CHARLESTON – The West Virginia Supreme Court of Appeals has affirmed a Mingo Circuit Court’s decision to deny County Commissioner Greg “Hootie” Smith’s request for attorney’s fees.
On April 6, 2016, Mingo Circuit Court denied Smith’s petition for a writ of mandamus through which he sought reimbursement for attorney’s fees and expenses that he incurred in successfully defending a removal petition in 2008, according to the May 19 memorandum decision.
The decision was concurred in by Chief Justice Allen Loughry II and Justices Robin Jean Davis, Margaret Workman and Menis Ketchum. Justice Beth Walker dissented.
In December 2006, a petition was filed to remove Smith from the Mingo County Commission and, in the removal petition, the sheriff and assessor alleged that Smith neglected certain duties and violated the law in the discharge of other duties.
Following two days of hearing, a three-judge panel appointed by the Supreme Court determined that Smith should not be removed from office and dismissed the removal petition. The sheriff and assessor appealed the panel’s order and, in May 2008, the Supreme Court refused the appeal.
In July 2008, Smith filed a writ of mandamus in Mingo Circuit Court, seeking an order directing the commission, the clerk and the sheriff to reimburse him for the attorney’s fees and expenses he incurred in his defense of the removal petition.
On March 24, 2010, the circuit court ruled that Smith failed to establish the first of the three elements required for a writ of mandamus—a clear legal right to the relief sough—and denied the mandamus petition. Smith then appealed to the Supreme Court.
In November 2011, the Supreme Court issued its opinion, reversing the circuit court’s 2010 order, holding that, in part, that in considering whether Smith has a clear legal right to the relief sought, the circuit court must apply the three-part test set forth in syllabus point three of Powers v. Goodwin.
The Supreme Court remanded the case back to the circuit court to determine whether Smith established the elements necessary for a writ of mandamus in light of Powers v. Goodwin.
On April 6, 2016, Mingo Circuit Court issued an order denying Smith’s mandamus petition, finding that, despite the panel’s ultimate ruling, the record from the removal proceeding demonstrated that Smith had violated West Virginia code many times.
The circuit court concluded that Smith failed to meet the three elements set forth in Powers v. Goodwin and, therefore, failed to establish a clear legal right to reimbursement for $82,705.88 in attorney’s fees and expenses. Smith then appealed to the Supreme Court.
“Upon our review of the record on appeal, we find no error in the circuit court’s ruling that petitioner failed to establish a clear legal right to reimbursement for over eighty-thousand dollars in attorney’s fees and expenses,” the decision states. “Our discussion need not go any further than the second prong of the Powers test, that is, that petitioner must have acted in good faith. In the present case, the circuit court found that, although he ultimately succeeded in defending the removal petition, the three-judge panel found that petitioner violated two statutes.”
W.Va. Supreme Court of Appeals case number: 16-0417