Smith

Hannah

Workman

CHARLESTON – Mingo County's longest running feud since Hatfield and McCoy must drag on, the Supreme Court of Appeals has decided.

The Justices on Nov. 21 ordered visiting judge Jay Hoke to accept county commissioner Gregory Smith's application to recover legal fees he incurred in defeating a removal petition.

Smith claims the county should issue him a check for $53,548.81, but the checkbook belongs to Sheriff Lonnie Hannah, who filed the removal petition.

Hannah would have to pay if two of three county commissioners voted that way, but Smith can't vote and neither can David Blaisden, who filed the petition with Hannah.

Hannah argued that Blaisden wouldn't have to recuse himself because he had no financial interest, but the Justices disagreed.

"While commissioner Baisden may not have a pecuniary interest in a vote over whether to reimburse petitioner Smith for his attorney's fees, he most certainly has a direct personal interest," Chief Justice Margaret Workman wrote.

She wrote that Hoke must order reimbursement if the underlying action arose from discharge of an official duty in which the county had an interest, if Smith acted in good faith, and if the county has the express or implied power to indemnify him.

She wrote that "an important public interest is served by indemnifying public officials who have successfully defended against petitions for removal."

She quoted a 1982 decision that "voters have a legitimate interest in protecting their duly elected officials from being hectored out of office through the constant charge of bankrupting attorneys' fees on their own personal resources."

Hannah and Blaisden petitioned for Smith's removal in 2006, alleging he failed to sign checks, voted to fund entities that were indicted, wasted public funds, and employed a convicted felon in a county job.

The Supreme Court of Appeals appointed three judges to consider the petition, as state law requires, and the three judges denied it in 2007.

They found that although Smith committed technical violations of two statutes, the violations didn't justify removing him from office.

Hannah appealed, and the Supreme Court of Appeals denied his appeal in 2008.

Smith petitioned for a writ of mandamus against Hannah in circuit court, and Hoke denied it last year.

He found Smith should have asked the three judges for reimbursement.

He found Smith failed to establish a right to relief because there was no explicit statutory basis for granting fees and costs under the circumstances.

Smith appealed, and the Justices discovered what Hoke missed.

"Contrary to the circuit court's findings, however, a statute does exist governing the reimbursement of attorney's fees to public officials who have successfully defended against a petition for removal," Workman wrote.

She quoted West Virginia Code that, "The governing body of the governmental entity of which a person is an official is hereby authorized to reimburse such person for the reasonable amount of such person's attorney fees in any case wherein such person has successfully defended against an action seeking his or her removal from office ..."

She wrote that the Legislature vested local governments, not three judge courts, with authority to reimburse an official for reasonable fees.

John Kessler, David Pogue, and Michael Carey, of Carey, Scott, Douglas and Kessler in Charleston, represented Smith.

Leah Macia, of Spilman Thomas and Battle in Charleston, represented Hannah.

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