The Dirty Secret

by Brent Wolfingbarger

  Dave leaned back, folding his arms across his chest. “Wow. You don’t beat around the bush or think small, do you?”

  “What’s the point? You want my help to accomplish something important, I’ll be there with bells on. But if you just want me to fill a vacancy on the payroll, I’m not your girl.”

  Dave chuckled. “Something tells me you and I will get along just fine.”

  Monica cracked an easy grin. “I agree.”

  CHAPTER 67

  WEST VIRGINIA SUPREME COURT

  CHARLESTON, WEST VIRGINIA

  TUESDAY, DECEMBER 2, 11:02 A.M.

  Sitting in a stately walnut chair in the West Virginia Supreme Court’s courtroom, Mack Palmer stared at his surroundings.

  The carpet was dark red and the 30-foot-high ceiling consisted of rectangular stained glass openings. Five black leather chairs were positioned equidistantly behind the Court’s massive walnut bench that extended almost the entire 40-foot width of the room. The walls were slabs of white Vermont marble, and tall marble columns stood around the perimeter, positioned atop black Belgian marble bases and capped with Ionic volutes inlaid with gold leaf.

  A much smaller table sat in front of the bench with a small lectern on it. Three walnut chairs sat on each side of the lectern, which served as the demarcation line for opposing lawyers arguing cases before the Court.

  The intercom buzzed, jerking Palmer back to reality. Seated at a small desk beside the bench, the Court’s Clerk (a highly-regarded attorney himself) solemnly intoned, “The Justices of the Supreme Court of Appeals of West Virginia.”

  On cue, four men and one woman in long black robes stepped into the chambers, passing through thick, 20-foot-high burgundy drapes behind the bench and solemnly took their seats.

  “The first case on the docket this morning is Number 38916,” the Clerk announced. “State ex rel. Royal v. The Honorable Olivia Blackwell, Judge of the Circuit Court of Berkeley County. This case has been consolidated with Mr. Royal’s petitions appealing orders from the Circuit Court of Mercer County and the Circuit Court of Monongalia County, originally assigned Docket Numbers 38917 and 38918.”

  Palmer stepped forward and placed his notes on the lectern while two other attorneys from his firm sat down to his left. Susan Mathis and her team took seats on the opposite side. Palmer adjusted the microphone, took a deep breath and raised his eyes.

  “Good morning,” he opened with a smile. “May it please the Court. I’m Mack Palmer, and I represent Governor Jonathan Royal. These petitions for appeal were filed to …”

  “We know why your client’s petitions were filed,” Justice Willoughby snapped. “Why should we grant the relief he’s seeking?”

  Palmer gritted his teeth and gripped both sides of the lectern. I hate the way they tear into you like a piece of meat without letting you even start into your spiel.

  “We believe the law does not accord Senator Wilson the right to prosecute a contest of the presidential election, let alone in the way she has chosen. The West Virginia Code does not provide for such a proceeding, and there is no way to ascertain what body – if any – would be vested with jurisdiction over such a contest.”

  The five justices stared impassively at Palmer, weighing his words.

  Justice Brock Lilly said, “I agree the Code does not specifically describe how such a contest would be conducted, but doesn’t the language of Article Seven, Section Three governing other statewide elections offer us a blueprint for a presidential contest? I mean, didn’t the Court in Monongalia County get it right when it directed a three-person special court to preside over the contest?”

  Palmer’s stomach dropped, but he kept smiling. “No, Your Honor. Because in creating the special courts authorized to govern contest proceedings in those other races like for attorney general, the Legislature designed a fair process for the contestants, which cannot exist in this case.

  “Section Three establishes a special court consisting of one person appointed by the contesting candidate, one person appointed by the declared winning candidate, and a third person appointed by the governor of the State,” Palmer continued. “We think the Legislature used that setup because the governor was presumed to be impartial in that he wouldn’t be running for any of those offices. It should be noted the Legislature specifically established a different contest proceeding for gubernatorial races under Article Seven, Section Two, vesting the Legislature itself with jurisdiction over those contests.”

