Lawyer Opposes Relocation of Missing Lewis County Girl’s Mother from Wheeling to Clarksburg Area
The attorney for the mother of a missing 3-year-old West Virginia girl is opposing a federal probation plan to move her from Wheeling to the Clarksburg area.
Lena Lunsford was released from a federal prison earlier this year after serving eight months for welfare fraud.
Federal public defender Brian J. Kornbrath says in a Thursday court filing that Lunsford has been living at a YWCA in Wheeling.
Kornbrath says federal probation officials plan to relocate Lunsford after the YWCA told her she is no longer eligible for a substance treatment program that allowed her to stay free of charge.
Kornbrath says Lunsford is a “social pariah” in the Clarksburg area because of publicity surrounding her daughter Aliayah’s disappearance in 2011.
Marple Case against WV Board of Education Set for 2014 Trial
Fired West Virginia Schools Superintendent Jorea Marple will get her day in court about a year from now.
In an order filed Thursday, U.S. District Judge Thomas E. Johnston scheduled her lawsuit against the state Board of Education for trial on April 22, 2014, in Charleston.
Johnston also ordered the parties to attempt to settle the lawsuit by March 07, 2014.
Marple sued the state Board of Education in Kanawha County Circuit Court in February, but the case was moved to federal court.
Marple’s lawsuit alleges that she was denied due process when she was abruptly fired last November. The lawsuit also says the dismissal’s handling wrongly damaged her reputation.
The board cited lagging student performance and a desire to head in a new direction with new leadership.
Wrangling Continues over Wording of Gas-Drilling Question Headed to WV Supreme Court
A judge is giving an Exxon Mobil subsidiary and a Marion County man suing it another week to propose language for a question the West Virginia Supreme Court will consider.
U.S. District Judge Irene Keeley wanted the language Monday but has extended the deadline to May 03, 2013.
Keeley wants the justices to rule conclusively on whether state law allows a gas drilling company to use Richard Cain’s land to sink horizontal wells that would draw gas from neighboring tracts.
She says his case against XTO Energy could have far-reaching legal and economic implications.
Cain says XTO plans to use the best of his land for as many as 18 well pads, leaving him with mostly steep, unusable hillsides.
XTO denies doing anything illegal and calls its plan “reasonably necessary.“
Gilmer County Family Court Report – 04.24.13
On Wednesday, April 24, 2013, Family Court Judge Whited heard several cases in Gilmer County.
• One domestic violence case was dismissed.
• A status was heard in a divorce case.
• One allocation was heard and granted.
• One divorce was granted: Lori Ann Carter (36) of Orlando, WV divorced Steven Lloyd Carter (50) of Stafford, VA.
Gilmer County Circuit Court Report – 04.23.13
On Monday, April 22, 2013 Chief Judge Richard A. Facemire presided over his regular monthly motion day in Gilmer County hearing several cases.
• Two fugitives from justice were before the Court, both wanted in the state of Virginia.
Raheel NGN (no given name) and Joseph Hughes both waived extradition back to their home state.
Both were represented by Christina Flanigan of Buckhannon and authorities in Virginia have until 4:00 PM on Tuesday, April 30, 2013 to pick them up or Central Regional Jail will release them.
Three criminals entered pleas as follows:
• State of West Virginia vs. Randall Lambey
Initially charged with a felony, he entered a plea to the lesser included misdemeanor offense of failure to provide child support to a minor.
The probation officer will conduct a pre-sentence investigation and he will be sentenced at 9:30 AM on Friday, July 19, 2013.
He was represented by Christina Flanigan.
• State of West Virginia vs. Jeremy Harris
He had 5 felony cases bound over from Magistrate Court awaiting indictment in Circuit Court.
However, he elected to allow the prosecuting attorney to file information against his charging 1 count of grand larceny and all other charges were dismissed.
He pled to the 1 count and must make restitution in the matter with sentencing for him to be on Friday, July 19, 2013 at 9:45 AM after a pre-sentence is conducted on him.
He was represented by Clinton Bischoff of Summersville.
• State of West Virginia vs. Angela Sane
She pled to 1 count of fraudulently obtaining welfare assistance and waived her pre-sentence investigation.
Upon agreement of the prosecuting attorney she was admitted to probation and allowed to transfer it back to the state of Tennessee.
