Judge issues order in DNR, Constitution Party case
Steve Korris Sep. 4, 2009, 2:40am
ELKINS – U.S. District Judge John Preston Bailey practically dares West Virginia Division of Natural Resources Director Frank Jezioro to deny Constitution Party members the right to circulate petitions at National Hunting and Fishing Days at Stonewall Jackson Lake State Park next year.
Bailey, who ruled in June that state law banning solicitation in state parks violated the U.S. Constitution, warned on Aug. 31 that Jezioro shouldn't rely on other provisions of the law to prohibit petitioning in parks.
Bailey wrote that "a statute which grants unbridled discretion to a government official to deny permits to engage in First Amendment expression in a public forum, and which contains no objective standards from which to review any permit denials is an unconstitutional prior restraint on First Amendment expression."
He wrote, "What defendants choose to do with that information is up to them."
Bailey's June order didn't count as final judgment, but his new order did.
He wrote that "plaintiffs will have full opportunity to petition for the 2010 election ballot."
That remains to be seen, for Jezorio has asked the federal appeals court in Richmond to overturn Bailey's June order.
Bailey's new order awarded $37,769.50 in fees to local attorney Joseph Wallace, son John Wallace, and Douglas McKusick of the Rutherford Institute in Charlottesville, Virginia.
Bailey approved the rate McKusick requested, $250 an hour, and he detected a $362.50 error that he adjusted in McKusick's favor for a total of $18,437.50.
He reduced Joseph Wallace's request from $275 to $215, for a total of $17,157, and reduced John Wallace's request from $195 to $150, for a total of $2,175.
He softened the blow on Joseph by honoring his 40 years of litigation experience.
"Undoubtedly, the broad array of issues Joseph Wallace has seen in his legal career assisted plaintiffs in obtaining the judgment in this action," Bailey wrote.