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IN THE DISTRICT COURT OF LOGAN COUNTY
STATE OF OKLAHOMA
2010 JAN 27° PH OW: 27
+
GARY JONES,
Plaintiff,
v8. Case No: CJ-2009-353
NO NUOR
STEVE PHIPPS; LARRY WITT:
EDDIE HARPER, as Guardian of the
Estate of EUIGENE E. STIPE, also
)
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) #47017
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known, as Gene Stipe, an incapucitated )
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person; EUGENE E. STIPE, Individually:
TIM ARBAUGH; JFFI' MceMAITAN;
LORIE McMAIIAN; RANDY DITTMAN;
CLIFTON SCOTT; PITPPS
ENTERPRISES, INC.; RY-SON OIL
CORPORATION; AND CORPORATE
FINANCING GROUP, INC.,
Defendants.
DEFENDANT CLIFTON SCOTT’S MOTION TO DISMISS
AND BRIEF IN SUPPORT
COMES NOW Defendant, Clifion Scott, pursuant to 12. O.S. § 2012(13)(6), and moves for
the dismissal of the Plaintiff's lawsuit on the grounds that the Petition fails to state a cause of'action
against him. In his action, the Plaintiff seeks civil damages for his two unsuccessful attempts at state
office. No cowt has ever awarded civil damages to an unsuccessful candidate for public office.
Although Plaintiff contends that public office is both a vested properly interest and a prospective
business advantage, he has not, and cannot state any claims upon which relief can be granted to him
under Oklahoma law. Accordingly, the Plaintiff's suit against Defendant Scott should be summurily
dismissed.01/27/2010 16:27 FAX
I. INTRODUCTION
Defendant Clifton Scott was elected and served as the Auditor and Inspector for the State of
Oklahoma from 1982 through 2002. During this time, Mr. Scott faithfully carried oul his
responsibilities establish by law. Alter Defendant Scott decided to not seck re-election, the Plaintiff
unsuccessfully ran for the public office of State Auditor and Inspector in the 2002 and 2006 general
elections. After having lost the 2002 and 2006 statewide public elections, the Plaintiff now brings
this tort claim some seven (7) and three (3) years later, respectively, for civil damages sustained
because of his loss of this public position. In his petition, the Plaintiff alleges that during those
elections various Defendants - but not Defendant Scott - violated 21 0.8. § 187.1 which limit the
amount of campaign contributions that can be made in an election. The Plaintiff further alleges that
he had an expectation that he would win the two elections, but that he lost the elections duc to
certain Defendants alleged violations of 21 O.S. § 187.1.
The Plaintiff asserts four scparate theories of recovery in his Petilion. Bascd upon the
allegations plead, only three of the claims arc made against Defendant Cliflon Scott; namely,
intentional interference with a prospective business advantage, intentional) infliction of meatal
anguish and emotional distress, and a Federal RICO claim. Although the Plaintiff also asserts a
claim of “Fraud” arising out of representations made to the Oklahoma tithics Commission, the fraud
claim is limited to Defendants Witt, Phipps, Harper/Stipe and Gene Stipe.
In essence, the Plaintiff is asking this Court to review the results of the 2002 and 2006
elections; determine that he would have won; and, award him civil tort damages to compensate him
for the valuc of helding political office. Although the Oklahoma legislature has an established
procedure to contest clections, rectily voting and procedural irregularities and impose penalties for
@ 003/0330047093
eo Sl 1 a&
D AUTHORITY
A. There Is No Private Cause of Action for Damages Sustained as a Result of the Loss
of a Political Election,
The sum and substance of Plaintiffs allegations in thi s lawsuit is that he Sustained economic
damages when he was defeated in the 2002 and 2006 general elections for the position of Auditor
and Inspector because of. alloged violations of 21 O78. § 187.1. Although the Petition is ej ighteen
petition wherein Plaintiff asserts that Jeff's campaign “was well-lunded” and “legally benefitted”
from the improper donations and that the “Glegal donations helped defeat Plaintiff” Thus, no matter01/27/2010 18:27 FAX @005/033
language of Section 187.1 does it provide for a private cause of action for campaign contribution
violations, nor does any Oklahoma statute recognize a tort claim for such a violation,
Absent any express authorization for a Private cause of action for campaign contribution
violations in Section 187.1, the only manner in which the Plaintiff could potentially survive a motion
to dismiss is if such a private action could be implied or inferred from Section 187.1 To determine
whether a legislative enactment authorizes a private cause of action, Oklahoma uses a modified
version of the test set forth by the Supreme Court in Cort v, Ash, 422 U.S. 66, 95 S.Ct, 2080, 45
L.Ed. 26 (1975). See, Nichols Hills Physical Therapy v. Guthrie, 1995 OK CIV APP 97, 900 P.2d
1024. As noted by the Court in Christian v. First Capital Bank, 2006 OK CIV APP 128, 147 P.3d
908, 912, “a cause of action can be inferred from a public-law statute only if: (1) the plaintiffis onc
of the class for whose especial benefit the stalule was enacted: (2) there is some indication of
legislative intent, explicit or implicit, to create a private remedy; and (3) there is an implication in
the statute's language that the remedy, if so found, is consistent with the underlying purpose of the
legislation.” fd, at 920.
Under this test, the Plaintiff satisfies none of the three Tequirements set forth in Christian,
The Plaintiif brings his suit for damages as an unsuccessful political candidate. However,
Oklahoma’s limits on campaign contributions were clearly enacted to protect the election process
and the general public; not an individual candidate, indeed, the Plaintiff cannot point to any law or
legal authority that states (ar even implies) that limits on campaign contributions were enacted lo
protect an individual candidate’s economic investment in the office sought, ‘This intent is
demonstrated by the fact that Section 187.1 only provides for criminal prosecution of the offender
and does not provide for restitution or other remedy that could enure to the benefit ofa competinga
Mifer#eO)0 Th°27 Fax 008/033
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political candidate. As such, Plaintiff. Cannoi meet the first part of the test sct forth in Christian
Even if the Plaintiff could demonstrate that campaign contribution limits were enacted for
the protection of; candidates, as opposed to the integrity of the elecioral system, he could not sati isfy
the remaining two prongs set forth in Christian, The legislature has Provided a statutory scheme to
to contest an clection by filing a an election contest “at any time before 5:00 p.m. Friday next
following an election, ...". 26 0.8, § 8-109. These remedies also include the criminal prosecution
of an offender for an election violation, as authorized pursuant to 18 OLS. 187.1, Moreover, the
legislature has Provided that an offender shall be removed from office upon conviction of a felony,
including an election violation, and has set forth the express remedies available to the State to
a private remedy would be consistent with the underlying purpose of 18 O.8. 187.1. As noted by the
Court in Clapsadale y, Blevins, 1998 OK 5, 66 P.3d 352, at fh. 6, “In election Protests the contest
regime prescribed by the applicable statute is exclusive of all other Temedies.” See also, State ex rel.
Mackey y. Blackwell, 834 N.k. 2d 346 (Ohio2005) (cleetion contest is the specilic exclusive remedy
Ptovided by statute to correct all errors. frauds, and tuistakes occurring in an election).
The Plaintiff cannot point to one case wherein an Oklahoma court has ever recognized, the
existence of a private cause of action for an unsuccessful political candidate, Moreover, the very
notion that a public office has an economic valucis offensive to Ok Jahoma's constitutional ly enactedO1f27/2010 16:28 FAX Mo07so3a
4
that he was defeated as a result of his opponent's illegal vote-buying activities. Tn Hill v, Stowers,
680 S.K.2d 66 (W.¥a.2009), the unsuccesstul candidate Sought monetary damages from his
Opponent who was convicted of illegal vote-buying activities under West Virginia criminal code.!
In sustaining the trial court's dismissal of Hill’s action under Rule 12(b)(6) of the West Virginia
Rules of Civil Procedure, the Hil/ Court noted that there are mechanisms in place that allow a
candidate in an election 1o contest the results of the election and that set forth penaltics for criminal
miscouduct in elections. fd at 71-72, In recognizing the significance and importance of the
mechanisms of the legislature that ensure fair elections, the i/i// Court stated:
Itis clear that if this Court were to Gnd that a private cause of action
exists under these circumstances, a whole new field of tort liability
would be created without any express legislative authorization, “+ [it
is not the provinee of the courts to make or supervise legislation, and
a statute may not, under the guise of interpretation, be modified,
revised, amended, distorted, remodeled, or rewritten[.]’ " State v.
Richards, 206 W.Va. 973, 577, §26 §.13,.2d 539, $43 (1999) (quoting
State y. General Danie} Morgan Post No S48, VW, 144 Wa,
137, 145, 107 $.F.2d 353, 388 (19s 9) (citation omitted)),
Accordingly, this Court finds that conduct which constitutes
violations of W. Va.Code §§3-8-11, 3-9-12, and 3-9-13 does not give
nse Lo an implied private cause of action in addition to the criminal
penalties imposed thercin.
Td. at 75,
Notably, the /417 Court also discussed the public policy implications of allowing a losing
candidate in an election to Pursuc a private cause of action for monctary damages against his
oe
1A copy of Hill v. Stowers, 680 S.L.2d 66 (W.Va.2009) is anached hereto for the Court’s
convenicnee.TENE EN IN 10.20 FAK
@ooavoag
Cir.1986), and Quoted it with approval for the Proposition that:
[t]hose who enter the political fay know the potential risks of their
enterprise. If they are defeated by trickery or fraud, they can and
criminal-to address their grievances, and to take action to insure
legitimate electoral results. In this way, they advance the fundamental
we can find no other case in which a defeated candidate has won
such compensation, Nor do we believe, in light of the multitude of
alternative Temedies, that such a remedy is Necessary either to deter
Hilt at 76 (emphasis added). See also, Goff v, Erlich, 776 So.2a 1011, 1012 (Fla.App.2001}
(campaign finance act did not create Privale cause of action),OVF2 772010 18:28 FAX @oosso33
\
Even assuming that there is a privale cause of action for economic damages sustained as a
result of the loss of a political election, Plaintiffs remaining claims fail under the causes set forth
in the petition. In order to maintain Plaintiffs cause of action for intentional interference with a
Prospective business advantage, the Plaintiff must establish that: 1) Plaintiff had a valid business
relationship or expectancy, 2) Detendant knew of the relationship or expectancy, 3) Defendant
intentionally interfered, inducing or causing a breach or termination of the relationship or
expectancy, and 4) Plaintif! was damaged as a result of Defendant's alleged interference. Boyle
Services, Inc. y, Dewherry Design Group, Inc,, 2001 OK CIV APP 63, 24 P.3d 878, 880.
Under Oklahoma law, in order for Plaintiff to have a valid business relationship or
expectancy, the claim must involve interference with “a teasonable cxpectation of profit.” Overbeck
¥. Quaker Life Ins, Co., 1988 OK CIV APP 44, 757 P24 846, 847-848. In his Petition, the Plaintiff
asscrls that he had a “reasonable expectation of being clected as this State's Auditor and Inspector.”
(J61). Despite Plaintitt’s bold and highly speculative allegation, it is simply not possible to know
the outcome of an election with any degree of certainty or reasonableness, Moreover, the United
States Supreme Court has stated that the nature of the relation of public officer to the public is
inconsistent with either a Property or contract right. Taylor v. Beckham, 178 U.S. 548, 577, 20 8.Ct.
890, 900-901, 44 L-Fd. 1187 (1900). Thus, as a matter of law, the Plaintiff will never be able to
establish that he had a “business relationship” or “business expectancy” in the political position of
Auditor and Inspector, or that this political position included a “reasonable expectation of profit.”
Moreover, the Plaintiff will not be able to satisfy the requirement of establishing that he was
damaged, as he would never be able to prove that he would have won the election but for the alleged
fraud. The Court in Ail! y, Stowers, 680 8.E.2d 66,77 (W.Va.2009), noted the impossibility of01/27/2010 18:29 FAX 010/033
i
proving damages in such a civil claim and stated that “a civil action for damages for election fraud
is unsusceptible to the level of proof necessary to sustain such a claim.” fd at 77. The Hil! Court
explained such claims “would also likely fail simply because of the extreme difficulty of proof” in
that the petitioner would need to prove the election fraud activities changed the outcome of the
election. td. (emphasis added).