  Palmer paused. “In this case, the special court would not be impartial because Governor Vincent is, in essence, a party to this litigation. When President Bush appealed the Florida recount decision to the U.S. Supreme Court in 2000, his running mate – Dick Cheney – was also a named petitioner. In fact, we suspect the petitioners intentionally omitted Governor Vincent’s name from the circuit court pleadings because they wanted to create the impression he has no real interest in these contests’ outcome. Which, of course, is patently false.

  “Allowing Governor Vincent to designate the third member of the special court would make a mockery of the Legislature’s intent to establish an impartial statewide election contest,” Palmer continued. “It would let him stack the deck in favor of Senator Wilson and it would forever taint the legitimacy of the special court’s decision. It’s simply unworkable.”

  Justice Gammalo broke the brief silence. “It seems like the Legislature screwed the pooch on this one.”

  Chuckles erupted throughout the chamber. Justice Willoughby shot his colleague a sharp look. Palmer grinned and said, “That’s what we think too, Your Honor.”

  Chief Justice Andrea Riddick reclined in her chair. “But if we don’t let Senator Wilson contest the election results, aren’t we countenancing voter fraud and intimidation? If the people who suffered that abuse can’t contest the election results, don’t the bad guys win?”

  Palmer shook his head from side-to-side. “Not at all, Your Honor. As we pointed out in the lower court, those ‘bad guys’ could still face prosecution or civil liability for their actions. But two wrongs don’t make a right, and letting Senator Wilson prosecute a contest the Legislature hasn’t authorized would just complicate things. Put bluntly, it would jeopardize the state’s ability to cast its five ballots in the Electoral College because there’s virtually no chance these contest proceedings, and the inevitable appeals, will be completed before December 9th.”

  The Chief Justice looked down the bench in both directions, informally polling her colleagues. Seeing no more questions, she said, “I believe we understand your position, Mr. Palmer. Thank you. Now we would like to hear from Senator Wilson’s attorneys.”

  Palmer took a seat while Mathis approached the lectern. “As I’m sure the Court realizes, we strongly disagree with the positions expressed by Governor Royal’s counsel.”

  Justice Turner, the only Republican justice, barked a sarcastic laugh. “Imagine that.”

  Mathis ignored the barb. “We don’t believe the Legislature intended to deprive West Virginians of their right to challenge a presidential election outcome resulting from fraud and intimidation.”

  “Whoa, whoa, whoa!” exclaimed Chief Justice Riddick. “Aren’t you putting the cart before the horse, counselor? I don’t see anything in the Code that vests ordinary citizens with the right to contest any West Virginia election. From my reading, it appears only losing candidates can prosecute an election contest.”

  “And technically,” interjected Justice Lilly, “isn’t it true that Senator Wilson wasn’t even a candidate on the ballot? I mean, her name was printed on it, but according to the Code, people were actually voting on slates of electors nominated by the state political parties. Right?”

  “Facially, that might appear true. But everyone realizes that’s just a creative fiction. When people shaded in an oval or pressed a touchscreen button beside Senator Wilson’s name, they expressed their desire for her to become our next president. The Electors merely formalize that decision when they c
onvene on December 15th.”

  “I beg to differ, counselor,” Justice Turner responded. “The Electors do not formalize anything. Even though they may be pledged to vote for their party’s candidate when the Electoral College convenes, they are free to disregard that pledge and vote for anyone they want when the time comes.”

  Justice Willoughby, the only justice who voted against accepting Royal’s appeal, stepped into the fray. “Nevertheless, I think this legal distinction is lost on the average voter. Given that fact, how does Senator Wilson propose to conduct this election contest, if we were inclined to allow one to go forward?”

  Mathis momentarily glanced down at her notes. “We believe, as Justice Lilly mentioned earlier, that the special court created under Section Three for other statewide races provides a good blueprint. Although we know Governor Vincent would appoint someone completely independent to serve as the third member of the special court in this case, we recognize the need to guard against even the appearance of impropriety.

