Hurricane mayor 'forum shopping,' challenger alleges

By Lawrence Smith | Oct 12, 2007

WINFIELD – Not only did a Putnam Circuit judge grant a petition for a writ of prohibition to the officially recognized mayor of Hurricane ex parte, but also enabled the mayor to engage in "forum shopping," argue attorneys for his opponent.

"Under Civil Action No: 07-C-332, the signed Order granting relief was granted ex-parte and did not provide the adequate time frame for a preliminary hearing on the issues for the parties to present evidence," Winfield attorneys David O. Moye and Lisa M. Moye wrote.

"The petitioner, Scott Edwards, is in effect forum shopping by filing a separate petition raising the same issues currently being litigated under Civil Action No.: 07-C-226."

The Moye's comments were in the context of a motion they filed on behalf of their client Sam Cole with the Court on Sept. 28. The motion's primary purpose was to consolidate the two competing civil suits involving the disputed Hurricane mayoral election in hopes of bringing finality to the issue.

Less than 20 minutes

On July 6, Cole, a retired assistant state Treasurer, filed suit against the city of Hurricane disputing the inclusion of early ballots cast in the June 12 city election for mayor. Cole, along with Frank "Sarge" Sergeant, was Edwards' opponent in the race to replace long-time Mayor Raymond Peak.

Returns throughout the night showed Cole leading Edwards. However, after the early ballots were counted, the lead shifted to Edwards, thus giving him the victory.

After a recount affirmed Edwards' victory, Cole initiated his suit. In it he alleged that the early ballots were tainted because they "were not placed in secrecy envelopes with a seal" and were thus "improperly included by the Defendants in determining the successful candidate for mayor."

"Without the inclusion of the ballots for early voters," Cole says in his suit, "the Plaintiff would have been the successful candidate for Mayor."

After entertaining the city's motion to dismiss Cole's suit on Sept. 13, Putnam Circuit Judge O.C. "Hobby" Spaulding signed an order on Sept. 24 remanding the matter back to the city council to render a decision on the legitimacy of the ballots. The decision was made with the consent of both parties, and done with the understanding that "Upon a ruling from the city council of the city of Hurricane, an appeal may be filed with this court."

Two days later, Edwards, with the assistance of Harvey D. and Thomas H. Peyton of the Peyton Law Office in Nitro, filed a writ of prohibition with Putnam Circuit Judge N. Edward Eaglowski to prevent the council from considering the matter at its upcoming Oct. 1 meeting.

In his writ, Edwards alleged that because Cole did not file a notice to contest the election with him, but instead with Linda Gibson, the city recorder, on Sept. 19, Cole's suit is untimely and without merit. According to court records, Eaglowski granted Edwards' writ 18 minutes after it was filed, and set Oct. 26 for a show-cause hearing on Edward's motion.

Issues previously addressed

Inclusive of the Moye's motion to consolidate the cases was an answer to Eaglowski's ruing to show cause, and a motion to dismiss his prohibition order. In their motion, the Moye's assert that the issues raised in Edwards' writ of prohibition were already addressed in the Sept. 13 hearing.

Because of that, the Moyes state that all motions Edwards files should be with the Court with original jurisdiction in the matter, which in this case is with Spaulding.

"Most, if not all, of the issues listed by Petitioner, Scott Edwards, were addressed in the hearing before Judge Spaulding wherein the case was remanded to City Council for further proceedings," the Moyes say in their motion.

"Rule 42 (b) [of the West Virginia Rules for Civil Procedure] states that the Court with original jurisdiction shall consolidate the cases under the petition initially filed and retain authority over the issues in dispute. It is not judicially economical for the common issues of the election to be litigated in separate Courts," the Moyes add.

"It appears that Accordingly [sic], Scott Edwards' request of prohibition, which prevents the City Council of Hurricane from following Judge Spaulding's Order, is an attempt to forum shop to bring favorable results to Edwards' position."

In their motion, the Moyes say that Edwards has "not shown the Court the essential elements for irreparable harm in his request for prohibition." Because of this, the Moyes ask that Eaglowski's order granting Edward's writ of prohibition be dismissed, the two cases be consolidated and "that the City Council of Hurricane proceed as ordered pursuant to the September 13, 2007 hearing, and receive evidence as directed on the issues."

As of presstime Thursday, a ruling had yet to be made on the Moye's motion.

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