WEST VIRGINIA RECORD

CHARLESTON - While the next big election cycle won't begin for about another 10 to 12 months, the state Supreme Court will have a say in disputed Putnam County municipal election held 18 months ago.

On Feb. 4, the Court is scheduled to hear arguments in the case of State ex. rel. Scott Edwards v. Linda Gibson, recorder for the city of Hurricane, and Donald E. Cheney, William E. Billups, C. Brian Ellis, Patricia D. Hagar and Lana M. Call, Hurricane city councilmembers. The case is an appeal from Putnam Circuit Court disputing the results from the June 2007 mayoral election.

Disputing the election is Sam E. Cole, a retired assistant state Treasurer. In the three-way race for mayor between Cole, Scott Edwards, a Hurricane businessman, and Frank "Sarge" Sargent, Cole lost to Edwards by 25 votes.

After a canvass certified the election, Cole filed a lawsuit on July 6 alleging the inclusion of early-voting ballots were tainted because they "were not placed in secrecy envelopes with a seal." Prior to the tabulation of early-voting, Cole had an 85-vote lead over Edwards.

After a Sept. 13 hearing on the city of Hurricane's motion to dismiss Cole's case, Putnam Circuit Judge O.C. "Hobby" Spaulding on Sept. 24 referred the it back to the city council to consider at its next regularly scheduled meeting on Oct. 1. Two days after Spaulding's ruling, Edwards filed a writ of prohibition with Putnam's other judge, Ed Eagloski, who granted it 18 minutes later, and scheduled Oct. 26, 2007, for a show-cause hearing.

Following the hearing, Eagloski agreed with arguments made by Edward's attorney Harvey Peyton that Cole's notice to contest the lawsuit was served on the city of Hurricane one day past the 10-day statute of limitations and not on Edwards personally. Cole, who was allowed to intervene in the case, appealed to the Supreme Court, which agreed to hear his appeal on June 11, a day shy of the one-year anniversary of the election.

Liberally construing statutes

In her appeal brief, Cole's attorney Lisa M. Moye, argues Eagloski's order should be overturned for two reasons. First, on the grounds that Edward's writ of prohibition was forum shopping and second, notice of Cole's intent to contest the election, which was sent to the city of Hurricane, can be construed to be effective.

Eagloski's order granting Edward's writ of prohibition violates the doctrine of res judicata, or "a matter already judged." Citing the Court's 1997 ruling in Blake v. Charleston Area Medical Center the three elements to prove res judicata are the merits in the first action must have been resolved, the parties in both actions must be the same and the issues in both actions must be identical.

"In this case, all three of the res judicata factors are present," Moye wrote.

"Honorable O.C. Spaulding entered an order as a final adjudication remanding the case to the city of Hurricane and dismissing the case from the circuit clerk's docket. The two (2) actions involve the same parties and the cause of action identified for resolution in the second proceeding, to wit, whether the city of Hurricane should conduct a hearing is identical to the cause of action determined in the prior civil action."

In regard to Cole contesting the election, a strict reading of the statute could lead to illegally conducted elections because the person who had to be served could conveniently make him or herself unavailable. That, Moye argues, would run counter to the Court's ruling in the 1966 case of Palumbo v. Kanawha County Court which held that "Statutes providing for election contests should be liberally construed, in order that the will of the people may not be defeated by mere technical objections."

Cole filed his suit within the 10-day limit, and served it on the city of Hurricane via U.S. Mail a day later, Moye notes in her brief.

Well-established precedents

In his brief, Peyton argues that none of the elements for res judicata apply. Spaulding remanding the dispute back to the Hurricane city council was not a final decision, but rather his recognition of an agreement by counsel for both sides that the circuit court, at that point, lacked jurisdiction.

"Exclusive jurisdiction to hear and decide a municipal election resides in the governing body of the municipality," Peyton wrote.

"As judge Spaulding realized, his court had no jurisdiction to deal with the substantive issues in Mr. Cole's lawsuit. The case had simply been brought in the wrong court."

Because the circuit court lacked jurisdiction to rule on the merits of Cole's case is enough to undermine Moye's res judicata argument, Peyton says. However, not only were the parties in both cases different - Cole v. the city of Hurricane in one and Scott Edwards v. Gibson and the Hurricane city council in the other - but also the issues are different, too - lack of jurisdiction in one and lack of jurisdiction in the other.

Peyton continues to seize on the issue of jurisdiction to knock down Moye's argument that Edwards was constructively served notice of Cole's intent to dispute the election. Bringing suit against the city of Hurricane before it as a quasi-judicial body could rule on the disputed election runs contrary to the Court's ruling in the 1949 case of Evans v. Charles that the common councils of municipalities are vested with original and exclusive jurisdiction in deciding contested elections.

Also, Peyton cites the Court's 1953 decision State of W. Va. ex. rel. Stanley v. Wayne County Court stating that the contestant in a municipal election must give the contestee notice in writing within 10 of an election's certification, or else the municipality lacks jurisdiction to hear the contest. Assuming Cole's service on the city of Hurricane is constructive, he not only failed to notify them he was a candidate for mayor, but also the grounds on which he's contesting the election as set forth in the Court's 1946 case of Irons v. Fry.

In concluding his brief, Peyton says the Court would set a dangerous precedent if it reverses Eagloski's ruling.

"Acceptance of the appellant's position would simply open the floodgates of litigation to every person who mistakenly misses a statute of limitation, fails to file an appeal petition on time, or neglects to request an administrative hearing within a jurisdictional time period," Peyton wrote.

"Elections could not be decided until every unsuccessful candidate either conceded or certified somehow that no case was pending in any court and that no letter objecting to the election was in the mail."

West Virginia Supreme Court of Appeals, Case No. 34159