The Clay Commission is holding a special meeting today to consider a lawsuit filed against them by attorney Barbara
Harmon-Schamberger, over the hiring of Daniel Grindo as the new prosecuting attorney.
Plaintiff Schamberger states in her lawsuit she is not asking for money, but requiring the Commission to adhere to the State
Code. The suit has five counts, contending violations of the code.
Schamberger contends Grindo, a Braxton County native, did not register as a Democrat until shortly before being appointed
by the Clay Commission, violating a 60-day window. The suit alleges that Grindo remained an employee of the Court while
campaigning for the Prosecutor's position.
Also at issue are time frames in the code regarding the holding of an election for the vacant position after Prosecutor Jeff
Davis resigned, and laws which were violated by outgoing commissioner Tim Butcher
Harmon-Schamberger, who was a Rhodes Scholar and a former Secretary of Arts and Education under Governor
Caperton, is no stranger to issues taken to the West Virginia Supreme Court. She lives in Clay County.
None of the county's attorneys can represent the Commission because they have either been involved in suits by the county,
applied for the prosecutor's position themselves, or have other conflict of interest.
Here is a text of the suit against Prosecutor Grindo and the Clay Commission:
BARBARA A. SCHAMBERGER
Plaintiff
Vs . Civil Action No. 02-C- ___
THE CLAY COUNTY COMMISSION,
And
THE HON. DANIEL GRINDO,
Prosecuting Attorney of Clay County,
Respondents
COMPLAINT AND PETITION
FOR WRIT OF MANDAMUS
WRIT OF PROHIBITION, WRIT OF INJUNCTION,
WRIT OF ERROR AND MOTION THERFORE
Comes now the Petitioner, Barbara Harmon-Schamberger, Pro Se, before this Honorable Court with a Petition for
Injunction, Writ of Mandamus or in the alternative Writ of Prohibition, Writ of Error and such other action as is necessary to
correct the violations of the law as Petitioner believes have been committed by the Clay County Commission and the Clay
County Prosecutor, Daniel Grindo, and says as follows in support thereof:
STATEMENT OF FACTS
That Barbara Harmon-Schamberger is a resident of Clay County West Virginia and has been such for nearly ten years.
That Jeff A. Davis was elected Prosecuting Attorney in the General Election of 2000, having run unopposed on the
Democrat ticket, and that subsequently, Mr. Davis took office and held the same.
In May of 2002 there was held a primary election in which Mr. Timothy Butcher was defeated for re-election as the
Democrat Candidate for a seat on the Clay County Commission, that position instead having been won by Mr. Peter Triplett.
That on or about the later part of August 2002, Jeff A. Davis, for various personal reasons, informed his staff and others in
the Clay County Courthouse that he was considering resigning.
That on or about the 5th day of September 2002, Daniel Grindo, a recent graduate from law school and clerk to the 14th
Judicial Circuit changed his party affiliation from Republican to Democrat.
That for a time thereafter, Mr. Davis inquired into various other legal opportunities and on or about the middle of September
through October of 2002, Mr. Davis pursued such opportunities.
Contemporaneous, to these events, but obviously unrelated, was held the General Election of 2002, in which Mr. Peter
Triplett, Democrat, was elected to the Clay County Commission over the Republican challenger, Mr. Ronnie Haynes.
Subsequently, on or about early November 2002, Mr. Davis determined, for personal reasons, that he would be resigning
from the Prosecutor's Office and turned in such resignation to the County Commission on Monday the 25th day of
November 2002.
Mr. Davis made his resignation effective for the 31st day of December 2002.
The County Commission that received Mr. Davis' resignation was comprised of Mr. Matthew Bragg, President, Mr. James
Sams, and the outgoing Commissioner Mr. Timothy Butcher whose term expired at midnight, the 31st day of December
2002.
On the 4th day of December 2002 the Clay County Commission accepted Mr. Davis' resignation and announced that they
would conduct interviews for the position on the 12th day of December 2002, during their regularly scheduled meeting.
On the 12th day of December 2002, the Clay County Commission, upon information and belief interviewed, in no particular
order, the following applicants: Mr. Dan Dotson, Democrat, with approximately ten years experience as a prosecutor; Mr.
Matthew Minney, Democrat, Circuit and Supreme Court Clerk, graduated from law school approximately 2001; Mr.
Wayne King, Democrat, former elected prosecutor of Clay County and former acting prosecutor of Clay County with 31
years experience at the bar; Mr. Hiram Lewis, Republican, experienced attorney of indeterminate years; the Plaintiff, Ms.
