Justices side with judge in Jefferson planning commissioner case

By Steve Korris | Mar 17, 2011

CHARLESTON – Three real estate developers owe $15,000 each in punitive damages to Jefferson County planning commissioner Todd Baldau, the Supreme Court of Appeals has ruled.

The Justices on March 10 affirmed Circuit Judge David Sanders, who entered judgment on a jury verdict against Herbert Jonkers, Louis Athey and Eugene Capriotti.

Jurors found Jonkers, Athey and Capriott acted maliciously, wantonly, mischievously or with criminal indifference toward Baldau when they petitioned to remove him from office.

Sanders called their conduct "an attack upon the functioning of county government to gain undue economic advantage."

He wrote, "Defendants singled out one volunteer member of the county's planning commission without any basis whatsoever for doing so, as directly admitted by defendant Athey during his testimony at trial."

Along with punitive damages, jurors awarded Baldau $5,000 for anguish and annoyance, $1,000 in attorney fees, and $1,700 for out of pocket expenses.

Baldau volunteered for the commission in 2005 after moving his family to West Virginia. He commuted to Washington as an administrator in the Department of Justice and its prison bureau.

After he voted to deny subdivision applications, Jonkers, Athey and Capriotti filed a petition to remove him for misconduct and malfeasance.

Eighty people signed it, though Baldau would later learn that about a third of them lived outside Jefferson County and a fourth of them lived in other states.

The petition alleged that Baldau threatened commissioner Greg Corliss.

The Supreme Court of Appeals appointed judges John Hatcher, Robert Holland and David Janes to consider the petition.

They held a hearing in 2007, and decided they didn't find a scintilla of evidence to support allegations that Baldau violated the law or his oath office.

"To the contrary, the Respondent clearly appears to be an informed, smart and conscientious, unpaid citizen member of the Jefferson County planning commission," they wrote.

Finding he mostly voted with the majority of the nine members, they concluded the developers presented no reasonable, logical or rational explanation for singling him out.

Baldau filed a malicious prosecution claim against them, and Sanders granted partial summary judgment inferring malice in the absence of probable cause.

At trial in 2009, Baldau and his wife described the strain the petition put on the family.

Commissioner Corliss testified that Baldau never threatened him.

He said Baldau was one of the best prepared members.

Commissioner John Sidor said Baldau was precise, asked good questions and never acted unprofessionally or inappropriately.

Athey and Jonkers testified, and jurors watched tape of Capriotti in a deposition.

Sanders, who inferred malice, told jurors they couldn't infer it but had to require proof.

He told them malice was "a sinister or corrupt motive such as hatred, personal spite, a desire to injure the plaintiff or a conscious disregard of the rights of others."

Jurors found proof and awarded compensatory damages, fees and expenses.

After further testimony, they awarded punitive damages of $45,000, in equal shares.

Jonkers, Athey and Capriotti appealed, arguing Sanders abused his discretion by inferring malice.

The Justices found Sanders ruled correctly.

"The three judge panel found that the defendants failed to present any rational explanation for bringing the removal action against Mr. Baldau," they wrote in an unsigned opinion.

"Having relied on this conclusion, we find that the circuit court did not abuse its discretion by inferring malice due to the lack of probable cause," they wrote.

"The jury, not the circuit court, determined that the defendants acted with actual malice," they wrote.

David Hammer and Robert Schiavoni, both of Hammer, Ferretti and Schiavoni in Martinsburg, represented Baldau.

James Campbell and Michael Cassell, both of Campbell Flannery in Charles Town, represented Jonkers, Athey and Capriotti.

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