The Plaintiff cannot show that his expectation that he would be elected Auditor and Ins spector
Was reasonable, nor does this political office constitute a “property interest” that is protected.
Moreover, the Plaintiff could never establish that the outcome of the elections would have been
different if 18 O.S. § 187.1 had not been violated. Accordingly, the claim for the tort of intentional
interference with prospective business advantage should be dismissed under 12 O.S. § 2012(B)(6).
Cc. Plaintiff Cannot Maintain 4 Cause of Action for Intentional Infliction of Emotional
Distress.
In order to maintain a cause of action for intentional infliction of emotional distress the
Plaintiff must prove by the greater weight of the evidence that:
1. Defendant's actions in the setting in which they occurred were so extreme and
outragcous as to go beyond all possible bounds of decency and would be considered
atrocious and utterly intolerable in a civilized society; and
2. Defendant intentionally or tecklessly caused severe emotional distress to the Plaintiff
beyond that which a reasonable person could be expected to endure.
OUJI CIVIL 2d, No. 20.1.
In this case, the Plaintiff's alleged cmotional distress solely arises from his loss of the 2002
and 2006 political elections for Auditor and Inspector. Elowever. the foss of'an election can hardly01/27/2010 16:29 FAX 011/033
y
form the basis for a legal claim for intentional infliction of emotional distress and there is no
Oklahoma case that has ever recognized this type of action. Indeed, as noted by the Fourth Circuit
in Hutchinson v, Miller, 797 F.2d 1279, 1287 (4th Cir.1986), “Those who enter the political fray
know the potential risks of. doing so...”.
Moreover, the Plaintif!’s own actions belie the severity of the emotional distress he know
claims he has endured, Notably, the Plaintiffran for Auditor and Inspector in 2006, after losing the
election in 2002. Thus, it can hardly be said that the emotional distress was “beyond that which a
reasonable person could be expected to endure,” as the Plaintiff voluntarily chose to enduce it a
second time. Therefore, the Plaintiff cannot allege the type of severe emotional distress required to
establish a prima facie claim.
Moreover, the complained of conduct must be so extreme that it poes beyond all possible
bounds of decency and be regarded as airocious and utterly intolerable in a civilized society. OUJI
CIVIT, 2d, No. 20.1. and Warren v. United States Specialty Sports Ass'n, 138 P.3d at 585, In this
case, the alleged “extreme and outragcous” conduct consist of campaign contributions that are in
excess of lhe statutory minimum, Such conduct, even if declared unlawful, hardly rises to the level
of “extreme and outrageous” as necessary for a claim of intentional infliction of emotional distress,
Oklahoma has never recognized the availability of the tort of intentional infliction of
emotional distress to an unsuccessful political candidate and Plaintifi’s claim should be dismissed.
Db. The Plaintifi’s Claims Are Barred by the Statute of Limitations,
ven if the Plaintiff could survive this Court's serutiny on the viability of his claim for civil
damages sustained as a result oftwo unsuccessful attempts at political office, his lawsuit against Mr,
Scott is time barred. All lawsuits must be tiled within the statutory time period established by the
10Olfe7 #2010 16:29 Fax @ 012/033
'
Legislature, fuchs v, Fleetwood Hames of Texas, 2006 OK CIV APP 148, 417, 149 P.3d 1099,
1103, The statutory time Period for Plaintiff te file his tort claims of intentional interference with
Aprospeclive business advantage and intentional infliction of emotional distress istwo (2) years from
the date the action accrucs. 120.8. § 95,
In this case, the Plaintiff seeks damages sustained as a result of the loss of two political
elections. The Plaintil?’s causes of action accrued on the dates of the respective election Teturns in
November 2002 and 2006, After the clection returns were made, the Plaintiff knew that his bid for
political office was unsuccessful,
This action was not filed until November 23, 2009, which is more than seven (7) years after
the 2002 election and more than three (3) years after the 2006 election, Plaintiff did nat file his
lawsuit within the time period proscribed by 12 0.8. § 95, and his claims are lime barred and should
be dismissed,
E. plaintiff Fails to Meet the Statutory or Standing Requirements for Which to Bring a
Cognizable Claim under the Racketeer Influenced and Corrupt Organizations Act
(“Rico”).
In his Pourth Claim, the Plaintiff alleges a cause of aclion against Defendant Scott under the
civil enforcement provisions of the federal RICO Act. 18 US.C. $§ 1962, 1964 (c). As set forth
above, 21 O.S. § 187.1 does not creatc a private cause of action for damages to a disappointed
candidate for public office. Similarly, what state law fails to provide directly, RICO cannot create
indirectly. In re Epogen & Aranesp Off-Label Murketing & Sales Practices Litigation, 590
F.Supp.2d 1282, 1289 (C.D.Cal.2008),
Nevertheless, even if the Plaintiff could draft a cognizable RICG claim to Pursue his
purported economic interest in oblaining public office, he cannot meet the Prerequisites to establish
itO27 /2010 18:29 FAX 013/033
t
a claim under 18 U.S.C. $§ 1962, 1964(c). Specifically, a claimant under RICO must allege, with
specificity, that the defendant is: 1. A person who was associated wilh, and actually operated an
enterprise; 2. That the enterprise engaged in and affected interstate commerce, through a pattern of
enumeraied predicate acts; 3. That the plaintiff was injured in his business or property by reason of
a pallern of racketeering activity; and 4, ‘That the injury was the type sought to be prevented by the
RICO Act.
1 The Plaintiff Lacks Standing to Bring a Civil RICO Claim,
In order to bring a claim under the civil provision of the RICO Act, a liugant must fully
satisty the Congressionally crafted standing requirements included in the act. See Bennet v. Spear,
520 U.S. 154, 162 (1997). ‘Thus, only those Persons injured “by reason of a violation of section
1962" have standing to suc under the RICO Act's civil provision. Tal v. Hogan, 453 F.3d 1244,
1254 (10th Cir. 2006)(citing Sedima, S.P.R.1., v, Imrex, Co,, 473 US, 479, 496 (1985).
The civil provision of the RICO Act requires a plaintiff to allege an injury to their own
business or property caused by a violation. 18 U.S.C. § 1964(c). See also, Holmes v. Sec. Investor
Prot. Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992); Sedima, SPRL. v. Imrex
Co., 473 US. 479, 496, 105 S.CL 3275, 87 L.Ed.2d 346 (1985). As set forth above, the Plaintiff's
claim of injury presupposes that his “economic investment” in running for public office, effectively
purchased any economic advantage that would have come from being a public office holder, Asthis
very notion is antithetical to Oklahoma’s constitutionally elected government, the Plaintiff has no
business or property right that could have been injured by any alleged campaign conduct. Taylor v.
Beckham, 178 U.S. 548, 577, 20 S.Ct. 890, 900-901, 44 L.Ed. 1187 (1900),
Absent an injury to Plaintiffs “property”, Plaintiff's RICO claim fails as a matter of law,
12O1/27/2010 16:90 FAX 014/033
2. The Plaintiff Cannot Show That His Injury Was Proximately Caused by the
Conduct Constituting the Alleged RICO Violations,
In addition to the statutory requisite of provin: ig an injury to his business or Property, a RICO
plaintiff's inj ury must be directly refated to the cnumerated predicate act underlying the alleged
RICO violation. Holmes, 503 U.S. at 265. In establishing a proximate cause standard for RICO
claims, the U.S. Supreme Court isolated three factors to he determined. /d. Based on a similar
Approach under the Clayton Antitrust Act, the Court held that standing must be determined based
on: 1), The difficulty of “ascertain[ing] the amount of a plaintilf’s damages attributable to the
violation, as distinct from other factors”; 2). The need to “adopt complicated rules apportioning
damages among, plaintiffs removed at different levels of injury from the violative acts”; and 3). The
idea that “directly injured victims can generally be counted on to vindicate the law... without any
of the problems attendant upon suits by plaintiffs injured more remotely.” fd. at 269,
Applying the Ho/mes standard, the U.S. Supreme Court denied standing to a RICO plaintiff
that was alleging that its competitor commitied tax fraud by failing to charge its customers sales tax
and by subsequently “doctoring” its books to conceal the fraud from state tax officials. Anza v. Tdeat
Steel Supply Corp., 547 U8. 451 (1991). Although Anza argued that it suffered quantifiable business
loses as a resull of the predicate acts alleged, the Court held that “[t]he cause of Ideal’s asserted
harms, however, is a set of actions (offering lower prices) entirely distinct from the alleged RICO
violation (defrauding the State)." id at 458. Further, the Court suramarized the inherent difficulty
of determining the claims of Temotely injured plaintifts:
[Tdeal's] lowering of prices in no sense required il to defraud
the state tax authority. Likewise, the fact that a company
commits tax fraud does not mean the company will lower its
Prices; the cash could go anywhere from asset acquisition to
research and development tu dividend payouts,
3wlfetf20T0 16°90 Fax 015/033
4
* a +
The element of proximate causation recognized in Holmes is
meant to prevent these types of intricate uncertain inquiries
from Overrumming RICO Litigation.
fd. at 458-460.
Similar to the plaintiff in Anza, the Plaintiff in this case simply cannot establish that the
alleged illegal acts (alleged straw donors and illegal contributions by Defendant Scott's co-
defendants) are directly related to his loss of the elections. As noted by the court in Hil? v. Stowers,
680 S.E.2d 66 (W.Va.2009):
such a claim.
fd. at 77.
Similarly, in this case the Plaintiff could never prove that but for the “predicate
acts”enumerated in the RICO aci, the Plaintiff would have won either of the elections, If a claimed
injury is not sulliciently related to the alleged RICO violation, it is appropriate for a dismissal. See,
e.2., Holmes v. Securilies Investor Protection Corp, 1128. Cr 1311 (1992); Imagineering, Inc. v.
Kiewit Pac. Co., 976 F.2d 1303 (9th Cir. 1992), cert. denied, 113 S. Ct 1644 (1993). Sedima,
SPRL. vo tmrex Co. 473 US. 479 (1985) (civil RICO plaintiffs must prove a direct casual
connection between the alleged predicate acts and the plaintiff's injury in order to survive a pre-trial
motion for dismissal). See, Hecht v. Commerce Clearing House, Ine., 897 F.2d 21, 24 (2d Cir.
1990) (purpose of civil RICO liability does not extend to deterring any illegal act such as retaliatory
firings for which there are state and common law remedies). The Plaintiff will never be able to
14016/033
wtfetigO10 16°30 Fax Bows
4
establish that his injury was sustained “by reason of” the unlawful acts and bis RICO claim must be
dismissed,
WHEREFORE, for the above and foreguing feasons, Defendant Clifton Scott, prays this
Court dismiss the Plaintiff's Petition, pursuant to 1205. § 2012(B)(6), with Prejudice and without
amendment, Further, Pursuant to 12 0.8. § 201 1.1, Defendant Clifton Scout, seeks his atiomey fees
and costs incurred due to the filing by Plaintiff ofa frivolous lawsuit that has no basis in law and is
completely unsupported and for all such other relic that is just and equitable,
yO
Doligias A. Rice OBA F 16297
Janis Hubbard OBA # 1464]
DERRYBERRY & NATFEH, LLP
4800 N. LINCOLN BOULEVARD
OKLAIIOMA CITY, OK 73105
(405) 528-6569 - TELEPHONE
(405) 328-6462 - FACSIMILE
DRICE@DERRY BERRYLAW.COM
ATTORNEYS FOR DEFENDANT,
CLIFTON scorTO1427/2010 16:30 Fax Mo17/033
CERTIFICATE OF SERVICE
This is to certify that on the 27" day of January, 2010, a truc and correct copy of the above
and foregoing Defendant Clifton Scott's Motion to Dismiss and Brief In Support was sent to the
Court by facsimile to be filed and mailed, via U.S. Mail, to the following:
Robert J Bartz, Sheri L, Mueller
Barber & Bartz 200 Sigma Place
525 S. Main Street, Suite 800 Guthrie, OK 73044
Tulsa, OK 74103 ATTORNEY FOR DEFENI JANT,
ATTORNEY FOR DEFENDANT, RANDY DITTMAN
RANDY DITTMAN
John D. Russell Ronald A. Schaulat
Fellers, Snider, Blankenship, Bailey & Brady, Schaulat, Falsetti & Synar
Tippens, P.C. P.O. Box 718
321 S. Boston Avenue, Suite 800 TION. Shartel
Tulsa, OK 74103 Oklahoma City, OK 73101
ATTORNEY FOR DEFENDANT, ATTORNEY FOR, DEFENDANT,
PHIPPS ENTERPRISES CORPORATE FINANCING GROUP
Stanley M. Ward
Ward & Glass, LLP.
