Plaintiff for the January 6, 2003 case is Barbara Harmon-Schamberger. The cover page of this case calls for: Complaint and Petition for Writ of Mandamus, Writ of Prohibition, Writ of Injunction, Writ of Error, and a Motion Therefor. Wow, pretty big words! The suit stems from CCC actions to replace resigning Prosecutor Jeff Davis. Davis forwarded his resignation to the CCC November 22, 2002. On December 12, after interviewing candidates for the opening earlier that same day, the Commission voted to appoint Braxton County resident Daniel R. Grindo as prosecutor. Commissioner Tim Butcher lead the charge for Grindo with Commissioner Jimmy Sams seconding the motion. Commission President Matthew Bragg opposed the appointment and voiced strong support for then assistant prosecutor Barbara Harmon-Schamberger. During Commission confirmations it came to light that Grindo had only recently passed his bar examination (Sept. 2002) and had no court room experience. Other candidates for the prosecutor’ job prior to December 12 included: Karen Klotzbach, Kevin Duffy, Dan Dotson, Wayne King, Ms Schamberger, Hiram Lewis and Mathew Minney. Also on December 12 it came to light that Asst. Prosecutor Schamberger would be out of a job effective January 1, 2003 due to no money in the budget for an assistant. During the decision making process, Ms Schamberger informed the CCC of several problems with appointing Grindo to the post and this lawsuit appears to address many of those issues. Like…… From the court document: COUNT ONE That Daniel Grindo is not of the same party as the outgoing office holder, for purposes of §§3-5-7 and 3-10-8 of the Code of West Virginia of 1931 as amended. That Chapter 3, Article 5, Section 7(b)(6) of the Code provides that “f]or partisan elections, the name of the candidate’ political party, and a statement that the candidate is a member of and affiliated with that political party as is evidenced by the candidate’ current registration as a voter affiliated with that party, and that the candidate has not been registered as a voter affiliated with any other political party for a period of sixty days before the date of filing the announcement [of candidacy for election].”Further, that Chapter 3, Article 10, Section 8 of the Code of West Virginia provides that “a]ny vacancy occurring in the office of prosecuting attorney, Sheriff, assessor, or county survey shall be filed by the county commission by appointment of a person of the same political party as the office holder vacating the office. . . .” That the purposes of such requirements are to accomplish a compelling governmental interest in preserving the integrity of the political process, promoting party stability and avoiding voter confusion. State ex rel. Billings v. City of Point Pleasant, 194 W.Va. 301, 460 S.E. 2d 436 (W.Va. 1995). In less elegant terms, it is to assure that the electorate is not defrauded of its elected party choice by scoundrels or those who would aid in such subterfuge. In the instant case, in violation of the Chapter 3, Article 5, Section 7, and Chapter 3, Article 10, Section 8, the Clay County Commission appointed one Daniel Grindo, a Republican, to a seat held by a Democrat, one Jeff A. Davis, and that Daniel Grindo’ change of party affiliation on the 5th day of September 2002, was an act of opportunism designed to enable him to take advantage of the anticipated resignation of Jeff A. Davis, and does not reflect a good faith party affiliation with the Democrat Party of West Virginia, and therefore works a fraud upon the voters of Clay County who elected a Democrat to office. That further, the genuineness or good faith of Mr. Grindo’ party affiliation is of paramount issue inasmuch because this appointment: |
(a) Is for a Constitutional Office, independently administered and reflective of the philosophy of the office holder; (b) Is unvetted by the scrutiny, debate and freedom of an election; (c) Is not merely for membership on an inferior board or tribunal where such appointment would be subject to the advise and consent, and confirmation by the duly elected members of the West Virginia State Senate Confirmations Committee and voted on by the full Senate; (d) Is not supervised by any other elected Democrat Public Official. Therefore, the appointment by the Clay County Commission, of Daniel Grindo, a Republican, whose change of party affiliation to Democrat does not appear to be in good faith, violates the purpose and intent of Chapter 3, Article 5, Section 7 and Chapter 3, Article 10, Section 8, the Code of West Virginia, 1931 as amended should be enjoined. Schamberger is saying that the County Commission had to appoint a Democrat to the office and since Grindo changed party affiliation (to Democrat) just a couple months earlier, he should not have been considered for the job. As for Tim Butcher being the front man for the appointment, Schamberger says no way. Again from the lawsuit document: COUNT TWO That the Clay County Commission, specifically Timothy Butcher, had no authority to appoint Daniel Grindo to the position of Clay County Prosecutor in as much as Timothy Butcher’ term expired, December 31st 2002, prior to the existence of the vacancy in the office of the prosecuting attorney’ office, on January 1st 2003. Timothy Butcher’ vote was one of only two votes to appoint Mr. Grindo. Since one of the two votes for Mr. Grindo was cast by Mr. Butcher, whose term expired prior to office of the Prosecuting Attorney becoming vacant, such vote should not be counted. Succinctly put, because the vacancy actually arose after Mr. Butcher’ term of office expired, the premature appointment of Mr. Grindo to the office of Prosecuting Attorney is void because Mr. Butcher lacked the authority to appoint someone after his term of office had expired. Moreover, it was error to have allowed Mr. Butcher to participate in the vote determining the filing of a vacancy that was to take place after Mr. Butcher was no longer in office. Such