Hudok will not be on November ballot as Constitution Party candidate for West Virginia governor

Huttonsville native to run as write-in; court-case ruling impacts several filings in W.Va.

September 20, 2016

By Matthew Burdette - Executive Editor (mburdette@theintermountain.com) , Inter-Mountain

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ELKINS - A Huttonsville man running for West Virginia governor on the Constitution Party ticket will not appear on the upcoming General Election ballot after a decision by the state Supreme Court.

Phillip Hudok said he learned of the ballot change only recently. He said the High Court rewrote the West Virginia Election Code in a Sept. 15 ruling in Case No. 16-0779, Erik Patrick Wells v. the State of West Virginia ex rel. Charles T. Miller. However, Hudok alleges he was not contacted at that time.

"The Supreme Court changed the filing date from Aug. 1, 2016, retroactively to Jan. 30, 2016," Hudok said. "About 17 people (candidates) were affected, and the entire Constitution Party is off the ballot. Can they, in an instant, negate efforts, dash hopes and rewrite state law? This is legislating from the bench, wrong and totally unacceptable."

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Phillip Hudok

In an interview Monday with The Inter-Mountain, Hudok said he met the previous filing deadline of Aug. 1. He said he was in complete compliance of West Virginia Code Section 3-5-23 and 3-5-24, which reads, "Deadline: A candidate with no party organization must file his or her Certificate of Announcement, nominating certificates and filing fee with the appropriate office no later than Aug. 1, 2016."

Although Hudok met the Aug. 1 filing deadline, he did not file his paperwork as early as the newly interpreted Jan. 30 deadline.

"The case of Erik Patrick Wells v. the State of West Virginia ex rel. Charles T. Miller has no bearing on any of the duly ballot-qualified Constitution Party candidates," Hudok said.

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"On Page 17 of the 2016 Running for Office in West Virginia Handbook, it clearly specifies the means by which candidates, referred to as 'No Party Organization Candidates,' obtain ballot access by petitioning for the November election," Hudok added. "While Phil and Darrell (Castle) (candidate for president) do have a party affiliation, the West Virginia Constitution Party hasn't secured state recognition. The only way for the Constitution Party to accomplish this is for the governor candidate of the party to run and receive one percent of the votes for that office."

Only the Republican, Democratic, Libertarian and Mountain parties are recognized as official, according to the Mountain State's election code.

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THE COURT CASE

The High Court case in question revolves around Wells, the husband of Secretary of State Natalie Tennant, who was running for Kanawha County Clerk against incumbent Vera McCormick.

Wells, a registered Democrat, filed as an independent after missing the deadline to file in his party.

In August, Tennant recused her office, handing the case off to Kanawha County Circuit Court Judge Charles King. King ruled Wells was ineligible to run for the position.

In early September, the West Virginia Supreme Court of Appeals heard Wells' appeal, issuing a decision Sept. 12.

"It is hereby ordered that the candidacy of Erik Patrick Wells for the office of county clerk of Kanawha County is hereby disallowed," the courts two-page order read. "The Kanawha County Clerk is ordered to take whatever measures are necessary to ensure that Erik Patrick Wells does not appear on the 2016 general election ballot for the office of county clerk of Kanawha County."

The Supreme Court's complete ruling was issued Thursday.

When contacted Monday about the impact their ruling had on Hudok's candidacy, officials declined further explanation.

"The Supreme Court's decisions speak for themselves," said Jennifer Bundy, public information officer for the court. "That's all I can say."

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HUDOK NOTIFICATION

Hudok was notified of the decision by the Secretary of State's office via a telephone message on Friday.

"You and all other - it was about 18 of them, I think - independent candidates who did not file a Certificate of Announcement in a timely fashion, according to the ruling of the Supreme Court, (are out)," said Tim Leach, assistant legal counsel with the Secretary of State's Office, in a taped telephone conversation with Hudok on Saturday. "I will say, (it) (the court decision) was a total surprise to us. We knew that they were challenging the candidate who changed his party registration, but this came out of left field. There's no other way to describe it."

Monday morning, Hudok provided The Inter-Mountain with the recording of his conversation with Leach. The audio file can be heard at www.theintermountain.com.

Despite the Running for Office in West Virginia Handbook clearly stating the filing deadline is Aug. 1, 2016, the High Court decision will stand, Leach said in the recorded call.

"I understand your position, sir, and we agree with you; however, the Supreme Court took up that issue and said that was incorrect information and that you had to have filed by Jan. 30 - you and everybody else," Leach continued in the taped conversation. "I don't know what to tell you. We're on your side. We agree with you, but we're wrong."

During Leach's call with Hudok, he pointed out that a High Court decision can have a far-reaching impact.

