HUNTINGTON — A federal lawsuit filed by two former Cabell County Commission candidates claiming a residence statute for local politicians is discriminatory has been dismissed.
The Cabell County Commission, former commission Clerk Phyllis Smith, current commission Clerk Scott Caserta and commission Assistant Clerk Samantha McCollins were named as defendants in each suit.
Jan Hite King and Kim Maynard filed complaints in Cabell Circuit Court that were removed to federal court claiming the defendants deprived them of their constitutional rights when they wanted to run for a commission vacancy in 2022.
U.S. District Judge Robert “Chuck” Chambers granted the defendants’ motion to dismiss in November, saying the plaintiffs failed to plausibly allege a First Amendment claim and failed to sufficiently support a due process claim and a claim of vicarious liability with the commission. Two other claims of civil conspiracy and intentional infliction of emotional distress that were pending against McCollins were dismissed in February when the case officially was stricken from the court docket.
When King and Maynard attempted to file for the vacancy for District 1, the commissioners ruled neither lived in the district — with King residing in District 2 and Maynard in District 3, according to the suits.
The plaintiffs claim when they went to the courthouse to file to run for Nancy Cartmill's seat, they were told by Smith's office they lived in the wrong districts.
Records in the West Virginia Secretary of State Office showed the plaintiffs' voter's information listed them as a resident of Magisterial District 1, making them eligible and qualified to run for Nancy's seat.
The plaintiffs later were denied the ability to run for Cartmill's seat. They also never were refunded their filing fees for the 2022 election, according to the suits.
The defendants filed an answer denying the allegations.
"Defendants raise and preserve the defenses of qualified immunity and any other immunity available to these Defendants pursuant to the United States Constitution, the United States Code, the West Virginia State Constitution, and the West Virginia Code," the answer stated, adding they are immune to the claims against them and did not engage in any wrongdoing. They contend they breached no duty at law owed to or right of the plaintiffs and that any misrepresentations about eligibility and prerequisites for candidacy do not create any legal rights.
King and Maynard were seeking compensatory and punitive damages. They were represented by Michael T. Clifford of Charleston. The defendants were represented by Wendy E. Greve and Benjamin B. Vanston of Pullin, Fowler, Flanagan, Brown & Poe in Charleston.
U.S. District Court for the Southern District of West Virginia case number: 3:23-cv-00129, 3:23-cv-00130
