CHARLESTON – As voters in over a dozen municipalities go to the polls Tuesday to cast a ballot for their respective mayors and council, the state Supreme Court will vote whether to accept or reject a petition challenging the results of one Putnam County municipal election held last year.

Among the 21 petitions on Court's motion docket is one seeking to overturn a judge's decision to prohibit the Hurricane city council from considering the legitimacy of early-voting ballots cast in the June 2007 municipal election. Should the decision be allowed to stand, argues the attorney for the mayoral candidate contesting the election, will enable someone who doesn't like one judge's decision to go find one who does.

On June 12, Sam Cole, Scott Edwards and Frank "Sarge" Sargent were vying to replace Raymond Peak as Hurricane's next mayor. Election returns throughout the night showed Cole with an 85-vote lead over Edwards.

However, once early voting returns were tabulated after 1 a.m. the next day, the lead shifted back to Edwards giving him a 25-vote victory. After both the canvass and a recount requested by Cole, the tabulation showed Edwards the winner.

In a lawsuit filed July 6, Cole maintained 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."

On Sept. 13, Putnam Circuit Judge O.C. "Hobby" Spaulding heard arguments in the case. On Sept. 24 he referred the matter back to the city council to consider at its next regularly scheduled meeting on Oct. 1.

Two days later, Edwards filed a motion to stop the council from considering whether early-voting ballots should be considered.

Putnam Circuit Judge Ed Eagloski granted Edwards' motion 18 minutes after it was filed, and scheduled Oct. 26 for a show-cause hearing.

Upon conclusion of the hearing, Eagloski ruled that not only because the City of Hurricane, and not Edwards, was served with the notice of Cole's suit, but also the fact service occurred on July 7, one day after the statutory 10-day notice, that the June 12 election results must be upheld.

Cole's attorneys, David O. Moye and Lisa M. Moye, appealed Eagloski's decision to the state Supreme Court. During a petition conference in April, the Court wanted to hear additional information on the case before deciding whether to accept or deny the appeal.

In her appeal brief filed Jan. 25, Lisa Moye said Eagloski's decision violates the doctrine of res judicata, which is Latin for "a matter already judged." Because both civil actions involved the same parties and the same issues, Eagloski's decision allowed Edwards to "forum shop."

"Mr. Edwards was essentially given the opportunity to relitigate the same case with the same issue before a different court in an attempt to reach an opposite result," Moye said in her brief.

Also, Moye said a strict interpretation of when and who is to be served in a disputed election could "result in an illegally conducted election being upheld only because the contestee purposefully made himself unavailable for service." To bolster her argument, Moye quoted from the Court's 1986 opinion in Palumbo v. The County Court of Kanawha County finding that "Statutes providing for election contests 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."

West Virginia Supreme Court of Appeals, Case No. 080233

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