West Virginia Record

Saturday, December 14, 2019

Supreme Court sides with prosecuting attorney in election law violation case

State Supreme Court

By Kyla Asbury | Jul 1, 2019

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CHARLESTON — The West Virginia Supreme Court of Appeals sided with a Summers County prosecuting attorney in a case alleging violations of election law.

James W. McNeely appealed an April 13, 2018, order of Summers Circuit Court that awarded county Prosecuting Attorney Kristin R. Cook summary judgment on McNeely’s claim that there should be a renewed investigation by a special prosecutor into whether Cook committed election law violations during the 2016 primary election.

Both McNeely and Cook are attorneys and each ran for election to the Office of Prosecuting Attorney of Summers County in 2016. Each sought their respective party’s nomination for the position and 

During the primary election, McNeely filed an action in Summers Circuit Court seeking an appointment of a special prosecutor to investigate alleged election law violations by Cook and the circuit court appointed the Prosecuting Attorney of Mercer County as special prosecutor to investigate the allegations by order entered June 10, 2016.

The Mercer County Prosecutor did not complete his investigation prior to the Nov. 8, 2016, general election and in the general election, Cook defeated McNeely to become the Summers County Prosecutor.

The Mercer County prosecutor reported via letter on Jan. 6, 2017, that he did not believe the matter held merit for further action. On Jan. 13, 2017, McNeely filed an objection to the Mercer County Prosecutor’s determination of no further action and on Feb. 7, 2017, the circuit court dismissed the case.

On Feb. 14, 2017, McNeely filed a mandamus action in the instant case seeking to compel the appointment of another special prosecutor and a renewed investigation into the alleged election law violations by Cook.

McNeely then appealed the circuit court’s April 13, 2018, order awarding Cook summary judgment.

“Here, we find no abuse of discretion and concur with the circuit court’s finding,” the Supreme Court states.

The court fond that, like all attorneys, the Mercer County Prosecutor had a duty of candor toward the circuit court pursuant to Rule 3.3(a)(1) of the West Virginia Rules of Professional Conduct and a duty not to knowingly disobey a court-imposed obligation pursuant to Rule 3.4(c).

The court found there was no genuine issue of material fact and the record corroborates the Mercer County Prosecutor’s statement that he conducted an investigation in the case.

“Given such facts, we concur with the circuit court’s finding that respondent was entitled to judgment as a matter of law,” the court wrote. “Accordingly, we conclude that the circuit court properly awarded respondent summary judgment.”

West Virginia Supreme Court of Appeals Case number: 18-0419

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