Schamberger, Democrat, 1991 law school graduate, Assistant Prosecuting Attorney of Clay County, and de facto
prosecuting attorney of Clay County during periods of time in which Mr. Davis was under a disability; and Mr. Daniel
Grindo, 2002 law school graduate, and then current 2002, 14th Judicial Circuit Clerk.
That further, of the applicants, at least one gentleman was over forty years old and possessed of approximately 31 years of
experience in the legal profession. That at least one applicant, the Plaintiff, was over 40, female, a racial minority and
disabled within the meaning ascribed to disability by the Americans With Disabilities Act and the West Virginia Human Rights
Act.
After concluding interviews of the candidates at approximately 2:00 P.M. the Commission broke for executive session then
reconvened at approximately 2:30 P.M. In a two to one vote the Clay County Commission appointed Mr. Grindo as
Prosecuting Attorney of Clay County, West Virginia.
On the 30th day of December 2002 Judge Jack Alsop swore into office as prosecuting attorney Mr. Daniel Grindo.
At midnight on the 31st day of December Mr. Jeff A. Davis' resignation became effective and Mr. Tim Butcher's term as
County Commissioner concluded.
From these facts this complaint ensues.
COUNT ONE
That Daniel Grindo is not of the same party as the outgoing office-holder, for purposes of §§3-5-7 and 3-10-8 of the Code
of West Virginia of 1931 as amended. That Chapter 3, Article 5, Section 7(b)(6) of the Code provides that "[f]or partisan
elections, the name of the candidate's political party, and a statement that the candidate is a member of and affiliated with that
political party as is evidenced by the candidate's current registration as a voter affiliated with that party, and that the
candidate has not been registered as a voter affiliated with any other political party for a period of sixty days before the date
of filing the announcement [of candidacy for election]." Further, that Chapter 3, Article 10, Section 8 of the Code of West
Virginia provides that "[a]ny vacancy occurring in the office of prosecuting attorney, Sheriff, assessor, or county survey shall
be filed by the county commission by appointment of a person of the same political party as the office holder vacating the
office. . . ." That the purposes of such requirements are to accomplish a compelling governmental interest in preserving the
integrity of the political process, promoting party stability and avoiding voter confusion. State ex rel. Billings v. City of Point
Pleasant, 194 W.Va. 301, 460 S.E.2d 436 (W.Va. 1995). In less elegant terms, it is to assure that the electorate is not
defrauded of its elected party choice by scoundrels or those who would aid in such subterfuge.
In the instant case, in violation of the Chapter 3, Article 5, Section 7, and Chapter 3, Article 10, Section 8, the Clay County
Commission appointed one Daniel Grindo, a Republican, to a seat held by a Democrat, one Jeff A. Davis, and that Daniel
Grindo's change of party affiliation on the 5th day of September 2002, was an act of opportunism designed to enable him to
take advantage of the anticipated resignation of Jeff A. Davis, and does not reflect a good faith party affiliation with the
Democrat Party of West Virginia, and therefore works a fraud upon the voters of Clay County who elected a Democrat to
office. That further, the genuineness or good faith of Mr. Grindo's party affiliation is of paramount issue inasmuch because
this appointment:
Is for a Constitutional Office, independently administered and reflective of the philosophy of the office holder;
Is unvetted by the scrutiny, debate and freedom of an election;
Is not merely for membership on an inferior board or tribunal where such appointment would be subject to the advise and
consent, and confirmation by the duly elected members of the West Virginia State Senate Confirmations Committee and
voted on by the full Senate;
Is not supervised by any other elected Democrat Public Official.
Therefore, the appointment by the Clay County Commission, of Daniel Grindo, a Republican, whose change of party
affiliation to Democrat does not appear to be in good faith, violates the purpose and intent of Chapter 3, Article 5, Section 7
and Chapter 3, Article 10, Section 8, the Code of West Virginia, 1931 as amended should be enjoined.
COUNT TWO
That the Clay County Commission, specifically Timothy Butcher, had no authority to appoint Daniel Grindo to the position
of Clay County Prosecutor in as much as Timothy Butcher's term expired, December 31st 2002, prior to the existence of the
vacancy in the office of the prosecuting attorney's office, on January 1st 2003. Timothy Butcher's vote was one of only two
votes to appoint Mr. Grindo. Since one of the two votes for Mr. Grindo was cast by Mr. Butcher, whose term expired prior
to office of the Prosecuting Attorney becoming vacant, such vote should not be counted. Succinctly put, because the
vacancy actually arose after Mr. Butcher's term of office expired, the premature appointment of Mr. Grindo to the office of
Prosecuting Attorney is void because Mr. Butcher lacked the authority to appoint someone after his term of office had
expired.
