HUNTINGTON – Cabell County has paid more than $38,000 in legal fees to fight a dismissed federal lawsuit filed by two former county commission candidates regarding a residence statute.
County documents from County Administrator Beth Zerkle’s office show the county has paid $38,180.26 so far in the case filed by Jan Hite King and Kim Maynard claiming they were deprived of their constitutional rights when they wanted to run for a commission vacancy in 2022.
King and Maynard claimed a residence statute for local politicians was discriminatory, but records show both of them had filed to run for county commission using addresses in one magisterial district while their addresses to run for the Republican Executive Committee shows them each living in different magisterial districts.
“The burning question is how these two candidates can simultaneously claim that they reside in the First Magisterial District for one office but claim for another office they live outside the First Magisterial District?” attorney Ancil G. Ramey, who was working for the county, wrote in one document about the case obtained by The West Virginia Record through a Freedom of Information Act request.
“In other words, Ms. King and Ms. Maynard are seeking office as a County Commissioner claiming to be in the First Magisterial District at the same time they are seeking office on the Republic Executive Committee claiming not to be in the First Magisterial District as their respective Precincts for purposes of the Executive Committee Districts posts lie outside the First Magisterial District.”
In that same letter dated February 23, 2022, Ramey also noted that both King and Maynard attended county commission meetings as interested citizens who worked on legislation to reform membership of the Greater Huntington Park and Recreation Board after the county adopted a map with three magisterial districts.
“Therefore, in my opinion, any claim by these two candidates that they were uninformed or confused about the new magisterial district map is ludicrous,” Ramey, an attorney with Steptoe & Johnson, wrote.
Attorneys for the county and the candidates sent letters about the issue to the West Virginia Secretary of State’s office. Mike Clifford, who represented King and Maynard, wrote that a Cabell County Clerk staff member told King to change her magisterial district on the filing, which she says she did. Clifford also said Ramey sent a letter to King and to Maynard telling them to submit corrected filings to show they were eligible to run in Magisterial District 1.
But Ramey responded to say a County Clerk staff member did not instruct King to change the district number but still processed the original filing. Ramey also said the commission adopted a three-district magisterial map at its Dec. 9, 2021, meeting and that the map is in the clerk’s office and online. Ramey also sent the Secretary of State’s Office a letter about the filings Feb. 4, 2022.
“If these candidates do not withdraw their knowingly fraudulent certificates of candidacy by the statutory deadline, I will refer the matter to the Office of the Prosecuting Attorney of Cabell County for a criminal investigation, and file a formal complaint with the Office of the Secretary of State,” Ramey wrote in his February 11, 2022, letter.
In a July 8, 2022, email to the Secretary of State’s office, Ramey says the notion that King and Maynard were “confused” or “misled” is “preposterous.”
“This was planned from the very beginning,” Ramey wrote to Donald “Deak” Kersey with the SOS office, including social media messages from King to Maynard that support that.
“We need to run for executive committee,” King wrote to Maynard. “We are gonna meet at courthouse on Saturday and all file to run. … It’s kind of too secret, we are trying to make it so that John (Mandt) will have his name in the hat for commission.”
“I think someone already filed to run in my district,” Maynard responds in the undated exchange that Ramey says took place before King and Maynard filed to run in January 2022. “I was actually going today to file until I heard that.”
“They elect 1 man 1 woman,” King said. “File to run anyway. … Joe Powers is gonna run too. …
“We were also told to file to run for commission by my attorney. A bunch of us are filing to run, they will tell us all no, but that’s what we want ... Right now, well before they changed the maps, 2 commissioners were in the same district. They denied me to run during that time.”
In the July 8, 2022, letter, Ramey said King “had tried to pull this in a prior election, but they refused to process her certificate because it referenced the wrong district.”
“They both knew what they were doing,” Ramey wrote to Kersey. “They were mad that when redistricting occurred, John Mandt was place in a district outside the first where the incumbent, Jim Morgan, would be running. …
“What they wanted to do was create confusion to punish Morgan politically even though the redistricting had nothing to do with politics, but reducing its districts from five to three so everyone in the county has a commissioner.”
The Secretary of State’s office investigated the matter and filed a report with the prosecuting attorney’s office. A Cabell Circuit Judge approved the matter to be presented to a grand jury. Because of a conflict of interest, the Cabell County Prosecuting Attorney referred the matter to Wayne County Prosecuting Attorney Matthew Deerfield to handle as a special prosecutor. That matter still is pending.
King currently is running for a seat on the Cabell County Commission in this year's election.
The Cabell County Commission, former commission Clerk Phyllis Smith, current commission Clerk Scott Caserta and commission Assistant Clerk Samantha McCollins were named as defendants in the King and Maynard complaints, which originally were filed in Cabell Circuit Court before being removed to federal court claiming the defendants deprived them of their constitutional rights when they wanted to run for a commission vacancy in 2022.
U.S. District Judge Robert “Chuck” Chambers granted the county’s motions to dismiss in November, saying the plaintiffs failed to plausibly allege a First Amendment claim and failed to sufficiently support a due process claim and a claim of vicarious liability with the commission. Two other claims of civil conspiracy and intentional infliction of emotional distress that were pending against McCollins were dismissed in February when the case officially was stricken from the court docket.
When King and Maynard attempted to file for the vacancy for District 1, the commissioners ruled neither lived in the district — with King residing in District 2 and Maynard in District 3, according to the suits.
The plaintiffs claim when they went to the courthouse to file to run for Nancy Cartmill's seat, they were told by Smith's office they lived in the wrong districts.
Records in the West Virginia Secretary of State Office showed the plaintiffs' voter's information listed them as a resident of Magisterial District 1, making them eligible and qualified to run for Nancy's seat.
The plaintiffs later were denied the ability to run for Cartmill's seat. They also never were refunded their filing fees for the 2022 election, according to the suits.
The defendants filed an answer denying the allegations.
"Defendants raise and preserve the defenses of qualified immunity and any other immunity available to these Defendants pursuant to the United States Constitution, the United States Code, the West Virginia State Constitution, and the West Virginia Code," the answer stated, adding they are immune to the claims against them and did not engage in any wrongdoing. They contend they breached no duty at law owed to or right of the plaintiffs and that any misrepresentations about eligibility and prerequisites for candidacy do not create any legal rights.
King and Maynard were seeking compensatory and punitive damages. They were represented by Clifford. The defendants were represented by Wendy E. Greve and Benjamin B. Vanston of Pullin, Fowler, Flanagan, Brown & Poe in Charleston.
U.S. District Court for the Southern District of West Virginia case number: 3:23-cv-00129, 3:23-cv-00130