1821 E. Imhoff Road, Suite 102
Norman, OK 73071
ATTORNEY FOR PLAINTIFT
GARY JONES
Le
ee
Douglas. A. Ricevw beer eels
:
/ttb/web?, westlavy.com/prinvprintstream aspx
1B g1 FAX
Westlaw,
680 S.E.2d 66
224 W.Va. 51, 680 S.B 2a 66
(Cite as: 224 W.Va, 31, 680 S.E.2d 66)
c
Supreme Court of Appeals of
West Virginia,
Terry HILL, Plaintiff Below, Appellant
v.
Gregory Brent STOWERS, Defendant Below, Ap-
Pelee.
No, 34143,
Submitted Feb, 24, 2009.
Decided May 19, 2009.
Background: Candidate for circuit clerk who lost
election to Opponent brought action apainsi oppon-
Holdings: The Supreme Court of Appeals heid thar:
(1) state constitutional right to rua for Public office
did not create Private cause of action against op-
ponent for buying votes;
(2) election and criminal statutes did not create
private cause of. action against opponent;
(3) allegations did not state claim for unjust enrich
ment; and
(4) public policy in favor of tree and fair elections
wilbout undue influence did not create private
Cause of action against opponent.
Affirmed.
West Headnotes
{t] Pretriat Procedure 307A, 024
307A Pretrial Procedure
307AHI Dismissal
307A NTR) Involuntary Dismissal
307AIN(B)4 Pleading, Defects dn, in Gen-
018/033
Page 2 of 15
Page |
eral
307AK623 Clear and Certain Nature of
Insufficiency
State a claim upon which relief cun be granted,
should not dismiss the complaint unless it appears
beyond doubt that the Plaintiff can prove no ser ot
facts in support of his claim which would entitle
him to relief. Rules Civ.Proc., Rule 12(bX 6).
[2] Pretrial Procedure 3674, €679
307A Pretrial Procedure
307AIII Dismisgat
307ATIT(R) Involuntary Dismissal
SO7ALICR)G Procucdings and Effect
307AK679 kk. Construction of Plead-
ings. Most Cited Cases
A trial court considering a motion to dismiss for the
failure to state a claim upon which telief can be
granted must liberally construe the complaint so ay
to do substantial Justice. Rules Civ.Proc., Rute
12(b)(6).
[3] Pretrial Procedure 307 686.1
307A Pretrial Procedure
307A 11 Dismissal
307ANN(B) Involuntary Dismissal
3O7AIN(3)6 Proceedings and Effect
JOTAK686 Matters Deemed Admitted
307AK686.1 k. In General. Most
Cited Cases
For purposes of a motion to dismiss for the failure
to state a claim an which relief can be vranted, the
allegations set forth in the complaint are taken as
true. Rules Ciy.Prac., Rule 12(5)(6),
(4] Appeal and Error 30 €=>863
30 Appeal and Error
© 2010 ‘thomson Reuters. No Claim to Orig. US Goy. Works,
“orft-H TMLLd&cifm=Notsotd destination-atpéesv, .
1/27/2010jo1s/033
Page 3 of 15
01/27/2010 18:31 FAX
680 S.F.2d 66
224 W.Va. 51, 680 $1.20 66
(Cite as; 224 W.Va, 51, 680 S.E.2d 66)
30XVI Review
3OXVILA) Scope, Standards, and Extent, in
General
30k862 Extent of Review Dependent on
Nature of Decision Appealed trom
30863 k. In General. Most Cited Cases
Appeal and Error 30 C= 5941)
30 Appeal and Error
30XVi Review
30XVI(F) itial De Novo
30k892 ‘Irial De Novo
30k893 Cases ‘viable in Appellate
Court
30k893(1) kk. in General. Most
Cited Cases
Supreme Court of Appeals' review of a circuit
court's dismissal of a complaint for the failure to
state a claim upen which relicf can be Sranted is
plenary; in other words, Appellate review of a cir-
cuit court's order granting a motion to dismiss a
complaint is de novo, Rules Civ.Prac., Rute 12(b)(6).
[5] Action 13 €=3
13 Action
13T Grounds and Conditions Precedent
13k3_k. Statutory Rights of Action. Most
Cited Cases
Elections 144 €=2269
144 Elections
144X Contests
144k269 k. Nature and Form of Remedy.
Most Cited Cases
West Virginia's constitutional tight to run for public
office did not create private cause of action against
opponent who was subsequently convicted of buy-
ing votes; candidate had fill access to ballol, and in
any Cage, appropriate remedy was criminal prosecu-
tion and for candidate to file election comtesl.
Const. Art. 1V, § 11: West's Ann.W.Va.Code 3-7-6,
Page 2
38-11,
[6] Elections 144 €=>323
144 Elections
144X] Violations of Election Laws
1444323 k. Penalties und Actions Therefor.
Most Cited Cases
Statutes providing that any person injured by viola-
tion of any statute may recover from offender, and
which imposed criminal penalties for improper
election influence, bribery, and buying votes, did
Tot create private cause of action in favor of can-
didate who ran for office of circuit clerk against op-
Ponent who was subscquently convicted of buying
votes; election statutes provided comprehensive and
detailed procedure for challenging election, there
Was no indication that legislature intended to create
Private cause of action, and statutes at issue were
enacted lor purpose of imposing. criminal sanctions
on persons who improperly influenced voters, and
therefore, creation of private cause of action would
only have served to usurp legislative scheme.
West's Ann.W.Va.Code 3-7-6, 3-8-11(c), $5-7-9,
[7] Action 13 03
13 Action
131 Grounds and Conditions Precedent
13k3 k, Statutory Rights of Action. Most
Cited Cases
The following is the appropriate test to determine
when a state statute gives rise by implication to a
Private cause of uction: (1) the plaintiff must be a
member of the class for whose benefit the statute
was enacted; (2) consideration must be given to Ie-
gislative intent, express or implied, to determine
whether a private cause of action was intended, (3)
an analysis must be made of whether a private
cause of action is consistent with the underlying
Purposes of the legislative scheme; and (4) such
private cause of action must not intrude into an area
delegated exclusively to the fedcral government.
[8] Flections 144 €=298(1)
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1/27/201001/27/2010 18:31 FAX
680 S.F.2d 66
224 W.Va. 51, 680 5.b.2d 66
(Cite as: 224 W.Va. 51, 680 S.1.2d 66)
144 Elections
144X Contests
144k297 Scope of Inquiry and Powers of
Court or Board
144K298 In General
144k298(1) k. In General. Most Cited
Cases
Federal courts do not sit to award post-election
damages to defeated candidates.
19] Constitutional Law 92 €=72473
92 Constitutional Law
92XX Separation of Powers
92XX(C) Judicial Powers and Functions
92X X(C)2 Encroachment on 1 egislature
92k2472 Making, Interpretation, und
Application of Statutes
92k2473 k. In General. Most Cited
Cases
Constitutional Law 92 €-72474
92 Constitutional Law
92XX Separation of Powers
92XX(C) Judictal Powers and Punctions
92XX(C)2 Lincroachment on Legislature
92k2472 Making, Jnterpretation, and
Application of Statutes
92k2474 k. Judicial Rewriting or
Revision. Most Cited Cases
Tt is not the province of the courts to make or super-
vise legislation, and a statute may not, under the
guise of interpretation, be modified, revised,
amended, distorted, remodeled, or rewritten.
{J0] Implicd and Constructive Cuntracts 205H
3
205H Implied and Constructive Contracts
205EL Nature and Grounds of Obligation
205HI(A) In General
205Hk2 Constructive or Quasi Contracts
205HKk3 k. Unjust Enrich:nent. Most
Cited Cases
Candidate's allegations that opponent boughr votes,
020/033
Page 4 of 15
Page 3
that he reaped benefits of office of circuit clerk to
which he was not lawfully elected, and that oppon-
ent was nol entitled to salary and benefits of office,
did not state claim for unjust enrichment, since can-
didate who lost to opposing party was not payor of
salary and benefits.
U1] Action 13 E23
13 Action
131 Grounds and Conditions Precedent
13k3_ k, Statutory Rights of Action. Most
Cited Cuses
Elections 144 €=7269
144 Elections
144% Contests
144k269 k, Nature and Form of Remedy.
Most Cited Cases
Public policy in favor of ftve and fair clections
without undue influence did not create private
cause of action against opponent in clection for of-
fice of circuit clerk wha was subsequently con-
victed of buying votes; rather, appropriatc alternat-
ive remedies were available, namely, criminal pro-
secution and lection contest. West's Amn.
W.Va.Code, 3-7-6, 3-8-11.
[12] Damages 115 €=>184
115 Damages
151K Evidence
113k185 Weight and Sufficiency
113k 184 k. In General. Most Cited Cases
The general rule with regard to preof of damages is
that such proof cannot be sustained by mere specu-
lation or conjecture.
*68 Syllahus by the Court
1. “The trial courl, in appraising the sufficiency of a
complaint on a Rule 12(b)(6) motion, shonid not
dismiss the complaint unless it appears beyond
doubt that the plaintiff can prove no set of facts in
support af his claim which would entitle him to re-
lief. Contey y, Gibson, 355 US. 41, 45-46, 78 S.CL
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16°42 Fax
680 S.F.2d 66
224 W.Va, 31, 680 S.E.2d 66
(Cite as: 224 W.Va. 51, 680 S.E.2d 66)
99, 2 Lda ga (1957).” Syllabus Point 3, Chap-
man v. Kane Transfer Co, Inc., 160 W.Va, 530,
236 $.E.2d 207 (1977).
2. “Appellate review of a circuit coun's order Bran
ing a mation to dismiss a complaint is de nave, °
Syllabus Point 2, State & rel. McGraw v. Seon
Runyan Pontiac-Buyick. ine, 194 Wa, 720, 461
S.B.2d S16 (1995).
4." ‘The general Tule with regard to Proof of dum-
ages ix that such Proof cannot be sustained by mere
Larry G. Kopelman, Esq. Kopelman & Associates.
Le, Charleston, WV, fur Appellant.
Robert B. Allen, Esq., Stephanie D. Thacker, Lsq.,
Allen Guthrie & ‘Thomas, PLLC, Charleston, WY,
for Appelles.
PER CURIAM:
This case is before this Court upon appeal of a flnal
order of the Cireuit Court of Lincoln County
éntered on Oetober 1, 2007, dismissing g complaint
filed by the appellant and plaintiff below, Terry
TU. against the appellee and defendant below,
Bo21/093
Page $ of 15
Page 4
fore it the petition for appeal, the entire record, and
the briefs and argument of counsel. Vor the reasoas
Set forth below, the Final order is affirmed.
*691,
FACTS
During the 1996 general election for the Office of
Circuit Cletk of Lincoln County, Mr. Hill and Mr.
Stowers conducted write-in campaigns. Mr.
Stowers was the Meumbent because he had been
appointed to fill the office several months earlier
when the former circuit clerk, Shirley Mullins, re-
tired and with from the election ag the Demo-
cral nomines.*? Mr Stowers was declared the
winner in the 1996 election with a margin of vic-
tory of approximately 600 yotes. Me. Hill did not
contest the election. Mr. Stowers Was re-elected in
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680 S.E.2d 66
224 W.Va. 51, 680 S.E.2d 66
(Cite as: 224 W.Va. St, 680 S.E.2d 66)
FN2. There was no Republican nominee.
