Upshur Commission seeks to dismiss federal suit

BUCKHANNON – The Upshur County Commission has filed a motion to dismiss a federal civil lawsuit brought against it by a former candidate for Upshur County sheriff, who claims current and former members of the commission conspired to violate his constitutional rights in events surrounding the May 2012 primary election.

The commission’s attorneys, Kala Sowers and Wendy E. Greve of the law firm Pullin, Fowler, Flanagan, Brown & Poe, recently filed a motion to dismiss a Dec. 2, 2012, suit filed by David Taylor in U.S. District Court for the Northern District of West Virginia against the Upshur County Commission as a political subdivision.

The six-count complaint also names as individual defendants current commissioners JC Raffety and Donnie Tenney; former commissioner Creed Pletcher; and attorney Timothy P. Stranko.

In a motion to dismiss Taylor’s complaint entered earlier this month, Sowers and Greve argue that Taylor’s complaint fails “to state a claim upon which relief can be granted,” and therefore should be dismissed with prejudice, meaning it cannot be brought up in court again.

Taylor, who is representing himself in the suit, finished second to Mike Kelley in the May 8, 2012, Republican primary for sheriff.

Following that loss, he sought to have himself declared the winner of the election after it was determined Kelley was ineligible to seek office because it would be a violation of the federal Hatch Act.

That law restricts the political activity, including seeking office in a partisan election, of federal employees and state and local employees whose salary is supplemented by federal funds or who oversee federally funded projects. Kelley both received federal money in his salary, though it was channeled through the county commission, and supervised employees working in federally funded programs as part of his duties.

Taylor unsuccessfully challenged the outcome of the election before the commission in July 2012; in the 26th Judicial Circuit Court of Upshur County in September 2012 and in the West Virginia Supreme Court of Appeals in October 2012.

In the December lawsuit, Taylor charges the commission and Stranko – the attorney the commission retained during Taylor’s initial challenge of the election results – with one state law claim – negligence – and five federal claims, including denial of due process by violation of the Fifth and Fourteenth amendments; civil conspiracy to violate rights; conspiracy to interfere with civil rights; neglect to prevent conspiracy against civil rights; and denial of the right to vote and participate in a fairly conducted election in violation of the First and Fourteenth amendments.

In response to those allegations, Sowers and Greve argue that commissioners, when acting in their legislative capacity, cannot be held accountable as individuals in a court of law.

“County legislators are entitled to absolute personal immunity for acts performed in their legislative capacity,” they write, later citing a section of state code that outlines the commission’s duty to be the “judge of the election, qualifications and returns of their own members and of all county and district officers.”

Sowers and Greve go on to say that when Tenney, Raffety and Pletcher heard Taylor’s election challenge on July 18, 2012, their actions were “legislative in nature, and therefore, the Commissioners have absolute immunity from this lawsuit.”

The county is likewise immune from Taylor’s allegations of conspiracy under the doctrine of intracorporate immunity, which “dictates that a single entity (the commission) cannot conspire amongst itself,” Greve and Sowers argue.

“As the Commissioners were all ’employees’ of the County Commission, under this doctrine, they could not have conspired against the Plaintiff (Taylor).”

The county’s counsel contends that Taylor’s lawsuit is an attempt to again challenge the election results.

“Although his allegations are couched in claims regarding his constitutional rights, what Plaintiff (Taylor) actually seeks in the instant lawsuit is another opportunity to challenge the actions of a County Commission when those actions were already challenged in three separate state forums,” Sowers and Greve claim. “Plaintiff (Taylor) should not be allowed to seek redress against these Defendants for actions which the state courts have affirmed.”

Sowers and Greve ask for Taylor’s complaint to be dismissed and that the current and former commissioners be granted “any further relief deemed appropriate by this court.”

Stranko has also filed a motion to dismiss Taylor’s complaint for failure to state a claim against him upon which relief can be granted.

When contacted for comment Sunday, Taylor said he had already filed a motion in opposition to the commission’s motion to dismiss his complaint.

“The constitutional injuries I sustained at the hands of the defendants as pled in Counts 1-6 as laid out in my original federal complaint, entitle me to relief,” he wrote in an email to The Inter-Mountain. “I am NOT (sic) relitigating the election challenge.

“I was denied the constitutional right of due process after I filed the election contest. The UCC (Upshur County Commission) did not sit as an impartial and unbiased tribunal on 18 July 2012 (sic). Based upon the disclosures of Mr. (William) Parker (former Upshur County administrator), the outcome of my challenge was predetermined.”

At a June 2, 2013, meeting, Parker allegedly told Taylor that “(the commission’s) decision to reject/deny (Taylor’s) Petition to Contest the Election (sic) was in essence determined before trial,” Taylor claims in his original complaint.

“What is essential to understanding the defendants’ position here is that they have ignored the fact that they are an inherently political body who, behind closed doors and in concealment, predetermined the outcome of my election challenge BEFORE (sic) I ever stepped foot in the courtroom (on July 18, 2012) to plead my case,” Taylor continued in his emailed response Sunday. “It is unconscionable and belies any appearance of genuine fairness that defendants afforded me a hearing, implying to be fair, knowing that the outcome was already decided because of their ‘unclean’ hands.”

Contact Katie Kuba by email at Follow her on Twitter at IMT_Kuba.