling of the lower court will be affirmed."

Possible first test for new justices

Following the submission of briefs from both sides, the Court will either render a decision or move the case to the argument document. Regardless, a decision won't be rendered until after the Court reconvenes in September for its 2008-2009 term.

It adjourns its 2007-2008 term on June 29.

Depending on what route it takes, the case could be one of the last heard by Maynard and Justice Larry Starcher or one of the first heard by a new-look Court in January.

Starcher decided not to run for re-election this year, and Maynard finished third in last month's Democratic primary. The two candidates to advance from that primary were former Justice Margaret L. Workman and Huntington attorney Menis E. Ketchum. Also vying to fill one of the seats is Charleston attorney Beth Walker, the lone Republican in November's Supreme Court race.

West Virginia Supreme Court of Appeals, Case No. 080233

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