FN3. It appears that Mr. Hill did nat seek
the office in 2000 or 2004.
On December 29, 2005, Mr. Stowers pled guitry in
the United States District Court for the Southem
Diswict of West Virginia to one count of buying
votes '™' in connection with the May 2004
primary election in Lincoln County. He was scn-
tenced ta six months in prison. Thereafter, on June
5, 2006, Mr. Hill filed this lawsuit against Mr.
Stowers alleging that Mr. Stowers won the 1996
election because of unlawful volc-huying. In partic-
ular, the complaint alleged that
FN4, Mr, Stowers pled guilty to violating
18 U.S.C. § $97 (1996) (2006 ed.) which
Provides:
Whoever makes or offers to make an ¢x-
pendilure to any person, either to vole or
withhold bls yotc, or to vote for or
against any candidate; and
Whoever solicits, accepts, or receives
any such cxpenditure in considcration of
his vote or the withholding of his vote
Shall be fined under this title or im-
prisoned not morc than one year, or
both; and if the violation was willful,
shall be fined under this tile or im-
prisoned not more than two years, or both.
[o]a or about May 4, 2005, defendant Gregory B.
Stowers and others, were indicted by a federal
grand jury pursuant to a Second Superseding In-
dictment alleging that defendant Gregory B.
Stowers knowingly conspired and widertook ac-
tions of knowing and willfully paying and offer-
ing w pay voters in Lincoln County for voling in
various clections since the Spring of 1990 includ-
ing but nol limited to the general election of 1996
for the office of Clerk of the Cireuit Court of Lin-
coln Coumly-
022/033
Page 6 of 15
Page 5
Mr. Hill asserted that Mr. Stowers had violated his
constitutional right to run for and hold public of-
fice: that Mr. Stowers had violated statutory law
in West Virginia pertaining to the administration
of elections; that Mr. Stowers had been unjustly
enriched and had improperly bencfitted from the
compensation, bencfits, and emoluments of of
fice; and that Mr. Stowers had violated substan-
iat public policy in West Virginia pertaining to
free and fair elections. Mr. Hill sought compens-
alory damages, punitive damages, and attorney's
fees and costs,
After the complaint was filed, Mr. Uill moved to
disqualify the Honorable Jay M. Hoke as the
presiding circuit court judge in this matter, Judge
Ioke declined to voluntarily disqualify himscl!.
The Chief Justice of this Court then refuscd the mo-
tion to disqualify on three separate occasions.
Thereafter, by order entered on Octoher 1. 2007,
the circuit court dismissed Mr. Hill's complaint pur-
suant to Rule 12(6)(6) of the West Virginia Rules
of Civil Procedure. 'This appeal followed,
1
STANDARD OF REVIEW
FII[BISIL4 As set forth above, the circuit court dis-
imissed Mr. TTll’s complaint pursuant to Rule
12(b\(6) of the West Virginia Rules of Civil Pro-
cedure" This Court has explained that “[t]he
purpose of a mation under Rule 12(bX6) of the
West Virginia Rules of Civil Procedure ig to test the
sufficiency of the complaint, A trial court consider-
ing a motion to dismiss under Rule 12(b\6) must
liberally construe the complaint so as to do *70
substantial justice.” Cantey v. Lincoln County
Comm'n, 221 W.Va. 468, 470, 655 $,b.2d 490, 492
(2007). “Since the preference is to decide cuscs on
their merits, courts presented with a motion 10 dis-
miss for failure to state a claim construe the com-
plaint in the light most favorable to the plaintiff,
taking all allegations as true.” Sedtack v. Moyle,
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680 S.E.2d 66
224 W.Va. $1, 680 S.6,2d 66
(Cite as: 224 W.Va. 51, 680 S.E.2d 66)
222 W.Va. 547, 550, 668 S.E.2d 176, 179 (2008).
Therefore, “[t]he tial court, in appraising the suffi-
siency of a complaint on a Rule 12(b)(6) motion,
should not dismiss the complaint unless it appears
beyond duubt thar the plaintiff can prove no set of
fucts in support of his claim which would entille
him to relief. Conley v. Gibsun, 355 U.S. 41, 45-46,
78 S.Ct 99, 2 LEd.2d 80 (1957)” SyNabus Point
3, Chapmun v. Kane Iransfer Co, ine, 160 W.Va.
530, 236 $.L.2d 207 (1977). This Court's review of
a cireuit court's dismissal of a complaint pursuant
To Ruis 12(bK6) is plenary. In other wards,
“{alppellate review of a circuit court's order grant-
ing a thotion to dismiss a complaint is de novo.”
Syllabus Point 2, State ex rel. McGraw v. Sevit
dtunyan Puntiac-Buick, tne. 194 W.Va. 770, 461
S.E.2d 516 (1995).
FNS. Rule 12(bX6) of the West Virginia
Rules of Civil Procedure provides, in per-
lincnt part:
Every defense, in law or fact, to a claim
for relief in any pleading, whether a
claim, counterclaim, cross-claim, or
third-paity clair, shail be asserted in the
responsive pleading thereto if one is re-
quired, except that the following de-
fenses may at the option of the pleader
be made by motion ... (6) failure to state
a claim upon which relief can be gran-
ted{.]
WL
DISCUSSION
Mr. Hill's complaint sets forth four separate claims
against Mr, Stowers. Each clain will be discussed,
in wun, below.
A. Constitutional Claim
[5] Mr. Hill first contends that the circuit court
023/033
Page 7 of 15
Page 6
erred by finding that he does not have a valid state
constilutional claim against Mr. Stowers. Based
bpon this Court's decision in State ex rel. Billings v.
The City of Maint Pleasunt, 194 W.Va. 301, 460
8.F.2d 436 (1995), Mr. Hill argues that he hud a
fundamental constitutional right to run for political
office in a free and unrestricted electoral process,
Essentially, Mr. Hill maintains that Mr. Stowers
destroyed the frec, lawful, and open electoral pro-
cess in Lincoln County for many years by buying
votes and interfered with his right to run for the of-
fice of circuit clerk in an unfeucred election. Thus,
Mr. Hill reasons that Mr. Stowers's actions give rise
to a slate constitutional claim which this Court must
recognize and protect.
Tn Syllabus Point 2 of Billings, this Court held that
“[the West Virginia Constitution confers a funda-
mental right to run for public office, which the
State cannot restrict unless the restriction Is neces«
sary to accomplish a legitimate and compelling
governmental interest.” In that case, Brian Billings
brought an original mandamus proceeding in this
Court challenging the constitutionally of W.
Va.Code § 3-5-7(b)(6) (1991), which provided that
a candidate for public office must file with a desig-
nated clerk a “certificate of announcement” that in-
cluded the name of the candidate's political party
and a statement verifying that the candidate “ ‘has
not been registered as a voter affiliated wilh any
other political party for a period of sixty days be-
fore the day of filing the announcement.’ * 194
W.Va. at 302, 460 S.F.2d at 437 (quoting Ww.
Va.Cade § 3-5-7(b)(6)). Mr. Billings sought to be-
come a candidate tor the office of councilman-
at-large in the City of Point Pleasant. During the
samc month that he filed his certificale of an-
founcement, Mr. Billings changed his party affili-
ation from Republican to Democrat and, thus, failed
to comply with W. Va.Code § 3-5-7(bX6). The
Chairman of the Point Pleasant City Republican
Executlve Committee filed a complaint with the
City Clerk seeking to remove Mr. Billings from the
ballot. Anticipating that his name was going to be
removed from the ballot, Mr. Billings petitioned
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680 S.E.2d 66
224 W.Va. 51, 680 S.B.2d 66
(Cite as: 224 W.Va, 51, 680 S.E.2d 66)
this Court for a writ of mandamus and challenged
the constitutionality of the statute.
Our decision in Biliags simply addressed the issue
of whether a person has an absolute right to be
placed upon the ballot as a candidate for public of-
fice and whether in certain circumstances, the State
can restrict that right, This Court ultimately held:
The provision in W.Va.Code, 3-5-7(0\(6) (1991),
which effectively disqualifies from running for
political odfice individuals who change their
Political party affiliation within sixty days of fil-
ing their announcements of candidacy, is neces-
sary to accomplish the compelling governmental
interest in preserving the integrity of the political
process, promoting party stability, and *71 avoid-
ing voter confusion. ‘The provision, therefore,
does not violaie either the fundamental right of
candidacy or the right to change political party
affitiations,
Syllabus Point 4. Biffings. Unlike Mr. Billings, Mr.
Hill did have access to the ballot. Both he and Mr.
Stowers conducted write-in campaigns. Thus, the
decision in Aidiqyy does not support Mr. Hill's ar
gument that he has a “constitutional claim” against
Mr. Stowers. While this Court recognized in
Billings that our State Constitution confers a funda-
mental right to nin for public office, the decision
does nat provide the basis for a private cause of ac-
tion for monctary damages by a losing candidate in
an election tor public office even in simations in-
volving alleged fraud
‘The facts and circumstances of the instant case arc
more analogous to those in Shields v. Booles. 238
Ky. 673, 38 $.W.2d 677 (1931), In that case, B.F.
Shields sucd W.W. Booles after he lost the 1929
Democratic primary cleclion for State Senator in
the ‘Twentieth Senatorial Disirict in Kentucky. Mr.
Shields alleged that Mr. Booles, who was awarded
the certificate of nomination, and bis campaign
manager culered into a conspiracy with other uns
known persons to procure large sums of money to
be used in circulating false, malicious, and scandal-
024/033
Page 8 of 15
Page 7
ous statements conceming Mr. Shields in order to
bring about his defeat and secure the nomination
for Mr. Booles, Mr. Shields also allezed that some
of the money was used to bribe voters, Mr. Shields
sought to recover $5,000.00 for compensatory dam-
ages and $20,000.00 for puniive damages. He nev-
cr contested Mr. Booles's nomination.
With regard to the allegations concerning the
bribery of voters, the Kentucky court found that no
causc of action for damages was manifested. The
court explained that
{i]t is not an actionable injury to the character, per-
som, or property of a candidate [or office for his
adversary to bribe voters, It is an offense to be re-
dressed in a prosecution by the commonwealth,
or in a contest of the nomination where the
wrongdoer may be deprived of the fruits of his
wrong.
{Al candidate is not the injured party, or within the
purpose ofr] purvicw of the remedy allowed a
voter for being deprived wrongfully of his right
ta votc. Nor was the right of appellant to be a
candidate in the primary infringed or affected,
That right was fully enjoyed by the appellant. A
violation of his right to receive any votes that
might have been cast for him but for the wrongful
interference of appellees did not result in any in-
jury to his character, person, or property thal
could be the subject of a suit for damages. The
temedy for wrongs of that character, if curried ta
an extent that affected the result of the election,
was for the unsuccessful candidate to institute a
contest, where he could pratect his own rights,
and vindicate the rights of the public as well. His
abstract right to be elected was conditioned upon
his ability to get a majority of the votes,
238 Ky. at ~--, 38 $.W.2d at 679-80.
Like the Kentucky court, we find that tho remedy
for Mr. Stowers's violations of law lies in criminal
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680 S.B.2d 66
224 W.Va. 51, 680 S.E.2d 66
(Cite as: 224 W.Va. 51, 680 S.E.2d 66)
Prosecution, and the remedy for a candidate such as
Mr. TTill is the right to contest the clection in the
manner provided by the Constitution and state stat-
ules. in that regard, Article 'V, Section 1] of the
Constitution of West Virginia provides:
The legislature shall preseribe the manner of con-
ducting and making retums of elections, and of
determining contested élections; and shall pass
such laws as may be necessary and proper to pre-
vent intimidation, disorder or violence at the
polls, and corruption or fraud in voting, counting
the voic, ascertaining or deélaring the result, or
fraud in any manner, upon the ballot.
