WV Joins Other States In Urging U.S. Supreme Court to Consider Fight Over Greenhouse Gas Emissions
Governor Earl Ray Tomblin and Attorney General Patrick Morrisey today announced West Virginia joined Kansas and Montana in filing an amicus, or “friend of the court,“ brief asking the U.S. Supreme Court to hear a challenge to Environmental Protection Agency rules that would allow the federal government to regulate greenhouse gas emissions from stationary sources.
The amicus brief asking for a writ of certiorari was filed Thursday, May 23, 2013 and follows a ruling by the U.S. Court of Appeals for the District of Columbia in favor of the EPA in four consolidated cases. If allowed to stand, the D.C. Circuit’s ruling will fundamentally alter the Constitution’s separation of powers and grant unprecedented authority to the EPA and other federal agencies.
Significantly, the states contend the EPA’s “tailoring rule” contradicts explicit provisions of the Clean Air Act and establishes new compliance levels for greenhouse gas emissions that are significantly higher than the levels specified in the statute.
West Virginia and the other amicus states maintain the U.S. Supreme Court should hear the case to clarify that the EPA has misinterpreted the Clean Air Act and acted outside the scope of its legal and Constitutional authority.
“In addition to this brief, I wrote to the President last month urging him, in the strongest of terms, to direct the EPA to discontinue its anti-coal policies,“ Governor Tomblin said. “The EPA’s proposed limits on greenhouse gas emissions threaten the livelihood of our coal miners to the point of killing jobs and crippling our state and national economies, while also weakening our country’s efforts toward energy independence. I hope the high court recognizes the urgency and critical importance of our brief for all Americans.“
Attorney General Morrisey said the EPA’s rules regarding greenhouse gas emissions are another example of the federal agency overstepping its role to the detriment of West Virginians.
“The EPA’s decision to regulate greenhouse gas emissions in this way will have a devastating impact on the industries that must comply with these rules, as well as consumers,“ Morrisey said. “Once again, the EPA is moving ahead on an issue with little regard for the plain language of the statute and the people who are directly impacted by these incredible new burdens.“
Federal Judge Recuses Herself from WVU Degree Lawsuit
U.S. District Judge Irene Keeley has disqualified herself from hearing a lawsuit filed over a 6-year-old degree scandal at West Virginia University, citing a federal statute that requires judges to step aside if their impartiality could be questioned.
The order entered Tuesday doesn’t offer specifics, but Keeley is a past member of the WVU Board of Advisors, the predecessor to today’s Board of Governors. She has also served on the WVU Alumni Association’s board of directors and on the College of Law’s visiting committee.
Judge John Preston Bailey will now hear the case brought by former business school dean Stephen Sears and former associate dean Cyril Logar. They say WVU has ignored an academic integrity policy requiring “diligent efforts” to restore the reputations of people cleared of misconduct.
The lawsuit stems from a 2007 decision to award Heather Bresch an executive master of business administration degree that she hadn’t earned.
Bresch is the chief executive officer of Pennsylvania-based Mylan Inc. and the daughter of U.S. Sen. Joe Manchin. She was also a friend of then-WVU President Mike Garrison, who ultimately resigned over the scandal.
Last summer, Special Academic Integrity Officer Nigel Clark said there would be no further action against anyone involved in altering transcripts, creating grades and awarding Bresch the degree.
But Sears and Logar say WVU is ignoring an academic integrity policy that requires it to “undertake diligent efforts” to restore the reputations of people cleared of misconduct. They’re now alleging breach of contract and demanding damages.
WVU has said it won’t comment on pending litigation.
Braxton County Man Sues State Farm for Wrongful Termination
The WV Record Reports:
A Braxton County man is suing State Farm Mutual Automobile Insurance Company for wrongfully terminating his employment because of his age.
Mary Adkins, an employee of State Farm, was also named as a defendant in the suit.
Richard M. Roach Jr. was employed for approximately 23 years as a claims representative for State Farm in West Virginia, handling claims in the company’s first-party claims unit, according to a complaint filed May 03 in the U.S. District Court for the Southern District of West Virginia at Charleston.
Roach claims during the course of his employment, he was entrusted to investigate, evaluate and mediate first-party claims made by State Farm’s policyholders and over the course of his employment, he was promoted numerous times, received positive evaluations and awards for exemplary customer service.
State Farm has recently begun implementing a series of cost-saving measures, including elimination of voluntary overtime and employee amenities, implementation of mandatory overtime and efforts to eliminate older employees believed to be more highly-compensated that younger employees, according to the suit.
Roach claims beginning in July 2011, Adkins began a campaign of petty harassment against him, disciplining him for purported infractions, such as clicking his computer mouse too quickly, tossing a notebook onto his desk with too much force for her liking, for tossing a pen inside his cubicle and for using his cell phone where other employees were not similarly disciplined.
Adkins also made negative comments about Roach’s attire, even though he never wore anything inappropriate to work, according to the suit.
