Published: October 09, 2008 11:14 pm      

Court refuses to hear Parks’ petition

5-0 vote virtually guarantees that Tennant’s name will remain on ballot

FAIRMONT — By a unanimous vote Thursday, the state Supreme Court all but sank Marion County Commission President Alan Parks’ effort to remove the name of his Democratic challenger, Burley “Butch” Tennant Jr., from the Nov. 4 general election ballot.

In a lawsuit filed late last month with the high court, Parks argued that Tennant didn’t establish his residency in the proper magisterial district until after the May 15 primary.

Parks is represented by Jeff Lilly of Fairmont. Parks said Thursday he wants to talk with Lilly before commenting on the decision.

The court’s reasoning for its 5-0 conference vote to refuse to hear Parks’ petition won’t be known until today. The court will publish its order today, a court spokeswoman said.

But Tennant said he was confident the court would rule in his favor.

“I felt I did everything by the letter of the law,” he said Thursday. He cited his efforts in October 2007, two months before he filed to run in the Democratic primary. He sought then to get advice from the Secretary of State’s office.

Later that month, the Secretary of State’s office sent him a letter stating that a candidate had to reside within the district in question on the date of the general election, Tennant said.

To run for the commission, he resigned a seat he had held for seven-and-a-half years on Fairmont City Council. He also moved last summer from his home in the Palatine District to one on Sylvan Street in the Middletown District.

Tim Manchin, who represented Tennant along with Pat Maroney of Charleston, said the high court’s decision is “a victory for the voters — they’re going to have a choice.”

Manchin argued Parks waited too long to challenge Tennant on the residency question.

Before Parks filed his own petition, the county commission spent nearly $3,000 on two occasions earlier this year for Lilly to check whether Tennant met the residency requirement. The commission never took any legal action, however.

Manchin and Robert Bastress, the lawyer for local election officials named as defendants in Parks’ suit — County Clerk Janice Cosco and ballot commissioners David B. DeMoss and JoAnn Williams — said a ruling for Parks would have the practical result of eliminating any opposition at all for the incumbent commissioner.

The deadline for the Democratic party to replace Tennant on the ballot if his residency qualification was successfully challenged has already passed.

And absentee voting by mail has already started. Meanwhile, early voting in person begins Oct. 15.

Manchin said the court’s decision means the commission race “will not be rendered meaningless because someone has elected to file a challenge after all possibilities of naming a replacement candidate have expired.”

“You can’t sit on your rights to try to help yourself,” Manchin said, referring to the legal doctrine of laches.

Bastress, a West Virginia University law professor, said he thinks the ruling “certainly ensures that Tennant’s name will be on the ballot.”

“This was obviously an issue that was well known in the county, and the county commission was well aware of it,” he said.

“Then Mr. Parks waits until just several weeks before early voting,” with absentee ballots already sent out, to file his petition, Bastress said.

Cosco said she was happy with the decision.

“I’m just delighted this matter has been put to rest in the highest court in the state of West Virginia,” the veteran county clerk said.

More than 600 absentee ballots with Tennant’s name have already been sent out, and more than 100 have been returned so far to her office, she said.

Belinda Biafore, the chairwoman of the county Democratic party, said she “can’t imagine the Supreme Court would want to continue to jeopardize the election process.”

Local Democrats intervened in the case, filing a friend of the court brief.

The public is entitled to a choice, Biafore said.

“Don’t try to use courtroom shenanigans. We got involved as a party because we wanted to make sure voters had a choice.”

E-mail Bill Byrd at bbyrd@timeswv.com.