Pursuant to this constiwutional provision, our Legis-
lature enacted Chapter 3 of the West Virginia Code,
known as the “West Virginia Election Code,”
which, inter alia, sets forth the process for contest-
ing the results of an election. W.Va.Code $§ 3-1-1
to 3-1-6 (Repl. Vol. 2006 & Supp. 2008), There-
fore, as a candidate for public office, Mr, Hill could
have filed an election contest, There is simply no
legal basis for Mr. Hill's contention that the West
Virginia Constitution allows him to pursue a private
cause of action for #72 damages against Mr.
Stowers, Mr. Hili did not suffer an injury 10
Preview
01/27/2010 18:28 FAX Bo002/033 ten he IN THE DISTRICT COURT OF LOGAN COUNTY STATE OF OKLAHOMA 2010 JAN 27° PH OW: 27 + GARY JONES, Plaintiff, v8. Case No: CJ-2009-353 NO NUOR STEVE PHIPPS; LARRY WITT: EDDIE HARPER, as Guardian of the Estate of EUIGENE E. STIPE, also ) ) ) ) ) ) ) ) #47017 ) known, as Gene Stipe, an incapucitated ) ) ) ) ) ) ) ) ) ) person; EUGENE E. STIPE, Individually: TIM ARBAUGH; JFFI' MceMAITAN; LORIE McMAIIAN; RANDY DITTMAN; CLIFTON SCOTT; PITPPS ENTERPRISES, INC.; RY-SON OIL CORPORATION; AND CORPORATE FINANCING GROUP, INC., Defendants. DEFENDANT CLIFTON SCOTT’S MOTION TO DISMISS AND BRIEF IN SUPPORT COMES NOW Defendant, Clifion Scott, pursuant to 12. O.S. § 2012(13)(6), and moves for the dismissal of the Plaintiff's lawsuit on the grounds that the Petition fails to state a cause of'action against him. In his action, the Plaintiff seeks civil damages for his two unsuccessful attempts at state office. No cowt has ever awarded civil damages to an unsuccessful candidate for public office. Although Plaintiff contends that public office is both a vested properly interest and a prospective business advantage, he has not, and cannot state any claims upon which relief can be granted to him under Oklahoma law. Accordingly, the Plaintiff's suit against Defendant Scott should be summurily dismissed.01/27/2010 16:27 FAX I. INTRODUCTION Defendant Clifton Scott was elected and served as the Auditor and Inspector for the State of Oklahoma from 1982 through 2002. During this time, Mr. Scott faithfully carried oul his responsibilities establish by law. Alter Defendant Scott decided to not seck re-election, the Plaintiff unsuccessfully ran for the public office of State Auditor and Inspector in the 2002 and 2006 general elections. After having lost the 2002 and 2006 statewide public elections, the Plaintiff now brings this tort claim some seven (7) and three (3) years later, respectively, for civil damages sustained because of his loss of this public position. In his petition, the Plaintiff alleges that during those elections various Defendants - but not Defendant Scott - violated 21 0.8. § 187.1 which limit the amount of campaign contributions that can be made in an election. The Plaintiff further alleges that he had an expectation that he would win the two elections, but that he lost the elections duc to certain Defendants alleged violations of 21 O.S. § 187.1. The Plaintiff asserts four scparate theories of recovery in his Petilion. Bascd upon the allegations plead, only three of the claims arc made against Defendant Cliflon Scott; namely, intentional interference with a prospective business advantage, intentional) infliction of meatal anguish and emotional distress, and a Federal RICO claim. Although the Plaintiff also asserts a claim of “Fraud” arising out of representations made to the Oklahoma tithics Commission, the fraud claim is limited to Defendants Witt, Phipps, Harper/Stipe and Gene Stipe. In essence, the Plaintiff is asking this Court to review the results of the 2002 and 2006 elections; determine that he would have won; and, award him civil tort damages to compensate him for the valuc of helding political office. Although the Oklahoma legislature has an established procedure to contest clections, rectily voting and procedural irregularities and impose penalties for @ 003/0330047093 eo Sl 1 a& D AUTHORITY A. There Is No Private Cause of Action for Damages Sustained as a Result of the Loss of a Political Election, The sum and substance of Plaintiffs allegations in thi s lawsuit is that he Sustained economic damages when he was defeated in the 2002 and 2006 general elections for the position of Auditor and Inspector because of. alloged violations of 21 O78. § 187.1. Although the Petition is ej ighteen petition wherein Plaintiff asserts that Jeff's campaign “was well-lunded” and “legally benefitted” from the improper donations and that the “Glegal donations helped defeat Plaintiff” Thus, no matter01/27/2010 18:27 FAX @005/033 language of Section 187.1 does it provide for a private cause of action for campaign contribution violations, nor does any Oklahoma statute recognize a tort claim for such a violation, Absent any express authorization for a Private cause of action for campaign contribution violations in Section 187.1, the only manner in which the Plaintiff could potentially survive a motion to dismiss is if such a private action could be implied or inferred from Section 187.1 To determine whether a legislative enactment authorizes a private cause of action, Oklahoma uses a modified version of the test set forth by the Supreme Court in Cort v, Ash, 422 U.S. 66, 95 S.Ct, 2080, 45 L.Ed. 26 (1975). See, Nichols Hills Physical Therapy v. Guthrie, 1995 OK CIV APP 97, 900 P.2d 1024. As noted by the Court in Christian v. First Capital Bank, 2006 OK CIV APP 128, 147 P.3d 908, 912, “a cause of action can be inferred from a public-law statute only if: (1) the plaintiffis onc of the class for whose especial benefit the stalule was enacted: (2) there is some indication of legislative intent, explicit or implicit, to create a private remedy; and (3) there is an implication in the statute's language that the remedy, if so found, is consistent with the underlying purpose of the legislation.” fd, at 920. Under this test, the Plaintiff satisfies none of the three Tequirements set forth in Christian, The Plaintiif brings his suit for damages as an unsuccessful political candidate. However, Oklahoma’s limits on campaign contributions were clearly enacted to protect the election process and the general public; not an individual candidate, indeed, the Plaintiff cannot point to any law or legal authority that states (ar even implies) that limits on campaign contributions were enacted lo protect an individual candidate’s economic investment in the office sought, ‘This intent is demonstrated by the fact that Section 187.1 only provides for criminal prosecution of the offender and does not provide for restitution or other remedy that could enure to the benefit ofa competinga Mifer#eO)0 Th°27 Fax 008/033 5 political candidate. As such, Plaintiff. Cannoi meet the first part of the test sct forth in Christian Even if the Plaintiff could demonstrate that campaign contribution limits were enacted for the protection of; candidates, as opposed to the integrity of the elecioral system, he could not sati isfy the remaining two prongs set forth in Christian, The legislature has Provided a statutory scheme to to contest an clection by filing a an election contest “at any time before 5:00 p.m. Friday next following an election, ...". 26 0.8, § 8-109. These remedies also include the criminal prosecution of an offender for an election violation, as authorized pursuant to 18 OLS. 187.1, Moreover, the legislature has Provided that an offender shall be removed from office upon conviction of a felony, including an election violation, and has set forth the express remedies available to the State to a private remedy would be consistent with the underlying purpose of 18 O.8. 187.1. As noted by the Court in Clapsadale y, Blevins, 1998 OK 5, 66 P.3d 352, at fh. 6, “In election Protests the contest regime prescribed by the applicable statute is exclusive of all other Temedies.” See also, State ex rel. Mackey y. Blackwell, 834 N.k. 2d 346 (Ohio2005) (cleetion contest is the specilic exclusive remedy Ptovided by statute to correct all errors. frauds, and tuistakes occurring in an election). The Plaintiff cannot point to one case wherein an Oklahoma court has ever recognized, the existence of a private cause of action for an unsuccessful political candidate, Moreover, the very notion that a public office has an economic valucis offensive to Ok Jahoma's constitutional ly enactedO1f27/2010 16:28 FAX Mo07so3a 4 that he was defeated as a result of his opponent's illegal vote-buying activities. Tn Hill v, Stowers, 680 S.K.2d 66 (W.¥a.2009), the unsuccesstul candidate Sought monetary damages from his Opponent who was convicted of illegal vote-buying activities under West Virginia criminal code.! In sustaining the trial court's dismissal of Hill’s action under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, the Hil/ Court noted that there are mechanisms in place that allow a candidate in an election 1o contest the results of the election and that set forth penaltics for criminal miscouduct in elections. fd at 71-72, In recognizing the significance and importance of the mechanisms of the legislature that ensure fair elections, the i/i// Court stated: Itis clear that if this Court were to Gnd that a private cause of action exists under these circumstances, a whole new field of tort liability would be created without any express legislative authorization, “+ [it is not the provinee of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten[.]’ " State v. Richards, 206 W.Va. 973, 577, §26 §.13,.2d 539, $43 (1999) (quoting State y. General Danie} Morgan Post No S48, VW, 144 Wa, 137, 145, 107 $.F.2d 353, 388 (19s 9) (citation omitted)), Accordingly, this Court finds that conduct which constitutes violations of W. Va.Code §§3-8-11, 3-9-12, and 3-9-13 does not give nse Lo an implied private cause of action in addition to the criminal penalties imposed thercin. Td. at 75, Notably, the /417 Court also discussed the public policy implications of allowing a losing candidate in an election to Pursuc a private cause of action for monctary damages against his oe 1A copy of Hill v. Stowers, 680 S.L.2d 66 (W.Va.2009) is anached hereto for the Court’s convenicnee.TENE EN IN 10.20 FAK @ooavoag Cir.1986), and Quoted it with approval for the Proposition that: [t]hose who enter the political fay know the potential risks of their enterprise. If they are defeated by trickery or fraud, they can and criminal-to address their grievances, and to take action to insure legitimate electoral results. In this way, they advance the fundamental we can find no other case in which a defeated candidate has won such compensation, Nor do we believe, in light of the multitude of alternative Temedies, that such a remedy is Necessary either to deter Hilt at 76 (emphasis added). See also, Goff v, Erlich, 776 So.2a 1011, 1012 (Fla.App.2001} (campaign finance act did not create Privale cause of action),OVF2 772010 18:28 FAX @oosso33 \ Even assuming that there is a privale cause of action for economic damages sustained as a result of the loss of a political election, Plaintiffs remaining claims fail under the causes set forth in the petition. In order to maintain Plaintiffs cause of action for intentional interference with a Prospective business advantage, the Plaintiff must establish that: 1) Plaintiff had a valid business relationship or expectancy, 2) Detendant knew of the relationship or expectancy, 3) Defendant intentionally interfered, inducing or causing a breach or termination of the relationship or expectancy, and 4) Plaintif! was damaged as a result of Defendant's alleged interference. Boyle Services, Inc. y, Dewherry Design Group, Inc,, 2001 OK CIV APP 63, 24 P.3d 878, 880. Under Oklahoma law, in order for Plaintiff to have a valid business relationship or expectancy, the claim must involve interference with “a teasonable cxpectation of profit.” Overbeck ¥. Quaker Life Ins, Co., 1988 OK CIV APP 44, 757 P24 846, 847-848. In his Petition, the Plaintiff asscrls that he had a “reasonable expectation of being clected as this State's Auditor and Inspector.” (J61). Despite Plaintitt’s bold and highly speculative allegation, it is simply not possible to know the outcome of an election with any degree of certainty or reasonableness, Moreover, the United States Supreme Court has stated that the nature of the relation of public officer to the public is inconsistent with