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Appeal hearing takes place

Judge to determine whether commission erred in selecting candidate

September 6, 2012
By John Wickline - Staff Writer , The Inter-Mountain

A judge could rule by week's end if the Upshur County Commission erred in its declaration of Chief Deputy Mike Kelley being an eligible candidate to run for sheriff.

Senior status Judge Thomas Steptoe asked the attorneys for Kelley, the county commission and for David Taylor to prepare an order in support of their clients within the next 24 hours. He asked that those orders be available for editing while he considers how he will rule on the matter.

Taylor had challenged the results of the Republican primary for sheriff after losing in his bid to win the nomination. He argued that Kelley, in his role as chief deputy of the sheriff's department, was ineligible to seek office in a partisan election because it would violate the federal Hatch Act. Taylor has contended in his election challenge that he should be declared the rightful winner of the primary election.

Article Photos

The Inter-Mountain photo by John Wickline
David Taylor, left, confers with his attorney Charles Crooks prior to Wednesday’s hearing in Upshur Circuit Court. Taylor, who lost in his bid to win the Republican nomination for sheriff, is appealing a county commission decision declaring Mike Kelley was a legal candidate for the job.

The Hatch Act, passed in 1939, prohibits federal employees, along with state and local employees who oversee federally funded programs or whose salary is supplemented by federal programs from seeking political office in a partisan election.

Kelley defeated Taylor in the May primary, but withdrew from the election in July after receiving an opinion from the U.S. Office of Special Counsel that stated he was in violation of the law. He was given the option of withdrawing or resigning as chief deputy.

"If I had my preference, I would take it under advisement," Steptoe said at the conclusion of Wednesday's hearing in Buckhannon. "Because of the importance of this case, I would like to study it at length and render a very considered opinion."

Steptoe, however, noted that he cannot afford that luxury with November election just nine weeks away and ballots needing to be printed.

"A statewide decision is probably what we need," he said.

The county commissioners in July ruled that Kelley should be considered an eligible candidate, the decision coming after Kelley's decision to withdraw. But in making its ruling, the commissioners said they have no jurisdiction over Hatch Act complaints.

"As a matter of state law, Mr. Kelley at the time he appeared on the ballot in a partisan election for sheriff was ineligible," argued Charles Crooks, the attorney representing Taylor. "Any deputy subject to the Hatch Act may not stand for an election. Period. "

Crooks said the commissioners should have declared Taylor the winner of the primary, as he had received the most votes of any eligible candidate. Crooks likened the challenge to a play under review at a football game.

"It would appear that a play results in a touchdown, the opposing coach throws a red flag," Crooks said. "A review referee says if a call stands or is reversed."

Kelley's attorney, Frank Hartman, said the county commission got the call correct.

"Either Mr. Kelley gets a touchdown or he doesn't get a touchdown," Hartman argued. "Under no circumstances do you give the other team a touchdown. Mr. Taylor is not entitled to the relief he seeks."

Steptoe seemed bothered by the county commission's decision not to consider the Hatch Act when it heard Taylor's petition.

"The West Virginia Code made it their obligation," the judge said. "It seems the county court wasn't going to touch the Hatch Act. I don't understand how you go around that.

"They ignored the provision in West Virginia law that provides for statutory disqualification."

Steptoe also didn't subscribe to commission attorney Timothy Stranko's argument that the commissioners were trying to avoid disenfranchising the voters. Steptoe countered that Kelley himself did that when he withdrew from the election, paving the way for the 12-member Upshur County Republican Executive Committee to choose a name for the ballot.

The Executive Committee opted to place Dave Coffman's name on the ballot, even though Coffman had filed to run as an independent candidate just days after Kelley's withdrawal. Sherman Baxa has also filed as an independent candidate.

"The prerogative of the voters has been taken away regardless of my ruling," Steptoe said. "Another person has been appointed by a small committee. It sounds to me as if the voters of Upshur County get the shaft either way."



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