She must make restitution in the amount of $2161.00 plus court costs within 18 months and Judge Facemire released her from Central Regional Jail on Monday, April 22, 2013.
She was represented by Clinton Bischoff of Summersville.
• State of West Virginia vs. James Ware
He was before the Court with the prosecutor asking to revoke his bond.
However, Judge Facemire reset it for $100,000.00 plus home confinement to be served in Upshur County.
He was represented by Daniel Armstrong of Gassaway.
• One juvenile was reset for Monday, August 26, 2013 at 9:00 AM, and one for Friday, July 19, 2013 at 9:15 AM and another for 9:45 AM.
• State of West Virginia vs. Jeremy Knicely
He was sentenced to not less than 1 nor more than 3 years in the penitentiary upon his former plea of guilty to 3rd offense DUI.
Sentence was suspended and he was sentenced to not less than 6 months nor more than 2 years in Anthony Center for Youthful Offenders.
He received no fine but must pay usual and customary court costs.
He will be allowed to self report to Anthony Center and upon his release will be on bond pending further hearing.
He was also represented by Bischoff.
• One infant guardianship was heard and granted.
• One motion to amend birth certificate was heard and granted.
Both judges were in Gilmer County on Tuesday, April 23, 2013.
• Chief Judge Richard A. Facemire presided over a juvenile case at 9:00 AM set it for further hearing for Tuesday, May 28, 2013 at 1:15 PM.
Thereafter Judge Alsop presided over his docket, not leaving until after 3:00 PM.
• One juvenile was set for further hearing on Monday, July 08, 2013 at 9:45 AM, one for Friday, June 07, 2013 at 10:15 AM, one for Thursday, May 23, 2013 at 1:00 PM, and the last one for Tuesday, April 30, 2013 at 8:00 AM.
• State of West Virginia vs. Steven Crislip
He was before the Court for final hearing and Judge Alsop sentenced him not less than 1 nor more than 10 in the penitentiary with effective sentence date of Monday, April 08, 2013.
Crislip made admissions to allegations in his petition for revocation, admitting to possessing morphine.
Crislip was represented by Daniel Grindo of Gassaway.
Teacher Sues School over Suspension for ‘Weapons’ Charge: Showing Students Garden Tools
Attorneys for The Rutherford Institute have filed a civil rights lawsuit against a Chicago public school district on behalf of a second-grade teacher who was suspended after he displayed garden-variety tools such as wrenches, pliers and screwdrivers in his classroom as part of a “tool discussion” in his class.
Despite the fact that all potentially hazardous items were kept out of the students’ reach, school officials at Washington Irving Elementary School informed Doug Bartlett, a 17-year veteran in the classroom, that his use of the tools as visual aids endangered his students. Bartlett was subsequently penalized with a four-day suspension without pay - charged with possessing, carrying, storing or using a weapon.
The complaint charges that Bartlett “suffered humiliation, embarrassment, mental suffering, and lost wages, and was suspended for four days” - and asks for “nominal and compensatory damages” and for the suspension to be expunged from the teacher’s record.
“This school district’s gross overreaction to a simple teaching demonstration on basic tools such as wrenches and pliers underscores exactly what is wrong with our nation’s schools,“ said Rutherford Institute Pres. John Whitehead.
“What makes this case stand out from the rest is that this latest victim of zero tolerance policies run amok happens to be a veteran school teacher,“ Whitehead said.
None of the tools were made accessible to the students. When not in use, the tools were secured in a toolbox on a high shelf out of reach of the students. They were used to demonstrate the proper use of tools.
~~ Craig Bannister ~~
OddlyEnough™: Buckwild Cast Member Seeks Injunction
Buckwild cast member Shae Bradley is seeking an injunction against fellow cast member Jessie J to keep him from releasing any material he may have of them together.
It has been reported Bradley has been offered money for a tape that has the former couple in a compromising position but she has refused the offers.
Bradley says she regrets the entire situation.
Kanawha County Circuit Judge Tod Kaufman has issued a temporary injunction and scheduled a hearing for Monday afternoon.
Buckwild’s second season was canceled earlier this month following the death of cast member Shain Gandee.
The 21-year-old Kanawha County resident died of accidental carbon monoxide poisoning.