either a Property or contract right. Taylor v. Beckham, 178 U.S. 548, 577, 20 8.Ct. 890, 900-901, 44 L-Fd. 1187 (1900). Thus, as a matter of law, the Plaintiff will never be able to establish that he had a “business relationship” or “business expectancy” in the political position of Auditor and Inspector, or that this political position included a “reasonable expectation of profit.” Moreover, the Plaintiff will not be able to satisfy the requirement of establishing that he was damaged, as he would never be able to prove that he would have won the election but for the alleged fraud. The Court in Ail! y, Stowers, 680 8.E.2d 66,77 (W.Va.2009), noted the impossibility of01/27/2010 18:29 FAX 010/033 i proving damages in such a civil claim and stated that “a civil action for damages for election fraud is unsusceptible to the level of proof necessary to sustain such a claim.” fd at 77. The Hil! Court explained such claims “would also likely fail simply because of the extreme difficulty of proof” in that the petitioner would need to prove the election fraud activities changed the outcome of the election. td. (emphasis added). The Plaintiff cannot show that his expectation that he would be elected Auditor and Ins spector Was reasonable, nor does this political office constitute a “property interest” that is protected. Moreover, the Plaintiff could never establish that the outcome of the elections would have been different if 18 O.S. § 187.1 had not been violated. Accordingly, the claim for the tort of intentional interference with prospective business advantage should be dismissed under 12 O.S. § 2012(B)(6). Cc. Plaintiff Cannot Maintain 4 Cause of Action for Intentional Infliction of Emotional Distress. In order to maintain a cause of action for intentional infliction of emotional distress the Plaintiff must prove by the greater weight of the evidence that: 1. Defendant's actions in the setting in which they occurred were so extreme and outragcous as to go beyond all possible bounds of decency and would be considered atrocious and utterly intolerable in a civilized society; and 2. Defendant intentionally or tecklessly caused severe emotional distress to the Plaintiff beyond that which a reasonable person could be expected to endure. OUJI CIVIL 2d, No. 20.1. In this case, the Plaintiff's alleged cmotional distress solely arises from his loss of the 2002 and 2006 political elections for Auditor and Inspector. Elowever. the foss of'an election can hardly01/27/2010 16:29 FAX 011/033 y form the basis for a legal claim for intentional infliction of emotional distress and there is no Oklahoma case that has ever recognized this type of action. Indeed, as noted by the Fourth Circuit in Hutchinson v, Miller, 797 F.2d 1279, 1287 (4th Cir.1986), “Those who enter the political fray know the potential risks of. doing so...”. Moreover, the Plaintif!’s own actions belie the severity of the emotional distress he know claims he has endured, Notably, the Plaintiffran for Auditor and Inspector in 2006, after losing the election in 2002. Thus, it can hardly be said that the emotional distress was “beyond that which a reasonable person could be expected to endure,” as the Plaintiff voluntarily chose to enduce it a second time. Therefore, the Plaintiff cannot allege the type of severe emotional distress required to establish a prima facie claim. Moreover, the complained of conduct must be so extreme that it poes beyond all possible bounds of decency and be regarded as airocious and utterly intolerable in a civilized society. OUJI CIVIT, 2d, No. 20.1. and Warren v. United States Specialty Sports Ass'n, 138 P.3d at 585, In this case, the alleged “extreme and outragcous” conduct consist of campaign contributions that are in excess of lhe statutory minimum, Such conduct, even if declared unlawful, hardly rises to the level of “extreme and outrageous” as necessary for a claim of intentional infliction of emotional distress, Oklahoma has never recognized the availability of the tort of intentional infliction of emotional distress to an unsuccessful political candidate and Plaintifi’s claim should be dismissed. Db. The Plaintifi’s Claims Are Barred by the Statute of Limitations, ven if the Plaintiff could survive this Court's serutiny on the viability of his claim for civil damages sustained as a result oftwo unsuccessful attempts at political office, his lawsuit against Mr, Scott is time barred. All lawsuits must be tiled within the statutory time period established by the 10Olfe7 #2010 16:29 Fax @ 012/033 ' Legislature, fuchs v, Fleetwood Hames of Texas, 2006 OK CIV APP 148, 417, 149 P.3d 1099, 1103, The statutory time Period for Plaintiff te file his tort claims of intentional interference with Aprospeclive business advantage and intentional infliction of emotional distress istwo (2) years from the date the action accrucs. 120.8. § 95, In this case, the Plaintiff seeks damages sustained as a result of the loss of two political elections. The Plaintil?’s causes of action accrued on the dates of the respective election Teturns in November 2002 and 2006, After the clection returns were made, the Plaintiff knew that his bid for political office was unsuccessful, This action was not filed until November 23, 2009, which is more than seven (7) years after the 2002 election and more than three (3) years after the 2006 election, Plaintiff did nat file his lawsuit within the time period proscribed by 12 0.8. § 95, and his claims are lime barred and should be dismissed, E. plaintiff Fails to Meet the Statutory or Standing Requirements for Which to Bring a Cognizable Claim under the Racketeer Influenced and Corrupt Organizations Act (“Rico”). In his Pourth Claim, the Plaintiff alleges a cause of aclion against Defendant Scott under the civil enforcement provisions of the federal RICO Act. 18 US.C. $§ 1962, 1964 (c). As set forth above, 21 O.S. § 187.1 does not creatc a private cause of action for damages to a disappointed candidate for public office. Similarly, what state law fails to provide directly, RICO cannot create indirectly. In re Epogen & Aranesp Off-Label Murketing & Sales Practices Litigation, 590 F.Supp.2d 1282, 1289 (C.D.Cal.2008), Nevertheless, even if the Plaintiff could draft a cognizable RICG claim to Pursue his purported economic interest in oblaining public office, he cannot meet the Prerequisites to establish itO27 /2010 18:29 FAX 013/033 t a claim under 18 U.S.C. $§ 1962, 1964(c). Specifically, a claimant under RICO must allege, with specificity, that the defendant is: 1. A person who was associated wilh, and actually operated an enterprise; 2. That the enterprise engaged in and affected interstate commerce, through a pattern of enumeraied predicate acts; 3. That the plaintiff was injured in his business or property by reason of a pallern of racketeering activity; and 4, ‘That the injury was the type sought to be prevented by the RICO Act. 1 The Plaintiff Lacks Standing to Bring a Civil RICO Claim, In order to bring a claim under the civil provision of the RICO Act, a liugant must fully satisty the Congressionally crafted standing requirements included in the act. See Bennet v. Spear, 520 U.S. 154, 162 (1997). ‘Thus, only those Persons injured “by reason of a violation of section 1962" have standing to suc under the RICO Act's civil provision. Tal v. Hogan, 453 F.3d 1244, 1254 (10th Cir. 2006)(citing Sedima, S.P.R.1., v, Imrex, Co,, 473 US, 479, 496 (1985). The civil provision of the RICO Act requires a plaintiff to allege an injury to their own business or property caused by a violation. 18 U.S.C. § 1964(c). See also, Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992); Sedima, SPRL. v. Imrex Co., 473 US. 479, 496, 105 S.CL 3275, 87 L.Ed.2d 346 (1985). As set forth above, the Plaintiff's claim of injury presupposes that his “economic investment” in running for public office, effectively purchased any economic advantage that would have come from being a public office holder, Asthis very notion is antithetical to Oklahoma’s constitutionally elected government, the Plaintiff has no business or property right that could have been injured by any alleged campaign conduct. Taylor v. Beckham, 178 U.S. 548, 577, 20 S.Ct. 890, 900-901, 44 L.Ed. 1187 (1900), Absent an injury to Plaintiffs “property”, Plaintiff's RICO claim fails as a matter of law, 12O1/27/2010 16:90 FAX 014/033 2. The Plaintiff Cannot Show That His Injury Was Proximately Caused by the Conduct Constituting the Alleged RICO Violations, In addition to the statutory requisite of provin: ig an injury to his business or Property, a RICO plaintiff's inj ury must be directly refated to the cnumerated predicate act underlying the alleged RICO violation. Holmes, 503 U.S. at 265. In establishing a proximate cause standard for RICO claims, the U.S. Supreme Court isolated three factors to he determined. /d. Based on a similar Approach under the Clayton Antitrust Act, the Court held that standing must be determined based on: 1), The difficulty of “ascertain[ing] the amount of a plaintilf’s damages attributable to the violation, as distinct from other factors”; 2). The need to “adopt complicated rules apportioning damages among, plaintiffs removed at different levels of injury from the violative acts”; and 3). The idea that “directly injured victims can generally be counted on to vindicate the law... without any of the problems attendant upon suits by plaintiffs injured more remotely.” fd. at 269, Applying the Ho/mes standard, the U.S. Supreme Court denied standing to a RICO plaintiff that was alleging that its competitor commitied tax fraud by failing to charge its customers sales tax and by subsequently “doctoring” its books to conceal the fraud from state tax officials. Anza v. Tdeat Steel Supply Corp., 547 U8. 451 (1991). Although Anza argued that it suffered quantifiable business loses as a resull of the predicate acts alleged, the Court held that “[t]he cause of Ideal’s asserted harms, however, is a set of actions (offering lower prices) entirely distinct from the alleged RICO violation (defrauding the State)." id at 458. Further, the Court suramarized the inherent difficulty of determining the claims of Temotely injured plaintifts: [Tdeal's] lowering of prices in no sense required il to defraud the state tax authority. Likewise, the fact that a company commits tax fraud does not mean the company will lower its Prices; the cash could go anywhere from asset acquisition to research and development tu dividend payouts, 3wlfetf20T0 16°90 Fax 015/033 4 * a + The element of proximate causation recognized in Holmes is meant to prevent these types of intricate uncertain inquiries from Overrumming RICO Litigation. fd. at 458-460. Similar to the plaintiff in Anza, the Plaintiff in this case simply cannot establish that the alleged illegal acts (alleged straw donors and illegal contributions by Defendant Scott's co- defendants) are directly related to his loss of the elections. As noted by the court in Hil? v. Stowers, 680 S.E.2d 66 (W.Va.2009): such a claim. fd. at 77. Similarly, in this case the Plaintiff could never prove that but for the “predicate acts”enumerated in the RICO aci, the Plaintiff would have won either of the elections, If a claimed injury is not sulliciently related to the alleged RICO violation, it is appropriate for a dismissal. See, e.2., Holmes v. Securilies Investor Protection Corp, 1128. Cr 1311 (1992); Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303 (9th Cir. 1992), cert. denied, 113 S. Ct 1644 (1993). Sedima, SPRL. vo tmrex Co. 473 US. 479 (1985) (civil RICO plaintiffs must prove a direct casual connection between the alleged predicate acts and the plaintiff's injury in order to survive a pre-trial motion for dismissal). See, Hecht v. Commerce Clearing House, Ine., 897 F.2d 21, 24 (2d Cir. 1990) (purpose of civil RICO liability does not extend to deterring any illegal act such as retaliatory firings for which there are state and common law remedies). The Plaintiff will never be able to 14016/033 wtfetigO10 16°30 Fax Bows 4 establish that his injury was sustained “by reason of” the unlawful acts and bis RICO claim must be dismissed, WHEREFORE, for the above and foreguing feasons, Defendant Clifton Scott, prays this Court dismiss the Plaintiff's Petition, pursuant to 1205. § 2012(B)(6), with Prejudice and without amendment, Further, Pursuant to 12 