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High court rules against candidate

October 25, 2012
By John Wickline - Staff Writer ( , The Inter-Mountain

The West Virginia Supreme Court upheld a lower court decision Wednesday involving the contested Upshur County sheriff's race, saying the spoils of victory cannot be awarded to a runner-up.

David Taylor, who finished second to Mike Kelley in the May Republican primary for sheriff, had sought since May 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 party of his duties as chief deputy of the Upshur County Sheriff's Department.

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Kelley withdrew from the race in July after receiving notice of the violation from the U.S. Office of Special Counsel.

The Upshur County Commission and senior-status Judge Thomas Steptoe, who heard the case in Upshur County Circuit Court after Judge Thomas Keadle stepped aside, both ruled Kelley is not exempt from the Civil Service statutes that require deputies to resign before running for office. But neither took up the issue of the Hatch Act stipulations.

The Supreme Court also did not take up the issue of Kelley's eligibility, citing that Kelley had withdrawn from the election.

"The Upshur County Commission said this question was unclear and held against my client, so we appealed," said Taylor's attorney, Charles Crooks of Morgantown. "I understand elections in 39 West Virginia counties would have been guided by a decision on the proper application of this statute. I was hoping David Taylor's case would be the vehicle for bringing clarity to this issue, but the court declined to address it in today's decision.

"My client, those who voted for him and I are all disappointed in this result," Crooks said. "The voters have lost the opportunity to vote for a fine candidate for sheriff of Upshur County. I have been proud to represent David Taylor. I and others encourage David to consider serving the citizens of his home county in another capacity."

The justices, who did not hear oral arguments in the case prior to issuing their opinion, cited a 1992 case and an 1898 case as the basis of their decision.

"Our case law is clear that the disqualification of a candidate with the highest number of votes does not inure to the benefit of any other candidate," Wednesday's ruling stated.

Taylor said he does not know if he will pursue further legal action, such as taking the case to the U.S. Court of Appeals.

"I'm disappointed," Taylor said. "Even though I do not agree with the decision, I will respect the court's decision."

Dave Coffman, a long-time law enforcement officer, was named as the Republican nominee by the Upshur County Republican Executive Committee just days after he had filed paperwork to run as an independent candidate. He will face another independent candidate and a former sheriff, Sherman Baxa, in the November election. Gilbert Valdez is staging a write-in candidacy for the job.



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