CHARLESTON – The West Virginia Supreme Court says a Lincoln County circuit judge was right to dismiss a lawsuit filed by the losing candidate in a circuit clerk election marred by illegal vote-buying.

In a per curiam opinion filed Tuesday, the court ruled against Terry Hill, who ran unsuccessfully in 1996 against Gregory Brent Stowers, who pleaded guilty in 2005 to a years-long vote-buying scheme in the county.

Hill had sought compensatory and punitive damages from Stowers over the loss, saying that Stowers violated his constitutional right to run for public office by rigging the election with vote-buying.

Stowers beat Hill in the 1996 election by some 600 votes. Stowers was reelected in 2000 and 2004.

Lincoln Circuit Judge Jay Hoke dismissed Hill's lawsuit on Oct. 1, 2007, finding that a candidate doesn't have a property right to an election and that Hill's cause of action does not exist.

Hoke said it would go against public policy to permit a losing candidate to seek damages from a winning candidate and that all Hill could do was file an election contest.

Hill appealed Hoke's order after having failed on multiple occasions to have the judge removed from the case.

In thwarting Hill's constitutional claim, the justices relied on a Kentucky Supreme Court decision related to a 1929 election for a state senate seat.

In that decision, the Kentucky court found that candidate B.F. Shields could not sue W.W. Booles for allegedly bribing voters. The court said it was a matter more appropriate for criminal prosecution.

The West Virginia justices agreed.

"There is simply no legal basis for Mr. Hill's contention that the West Virginia Constitution allows him to pursue a private cause of action for damages against Mr. Stowers," the opinion says. "Mr. Hill did not suffer an injury to his character, person, or property as a result of Mr. Stowers's vote-buying activities."

Hill also relied on a state law that says any person injured by another's law breaking can recover damages.

The justices said in the opinion that the laws Hill cites in his appeal relate to imposing criminal penalties on election law violators, not creating causes of action for a losing candidate.

"Given that fact, this court finds that the creation of a private cause of action based upon these statutes would only serve to usurp the legislative scheme," the opinion says. "Essentially, this court would be creating an alternative means by which an unsuccessful candidate could contest the results of an election and providing a private cause of action for damages to one individual for conduct violative of the rights of the citizenry at large."

Another of Hill's claims involved Stowers's unjust enrichment from the circuit clerk salary. The justices say since Hill did not pay out the salary, he's not entitled to sue over it.

Robert A. Goldberg and Larry G. Kopelman represented Hill. Robert B. Allen and Stephanie D. Thacker represented Stowers.

Supreme Court case number: 34143

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