WEST VIRGINIA RECORD

CHARLESTON - The state Supreme Court has upheld a lower court decision prohibiting the city council of a Putnam County municipality from considering a mayoral candidate's challenge of disputed ballots.

On Feb. 27, the Court rendered its decision in the case of State ex. rel. Scott Edward 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, and Sam E. Cole. The appeal was brought by Cole who was asking the Court to overturn a judge's decision to halt the Hurricane city council from considering his challenge to the validity of early-voting ballots.

Despite entertaining his appeal, the Court found Cole's arguments academic as, in affirming the lower court's decision, it fell back on decisions it rendered over 50 years ago. In writing the Court's opinion, Senior Status Justice Thomas E. McHugh, who is sitting by temporary assignment for the ailing Justice Joseph P. Albright Sr., said Cole's dispute of the early-voting ballots became a moot point when he failed to abide by the strict requirements in state law setting forth the proper manner to dispute an election.

"Consequently, we conclude that Mr. Cole's failure to comply with the notice requirements of West Virginia Code § 3-7-6 was fatal to his attempt to challenge the results from the June 12, 2007, City of Hurricane mayoral election," McHugh wrote in the opinion.

"Consistent with our ruling in Staley, we hold that a governing municipal body that lacks jurisdiction to hear an election contest based on the failure of the contestant to comply with the notice provision of West Virginia Code § 3-7-6 will be prevented from hearing and determining an election contest by writ of prohibition."

A 20-month journey

In the mayoral race, Cole, a retired assistant state Treasurer, faced off against Edwards, a Hurricane businessman, and Frank "Sarge" Sargent to replace Raymond Peak, who decided to retire from politics full-time after serving as mayor on-and-off for the last 40 years. Prior to the tabulation of early-voting ballots, Cole had an 85-vote lead over Edwards.

However, after the early-voting ballots were tallied, the lead swung back to Edwards by 25 votes. After both the required canvass, and a recount requested by Cole, the final tally showed Edwards the winner.

Alleging the early-voting ballots were tainted because they "were not placed a secrecy envelope with a seal," Cole filed a lawsuit disputing the election in Putnam Circuit Court on July 6, 2007. Cole's suit named the city of Hurricane and the Putnam County Commission as co-defendants, and was served on them the next day via U.S. Mail.

After the county commission was dismissed as a defendant, a hearing was held on Sept. 13, 2007, to consider the city's motion to dismiss. Putnam Circuit Judge O.C. "Hobby" Spaulding on Sept. 24 found that the city council had not ruled first on the disputed ballots, and dismissed the case from his docket.

Two days later, Edwards filed a writ of prohibition to prevent the city council from hearing Cole's challenge during its next regularly scheduled meeting on Oct. 1, 2007. After he was randomly assigned the case, Putnam's other circuit judge, Ed Eagloski, agreed to hear Edward's petition 18 minutes after it was filed.

During a show-cause hearing on the writ of prohibition held on Oct. 26, 2007, Edwards' attorney Harvey D. Peyton seized on the fact that neither Edwards was named as a defendant in Cole's lawsuit, and that it was served on the defendants a day passed the 10-day statute of limitations to contest an election. In his argument, Peyton cited, among other cases, the 1952 ruling in State ex. rel. Staley v. the Wayne County Court where the Court ruled that the 10-day contest requirement "is mandatory and must be strictly complied with."
Citing a plain reading of the Court's ruling in Staley, Eagloski granted Edward's writ of prohibition later that day.

Arguments unpersuasive

At both the show-cause hearing, and in their petition for appeal, Cole's attorney's David O. Moye and Lisa M. Moye argued that Edwards was "forum shopping," and that Eagloski agreeing to hear Edwards' petition violated the doctrine of res judicata, or "a matter already decided." Also, service on Edwards could be construed to be effective since not only the notice of the lawsuit was sent to Hurricane city hall, where Edwards was now working, but he also attended the Sept. 13 hearing before Spaulding and failed to raise any objection at that time.

To back up their argument, the Moyes cited 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." A strict reading of the election-contest statute, the Moyes argued, could lead to illegally conducted elections because the person who had to be served could conveniently make him or herself unavailable.

However, the Court found the Moye's arguments unpersuasive as it, like Eagloski, turned to Staley for guidance. In addition to rejecting without discussion the res judicata argument, McHugh said the Court found "no merit" to the argument for constructive service since there is no case law that addresses it in regard to election contests.

Also, McHugh wrote that a careful reading of the Court's Palumbo decision finds that the issue at hand does not involve an interpretation of properly filing an election-contest notice. Rather, the decision gives direction to municipalities on how to proceed with a contested election once a timely notice has been filed.

"What separates Mr. Cole from the candidates in those few cases in which we have construed the election contest statutes in a liberal manner is his failure to comply with the most fundamental requirement: service of the notice of contest on Mr. Edwards within the ten-day period prescribed by statute," McHugh said.

"As we made clear in Staley, the consequence of this procedural defect is the abrogation of jurisdiction to address an election contest."

West Virginia Supreme Court of Appeals, Case No. 34159