Gilmer County Circuit Court Report – 04.16.13
On Tuesday, April 16, 2013 Chief Judge Richard A. Facemire appeared in Gilmer County and heard 3 cases.
• Two juvenile matters were reset for Friday, May 03, 2013 at 9:00 AM and the final matter before him was a plea in a criminal case.
• State of West Virginia vs. John Robert Carder
He was before the Court for a pre-trial hearing.
However, he elected to enter a plea of guilty to the lesser included MISDEMEANOR offense in count 5 of his multi count felony indictment (sexual abuse in the 2nd degree).
He also allowed Prosecuting Attorney Gerry Hough to file a misdemeanor information against him (in lieu of having an indictment handed down by the grand jury).
Whereupon he pled guilty to the misdemeanor charge of sexual abuse in the 3rd degree in the information.
All remaining counts were dismissed with prejudice to the state by the prosecuting attorney.
He must register as a sex offender for his lifetime.
Sentencing will be Friday, July 19, 2013 at 9:00 AM after Tara Kennedy, probation officer, conducts a pre-sentence investigation.
At this time there are no trials remaining to be tried by the March term of the petit jury.
However, if a magistrate trial is scheduled Circuit Clerk Karen Elkin will mail letters to those jurors selected to serve in Magistrate Court.
The March term ends Sunday, June 30, 2013 with a new term of Court beginning in July, 2013.
Board of Education to Judge: Don’t Allow Fired Superintendent to Re-File Lawsuit
The WV Record Reports:
he meter is already running on attorneys paid with state funds in former state Superintendent Jorea Marple’s wrongful termination lawsuit, and she should not be allowed to file it a second time, the state Board of Education is arguing.
On April 10, the board filed its response to Marple’s motion to dismiss her own complaint. Marple had asked U.S. District Judge Thomas Johnston on March 28 to dismiss her lawsuit without prejudice, which would allow her to re-file it in state court.
The board has already filed its own motion to dismiss the lawsuit with prejudice.
“If this court were to rule in Plaintiff’s favor on her motion to dismiss, it would allow Plaintiff to simply re-file the same unmeritorious claims in state court, which, in turn, would require Defendant to expend additional state resources and funds to file another motion to dismiss,” the response brief filed by the board says.
“Therefore, this court should not feel compelled to rule favorably upon Plaintiff’s motion to voluntarily dismiss while it has the authority to rule on Defendant’s dispositive motion in this matter and fully resolve this case.”
Marple sued the board in February, alleging an agenda to fire her on the part of Department of Education President Wade Linger. Marple, who became the state’s first female superintendent in January 2011, was fired in November in a vote by the board.
She filed her lawsuit in Kanawha County Circuit Court, but it was removed to federal court by the defendant. At issue are claims made under federal law.
On April 15, in response to the board’s motion to dismiss, Marple’s attorney Timothy N. Barber cited a 1999 decision from the Southern District of West Virginia.
In that decision, the late Judge Charles Harold Haden granted a plaintiff’s motion under Rule 41(a)(2) and dismissed a complaint even though discovery had been completed, Barber wrote.
“By the application of the jurisprudence in that case, Plaintiffs are entitled to a dismissal without prejudice – anew complaint shorn of federal involvement was clearly a prospect in Judge Haden’s opinion.”
Marple’s motion to dismiss noted that the defendant has not filed for summary judgment, and that there has been no discovery yet.
In March 2012, Winger began an agenda of his own to replace Marple in her position as superintendent and he contacted people to replace her, according to the complaint.
Marple claims Linger also contacted various board members to achieve their agreement to his proposed actions.
An agenda for a regularly held meeting was published for the meeting scheduled for Nov. 14, which included a notation that a personnel matter would be addressed in executive session during the meeting, according to the suit.
Marple claims during the executive session, Linger presented his agenda for terminating her from her position and illegally tallied a vote of a majority of the board to sustain the firing.
When the board members returned to the open meeting, Linger announced Marple’s termination would be effective at the end of the day on Nov. 15 and gave no vote details from the executive session, according to the suit.
Board members Gayle Manchin, Robert Dunlevy, William White, Michael Green and Lloyd Jackson voted along with Linger to terminate Marple’s employment.
Members Priscilla Haden and Jenny Phillips voted against firing her and resigned from the board the same day Marple was terminated.