  “As such,” she continued. “As described in the amicus brief filed by the governor’s private counsel, he is willing to defer to this Court’s judgment in making such an appointment. If this Court permits Senator Wilson to prosecute a contest, he has requested you give him the names of three judges who possess the competence and integrity necessary to serve on that special court, and he will fill the third position with one of those nominees.”

  The Chief Justice folded her hands together on top of the bench. “We noted that offer in his brief, and it is a gracious one. But wouldn’t that just create a whole new set of problems?”

  “I agree,” said Justice Turner. “That would violate the separation of powers. The governor would be abrogating the executive branch’s appointment power to the judiciary.”

  “Not exactly,” Mathis retorted. “He would be filling a position on a court, and our state constitution vests all judicial power with this Court. It makes sense for him to consult with the Court before making such an appointment, while reserving the final decision for himself.”

  Justice Turner’s face reddened. “But the Code gives this Court no say in that process! Why not ask WVU’s head football coach for his opinion on the manner? After all, he’s mentioned in those Code sections as many times as we are: None.”

  “I have a question,” interjected Justice Gammalo. “Are there no federal laws governing presidential election contests?”

  Mathis shook her head. “No, your Honor. I’m afraid not.”

  Gammalo shook his head in disbelief, then silence ensued. Seeing no further questions from her colleagues, Chief Justice Riddick smiled at Mathis. “It’s definitely an interesting case. Thank you both for appearing today. We’ll take this case under advisement and make our ruling as expeditiously as possible.”

  Mathis nodded, gathered her notes and stepped away from the counsel’s table. Her two associates followed suit, as did Governor Royal’s legal team.

  “Next up on the docket,” the Clerk announced. “We have Docket Number 38874, the case of Mann v. Micilcavage.” As he did so, the reporters in attendance tried to look dignified while hastily exiting the room.

  PLEASANTS COUNTY COURTHOUSE

  ST. MARYS, PLEASANTS COUNTY, WEST VIRGINIA

  TUESDAY, DECEMBER 2, 11:40 A.M.

  Jack signed his name to the letters addressed to telephone companies and Internet service providers. Rikki faced the computer, watching live streaming video of the oral arguments.

  Jack glanced up wearing a puzzled look. “Did that guy just say ‘Michael Cabbage’?”

  “Huh?”

  “Never mind. Hey, I’m almost finished here. Can I check my email?”

  Rikki slid him the laptop. “Sure. Help yourself.”

  McCallen signed the last letter, flicked his wrist and flexed his fingers. “I have to hand it to ya, Rikki, you sure are thorough. I bet every cell phone company in the state is getting a copy of that letter.”

  “They certainly are, Mr. McCallen. We’re leaving no stone unturned.”

  Jack smiled. “That’s what I like to hear, counselor.”

  Rikki gathered the signed letters. “Go ahead and check your email. I’ll give these letters to Martha so they get mailed today.”

  As she walked away, Jack logged in to his account. Spotting a new message from Alex Beria, he quickly opened it:

  Final Preparations!

  From: alex.beria@petromica.com

  To: Jack@mccallenresources.com

  Date: Tues, 2 Dec 10:45 am

  Hey Jack,

  Thanks for faxing me the non-disclosure agreement. Our ‘due diligence’ guys have finished their work and we hope to close the deal on Thursday.

  Now that you have signed the non-disclosure agreement, we will send you the Trade Secrets Protection Addendum (TSPA) mentioned in the purchase agreement I sent you. As you know, MR will be obtaining access to some of our most valuable trade secrets, especially our horizontal drilling methods that allow gas to be extracted from the Marcellus Shale cost-effectively.

  Our horizontal drilling technology is so valuable we have never attempted to patent it, because just filing the necessary applications with the government would allow our competition to see how we do it. Thus, we guard that technology by keeping it ‘in-house,’ just like Coca-Cola has treated its ‘secret formula’ by locking it in a vault for over 100 years.

