Published: October 10, 2008 11:15 pm         

Court decision ends battle over residency

No reason given on why it voted 5-0 in private conference not to hear Parks’ suit

FAIRMONT — A unanimous decision by the state Supreme Court rejecting a lawsuit by Marion County Commission President Alan Parks challenging whether his Democratic opponent met residency requirements has left unanswered some legal issues, lawyers said.

But the high court’s action on Thursday has ended the controversy in the county, principals on both sides said Friday.

The court did not say why it voted 5-0 in a private conference not to hear Parks’ suit. In a Friday order, the court said only that his request for a writ of mandamus was refused.

Tim Manchin, a lawyer defending Burley “Butch” Tennant Jr., said a “fair interpretation” of the court’s vote is that it agrees with Tennant.

Parks said Friday he’s dropping his legal challenge. He had argued that Tennant didn’t establish his residency in the Middletown magisterial district until after the May 13 primary.

But according to Manchin and lawyers for the county’s election officials as well as the county’s Democratic party, Parks was trying to use the courts to remove any opposition at all in the general election.

Parks’ petition to the high court was filed after a deadline for allowing Democrats to name a replacement candidate, they argued.

Parks and the county commission began checking into whether Tennant met the residency requirement in January. The county commission spent $3,000 for legal advice from Fairmont lawyer Jeffrey Lilly.

But the commission never took any legal action. Instead, Parks hired Lilly and filed his own suit late last month.

Removing Tennant now, after the ballots had been printed and after absentee ballots had been mailed to voters, would have created turmoil, Tennant’s lawyers said.

And, they argued, it would deny the public a choice of candidates.

Manchin said the high court may agree that a candidate can meet the residency requirement by living in a contested district by the date of the general election — and not by the date of the primary. There are two previous rulings by the high court. One sets the primary date as the requirement; the other picks the general election date.

“But we admitted all of the other sides’ facts on the residency question, where he (Tennant) lived and when,” Manchin said.

In October 2007, two months before he filed to run in the Democratic primary, Tennant sought 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.

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

Or, Manchin said, the court may agree with another central defense tenet: Parks waited too long to file his suit.

Questions about Tennant’s residency were raised in January, when candidates file to run in the primary. Referring to the commission’s hiring of Lilly, Manchin said the commission was also well aware of the issue.

It’s known as the legal doctrine of laches, he said: “You can’t sit on your rights to try to help yourself.”

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

     

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