Federal judge rules against DNR chief again

By Steve Korris | Jan 22, 2009


ELKINS – Once again, U.S. District Judge John Preston Bailey has stripped Division of Natural Resources Director Frank Jezioro of immunity as a state official from a lawsuit claiming he violated rights of West Virginia citizens.

On Jan. 16, Bailey denied a motion to dismiss a suit the Constitution Party filed against Jezioro, asserting the right to circulate nominating petitions at state parks.

Stonewall Jackson Lake State Park rangers chased the party away from the annual National Hunting and Fishing Day in 2007.

Party leaders sued Jezioro, park superintendent Sam England and ranger Scott Warner in the Elkins division of Northern District federal court for the right to petition at the event in 2008.

They didn't secure an order for 2008, but their chances for 2009 look better now that Bailey has taken a stand.

The last time Bailey taught Jezioro a constitutional lesson, Jezioro quickly caved in.

A few weeks ago Jezioro, stripped of immunity by Bailey, withdrew a letter ordering wildlife sanctuary operator Joel Rosenthal to stop caring for wild animals.

Bailey didn't disguise his distaste for Jezioro's action in either case.

The Constitution Party case bothered him because state rules do not prohibit soliciting, advertising or doing business in state parks, forests and wildlife areas.

The rules prohibit those activities without written permission, and party leaders asked Jezioro how to obtain written permission.

"Plaintiffs received no response," Bailey wrote.

He rejected Jezioro's argument that he lacked jurisdiction under the U.S. Constitution.

"Defendants are correct that the Eleventh Amendment generally bars claims against states and state officials acting in their official capacities," he wrote. "Defendants overlook, however, exceptions to Eleventh Amendment immunity applicable to the claims at bar."

Party leaders made claims under federal law against all defendants in their official capacities and in their personal capacities, he wrote.

"Based on the face of the complaint, plaintiffs have presented legally recognizable claims against the defendants," he wrote.

He applied a 1908 decision that removes immunity when officials commit ongoing violations of rights.

"As plaintiffs here were not told how to seek permission to petition in the park, and as plaintiffs plan to try to petition in the park again, a reasonable trier of fact could find a continuing likelihood or a recurrence in such an intermittent or sporadic violation of plaintiffs' First and Fourteenth Amendment rights," he wrote.

"As such, plaintiffs have alleged a sufficient ongoing violation of their rights," he wrote.

Finally, he rejected an argument that loss of Eleventh Amendment immunity turned defendants into private persons who could no longer be held liable.

"This is a fundamental misapplication of the law," he wrote.

He ruled that party leaders can seek monetary damages for violations of state law.

Party leaders lost only one point. Bailey dismissed claims for injunctive or declaratory relief under state law.

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