vote should not have been held until the term of the incoming commissioner, Mr. Peter Triplett. That neither a crisis nor emergency existed nor would have been created by a delay in appointing a prosecuting attorney which would justify Mr. Butcher illegally voting to fill a vacancy that arose outside his term of office. The outgoing assistant prosecuting attorney could have remained until an appointment was made or matters continued on the various court calendars or a temporary substitute could have been provided by the Prosecuting Attorney’ Institute. Therefore, a writ of prohibition should lie against the Clay County Commission preventing them from using the vote of Tim Butcher to determine the outcome of appointment for prosecutor of Clay County, and an injunction should lie against the Daniel Grindo prohibiting him from taking office on the result of an illegal vote. Get it? Since Butcher would be out of office prior to the prosecutor vacancy, Butcher should not and could not vote on the matter. And, since it was Butcher and Sams voting for Grindo ( Bragg said no), the vote, 2 to 1, was not a majority of the Commission. According to Schamberger, Grindo got to go! For many in the county, Commissioner Butcher’ choice was pure politics. Many feel that some kind of deal was cut with Butcher before the meeting. No mention of such deals are mentioned in the filed documents. When Sams seconded Butcher’ motion to hire Grindo, Sams spoke in favor of hiring attorney Wayne King. Sams said something like: Wayne is the obvious best choice but he didn’ want to tie things up. Things get juicier in the paperwork. Schamberger claims that Grindo could NOT be a candidate for the job because he was employed by the WV Supreme Court as a law clerk for Judges Alsop and Facemire and that he openly campaigned for the job. Many remember when Sheriff Harald Fields escorted Grindo around the Courthouse prior to his appointment by the CCC COUNT THREE That Daniel Grindo, as an employee of the Judicial Branch of the State of West Virginia was prohibited by law from campaigning for, and running for, as well as applying for a position as a constitutional officer in one of the other two branches of government without first resigning his position, and, that having failed to do so, he has undermined the separation of powers intended by the framers of the Constitution, brought into disrepute the 14th judicial circuit and therefore should be prohibited from retaining his illegally obtained employment as a constitutional officer in the executive branch of government, to wit, the Prosecuting Attorney of Clay County. State ex rel. Carenbauer v. Hechler, 208 W.Va. 584, 542 S.E.2d 405 (W.Va. 2000), West Virginia Constitution Art. 8, §7. Mr. Grindo campaigned throughout the courthouse of Clay County describing to Your Plaintiff his excursions through out the building as “eet and greet”sessions. That after the Clay County Commission meeting of the 4th day of December 2002, Mr. Daniel Grindo, without invitation to be on the agenda or other purpose, came to the meeting and, upon inquiry by Your Plaintiff, informed her that he was there to “eet and greet” and proceeded to shake hands and be introduced as a “andidate”for Prosecuting Attorney. That throughout this period, Mr. Grindo was also the judicial clerk for the 14th Judicial Circuit, and that he continued to participate fully in decisions before the Court, sitting in hearings, drafting memoranda, particularly with regard to abuse and neglect matters before the Court. That neither he nor the Court made any attempt to sequester or “hinese wall”off Mr. Grindo from proceedings involving the Office of the Prosecuting Attorney. That Mr. Grindo used his position as a judicial clerk to improve his access to his prospective employers and thereby used his judicial office for personal gain. Therefore, Daniel Grindo, having been an employee of the Judicial Branch of the State of West Virginia and campaigning for and applying for a position as a constitutional officer in the executive branch, without first resigning his position, and, that having failed to do so, undermined the separation of powers intended by the framers of the Constitution, created the appearance of impropriety within the Clay County Judicial system and brought into disrepute the 14th judicial circuit, should be prohibited from retaining his illegally obtained position as a constitutional officer in the executive branch of government, to wit, the Prosecuting Attorney of Clay County, and prohibited from irreparably damaging the Petitioner, as well as all Clay Countians and the public treasury of Clay County by drawing pay and other benefits from his illegally obtained position. Sort of sounds like Grindo was holding two state paid for jobs at the same time readers. Based on that, doesn’ it sound like as an employee of the Court at the same time as being a prosecutor, CCC appointed a guy that was on both sides of the table? That would be a guy working with the Judges (lots of documentation to be had) on their side of the table while appointed to be across the aisle representing the State as a prosecutor. And the “iggy”of the case. During the December 12 commission meeting, twice the three blind mice (CCC) were told by prosecutor candidate Hiram Lewis, state code mandates that an election be held to fill the position when there is over one year left on the unexpired term. Needless to say, the information went right over their collective heads and the appointment of Grindo was made. Ok, ok, we’l try to be a little bit fairer to the dimly lit elected ones. County Commission did ask their legal advisor Jeff Davis his opinion on the matter. Davis responded that he would check into it and at the time, could not offer advice to them. Lewis’ contention appears to be what Schamberger based her next charge on. COUNT FOUR That the Clay County Commission, in a vote taken on the 27th day of December 2002, in violation of Chapter 3, Section 10, Article 