0.8. § 201 1.1, Defendant Clifton Scout, seeks his atiomey fees and costs incurred due to the filing by Plaintiff ofa frivolous lawsuit that has no basis in law and is completely unsupported and for all such other relic that is just and equitable, yO Doligias A. Rice OBA F 16297 Janis Hubbard OBA # 1464] DERRYBERRY & NATFEH, LLP 4800 N. LINCOLN BOULEVARD OKLAIIOMA CITY, OK 73105 (405) 528-6569 - TELEPHONE (405) 328-6462 - FACSIMILE DRICE@DERRY BERRYLAW.COM ATTORNEYS FOR DEFENDANT, CLIFTON scorTO1427/2010 16:30 Fax Mo17/033 CERTIFICATE OF SERVICE This is to certify that on the 27" day of January, 2010, a truc and correct copy of the above and foregoing Defendant Clifton Scott's Motion to Dismiss and Brief In Support was sent to the Court by facsimile to be filed and mailed, via U.S. Mail, to the following: Robert J Bartz, Sheri L, Mueller Barber & Bartz 200 Sigma Place 525 S. Main Street, Suite 800 Guthrie, OK 73044 Tulsa, OK 74103 ATTORNEY FOR DEFENI JANT, ATTORNEY FOR DEFENDANT, RANDY DITTMAN RANDY DITTMAN John D. Russell Ronald A. Schaulat Fellers, Snider, Blankenship, Bailey & Brady, Schaulat, Falsetti & Synar Tippens, P.C. P.O. Box 718 321 S. Boston Avenue, Suite 800 TION. Shartel Tulsa, OK 74103 Oklahoma City, OK 73101 ATTORNEY FOR DEFENDANT, ATTORNEY FOR, DEFENDANT, PHIPPS ENTERPRISES CORPORATE FINANCING GROUP Stanley M. Ward Ward & Glass, LLP. 1821 E. Imhoff Road, Suite 102 Norman, OK 73071 ATTORNEY FOR PLAINTIFT GARY JONES Le ee Douglas. A. Ricevw beer eels : /ttb/web?, westlavy.com/prinvprintstream aspx 1B g1 FAX Westlaw, 680 S.E.2d 66 224 W.Va. 51, 680 S.B 2a 66 (Cite as: 224 W.Va, 31, 680 S.E.2d 66) c Supreme Court of Appeals of West Virginia, Terry HILL, Plaintiff Below, Appellant v. Gregory Brent STOWERS, Defendant Below, Ap- Pelee. No, 34143, Submitted Feb, 24, 2009. Decided May 19, 2009. Background: Candidate for circuit clerk who lost election to Opponent brought action apainsi oppon- Holdings: The Supreme Court of Appeals heid thar: (1) state constitutional right to rua for Public office did not create Private cause of action against op- ponent for buying votes; (2) election and criminal statutes did not create private cause of. action against opponent; (3) allegations did not state claim for unjust enrich ment; and (4) public policy in favor of tree and fair elections wilbout undue influence did not create private Cause of action against opponent. Affirmed. West Headnotes {t] Pretriat Procedure 307A, 024 307A Pretrial Procedure 307AHI Dismissal 307A NTR) Involuntary Dismissal 307AIN(B)4 Pleading, Defects dn, in Gen- 018/033 Page 2 of 15 Page | eral 307AK623 Clear and Certain Nature of Insufficiency State a claim upon which relief cun be granted, should not dismiss the complaint unless it appears beyond doubt that the Plaintiff can prove no ser ot facts in support of his claim which would entitle him to relief. Rules Civ.Proc., Rule 12(bX 6). [2] Pretrial Procedure 3674, €679 307A Pretrial Procedure 307AIII Dismisgat 307ATIT(R) Involuntary Dismissal SO7ALICR)G Procucdings and Effect 307AK679 kk. Construction of Plead- ings. Most Cited Cases A trial court considering a motion to dismiss for the failure to state a claim upon which telief can be granted must liberally construe the complaint so ay to do substantial Justice. Rules Civ.Proc., Rute 12(b)(6). [3] Pretrial Procedure 307 686.1 307A Pretrial Procedure 307A 11 Dismissal 307ANN(B) Involuntary Dismissal 3O7AIN(3)6 Proceedings and Effect JOTAK686 Matters Deemed Admitted 307AK686.1 k. In General. Most Cited Cases For purposes of a motion to dismiss for the failure to state a claim an which relief can be vranted, the allegations set forth in the complaint are taken as true. Rules Ciy.Prac., Rule 12(5)(6), (4] Appeal and Error 30 €=>863 30 Appeal and Error © 2010 ‘thomson Reuters. No Claim to Orig. US Goy. Works, “orft-H TMLLd&cifm=Notsotd destination-atpéesv, . 1/27/2010jo1s/033 Page 3 of 15 01/27/2010 18:31 FAX 680 S.F.2d 66 224 W.Va. 51, 680 $1.20 66 (Cite as; 224 W.Va, 51, 680 S.E.2d 66) 30XVI Review 3OXVILA) Scope, Standards, and Extent, in General 30k862 Extent of Review Dependent on Nature of Decision Appealed trom 30863 k. In General. Most Cited Cases Appeal and Error 30 C= 5941) 30 Appeal and Error 30XVi Review 30XVI(F) itial De Novo 30k892 ‘Irial De Novo 30k893 Cases ‘viable in Appellate Court 30k893(1) kk. in General. Most Cited Cases Supreme Court of Appeals' review of a circuit court's dismissal of a complaint for the failure to state a claim upen which relicf can be Sranted is plenary; in other words, Appellate review of a cir- cuit court's order granting a motion to dismiss a complaint is de novo, Rules Civ.Prac., Rute 12(b)(6). [5] Action 13 €=3 13 Action 13T Grounds and Conditions Precedent 13k3_k. Statutory Rights of Action. Most Cited Cases Elections 144 €=2269 144 Elections 144X Contests 144k269 k. Nature and Form of Remedy. Most Cited Cases West Virginia's constitutional tight to run for public office did not create private cause of action against opponent who was subsequently convicted of buy- ing votes; candidate had fill access to ballol, and in any Cage, appropriate remedy was criminal prosecu- tion and for candidate to file election comtesl. Const. Art. 1V, § 11: West's Ann.W.Va.Code 3-7-6, Page 2 38-11, [6] Elections 144 €=>323 144 Elections 144X] Violations of Election Laws 1444323 k. Penalties und Actions Therefor. Most Cited Cases Statutes providing that any person injured by viola- tion of any statute may recover from offender, and which imposed criminal penalties for improper election influence, bribery, and buying votes, did Tot create private cause of action in favor of can- didate who ran for office of circuit clerk against op- Ponent who was subscquently convicted of buying votes; election statutes provided comprehensive and detailed procedure for challenging election, there Was no indication that legislature intended to create Private cause of action, and statutes at issue were enacted lor purpose of imposing. criminal sanctions on persons who improperly influenced voters, and therefore, creation of private cause of action would only have served to usurp legislative scheme. West's Ann.W.Va.Code 3-7-6, 3-8-11(c), $5-7-9, [7] Action 13 03 13 Action 131 Grounds and Conditions Precedent 13k3 k, Statutory Rights of Action. Most Cited Cases The following is the appropriate test to determine when a state statute gives rise by implication to a Private cause of uction: (1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to Ie- gislative intent, express or implied, to determine whether a private cause of action was intended, (3) an analysis must be made of whether a private cause of action is consistent with the underlying Purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the fedcral government. [8] Flections 144 €=298(1) © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http:/Aweb2. westlaw.com/print/ printstream.aspx 2prfi-H'TMLE&ilim=NotSet&destination=atp&sv... 1/27/201001/27/2010 18:31 FAX 680 S.F.2d 66 224 W.Va. 51, 680 5.b.2d 66 (Cite as: 224 W.Va. 51, 680 S.1.2d 66) 144 Elections 144X Contests 144k297 Scope of Inquiry and Powers of Court or Board 144K298 In General 144k298(1) k. In General. Most Cited Cases Federal courts do not sit to award post-election damages to defeated candidates. 19] Constitutional Law 92 €=72473 92 Constitutional Law 92XX Separation of Powers 92XX(C) Judicial Powers and Functions 92X X(C)2 Encroachment on 1 egislature 92k2472 Making, Interpretation, und Application of Statutes 92k2473 k. In General. Most Cited Cases Constitutional Law 92 €-72474 92 Constitutional Law 92XX Separation of Powers 92XX(C) Judictal Powers and Punctions 92XX(C)2 Lincroachment on Legislature 92k2472 Making, Jnterpretation, and Application of Statutes 92k2474 k. Judicial Rewriting or Revision. Most Cited Cases Tt is not the province of the courts to make or super- vise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten. {J0] Implicd and Constructive Cuntracts 205H 3 205H Implied and Constructive Contracts 205EL Nature and Grounds of Obligation 205HI(A) In General 205Hk2 Constructive or Quasi Contracts 205HKk3 k. Unjust Enrich:nent. Most Cited Cases Candidate's allegations that opponent boughr votes, 020/033 Page 4 of 15 Page 3 that he reaped benefits of office of circuit clerk to which he was not lawfully elected, and that oppon- ent was nol entitled to salary and benefits of office, did not state claim for unjust enrichment, since can- didate who lost to opposing party was not payor of salary and benefits. U1] Action 13 E23 13 Action 131 Grounds and Conditions Precedent 13k3_ k, Statutory Rights of Action. Most Cited Cuses Elections 144 €=7269 144 Elections 144% Contests 144k269 k, Nature and Form of Remedy. Most Cited Cases Public policy in favor of ftve and fair clections without undue influence did not create private cause of action against opponent in clection for of- fice of circuit clerk wha was subsequently con- victed of buying votes; rather, appropriatc alternat- ive remedies were available, namely, criminal pro- secution and lection contest. West's Amn. W.Va.Code, 3-7-6, 3-8-11. [12] Damages 115 €=>184 115 Damages 151K Evidence 113k185 Weight and Sufficiency 113k 184 k. In General. Most Cited Cases The general rule with regard to preof of damages is that such proof cannot be sustained by mere specu- lation or conjecture. *68 Syllahus by the Court 1. “The trial courl, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, shonid not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support af his claim which would entitle him to re- lief. Contey y, Gibson, 355 US. 41, 45-46, 78 S.CL © 2010 Thomson Reuters, No Claim to Orig. US Gov. Works. http://veb2. westlaw.com/print/printstream aspx ?prft=IIT MLE &ifiy-NotSet&destination=atp&sv... 1/27/2010Virerse01u http:/Aveb2, westiaw.com/pri nt/printstream.aspx 2prft-HTMLE&ilin-N, 16°42 Fax 680 S.F.2d 66 224 W.Va, 31, 680 S.E.2d 66 (Cite as: 224 W.Va. 51, 680 S.E.2d 66) 99, 2 Lda ga (1957).” Syllabus Point 3, Chap- man v. Kane Transfer Co, Inc., 160 W.Va, 530, 236 $.E.2d 207 (1977). 2. “Appellate review of a circuit coun's order Bran ing a mation to dismiss a complaint is de nave, ° Syllabus Point 2, State & rel. McGraw v. Seon Runyan Pontiac-Buyick. ine, 194 Wa, 720, 461 S.B.2d S16 (1995). 4." ‘The general Tule with regard to Proof of dum- ages ix that such Proof cannot be sustained by mere Larry G. Kopelman, Esq. Kopelman & Associates. Le, Charleston, WV, fur Appellant. Robert B. Allen, Esq., Stephanie D. Thacker, Lsq., Allen Guthrie & ‘Thomas, PLLC, Charleston, WY, for Appelles. PER CURIAM: This case is before this Court upon appeal of a flnal order of the Cireuit Court of Lincoln County éntered on Oetober 1, 2007, dismissing g complaint filed by the appellant and plaintiff below, Terry TU. against the appellee and defendant below, Bo21/093 Page $ of 15 Page 4 fore it the petition for appeal, the entire record, and the briefs and argument of counsel. Vor the reasoas Set forth below, the Final order is affirmed. *691, FACTS During the 1996 general election for the Office of Circuit Cletk of Lincoln County, Mr. Hill and Mr. Stowers conducted write-in campaigns. Mr. Stowers was the Meumbent because he had been appointed to fill the office several months earlier when the former circuit clerk, Shirley Mullins, re- tired and with from the election ag the Demo- cral nomines.