Charges have been dropped against Shaffer, not yet against his sister and the other guy. Martin is planning to sue.
Charges dropped against city councilman
by Matt Harvey, Assistant Managing Editor
Wednesday, September 16, 2009 6:32 AM CDT


CLARKSBURG — Two misdemeanor charges lodged against Clarksburg City Councilman Martin Shaffer the night before the city’s June election have been dismissed.

Shaffer had been charged June 1 with circulation of anonymous written matter and conspiracy for his role in the production of an anonymous document that criticized members of city council.

On Monday morning, Harrison Magistrate Keith Marple granted the motion to dismiss that had been filed by Special Prosecutor Eric Wildman, an assistant prosecutor for Marion County Prosecutor Pat Wilson.

Wildman’s motion said the state “no longer wishes to pursue prosecution at this time,” and asked the court “to dismiss without prejudice.”

Wildman faxed the motion to Marple prior to a scheduled pretrial conference.

Reached afterward, the Marion County assistant prosecutor said he had made the motion based on his “interpretation of the statutory language, the fact no expressed advocacy was contained in the language (of the newsletter) itself. And, I think we were going to have a difficult time with the prosecution of the case.”

Wildman said he asked for the dismissal without prejudice, which means the charge could be brought again, in case any new evidence would surface that would “change my mind.”

Shaffer showed up for Monday’s hearing, and met briefly with Kelly Kimble, of the law firm Reed Kimble PLLC that represents him.

“I’m glad that this phase of this is over so we can get on with city business,” he told The Exponent Telegram following the dismissal. “I’m disappointed that it happened, but you know ...”

Shaffer also said he believes that “sometimes it’s wise to let the prosecuting attorney people look into the facts before arresting someone the night before the election.”

Kimble referred comment to Traci Cook, the lawyer who handled most of the case for Reed Kimble.

Cook praised Wilson’s office for the way the case was handled.

And, she said she thinks the law should be reviewed.

“I think first, it can be applied incorrectly,” she said. Also, “it has a cooling effect on the First Amendment, the freedom of speech.”

As previously reported, the state law that authorities cited in Shaffer’s arrest has been under a federal injunction since 1996. The injunction permanently bans enforcement of the law.

The law states that “no person may publish, issue or circulate” anonymous material that either supports or aids the defeat of a candidate for public office. The law may be enforced only if the material includes “express advocacy.” Examples of express advocacy include phrases like “vote for” and “support.”

Although the so-called newsletter criticized councilmen Sam “Zeke” Lopez and Jim Hunt, it made no official endorsements.

Clarksburg Police Lt. Robert Matheny previously said the decision to move forward with the arrest was reached the afternoon of June 1 among himself, Secretary of State Chief Investigator Amber Kroening and the Secretary of State’s general counsel.

However, Secretary of State Natalie Tennant said Monday her agency does not make recommendations to any law enforcement agency.

Tennant acknowledged Matheny and Kroening probably had a discussion, “but did she recommend he take any action?”

And then, questioned further, the secretary of state said Kroenig “did not make any recommendation to the city police.”

Matheny agreed that Kroenig offered no recommendation.

“The general counsel for the Secretary of State’s office, that’s who we took direction from,” he said. It was not a recommendation, Matheny indicated.

He added that police only asked for involvement from the Secretary of State’s office because Councilman Shaffer is related to Harrison Prosecutor Joe Shaffer.

“Normally in (such) a case we would confer with the prosecutor,” Matheny said.

Clarksburg City Manager Martin Howe, in a written communication, said he was “very disappointed with the decision by the Special Prosecuting Attorney appointed from Marion County, Pat Wilson’s decision to dismiss the charges ...”

“If the State of WV doesn’t want to enforce these election laws, nor do they want our local Chief Election Official to enforce the laws, then the appropriate actions ... need to be taken by our Secretary of State’s Office and the state (legislators) to redact these state laws,” Howe wrote.

Howe also said Clarksburg’s city clerk is preparing a letter to the Secretary of State’s office “to clarify the election laws” involved in the case.

“If this is case law, we are asking for clarification on how the laws should be enforced going forward for future elections,” Howe wrote.
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