8 of the Code of West Virginia, 1931 as amended has refused to hold an election to fill the vacancy created by the resignation of Jeff A. Davis as Prosecuting Attorney. That such statutory language provides: “uch vacancy shall be filled by election for the unexpired term if the unexpired term is greater than one year.”That the Petitioner, as well as all Clay Countians are damaged by the County Commission’ refusal to abide by due process of law and the plain language of the Code and therefore a Writ of Mandamus should lie against the Clay County Commission to require the Commission and its Clerk to take such actions as are necessary to hold timely an election for the vacancy created by the resignation of Jeff A. Davis, Prosecuting Attorney of Clay County, West Virginia. And finally, and sort of an odd angle of twist, Ms Schamberger throws in an additional charge for good measure. This one is a little confusing, something about discriminating against a woman and better qualified, more experienced choices available to the citizens of Clayberry. Here goes with her last charge: COUNT FIVE That, in the alternative, the Clay County Commission, by conducting interviews, receiving resumes, and interviewing known non-Democrats for the position of prosecuting attorney, were seeking to employ instead of appoint a person to serve as a prosecuting attorney, and that result of such employment practices violated Chapter 5, Article 11, Section 1 et seq. of the Code of West Virginia, 1931, as amended. That the Clay County Commission is an “mployer”as defined by Chapter 5, Article 11, Section 3(d) of the Code of West Virginia, 1931 as amended. That further, the Clay County Commission is in receipt of federal and state funds through various programs including, but not limited to, welfare to work programs, and other forms of assistance for rural communities. That the Office of the Prosecuting Attorney is in receipt of federal and state funds inasmuch as it has employed summer college students on federally funded work programs, and participants in welfare to work and other talent building publicly funded programs. That the Clay County Commission, in hiring Daniel Grindo, as its employee to serve as prosecuting attorney engaged in “nlawful discriminatory practices”as defined by Chapter 5, Article 11, Section 3 and Chapter 5 Article 11, Section 9 of the Code of West Virginia, 1931 as amended. That Daniel Grindo was the least qualified candidate of all candidates interviewed. That unlike the majority, if not all the other candidates interviewed, Daniel Grindo had never tried a case nor had any prosecutorial experience and possessed his law license for less than three or four months when hired. That among the candidates in the protected classes were, at least, but not necessarily limited to, two persons in protected classes: a man over the age of 40 with over 31 years of litigation and elected prosecutorial experience and a woman over the age of forty, with ten years of civil and criminal practice, graduate of the University of Virginia, Law Review, Rhodes Scholar, Secretary of Education and the Arts, Deputy Commissioner of Securities for the State of West Virginia, General Counsel House Education Chairman. The woman is also hearing impaired, has specific learning disabilities and is a racial minority. That the Clay County Commission for no apparent reason discriminated against the over forty year old man and over forty year old woman and chose a person far less qualified than either person in the protected class and that the less qualified person is not in the protected class. That being an employer in violation of Chapter 5, Article 11, Section 1, et seq., a writ of prohibition and injunction should lie against the Clay County Commission prohibiting them from hiring and continuing in their employ Daniel Grindo, a person not in the protected class and not better or equally qualified than either the over-forty male or over-forty female who applied for and were interviewed for the position of employee with the Clay County Commission, and that Your Plaintiff as the over-forty, disabled, minority, female has been harmed, as have all citizens of Clay County, by the acts of the Clay County Commission. Isn’ that an interesting angle? The 17 page document asks the Court to toss out Republican-in-spirit Grindo, throw out Butcher’ motion and wait to get new to the job Peter Triplett’ vote, bar Grindo from campaigning again for the office of Prosecutor while an employee of the courts: and, hold an election as required by State Code. Since the filing, Ms Schamberger has told the CCC that she seeks no money for damages, but rather, if she wins the case, she seeks to be reimbursed the cost of copying, filing fees and the like. On January 8, Prosecutor Grindo advised the CCC not to speak in public of the case. What to do, what to do…. It looks like our Commissioners have to hire an attorney other than Grindo (conflict since he is being sued) and have but four avenues to traverse. CCC can either hire an attorney and fight the charges in a costly court battle; hire an attorney and ask the courts for an opinion on the charges against them; hire an attorney and dispute part of the charges in a costly court battle; or sit on their thumbs and see what happens through inaction. So, who can they hire for representation? Schamberger is suing them, can’ use her. Wayne King is being sued by the County, can’ use him. Hiram Lewis and Kevin Duffy were candidates for the opening, possible conflict there. Sounds like just Jerome Novobilski and past Prosecutor Jeff Davis are left. According to Circuit Clerk Mike Asbury, Hancock County Judge Ronald E Wilson has been appointed to hear the case. No date has been set for the court action. What ever avenue Jimmy Sams, Matthew Bragg and Peter Triplett take, it’ sure to be fun to watch, albeit expensive for the taxpayer. Stay tuned for the latest info! AW |
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