"With Supreme Court decisions, their holdings can impact more than just the person that's before them," Leach said. "Obviously, the Supreme Court determines what the law is for everybody, not just for one individual. There's not one law for Erik Wells and a different law for every other candidate. They issued five syllabus points, which in legal terms are the major holdings of the court. They are listed before they even start into their opinion."

"Until this point No. 4 dealt directly with Mr. Wells' situation, and that syllabus point said no one can run as a person without a party organization if they themselves are registered with the party," Leach continued. "That clearly and directly applied to Mr. Wells' situation. After the ruling on Monday, before we got the opinion, we understood that to be the case. But, when the opinion came out Thursday (Sept. 15) evening at 3 o'clock, syllabus point 3 was added to the decision and the order, which the Circuit Court judge had issued; and syllabus point 3 said that any candidate who runs for office must file a certificate of announcement, whether they are in the primary or not, by Jan. 30."

Leach said the decision went on to say that anyone running for office under "No Party Affiliation" must have filed a Certificate of Announcement by Jan. 30, or they would not eligible to be on the ballot.

"That's the part that surprised us," Leach said. "Frankly, we are surprised to see this additional requirement added that wasn't even part of his (Wells') case. He was disqualified for being Democrat and not being unaffiliated like you (Hudok) are. So he was disqualified for that, and we knew after Monday when the ruling came out that he was disqualified because of that. But then, when the balance of the opinion came out from the Supreme Court, lo and behold, they had added this whole entire different holding to the case, which we first became aware of at 3 o'clock Thursday (Sept. 15) when the case opinion was released."

Leach also told Hudok that, "We are stuck with the decision. There's no mechanism to overturn a Supreme Court decision in West Virginia. There's no higher court."

Darrell Castle, who is running for president on the Constitution Party ticket, said he is exploring his legal options. In addition, Leach said the issue may ultimately end up in federal court.

"They (the Justices) are charged with interpreting the law," Leach said. "They are not supposed to create or write law as you (Hudok) are saying. I think if you ask the justices, they would deny that they were creating law. They would say they were interpreting law, which is what we (the Secretary of State's office) were doing before this decision came out and they said, 'You got it wrong.'"

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FILING AS A WRITE-IN

Leach did advise Hudok that he could file as a write-in candidate, as long as his paperwork was turned in to the Secretary of State's office by today, the filing deadline.

Hudok said he intends to file the proper paperwork; however, he also noted that his ability to do so currently is impeded. He was scheduled to appear in Randolph County Circuit Court Monday as part of the jury pool in the Theodore Yeager Newlon murder trial. Hudok called the Randolph County Courthouse Monday morning to be excused, but his request was initially denied.

"What was presented to me as petite jury duty is not," Hudok wrote in an email to The Inter-Mountain Monday morning. "I am to report to the Circuit Court House (sic) for jury selection for a murder trial. I may be under court control for the next five days according to The Inter-Mountain article that I will post below."

"I am taking my Press Release to the Newspaper (sic) before reporting to the courthouse," Hudok added. "I will try to get a notarized write-in certificate. I will present my press release to the judge stating that I was on the phone Sunday with the SOS attorney Leach who explained that the Supreme Court changed the filing date that threw me off the ballot. Four years work, down the drain. I will tell the judge that I have until Tuesday (today) to file write-in. I will tell the judge that I cannot in good conscience be unbiased in a courtroom in any case of the government verses (sic) anyone."

Upon arrival at jury selection, Hudok spoke with both Randolph County Prosecuting Attorney Michael Parker and Senior Status Judge Thomas Keadle once the proceedings began. Keadle excused Hudok, and he was on his way to Charleston at about noon.

"I will continue to campaign as a candidate for governor," Hudok said. "I will have to. For me to suspend my campaign now when I believe it has been unlawfully terminated, I can't do that."

"What I fear is we are losing the rule of law, and that's what my campaign centers around," Hudok added. "I have been removed from ballot access after four hard years of work. It is an extraordinary situation."

Hudok said he has faced many hurdles in his bid to become governor, including threats from law enforcement.

"I sat at the DMV (in Elkins) for 30 days two years ago and 15 days this year collecting petitions. I was threatened with arrest two years ago, because I was out in front of the DMV," he said. "I had to go to the (Randolph) County Commission, and all three commissioners talked to Lynn Phillips (a representative of Gov. Earl Ray Tomblin). Then, I was notified that I could go back to the DMV, and the manager apologized, because that is state property. It's been a long journey and a lot of hard work."

Hudok said, ultimately, the people of West Virginia and the people of the United States have to be the ones who spark change.

"The problem we have is the people don't realize it's our government," Hudok said. They work for us. They are our servants, not our masters. We have to have a change in the mindset of the people as to what our duties and responsibilities are."

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