CHARLESTON – A federal judge has granted a motion to remand a lawsuit against the Boone County Assessor’s Office back to state court.

“Plaintiff’s motion maintains that removal of this action was improper because the complaint asserts no claim under the Constitution,” U.S. District Judge John T. Copenhaver wrote. 

Plaintiff’s complaint brings two counts: wrongful termination in violation of the public policy of West Virginia and violation of the West Virginia Wage Payment and Collection Act, according to the Oct. 26 opinion and order.

“While the factual background of the complaint states that plaintiff’s termination was ‘0politically motivated and violated plaintiff’s First and Fourteenth Amendment Rights,’ Count I asserts that ‘defendants violated the public policy of the State of West Virginia as established by the United States Constitution …’”

At issue for remand is whether Count I of the complaint arises under the Constitution for purposes of 28 U.S.C. § 1331.

Though the parties offer differing analysis, both the plaintiff’s motion and the defendants’ response agree that remand is appropriate in this action for lack of a federal question.

The plaintiff contends the reference to the United States Constitution in her complaint simply sets forth one of the bases for the West Virginia public policy, and that this does not invoke federal jurisdiction.

The defendants disagree with the plaintiff’s analysis, but concede that remand is proper where, as here, a plaintiff’s particular claim can be resolved on theories of state law without proving a theory of federal law, the claim “does not necessarily depend on a question of federal law,” and “does not ‘arise under’ federal law for purposes of § 1331.”

“The court agrees with the parties’ conclusion that it does not have subject matter jurisdiction over this controversy,” Copenhaver wrote.

The defendants argue that the complaint’s express references to the Constitution made it objectively reasonable for them to believe the cause of action “depend[ed] on a resolution of a federal question sufficiently substantial to arise under federal law within the meaning of 28 U.S.C. § 1331.”

“Indeed, the complaint alleges that plaintiff’s termination was ‘politically motivated and violated plaintiff’s First and Fourteenth Amendment rights,’ but it is now clear that she is not asserting a separate cause of action on that ground,” Copenhaver wrote. “Accordingly, defendants ultimately came to agree that remand is proper in this case because Count I of plaintiff’s complaint ‘does not exclusively rely on a federal question.’”

In this case, the court finds that the defendants were objectively reasonable in their removal of this action, notwithstanding their later acceptance of the remand.

Susan Baisden filed her lawsuit against The Assessor’s Office and Scotty D. Cook on Aug. 18 in Boone Circuit Court. It was removed to federal court on Sept. 11.

Baisden claims she was employed by the defendant as a deputy assessor for 27 years from 1990 through Jan. 3. She claims she ran for the office of assessor in 2016 and Cook also ran for office and won the election.

On his first day in office, he fired the plaintiff in retaliation for running against him, according to the suit.

Baisden claims following her termination, the plaintiff filed a complaint with the Boone County Commission and the commission agreed with the plaintiff and subsequently ordered the reinstatement of the plaintiff’s employment with the assessor’s office.

The plaintiff worked until Feb. 10, when she was again terminated from her employment. The defendants claimed that the county commission did not have the authority to reinstate the plaintiff’s employment and thus, the defendants did not have to follow the commission’s directive to reinstate the plaintiff to her former position with the assessor’s office, according to the suit.

Baisden claims the defendants have failed and refused to pay the plaintiff for the tie she was reinstated until the time she was terminated for the second time by the defendants.

The defendants termination of the plaintiff’s employment was politically motivated and violated the plaintiff’s First and 14th Amendment rights.

Baisden is seeking compensatory and punitive damages. She is being represented by Richard W. Walters of Shaffer & Shaffer and Peter A. Hendricks.

The defendants are represented by Wendy E. Greve of Pullin, Fowler, Flanagan, Brown & Poe.

U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-03965

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