One plaintiff drops out of election lawsuit

A lawsuit over the recent primary election in Whitley County saw a circuit judge agree to dismiss one person as a plaintiff and another as a defendant before he announced he would be recusing himself from making any further rulings in the case.
Court documents filed in the case recently also leave open the question of whether additional people may be named to the lawsuit as either defendants or plaintiffs.
Dewayne Bunch, Linda Chinn Schutz, Evelyn McCullah, Ronnie Faulkner, Will Leach, James Privett, and Arnold Young all signed the petition filed May 26 in Whitley Circuit Court.
“Wherefore plaintiffs pray that the election results be deemed incorrect and also for a re-election with unbiased parties overseeing the re-election in its entirety,” the lawsuit states.
The three-page lawsuit names as defendants, the Kentucky State Board of Elections, Whitley County Board of Elections, Charlie Siler, Gary Barton, Pat White Jr., Lawrence Hodge, Ken Mobley, Troy Sharp, and other unknown defendants.
Whitley County Clerk Tom Rains, who is chairman of the county’s board of election, declined to comment on the suit because it is still pending litigation.
Paul Croley, an attorney for former circuit court clerk candidate Linda Chinn Schutz, filed a motion May 31 asking for an order that would allow her to voluntarily dismiss “all claims made by her against each of the defendants in the foregoing action.”
“I think that after reviewing the facts and circumstances of the election – the way that the process would work as far as the challenge goes – it was just her personal decision that it would be in her own best interest to withdraw from the lawsuit,” Croley said.
Circuit Judge Jerry Winchester also agreed to grant that request by Pat White Jr. to have the case against him dismissed after none of the other attorneys in the case objected to the request.
Winchester then told attorneys for both sides that he would be recusing himself from hearing the case since he knows several parties in the case and wants to avoid the appearance of any impropriety.
Chief Regional Judge Roderick Messer will appoint a special judge to hear the matter.
Monday morning, Corbin attorney Lee Gilbert entered his appearance as an attorney representing several plaintiffs in the case, including Bunch, McCullah, Faulkner, Leach, Young, H.D. Moses, and Mark C. Lawson.
Lawson ran unsuccessfully for county clerk, but did not sign the petition along with the other seven candidates who filed it initially. Moses ran unsuccessfully for sheriff, and while his named appeared on the first page of the three-page petition, he did not sign it.
Gilbert also filed two summonses with the clerk’s office Monday afternoon in the case, including one for Kay Smith Schwartz, who was the winning candidate in the Republican primary for county clerk.
The summons noted that a legal action had been filed against Schwartz. She is not listed as a named defendant in the lawsuit, which does name other “unknown defendants.”
Gilbert, who was retained to represent the plaintiffs over the weekend, declined to comment publicly on the case Monday morning.

Responses filed
White, who is an attorney and represented himself, filed an answer to the complaint and a motion to dismiss him as a defendant on June 2.
In his court filings, White quotes state statutes and prior court rulings that call into question whether the petition allegations could now be amended, whether additional people could now be named to the lawsuit as either defendants or plaintiffs, and who in the lawsuit would have a legal standing to even bring court action.
“The usual rule for litigation is to freely allow amendments to correct defects in lawsuits,” White wrote in his motion to dismiss. “However, this is not the rule when dealing with election challenges. KRS 120.055 provides, ‘No ground of contest by either party shall be filed or made more definite by amendment after the expiration of time allowed by this section for filing the original pleading.’
“The break from the usual rule of freely allowing amendments in this area follows from the policy that the judiciary should not interfere with political matters. This rule was designed to prevent dragging out litigation for long periods of time in order to politically benefit or disadvantage a candidate for office.”
The deadline to file a petition to challenge an election was May 26.
White argued in his court pleadings that state law only allows a candidate, who received at least 50 percent of the votes that the winning candidate received, to file a petition in circuit court challenging the results.
Of the seven plaintiffs in the lawsuit, none were candidates for judge-executive, and state law requires that the person filing the challenge have been a candidate and not merely a voter. It is too late to add a plaintiff to bring the challenge, White wrote in court papers.
“The only reason Pat White Jr. was named in this litigation was to politically disadvantage him in his fall campaign for Whitley County Judge-Executive,” White wrote in his motion to dismiss.
Hodge’s lawyer, Ron Reynolds, filed a motion on May 30 to have the claims against Hodge dismissed, or for a judgment in his favor.
On June 1, Howard O. Mann, Barton’s lawyer, also filed a motion asking for the case against him to be dismissed arguing that the complaint doesn’t state a claim against Barton upon which “relief can be granted.”
In his response to the objections and motions to dismiss, Gilbert argued that the petition states a proper cause of action stating “very clearly that numerous voters and candidates complained about the voting machines not working properly and asking that the results be deemed incorrect and also for a re-election with unbiased parties overseeing the re-election in its entirety.”
“The petitioner’s allegations raise very serious issues of election tabulation error, machine failure or error, election process error, and possible misconduct which strikes at the very heart of the American system of government and affects the fundamental liberty interests of the plaintiffs and all citizens of the districts concerning this primary election.”

How they finished
Bunch and two other candidates unsuccessfully challenged Siler in his bid for re-election as state representative. Siler garnered 4,582 votes in the Republican primary to Bunch’s 1,902, Ron Harmon’s 1,193 votes, and James Larry Goins 661 votes.
Schutz opposed Barton in the Republican Primary for circuit clerk, and received 3,845 votes to Barton’s 4,645 votes.
McCullah finished third in a three-way race for sheriff. Lawrence Hodge received 5,241 votes to H.D. Moses 2,185 votes, and McCullah’s 1,192 votes.
The first page of the lawsuit lists Moses as a plaintiff, but Moses didn’t sign the lawsuit on page two along with the rest of the candidates, and his name was partially marked out on page two of the lawsuit.
Faulkner ran for county clerk and finished second in a three-way race receiving 2,310 vote to Schwartz’s 4,311 votes and Lawson’s 1,832 votes.
Leach and Privett each ran unsuccessfully for the Republican nomination for jailer. Young ran for the Democratic nomination.
Mobley won the 10-person Republican primary for jailer with 3,060 votes to Leach’s 1,048 votes, and Privett’s 867 votes.
Sharp won the Democratic primary for jailer with 843 votes to Young’s 398 votes.