Constitution Party can't sue DNR chief over state park ban, attorney says

ELKINS – Leaders of the Constitution Party of West Virginia can't sue director Frank Jezioro of the West Virginia Division of Natural Resources over a ban on politics in state parks, his attorney argues at U.S. District Court in Elkins.

Keith Gamble of Morgantown argued in a July 10 brief that even if the party can sue the state, it must notify the Attorney General 30 days ahead of time.

Party leaders Denzil Sloan and Jeff Becker sued Jezioro, Stonewall Jackson Lake State Park superintendent Sam England and park ranger Scott Warner in U.S. District Court at Elkins in April, asserting a constitutional right to circulate petitions at the park.

Last year, park personnel chased the party away from National Hunting and Fishing Day. Sloan and Becker want to circulate petitions at the event this year.

Gamble moved in May to dismiss the suit. According to his brief, the party never alleged that park personnel specifically denied a request to petition.

"Plaintiffs have only alleged that they received a clarification from the defendants of the particular West Virginia state rule they were violating at Stonewall Jackson Lake State Park in September of 2007, that's all," Gamble wrote.

"Plaintiffs are not trying to sue these defendants in federal court because they were denied access to the West Virginia National Hunting and Fishing Day in September of 2007, they are suing because they do not like the West Virginia state rule that the defendants based their decision upon."

Because defendants operated in their official capacities, he wrote, the party can't sue them as individuals to dispute the constitutionality of their actions.

Nor can the party sue the state, he argued, because the Fourteenth Amendment to the U.S. Constitution largely shields states from suits in federal courts.

He wrote that the amendment exemplifies the broad and ancient doctrine of sovereign immunity, which bars suits brought by citizens against their own states without consent.

Jezioro, England and Warner have not consented or waived immunity, he wrote.

Joseph Wallace of Elkins represents the party, Sloan and Becker. His complaint identified Becker as party chairman and Sloan as last year's chairman.

The complaint stated that hunters, fishermen and outdoorsmen tend to share the viewpoint that the party espouses and champions.

"National Hunting and Fishing Day event at Stonewall Jackson Lake State Park was and is a particularly desirable event for the CPWV to seek signatures," he wrote.

He identified himself as participating attorney for the Rutherford Institute of Charlottesville, Va.

U.S. District Judge Robert Maxwell is presiding over the case.