*? Mr Stowers was declared the winner in the 1996 election with a margin of vic- tory of approximately 600 yotes. Me. Hill did not contest the election. Mr. Stowers Was re-elected in © 2010 Thomson Reuters. No Claim io Orig. US Gov. Works. otSet&destination—atp&sy... 1/27/2010O1/27/2040 16:92 FAX 680 S.E.2d 66 224 W.Va. 51, 680 S.E.2d 66 (Cite as: 224 W.Va. St, 680 S.E.2d 66) FN2. There was no Republican nominee. FN3. It appears that Mr. Hill did nat seek the office in 2000 or 2004. On December 29, 2005, Mr. Stowers pled guitry in the United States District Court for the Southem Diswict of West Virginia to one count of buying votes '™' in connection with the May 2004 primary election in Lincoln County. He was scn- tenced ta six months in prison. Thereafter, on June 5, 2006, Mr. Hill filed this lawsuit against Mr. Stowers alleging that Mr. Stowers won the 1996 election because of unlawful volc-huying. In partic- ular, the complaint alleged that FN4, Mr, Stowers pled guilty to violating 18 U.S.C. § $97 (1996) (2006 ed.) which Provides: Whoever makes or offers to make an ¢x- pendilure to any person, either to vole or withhold bls yotc, or to vote for or against any candidate; and Whoever solicits, accepts, or receives any such cxpenditure in considcration of his vote or the withholding of his vote Shall be fined under this title or im- prisoned not morc than one year, or both; and if the violation was willful, shall be fined under this tile or im- prisoned not more than two years, or both. [o]a or about May 4, 2005, defendant Gregory B. Stowers and others, were indicted by a federal grand jury pursuant to a Second Superseding In- dictment alleging that defendant Gregory B. Stowers knowingly conspired and widertook ac- tions of knowing and willfully paying and offer- ing w pay voters in Lincoln County for voling in various clections since the Spring of 1990 includ- ing but nol limited to the general election of 1996 for the office of Clerk of the Cireuit Court of Lin- coln Coumly- 022/033 Page 6 of 15 Page 5 Mr. Hill asserted that Mr. Stowers had violated his constitutional right to run for and hold public of- fice: that Mr. Stowers had violated statutory law in West Virginia pertaining to the administration of elections; that Mr. Stowers had been unjustly enriched and had improperly bencfitted from the compensation, bencfits, and emoluments of of fice; and that Mr. Stowers had violated substan- iat public policy in West Virginia pertaining to free and fair elections. Mr. Hill sought compens- alory damages, punitive damages, and attorney's fees and costs, After the complaint was filed, Mr. Uill moved to disqualify the Honorable Jay M. Hoke as the presiding circuit court judge in this matter, Judge Ioke declined to voluntarily disqualify himscl!. The Chief Justice of this Court then refuscd the mo- tion to disqualify on three separate occasions. Thereafter, by order entered on Octoher 1. 2007, the circuit court dismissed Mr. Hill's complaint pur- suant to Rule 12(6)(6) of the West Virginia Rules of Civil Procedure. 'This appeal followed, 1 STANDARD OF REVIEW FII[BISIL4 As set forth above, the circuit court dis- imissed Mr. TTll’s complaint pursuant to Rule 12(b\(6) of the West Virginia Rules of Civil Pro- cedure" This Court has explained that “[t]he purpose of a mation under Rule 12(bX6) of the West Virginia Rules of Civil Procedure ig to test the sufficiency of the complaint, A trial court consider- ing a motion to dismiss under Rule 12(b\6) must liberally construe the complaint so as to do *70 substantial justice.” Cantey v. Lincoln County Comm'n, 221 W.Va. 468, 470, 655 $,b.2d 490, 492 (2007). “Since the preference is to decide cuscs on their merits, courts presented with a motion 10 dis- miss for failure to state a claim construe the com- plaint in the light most favorable to the plaintiff, taking all allegations as true.” Sedtack v. Moyle, © 2010 Thomson Reuters. No Claim to Orig. US Gov, Works. http://web2. westlaw.com/print/printstream aspx ?prit=H TMT Féifin=NotSet&destination=atp&sv,,, 1/27/2010O1f27/2010 16:32 FAX 680 S.E.2d 66 224 W.Va. $1, 680 S.6,2d 66 (Cite as: 224 W.Va. 51, 680 S.E.2d 66) 222 W.Va. 547, 550, 668 S.E.2d 176, 179 (2008). Therefore, “[t]he tial court, in appraising the suffi- siency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond duubt thar the plaintiff can prove no set of fucts in support of his claim which would entille him to relief. Conley v. Gibsun, 355 U.S. 41, 45-46, 78 S.Ct 99, 2 LEd.2d 80 (1957)” SyNabus Point 3, Chapmun v. Kane Iransfer Co, ine, 160 W.Va. 530, 236 $.L.2d 207 (1977). This Court's review of a cireuit court's dismissal of a complaint pursuant To Ruis 12(bK6) is plenary. In other wards, “{alppellate review of a circuit court's order grant- ing a thotion to dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Sevit dtunyan Puntiac-Buick, tne. 194 W.Va. 770, 461 S.E.2d 516 (1995). FNS. Rule 12(bX6) of the West Virginia Rules of Civil Procedure provides, in per- lincnt part: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-paity clair, shail be asserted in the responsive pleading thereto if one is re- quired, except that the following de- fenses may at the option of the pleader be made by motion ... (6) failure to state a claim upon which relief can be gran- ted{.] WL DISCUSSION Mr. Hill's complaint sets forth four separate claims against Mr, Stowers. Each clain will be discussed, in wun, below. A. Constitutional Claim [5] Mr. Hill first contends that the circuit court 023/033 Page 7 of 15 Page 6 erred by finding that he does not have a valid state constilutional claim against Mr. Stowers. Based bpon this Court's decision in State ex rel. Billings v. The City of Maint Pleasunt, 194 W.Va. 301, 460 8.F.2d 436 (1995), Mr. Hill argues that he hud a fundamental constitutional right to run for political office in a free and unrestricted electoral process, Essentially, Mr. Hill maintains that Mr. Stowers destroyed the frec, lawful, and open electoral pro- cess in Lincoln County for many years by buying votes and interfered with his right to run for the of- fice of circuit clerk in an unfeucred election. Thus, Mr. Hill reasons that Mr. Stowers's actions give rise to a slate constitutional claim which this Court must recognize and protect. Tn Syllabus Point 2 of Billings, this Court held that “[the West Virginia Constitution confers a funda- mental right to run for public office, which the State cannot restrict unless the restriction Is neces« sary to accomplish a legitimate and compelling governmental interest.” In that case, Brian Billings brought an original mandamus proceeding in this Court challenging the constitutionally of W. Va.Code § 3-5-7(b)(6) (1991), which provided that a candidate for public office must file with a desig- nated clerk a “certificate of announcement” that in- cluded the name of the candidate's political party and a statement verifying that the candidate “ ‘has not been registered as a voter affiliated wilh any other political party for a period of sixty days be- fore the day of filing the announcement.’ * 194 W.Va. at 302, 460 S.F.2d at 437 (quoting Ww. Va.Cade § 3-5-7(b)(6)). Mr. Billings sought to be- come a candidate tor the office of councilman- at-large in the City of Point Pleasant. During the samc month that he filed his certificale of an- founcement, Mr. Billings changed his party affili- ation from Republican to Democrat and, thus, failed to comply with W. Va.Code § 3-5-7(bX6). The Chairman of the Point Pleasant City Republican Executlve Committee filed a complaint with the City Clerk seeking to remove Mr. Billings from the ballot. Anticipating that his name was going to be removed from the ballot, Mr. Billings petitioned © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. htip:/Aveb2_wostlaw.com/print/printstream -aspx peli ITMLU&ifm-NotSet&destination=atp&sv... 1/27/201001/27/2010 16:33 FAX 680 S.E.2d 66 224 W.Va. 51, 680 S.B.2d 66 (Cite as: 224 W.Va, 51, 680 S.E.2d 66) this Court for a writ of mandamus and challenged the constitutionality of the statute. Our decision in Biliags simply addressed the issue of whether a person has an absolute right to be placed upon the ballot as a candidate for public of- fice and whether in certain circumstances, the State can restrict that right, This Court ultimately held: The provision in W.Va.Code, 3-5-7(0\(6) (1991), which effectively disqualifies from running for political odfice individuals who change their Political party affiliation within sixty days of fil- ing their announcements of candidacy, is neces- sary to accomplish the compelling governmental interest in preserving the integrity of the political process, promoting party stability, and *71 avoid- ing voter confusion. ‘The provision, therefore, does not violaie either the fundamental right of candidacy or the right to change political party affitiations, Syllabus Point 4. Biffings. Unlike Mr. Billings, Mr. Hill did have access to the ballot. Both he and Mr. Stowers conducted write-in campaigns. Thus, the decision in Aidiqyy does not support Mr. Hill's ar gument that he has a “constitutional claim” against Mr. Stowers. While this Court recognized in Billings that our State Constitution confers a funda- mental right to nin for public office, the decision does nat provide the basis for a private cause of ac- tion for monctary damages by a losing candidate in an election tor public office even in simations in- volving alleged fraud ‘The facts and circumstances of the instant case arc more analogous to those in Shields v. Booles. 238 Ky. 673, 38 $.W.2d 677 (1931), In that case, B.F. Shields sucd W.W. Booles after he lost the 1929 Democratic primary cleclion for State Senator in the ‘Twentieth Senatorial Disirict in Kentucky. Mr. Shields alleged that Mr. Booles, who was awarded the certificate of nomination, and bis campaign manager culered into a conspiracy with other uns known persons to procure large sums of money to be used in circulating false, malicious, and scandal- 024/033 Page 8 of 15 Page 7 ous statements conceming Mr. Shields in order to bring about his defeat and secure the nomination for Mr. Booles, Mr. Shields also allezed that some of the money was used to bribe voters, Mr. Shields sought to recover $5,000.00 for compensatory dam- ages and $20,000.00 for puniive damages. He nev- cr contested Mr. Booles's nomination. With regard to the allegations concerning the bribery of voters, the Kentucky court found that no causc of action for damages was manifested. The court explained that {i]t is not an actionable injury to the character, per- som, or property of a candidate [or office for his adversary to bribe voters, It is an offense to be re- dressed in a prosecution by the commonwealth, or in a contest of the nomination where the wrongdoer may be deprived of the fruits of his wrong. {Al candidate is not the injured party, or within the purpose ofr] purvicw of the remedy allowed a voter for being deprived wrongfully of his right ta votc. Nor was the right of appellant to be a candidate in the primary infringed or affected, That right was fully enjoyed by the appellant. A violation of his right to receive any votes that might have been cast for him but for the wrongful interference of appellees did not result in any in- jury to his character, person, or property thal could be the subject of a suit for damages. The temedy for wrongs of that character, if curried ta an extent that affected the result of the election, was for the unsuccessful candidate to institute a contest, where he could pratect his own rights, and vindicate the rights of the public as well. His abstract right to be elected was conditioned upon his ability to get a majority of the votes, 238 Ky. at ~--, 38 $.W.2d at 679-80. Like the Kentucky court, we find that tho remedy for Mr. Stowers's violations of law lies in criminal © 2010 Thomson Reuters, No Claim to Orig. US Gov. Works. hitp://web2.westlaw.cony/print/printstream.aspx?prit=HTMI.Ré&ifm—NotSetédestination=atp&sv... 1/27/201001/27/2010 16:33 FAX 680 S.B.2d 66 224 W.Va. 51, 680 S.E.2d 66 (Cite as: 224 W.Va. 51, 680 S.E.2d 66) Prosecution, and the remedy for a candidate such as Mr. TTill is the right to contest the clection in the manner provided by the Constitution and state stat- ules. in that regard, Article 'V, Section 1] of the Constitution of West Virginia provides: The legislature shall preseribe the manner of con- ducting and making retums of elections, and of determining contested élections; and shall pass such laws as may be necessary and proper to pre- vent intimidation, disorder or violence at the polls, and corruption or fraud in voting, counting the voic, ascertaining or deélaring the result, or fraud in any manner, upon the ballot. Pursuant to this constiwutional provision, our Legis- lature enacted Chapter 3 of the West Virginia Code, known as the “West Virginia Election Code,” which, inter alia, sets forth the process for contest- ing the results of an election. W.Va.Code $§ 3-1-1 to 3-1-6 (Repl. Vol. 2006 & Supp. 2008), There- fore, as a candidate for public office, Mr, Hill could have filed an election contest, There is simply no legal basis for Mr. Hill's contention that the West Virginia Constitution allows him to pursue a private cause of action for #72 damages against Mr. Stowers, Mr. Hili did not suffer an injury 10