WEST VIRGINIA RECORD

CHARLESTON – Now that former Lincoln County Circuit Clerk Gregory Stowers has served time for buying votes, the West Virginia Supreme Court of Appeals will decide if a candidate he defeated 12 years ago can sue him for damages.

Four of fives Justices granted a motion of 1996 candidate Terry Hill to review Circuit Judge Jay Hoke's order dismissing his suit.

Stowers defeated Hill in the general election, 2,814 to 2,209.

In 2005, Stowers pleaded guilty to federal fraud charges from the 2004 election.

Hill sued Stowers in 2006, claiming Stowers deprived him of a constitutional right to run for and hold public office.

Robert Goldberg and Larry Kopelman of Charleston argued for Hill that Stowers unjustly enriched himself through pay and benefits of the office.

They argued that state law permits money damages in election violations.

For Stowers, Robert Allen and Stephanie Thacker of Charleston moved to dismiss for failure to state a claim on which the court could grant relief.

Hill asked Hoke to recuse himself and let then-Chief Justice Robin Davis appoint a judge from another circuit.

Hoke asked Davis for guidance but retained jurisdiction.

At a hearing in April 2007, Kopelman told Hoke that Stowers moved to stay discovery because of his incarceration.

"That incarceration has ceased," Kopelman said. "There is no reason why discovery should not go forward."

Hoke said, "If I were allowed to speak to that issue I would probably agree with you, but I'm not allowed to speak to that issue until the Chief Justice tells me I can."

Thacker said, "Our motion to dismiss, which has not been responded to yet, is dispositive as there is no valid claim to the litigant Mr. Stowers."

She said, "Discovery should not go forward until that motion to dismiss is responded to and ruled upon."

Davis gave Hoke a green light, and he dismissed Hill's suit.

Hoke wrote that "while the law is clear that the Plaintiff does have a constitutional right to run for office, contrary the allegations of the Plaintiff, he does not have a fundamental constitutional right to win."

He wrote that Hill had no legally recognized property interest in the position.

He wrote that "public elections and public offices have long been deemed matters of public domain, rather than of private right."

There is no policy for awarding monetary damages to losing candidates, he wrote.

He declined jurisdiction over an election recount or contest, adding that Hill didn't file timely notice to contest the election.

Allowing a loser to collect damages from a winner would provide incentives for candidates to ignore established procedures for challenging an election, he wrote.

Hill moved for review at the Supreme Court of Appeals. Davis, current Chief Justice Spike Maynard and Justices Brent Benjamin and Larry Starcher granted the motion.

Justice Joseph Albright would have denied it.