                                  STATE OF WEST VIRGINIA
                                SUPREME COURT OF APPEALS
     
     
    Donald L. Stamm,
                                                                                               FILED
                                                                                            December 16, 2013
    Petitioner Below, Petitioner                                                         RORY L. PERRY II, CLERK
                                                                                       SUPREME COURT OF APPEALS
                                                                                           OF WEST VIRGINIA 
    vs) No. 12-1390 (Harrison County 12-C-413)

    City of Salem,
    Respondent Below, Respondent


                                    MEMORANDUM DECISION
     
     
            Petitioner Donald L. Stamm, by counsel Gregory Schillace, appeals the Circuit Court of Harrison
    County’s final order denying a petition for writ of prohibition, entered October 17, 2012. The respondent,
    City of Salem, by counsel Lisa Furbee Ford, has filed a response to the present appeal.

           The Court has considered the parties’ briefs and the record on appeal. The facts and legal
    arguments are adequately presented, and the decisional process would not be significantly aided by oral
    argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court
    finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is
    appropriate under Rule 21 of the Rules of Appellate Procedure.

            Petitioner Donald Stamm was elected to serve on the Salem City Council on June 7, 2011, and
    took office on July 1, 2011. After taking office as a city council member, petitioner was elected Mayor of
    the City of Salem. The Salem City Charter requires that all elected city officers be residents of the city
    with an address inside the city limits. On August 20, 2012, the City of Salem, through a majority of its
    council members, served petitioner a notice of forfeiture of office on the basis that he was no longer a
    resident of the city. On September 19, 2012, petitioner filed a petition for a writ of prohibition to prohibit
    the city council from instituting action which could lead to his forfeiture of office. A hearing with respect
    to the petition was held on October 2, 2012, and the court entered a final order denying the petition on
    October 17, 2012. The court had ordered a public hearing to take place as scheduled on October 4, 2012,
    pursuant to Salem City Charter §2.07 in order to determine petitioner's residency status. At the hearing,
    testimony was taken and evidence was presented regarding petitioner’s residence. The Salem City Council
    formally determined petitioner did not live within the city limits, and, therefore, forfeited his office.

           Petitioner’s sole argument is that West Virginia Code § 6-6-7 is the exclusive remedy to
    remove someone from municipal office, and the circuit court erred in finding otherwise, where
    petitioner was removed from office pursuant to the forfeiture provisions in the city charter. West
    Virginia Code § 6-6-7(a) states,

            Any person holding any . . . municipal office . . . may be removed from such
            office in the manner provided in this section for official misconduct, malfeasance

                                                          1 
     
              in office, incompetence, neglect of duty or gross immorality or for any of the
              causes or on any of the grounds provided by any other statute.

       Petitioner asserts that In re The Election Contest Between Moore and Powell, 200 W.Va.
335, 489 S.E.2d 492 (1997), established that West Virginia Code § 6-6-7 is the sole remedy for
removing an official from office. Petitioner’s reliance on this case is misplaced. Moore and
Powell holds that officials “may” be removed pursuant to West Virginia Code § 6-6-7, but
does not stand for the proposition that this is the only mechanism for removing a public officer
from office.

        Unlike in Moore & Powell, an anomaly in which no cause for removal was alleged,
petitioner was deemed ineligible to hold office based on the disqualifying condition that he
was no longer a resident of Salem. This case arises out of petitioner’s ineligibility and has
nothing to do with “misconduct, malfeasance, incompetence, neglect of duty or gross
immorality.” The current case deals with forfeiture of office due to ineligibility and not removal.
Therefore, West Virginia Code § 6-6-7 should not govern this case. Rather, the City Charter of
Salem, which provides a mechanism for forfeiture of office, should be the controlling authority.
Inas much as residency requirements constitutional, the residency requirements in the city
charter are valid grounds for petitioner’s forfeiture. The City of Salem did not exceed its
jurisdiction by initiating the forfeiture proceedings.

       Furthermore, petitioner still has other opportunities to seek judicial review. The city’s
charter allows for petitioner to first make his case within the community to prove whether he is a
resident. After that, he can then file a Request for Declaratory Judgment with the Harrison
County Circuit Court, as provided by the city charter. Petitioner will not be damaged or
prejudiced in a way that is not correctable on appeal because he still has the opportunity to seek
judicial review.1

       Having established that West Virginia Code § 6-6-7(a) is not the exclusive remedy
for removing a municipal office holder, and that the West Virginia Constitution allows the
City of Salem to implement its forfeiture provision, we find that the circuit court was
correct in denying the writ. The City of Salem did not exceed its jurisdiction, and there are
no substantial clear cut legal errors.

      For the foregoing reasons we affirm the Circuit Court of Harrison County's October
17, 2012 final order denying the writ.


                                                                                          Affirmed.




                                                            
              1
        Petitioner’s testimony has neither given nor produced evidence in order to attempt to
disprove the allegations that he was not a resident of the city. 
                                                               2 
 
ISSUED: December 16, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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