Moreover, it was error to have allowed Mr. Butcher to participate in the vote determining the filing of a vacancy that was to
take place after Mr. Butcher was no longer in office. Such vote should not have been held until the term of the incoming
commissioner, Mr. Peter Triplett. That neither a crisis nor emergency existed nor would have been created by a delay in
appointing a prosecuting attorney which would justify Mr. Butcher illegally voting to fill a vacancy that arose outside his term
of office. The outgoing assistant prosecuting attorney could have remained until an appointment was made or matters
continued on the various court calendars or a temporary substitute could have been provided by the Prosecuting Attorney's
Institute. Therefore, a writ of prohibition should lie against the Clay County Commission preventing them from using the vote
of Tim Butcher to determine the outcome of appointment for prosecutor of Clay County, and an injunction should lie against
the Daniel Grindo prohibiting him from taking office on the result of an illegal vote.
COUNT THREE
That Daniel Grindo, as an employee of the Judicial Branch of the State of West Virginia was prohibited by law from
campaigning for, and running for, as well as applying for a position as a constitutional officer in one of the other two branches
of government without first resigning his position, and, that having failed to do so, he has undermined the separation of
powers intended by the framers of the Constitution, brought into disrepute the 14th judicial circuit and therefore should be
prohibited from retaining his illegally obtained employment as a constitutional officer in the executive branch of government, to
wit, the Prosecuting Attorney of Clay County. State ex rel. Carenbauer v. Hechler, 208 W.Va. 584, 542 S.E.2d 405
(W.Va. 2000), West Virginia Constitution Art. 8, §7. Mr. Grindo campaigned throughout the courthouse of Clay County
describing to Your Plaintiff his excursions through out the building as "meet and greet" sessions. That after the Clay County
Commission meeting of the 4th day of December 2002, Mr. Daniel Grindo, without invitation to be on the agenda or other
purpose, came to the meeting and, upon inquiry by Your Plaintiff, informed her that he was there to "meet and greet", and
proceeded to shake hands and be introduced as a "candidate" for Prosecuting Attorney. That throughout this period, Mr.
Grindo was also the judicial clerk for the 14th Judicial Circuit, and that he continued to participate fully in decisions before
the Court, sitting in hearings, drafting memoranda, particularly with regard to abuse and neglect matters before the Court.
That neither he nor the Court made any attempt to sequester or "Chinese wall" off Mr. Grindo from proceedings involving
the Office of the Prosecuting Attorney. That Mr. Grindo used his position as a judicial clerk to improve his access to his
prospective employers and thereby used his judicial office for personal gain. Therefore, Daniel Grindo, having been an
employee of the Judicial Branch of the State of West Virginia and campaigning for and applying for a position as a
constitutional officer in the executive branch, without first resigning his position, and, that having failed to do so, undermined
the separation of powers intended by the framers of the Constitution, created the appearance of impropriety within the Clay
County Judicial system and brought into disrepute the 14th judicial circuit, should be prohibited from retaining his illegally
obtained position as a constitutional officer in the executive branch of government, to wit, the Prosecuting Attorney of Clay
County, and prohibited from irreparably damaging the Petitioner, as well as all Clay Countians and the public treasury of
Clay County by drawing pay and other benefits from his illegally obtained position.
COUNT FOUR
That the Clay County Commission, in a vote taken on the 27th day of December 2002, in violation of Chapter 3, Section
10, Article 8 of the Code of West Virginia, 1931 as amended has refused to hold an election to fill the vacancy created by
the resignation of Jeff A. Davis as Prosecuting Attorney. That such statutory language provides: "Such vacancy shall be filled
by election for the unexpired term if the unexpired term is greater than one year." That the Petitioner, as well as all Clay
Countians are damaged by the County Commission's refusal to abide by due process of law and the plain language of the
Code and therefore a Writ of Mandamus should lie against the Clay County Commission to require the Commission and its
Clerk to take such actions as are necessary to hold timely an election for the vacancy created by the resignation of Jeff A.
Davis, Prosecuting Attorney of Clay County, West Virginia.
COUNT FIVE
That, in the alternative, the Clay County Commission, by conducting interviews, receiving resumes, and interviewing known
non-Democrats for the position of prosecuting attorney, were seeking to employ instead of appoint a person to serve as a
prosecuting attorney, and that result of such employment practices violated Chapter 5, Article 11, Section 1 et seq. of the
Code of West Virginia, 1931, as amended. That the Clay County Commission is an "employer" as defined by Chapter 5,
Article 11, Section 3(d) of the Code of West Virginia, 1931 as amended.
