Judges dismiss lawsuit attempting to oust public officials

By Kyla Asbury | Aug 3, 2016

SUMMERSVILLE – A three-judge panel has ordered a lawsuit dismissed that attempted to remove two elected officials from office.

The three-judge panel, which consisted of Judges Jennifer F. Bailey, Alan D. Moats and John W. Hatcher Jr., ruled on July 18 that the respondents’ motion to dismiss was granted

On April 5, Kenneth A. Culp and George E. Mace filed a petition for the removal of John Miller and Kenneth Altizer from their offices with the Nicholas County Commission.

On April 26, Culp and Mace filed a pleading captioned “Motion for Disqualification,” which was seeking the removal of Hatcher as one of the panel members, and Hatcher provided Supreme Court Justice Menis Ketchum with a letter explaining he believed he could and would preside fairly as a panel member.

On May 9, Ketchum entered an administrative order directing Hatcher to remain on the panel.

Miller and Altizer filed a motion to dismiss the lawsuit on May 2 and, on June 9, the petitioners and respondents appeared in front of the panel in regards to the motion to dismiss.

The panel heard and took under advisement the arguments made by the respondents’ counsel in support of the motion to dismiss and arguments from the petitioners in opposition.

Nicholas County Deputy Clerk Betty Griffin was asked to compare the 127 names on Culp and Mace’s petition to those who voted in the November 2014 election. Of the 127 names, 37 for sure voted in the election and, at most, only 43 may have voted in the election.

“The other 84 listed individuals either did not vote or were not registered to vote in the November 4, 2014, general election,” Griffin’s affidavit states

In West Virginia, the removal from office of public officers is a drastic remedy and the statutory provisions prescribing the grounds for removal are the be strictly construed, according to the order.

“Considering the facts and election statistics from the West Virginia Secretary of State’s Office…it is clear that applying the…statutory one-percent standard or requirement, sixty-six voters would have been required to sign the petitioners’ removal petition,” the order states. “The facts are that only forty-three voters signed the removal petition.”

Duane Ruggier II, who represented the respondents, said the court dismissing the lawsuit was the right thing to do.

“Nicholas County voters put the respondents into office and people who did not even vote or were not registered to vote should not be able to refute the will of the Nicholas County voters,” he said. “They needed at least 50 signatures from voters who voted in that election, not from just anyone they could get to sign.”

Nicholas Circuit Court case number: 16-P-14

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