Marple claims she had both a liberty and property interest in her employment by the defendant, which were violated by her summary dismissal from her position as superintendent.
Part of West Virginia public policy is that all contracts, including agreements of employment, include a provision that the parties shall deal with one another in good faith and fairness, free of arbitrary, capricious or despotic action, according to the suit. Marple claims the defendant’s decision to fire her violated the public policy.
The board is being represented by J. Victor Flanagan and Linnsey M. Amores of Pullin, Fowler, Flanagan, Brown & Poe.
~~ John O’Brien - WV Record ~~
Most West Virginia Judges to Get More Take-Home Pay
Most state judges in West Virginia will see an increase in take home pay after the Legislature passed a bill altering how judges’ pensions are funded.
The bill passed 98-1 by the House Saturday lowers the amount that judges pay into their pension plan. Forty-one of the state’s 70 judges participate in the plan.
The pension plan is funded by employer and employee contributions. It is currently overfunded.
The bill would reduce judges’ contributions from 10.5 to 7% of their salaries for the next fiscal year. After that the contribution rate would be set by the fund’s actuaries.
Senate Majority Leader John Unger said the change would mean a $4,160 pay increase for affected judges.
Court administrators said that the fund has consistently returned excess money to the state.
G-otcha™: Two FCI Gilmer Inmates Enter Pleas and Are Sentenced in Federal Court
Two FCI Gilmer inmates entered pleas of guilty and were sentenced on April 10, 2013, in United States District Court in Clarksburg before Judge Irene M. Keeley.
• DAVID BOGGS, age 29, entered a plea of guilty to “Possession of a Prohibited Object” on July 12, 2012, when the staff at FCI Gilmer found suboxone strips hidden inside an envelope of mail sent to inmate BOGGS.
BOGGS was sentenced to 12 months imprisonment to be served consecutively with his current 155-month sentence.
This case was investigated by the Special Investigative Services Staff at FCI Gilmer.
• DWAYNE GILMORE, age 37, entered a plea of guilty to “Fraud and Related Activity in Connection with Access Device” between December 01 and 31, 2011, when defendant participated in a scheme to defraud multiple Sears stores of merchandise.
GILMORE was sentenced to 15 months imprisonment to be served concurrently with his currently 85-month sentence and ordered to make restitution of $11,276.15 to Sears.
This case was investigated by the United States Secret Service and the Special Investigative Services Staff at FCI Gilmer.
These cases were prosecuted by Assistant United States Attorney Brandon S. Flower.
Gilmer County Family Court Report – 04.04.13
On Thursday, April 04, 2013 Special Family Court Judge David P. Born presided over 2 cases in Family Court.
• He dismissed a domestic violence petition and entered a temporary order in the companion divorce proceeding.
Gilmer County Circuit Court Report – 04.08.13
On Thursday, April 04, 2013 Judge Jack Alsop heard one Fugitive from justice case in Circuit Court.
• Ray Darbywaived extradition back to Virginia and authorities there have until 4:00 PM Monday, April 15, 2013 to pick him up or Central Regional Jail will release him.
Darby was represented by David Karickhoff.
• One juvenile case was also heard.
On Friday, April 05, 2013 Judge Alsop returned to Gilmer County and heard several matters in the morning before leaving for Clay County to conduct afternoon hearings.
He heard 6 juvenile matters and rescheduled hearings for them as follows:
• A status will be held on Monday, April 08, 2013 at 9:00 AM
• One for Thursday, May 02, 2013 at 3:30 PM
• One for Friday, April 19, 2013 at 2:00 PM. However, later Judge Alsop was informed he had cases in Clay County already scheduled for the afternoon of Friday, April 19, 2013 and he will enter orders resetting those matters here)
• One for Monday, May 13, 2013 at 9:15 AM
• Another for Tuesday, April 30, 2013 at 9:00 AM
• Final one for Friday, May 10, 2013 at 1:30 PM
• State of West Virginia vs. Joshua Hoover
He was before the Court for revocation of previously granted home confinement.
He was represented by David Karickhoff and admitted the allegations in the petition filed to revoke.
Judge Alsop revoked his home confinement and reinstated the previous sentences of 1-10 for forgery, 1-10 for uttering, 1-5 for conspiracy and 1 year in Central Regional Jail.
