McHugh

CHARLESTON – McDowell County taxpayers don't have to pay legal bills that county commissioner Ray Bailey incurred in an election contest, the Supreme Court of Appeals has ruled.

Justice Thomas McHugh wrote on May 26 that the Legislature hasn't provided that election contests bear sufficient public purpose to warrant public expenditure on attorney fees.

He wrote that such policy determination is solely within the province of the Legislature.

The Justices reversed Circuit Judge William Sadler, who awarded Bailey more than $45,000 for a successful defense against opponent Carl Urps.

Sadler presided over the dispute by appointment of the Justices, after local judges Booker Stephens and Rudolph Murensky recused themselves.

Bailey defeated Urps in 2008, in the Democratic primary for Sandy River district.

Urps ran a write-in campaign that November, and Bailey won again.

Urps contested the result, alleging Bailey lived in Big Creek district.

Sadler found no evidence to disqualify Bailey.

Hicks sought review at the Supreme Court of Appeals, but the Justices unanimously declined to hear the appeal.

At a meeting, county commissioner Judy Cortellesi moved to reimburse Bailey's fees.

Bailey abstained, and commissioner Gordon Lambert didn't second the motion.

Bailey sought an order from Sadler, who granted it.

"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," he wrote.

He 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.

Prosecuting attorney Sidney Bell appealed, claiming Sadler lacked authority to impose fees on county commissioners who weren't parties to the contest.

For Bailey, Michael Carey of Charleston answered that voters have an interest in his service in the office to which he was elected.

"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," he wrote.

All five Justices rejected the logic, finding indemnification of a winner's fees from public funds isn't justified because an election contest does not arise from a candidate's performance of any official duty.

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