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Luzerne County Council Chairman Tim McGinley has filed legal paperwork attempting to throw out a Luzerne County court action that citizen Brian Shiner filed against him days before the Nov. 5 general election.

Shiner filed the writ of mandamus, without legal representation, asking the court to command McGinley to follow the county’s home rule charter, ordinances and resolutions. He maintains McGinley interfered or tried to interfere in day-to-day executive branch operations and overstepped his council chair authority.

A writ of mandamus is a court order compelling someone to carry out a required duty.

McGinley has said the assertions are “baseless” and that he believes the filing was an attempt to garner negative headlines about him before the election. His county-designated outside attorney, Jack Dean, has described the filing as “frivolous” and “meritless” and said the county will seek to recoup legal fees from Shiner.

On McGinley’s behalf, Elliott Greenleaf & Dean filed preliminary objections and a motion to strike the writ.

For starters, it said the case can’t proceed because Shiner did not properly personally serve McGinley with notice of the action through a sheriff deputy as required by state civil procedure rules.

Shiner also “lacks standing” to bring the action to court, it said.

There is no state precedent defeating a long-established rule that only a “public officer” may ordinarily apply for a writ of mandamus, it said.

To obtain an exception, citizen writ filers must meet several conditions, including showing that nobody else is “better situated to assert the claim” and that “redress through other channels is unavailable.”

That isn’t the case in this situation, the filing said, noting for example that county Manager C. David Pedri could pursue a writ or work to obtain a solution if he believed a council member was interfering.

A citizen seeking a writ can’t claim blanket taxpayer standing to “skirt” a requirement to show a “direct, immediate, and substantial causal connection” between the alleged action and alleged resulting injury, the filing said.

The filing asserts none of the alleged actions cited by Shiner show any actual interference. Shiner’s claims involved a county contract negotiating session with the county Flood Protection Authority, the selection process for voting machines and McGinley’s request for solicitor opinions on council matters.

Shiner, of Kingston, said Wednesday he is working on a response required within 20 days. He said he has been unable to find a lawyer willing to take on the case.

He said he was unaware a sheriff had to serve McGinley but said it’s clear McGinley still received the filing the day he filed it because he and county attorneys publicly responded.

On the question of standing to file, Shiner said he believes he is “more aggrieved than the average person” over the alleged actions because he has attended every county council meeting since home rule was implemented in January 2012. He said the charter preamble requires citizens to hold officials accountable.

“I think that gives me the standing I need,” Shiner said.

Luzerne County Courthouse
https://www.timesleader.com/wp-content/uploads/2019/11/web1_TTL101719Luzerne-County-Courthouse1-6.jpg.optimal.jpgLuzerne County Courthouse

By Jennifer Learn-Andes

[email protected]

Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.