That further, the Clay County Commission is in receipt of federal and state funds through various programs including, but not
limited to, welfare to work programs, and other forms of assistance for rural communities. That the Office of the Prosecuting
Attorney is in receipt of federal and state funds inasmuch as it has employed summer college students on federally funded
work programs, and participants in welfare to work and other talent building publicly funded programs. That the Clay County
Commission, in hiring Daniel Grindo, as its employee to serve as prosecuting attorney engaged in "unlawful discriminatory
practices" as defined by Chapter 5, Article 11, Section 3 and Chapter 5 Article 11, Section 9 of the Code of West Virginia,
1931 as amended. That Daniel Grindo was the least qualified candidate of all candidates interviewed.
That unlike the majority, if not all the other candidates interviewed, Daniel Grindo had never tried a case nor had any
prosecutorial experience and possessed his law license for less than three or four months when hired. That among the
candidates in the protected classes were, at least, but not necessarily limited to, two persons in protected classes: a man over
the age of 40 with over 31 years of litigation and elected prosecutorial experience and a woman over the age of forty, with
ten years of civil and criminal practice, graduate of the University of Virginia, Law Review, Rhodes Scholar, Secretary of
Education and the Arts, Deputy Commissioner of Securities for the State of West Virginia, General Counsel House
Education Chairman. The woman is also hearing impaired, has specific learning disabilities and is a racial minority. That the
Clay County Commission for no apparent reason discriminated against the over forty year old man and over forty year old
woman and chose a person far less qualified than either person in the protected class and that the less qualified person is not
in the protected class. That being an employer in violation of Chapter 5, Article 11, Section 1, et seq., a writ of prohibition
and injunction should lie against the Clay County Commission prohibiting them from hiring and continuing in their employ
Daniel Grindo, a person not in the protected class and not better or equally qualified than either the over-forty male or
over-forty female who applied for and were interviewed for the position of employee with the Clay County Commission, and
that Your Plaintiff as the over-forty, disabled, minority, female has been harmed, as have all citizens of Clay County, by the
acts of the Clay County Commission.
PRAYER FOR RELIEF and MOTION OF THE PETITIONER:
NOW THEREFORE Petitioner PRAYS and MOVES that this Honorable Court will find and order as follows:
That the Clay County Commission be enjoined or a Writ of Prohibition lie so against for erroneously employing a Republican
to fill the unexpired term and vacancy of the office of Prosecuting Attorney held by Jeff A. Davis, a Democrat.
That Daniel Grindo, a Republican, be enjoined or a Writ of Prohibition lie against Daniel Grindo for attempting to fill the
unexpired term and vacancy of the office of Prosecuting Attorney held by Jeff A. Davis, a Democrat.
That the Clay County Commission be prohibited from exercising its appointment of Daniel Grindo, to the unexpired term and
vacancy in the office of Prosecuting Attorney, because such appointment was made and dependent upon the vote of Timothy
Butcher whose term of office had expired prior to the existence of the vacancy.
That a Writ of Prohibition, and in the alternative injunction, lie against Daniel Grindo, and that he should be enjoined from
holding the unexpired term and vacancy for the office of Prosecuting Attorney because the term of one of the
Commissioners voting for his appointment expired prior to the occurrence of the vacancy.
That a Writ of Prohibition and in the alternative injunction lie against Daniel Grindo, barring him from holding the executive
office of Prosecuting Attorney, for campaigning for and obtaining the executive office of Prosecuting Attorney while serving
as an employee of the Judicial System in violation of the law and of the Constitution of the State of West Virginia.
That a Writ of Mandamus lie against the Clay County Commission requiring the Clay County Commission to hold an election
for the vacancy and unexpired term of the office of Prosecuting Attorney as required by the Code of West Virginia.
That the Clay County Commission be enjoined, or a Writ of Prohibition lie, prohibiting the Clay County Commission from
continuing in its employ Daniel Grindo in violation of Chapter 5, Article 11, Section 1 et seq. of the Code of West Virginia,
1931 as amended.
That Barbara Harmon-Schamberger be awarded the costs of this prosecution, specifically, court costs, filing fees, witness
fees, transportation, transcripts, court reporters fees, fees for depositions if any, production of exhibits, photocopying, FOIA
requests and such costs associated therewith, and all other costs associated with this action, but not attorney fees in any
proceedings in the Circuit Court of Clay or any other County associated with this action, but Barbara Harmon-Schamberger
hereby reserves the right to request an award of attorney fees should this matter proceed to appellate review or be remanded
back to the 14th judicial circuit or any other circuit, for action not inconsistent with any opinion of the West Virginia
Supreme Court of Appeals.
Respectfully submitted,
BARBARA HARMON-SCHAMBERGER
Pro Se
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