  The matters outlined in the TSPA are an essential part of our agreement to invest in your firm. If you do not agree to those terms, this deal will not close. Period.

  The TSPA will be hand-delivered to your office tomorrow at noon. Once it is signed, call the courier on his cell phone and he will pick it up and return it to our regional headquarters in Reston. The courier is staying at a hotel in Parkersburg Wednesday night, and he will return to Reston no later than 5:00 p.m. on Thursday, with or without the signed TSPA. Again, the TSPA is such a vital part of this deal that we must have the signed original in our hands before proceeding to closing.

  The TSPA’s terms are straight-forward and self-explanatory.

  As long as you sign off on the terms of the purchase agreement and the TSPA, we will wire the first installment payment to MR’s account on Friday morning.

  Call or email me if you have any questions.

  Alex

  Jack re-read the message three times, then signed out of his account and walked into the reception area. “You guys need anything else from me?”

  “Nope,” Martha answered. “That’s it. I’ll mail those letters out this afternoon.”

  Putting on his coat, he turned toward the door. “Tell Rikki I’ll call her tomorrow.”

  “Will do. You have a good day.”

  As he left the courthouse, he wondered what the hoopla over the Trade Secrets Protection Addendum was all about.

  Surely it couldn’t derail this deal. Right?

  CHAPTER 68

  WASHINGTON, D.C.

  TUESDAY, DECEMBER 2, 4:10 P.M.

  Dave was slurping down Chinese food when he received a text from Palmer:

  The decision is out. See attachment. Looks good but might not be the last word. Read it and call me in about 45 minutes to discuss.

  Dave clicked on the attachment and began reading the Court’s decision. The enumerated notes at the beginning summarized the ruling:

  1. Neither the United States Constitution nor the West Virginia Constitution vests the citizens of this state with a fundamental right to vote for candidates seeking election to the office of President of the United States. See U. S. Const., Art. II, §1.

  2. In elections for presidential electors in this State, the names of the candidates for president and vice president of each party are to be placed beside a brace with a single voting position, so that a vote for any presidential candidate is a vote for the electors of the party for which the candidates were named. See W.Va. Code §3-6-2(d)(1).

  3. The West Virginia Legislature’s power to select the manner for appointing the
State’s electors is plenary; it may, if it so chooses, select the electors itself. Bush v. Gore, 531 U.S. 98, 102 (2000) [quoting McPherson v. Blacker, 146 U.S. 1, 35 (1892).]

  4. The West Virginia Legislature has not created any mechanism whereby an interested party can contest the results of the statewide election for presidential electors. See W.Va. Code §3-7-1, et seq.

  5. The West Virginia Legislature has not granted individual voters, or candidates seeking the office of President of the United States, with the right to contest the results of this State’s election for presidential electors. See W.Va. Code §3-7-1, et seq.

  6. The Legislature, after granting the franchise in the special context of Article II, can take back from voters the power to appoint electors. See McPherson v. Blacker, at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.)

  7. Any procedure which might be subsequently enacted by the Legislature to govern the contest of this State’s election for presidential electors must contain safeguards to ensure the completion of such proceeding in time to obtain the benefits of the so-called ‘safe harbor provision’ found in federal law. See 3 U.S.C. §5.

  As Dave scanned through the document, his initial enthusiasm began to wane. Quickly, he dialed Mack Palmer’s mobile number.

  “Hello?”

  “My head hurts now,” Dave quipped. “Have we finally won this election or not?”

  “Well,” Palmer said hesitantly. “For the most part, yes. But…”

  CHAPTER 69

  WEST VIRGINIA STATE CAPITOL

  CHARLESTON, WEST VIRGINIA

  TUESDAY, DECEMBER 2, 8:15 P.M.

  Vincent stalked the floor, his brow furrowed and his hands clasped behind his back. Bowen sat across from him, listening and jotting down thoughts as the conference call continued.