Thus he could serve 3-25 in the penitentiary with the sentences running consecutively.
• State of West Virginia vs. Charles Emerson
He was before the Court for sentencing.
He had been convicted by jury of 2 counts as follows: Count 1—guilty of sexual abuse in the first degree (sentenced to 5-25 years in pen) and Count 3-guilty of sexual assault in the first degree (sentenced to 25-100 years with sentences to run consecutively for him as well.
He was given credit for time served since his incarceration August 25, 2011 and ordered to register as a sex offender upon his release from penitentiary. Emerson was represented by Kevin Duffy of Clay.
On Monday, April 08, 2013 Judge Jack Alsop presided over his regular monthly motion day in Gilmer County and heard a 3 page docket:
Nine juveniles were heard and reset as follows:
• One for Tuesday, April 23, 2013 at 9:00 AM
• One for Monday, July 08, 2013 at 9:00 AM
• One for Monday, July 08, 2013 at 9:10 AM
• One was dismissed
• One was set for Friday, June 07, 2013 at 9:45 AM
• One for Monday, May 13, 2013 at 9:30 AM
• One for Tuesday, April 23, 2013 at 9:10 AM
• One for Monday, July 08, 2013 at 9:20 AM
• One for Monday, July 08, 2013 at 9:30 AM
• Lastly one for Tuesday, April 30, 2013 at 9:30 AM
• State of West Virginia vs. Gerald Adkins II
He was before the Court for sentencing, but after learning that he had missed 4 appointments with the probation officer and his pre-sentence investigation was not completed, Judge Alsop sent him to Central Regional Jail to remain incarcerated until sentencing on Monday, May 13, 2013 at 9:45 AM.
Adkins was represented by Daniel Grindo of Gassaway.
• In the civil matter of DC Petroleum Inc. vs. Christopher Haymond motion for change of venue was denied.
A scheduling order was entered in the case of Kenneth & Shirley Cooper vs. Edward & Cindy Messenger, setting various dates for discovery to be file and pre-trial set for Tuesday, October 15, 2013 at 9:00 AM and a bench trial set for Friday, October 25, 2013 at 9:00 AM.
Cooper’s were represented by Daniel Grindo and the Messenger’s were represented by Shelly DeMarino of Glenville.
• One name change petition was heard and granted.
• State of West Virginia vs. Steven Crislip
He was before the court for revocation of home confinement.
He tested positive for drugs and Judge Alsop entered a commitment order to Central Regional Jail, but asked the Clerk to hold it until 3:30 PM Monday, April 08, 2013 to allow Crislip to produce a valid prescription for said drugs.
He was also represented by Daniel Grindo.
Later Crislip brought his pill bottle to the probation officer, so he is free until his next hearing on Tuesday, April 23, 2013 at 11:00 AM.
WV Court Asked to Rule on Gas Drilling Question
A federal judge says the state Supreme Court should rule on whether West Virginia law allows a drilling company to use a Marion County farmer’s land to sink horizontal wells that would draw gas from neighboring tracts.
Richard Cain doesn’t own the rights to oil, gas and minerals under his land. But he argues a 1907 deed at the center of his lawsuit never envisioned such extensive surface disruption.
He says Exxon Mobil subsidiary XTO Energy would leave him mostly with steep, unusable hillsides.
XTO plans to use 36 acres for as many as 18 wells, arguing it’s “reasonably necessary.”
U.S. District Judge Irene Keeley says the case has far-reaching legal and economic implications for West Virginia, and the state’s highest court must address such important and unsettled legal issues.
Magistrate Pay Measure Clears West Virginia Senate
Just over a dozen West Virginia magistrates and their top staffers could receive pay boosts this year.
The state Senate unanimously passed a bill Wednesday readjusting the salary levels for these county officials.
The law links their pay to their county’s population.
The 2010 Census results moved Lewis, McDowell, Wetzel and Wyoming counties to the lower-paid category.
Wednesday’s bill would shift them back while also hiking magistrate court pay in Barbour and Roane counties.
The Senate measure would benefit 14 magistrates as well as their assistants and clerks and deputy clerks.
The state Supreme Court estimates it would increase personnel spending by $240,800 annually.
The measure heads to the House. Earlier this session, delegates narrowly approved a different bill raising pay for 38 magistrates and top court staffers statewide.
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