CHARLESTON – The Supreme Court of Appeals must decide whether McDowell County owes county commissioner Ray Bailey more than $45,000 in legal fees from an election dispute.
On Feb. 9, the Justices will hear arguments on a petition from county prosecuting attorney Sidney Bell to overturn an order in Bailey's favor.
Special Judge William Sadler entered the order in 2009, finding a county has power to reimburse an official who incurs a loss in the discharge of his duties.
"Mr. Bailey is entitled to indemnification for the attorney's fees incurred while defending his right to hold the office of county commissioner to which he was duly elected," Sadler wrote.
Sadler didn't specify an amount. Bailey submitted a bill afterward.
Sadler, a circuit judge in Mercer County, took the case after McDowell judges Booker Stephens and Rudolph Murensky recused themselves.
The conflict has divided the county for almost three years.
In May 2008, Bailey defeated incumbent commissioner Carl Urps in the Democratic primary for a seat from Sandy River district.
Urps ran a write-in campaign in the November general election, and Bailey won again.
Urps contested the result, alleging Bailey lived in Big Creek district.
At trial, County Clerk Donald Hicks testified that Bailey was registered to vote in Mohawk, in Big Creek district.
"I called to see if he had a residence at Mohawk, which I discovered that he did not at that time, nor at the time of filing or at the time of the election," Hicks said.
Bailey said he moved from Mohawk to his current residence at Wilmore in 1982.
Sadler ruled that Bailey wasn't disqualified, and Bailey took the oath of office.
Hicks sought review at the Supreme Court of Appeals, but the Justices unanimously declined to hear the appeal.
At a meeting of the three county commissioners, Judy Cortellesi moved to reimburse Bailey for his legal fees.
Bailey abstained, and commissioner Gordon Lambert didn't second the motion.
At another meeting, the same motion failed again.
Bailey then sought an order from Sadler, who granted it.
Sadler quoted a decision from 1982 that voters have an interest in protecting elected officials "from being hectored out of office through the constant charge of bankrupting attorney's fees on their personal resources."
He wrote that if the public has an interest in seeing officials continue in office, the public has an interest in seeing them take office in the first place.
Bell appealed on behalf of Hicks, writing that Bailey's failure to change his registration negated any claim that he came into the contest with clean hands.
Bell wrote that there was no statutory authority for charging attorney's fees to the county commission, which was not a party to the contest.
For Bailey, Michael Carey of Charleston answered that the entire electorate has an interest in his service in the office to which he was elected.
Carey wrote, "To hold that appellee bears sole responsibility for the attorney fees he incurred in defense of his right to assume the office to which he was duly elected would effectively make the will of the electorate contingent upon the chosen candidate's ability to finance the defense of election contests brought by his or her political opponents," Carey wrote, adding that Bailey didn't ask the county to pay his fees without reviewing his bill.
"It is curious that the instant appeal is being pursued by the clerk of the McDowell County commission," Carey wrote. "It is the McDowell County commission that is the real party in interest in this appeal, not the clerk."
David Pogue also represents Bailey. He and Carey practice at Carey, Scott, Douglas, and Kessler in Charleston.