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Court rules that W.Va. official can't take office

May 14, 1997

By DAVE McMILLION

Staff Writer, Martinsburg

MARTINSBURG, W.Va. - The West Virginia Supreme Court ruled Tuesday that a Republican elected to the Berkeley County Commission cannot serve on the government body because he was elected from the magisterial district from which another magistrate had been elected.

The state constitution says only one commissioner can represent a given magisterial district, according to the Supreme Court.

The ruling means that Republican Howard Strauss cannot serve on the commission and the open seat will be turned over to Democrat Robert L. Burkhart, who lost to Strauss by 157 votes in November's election.

"I'm surprised the court would overrule the people," said Strauss. "To me, it's purely political."

Strauss said the all-Democratic Supreme Court made the decision in order to put a Democrat on the commission. "This is the height of crooked politics in West Virginia," Strauss said. "The public has no reason to vote in future elections when the justices can hand pick their chosen elected officials."

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Burkhart, on the other hand, said he always was convinced that he would prevail in the case.

"They ruled the way the law is written," said Burkart. "I'm very pleased, of course."

Chief Justice Margaret Workman said she could not comment because the case could come before the court for another hearing. "We have to speak through our opinions," said Workman.

The court said it will issue a detailed opinion later. Its ruling came in a unanimous, unsigned order.

The court directed a circuit judge to declare Strauss ineligible and that Burkhart is entitled to the seat. The incumbent had not sought re-election.

Special Judge Ronald Wilson on Tuesday gave Strauss 14 days to ask the Supreme Court to reconsider. If it does not, he will enter an order declaring the seat belongs to Burkhart, said Burkart's attorney, Ancil Ramey.

The Supreme Court said Strauss is ineligible to serve on the commission because he ran from the Norborne Magisterial District, said court spokeswoman Pat Wendell. Commissioner D. Wayne Dunham had already been elected from Norborne Magisterial District, the high court said.

Strauss argued that there was nothing wrong with his candidacy because by the time he filed to run for office on Jan. 16 last year, Dunham had moved into the Valley Magisterial District.

Ramey said the court's ruling means it does not matter where someone lives when they serve, but where they live when they are elected.

County officials said they had never witnessed such a case.

Although Strauss won the election, he could not vote or receive a salary. Both Strauss and Burkhart have been attending the commission's regular meetings, but they sat in the audience section.

The case was in the courts for months, and Strauss said he racked up more than $10,000 in legal fees to protect a seat that pays $27,500 a year. Burkhart said he did not know how much he spent in legal fees.

The Associated Press contributed to this story.

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