Roach claims on September 11, he agreed to help an acquaintance and State Farm insured negotiate a settlement with Nationwide Insurance Company following a motor vehicle accident, as the acquaintance felt that she was being bullied by the Nationwide adjuster assigned to the claim.
As Roach was helping the acquaintance, he helped her on his own time, in an unofficial capacity and without the use of any of State Farm’s resources, according to the suit.
Roach claims on September 21, he was informed he was being placed on administrative leave for assisting with his acquaintance’s claim, and he was informed that was “acting like a lawyer,” and that he was giving the appearance that was “working on the side.”
Following his placement on administrative leave, Roach was informed on October 10, that his employment was being terminated for a conflict of interest based upon “his relationship with Nationwide Insurance,” according to the suit, and no one at State Farm was ever able to explain to Roach what actions he had taken that specifically constituted a conflict of interest.
Roach claims he believes his termination was motivated in whole or in part by a desire on the part of State Farm to rid itself of older employees and after his termination, the defendant failed to pay his final wages within 72 hours of termination.
State Farm is liable to Roach for the unpaid amount, as well as for liquidated damages in a sum of three times the amount, according to the suit.
Roach is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by Harry F. Bell Jr. and Jonathan W. Price of the Bell Law Firm PLLC.
U.S. District Court for the Southern District of West Virginia at Charleston case number: 2:13-cv-10215
~~ Kyla Asbury - WV Record ~~
G-Comm™: Hoppy’s Commentary - Justice Delayed for School Principal
This week, a Mason County grand jury indicted Point Pleasant intermediate school Principal Cameron Moffett on charges of child abuse causing risk of injury. The charge stems from an incident 14 months ago where Moffett physically removed an 11-year-old student from a school bus.
The child had apparently been involved in a disturbance with other students and was told by a teacher to move to another seat. Later Moffett ordered the child off the bus. The bus security video shows Moffett grabbing the student. The student appears to collapse and then Moffett rolls the boy a short distance down the aisle.
Once off the bus, the child was restrained by Moffett on the ground.
The parents of the child, who is classified as a special needs student, claim the principal used excessive force. They have sued and Moffett has been removed from his principal’s job, with pay, until the issue is resolved, which brings us to the first issue in this unfortunate case.
Moffett’s attorney, Jim Lees, is furious that it’s taken over a year to even bring the criminal case against Moffett to the grand jury.
“Regardless of how you feel about the case… if somebody accuses you of something and you have witnesses to it, you want your day in court as soon as you can,” Lees said on Metronews Talkline Wednesday.
Lees theorizes that the former Mason County prosecutor, Damon Morgan, just didn’t want to deal with the controversial case. Morgan did not run for re-election and the case was held over for the newly-elected prosecutor, Craig Tatterson, who finally brought it to a grand jury.
Still, Moffett has been in legal limbo for the last year, and it will probably be another few months before the case comes to trial. The excessive delay is unfair, particularly to Moffett, but also to the family of the alleged victim, as well as the potential witnesses.
The charge against Moffett suggests the principal abused the child in a way that “creates a substantial risk of serious bodily injury or of death.” It’s a felony which could land Moffett in prison for five years, if convicted.
Meanwhile, the criminal prosecution has a potentially chilling effect on teachers and administrators who have the arduous responsibility of trying to keep the peace in schools. If a teacher grabs hold of a misbehaving student a little too forcefully, do they have to worry about getting hauled away by the police?
The West Virginia school system’s manual detailing the expected behavior for students and how teachers and principals are supposed to administer discipline is about 70 pages long. It’s hard to imagine how school officials are supposed to follow the letter of the law in every instance, especially when a situation escalates quickly.
But under state code, teachers and administrators do have the right to use “reasonable force” to restrain a misbehaving student.
Did Moffett go a little too far? Maybe, and the Mason County School Board, which is elected by the people of Mason County, can decide that. But dragging Moffett through the criminal justice system and dangling a felony conviction over his head is an injustice, and worse yet, a delayed injustice.
Former Business School Deans Sue WVU Over 2007 Degree Scandal, Demand Reputations be Repaired
Six years after a degree scandal shook West Virginia University and forced its president to resign, two professors are demanding their tarnished reputations be restored.
Former business school dean Stephen Sears and former associate dean Cyril Logar are suing in U.S. District Court in Clarksburg, accusing WVU of breach of contract and denial of due process.
They say WVU has ignored an academic integrity policy requiring “diligent efforts” to restore the reputations of people cleared of misconduct.
Spokeswoman Becky Lofstead declined comment Wednesday.
Last summer, Special Academic Integrity Officer Nigel Clark said there would be no further action against anyone involved in awarding an executive master of business administration degree to Heather Bresch.
She’s the chief executive officer of Pennsylvania-based Mylan Inc. and the daughter of U.S. Senator Joe Manchin.
Gilmer County Circuit Court Report – 05.14.13
&Bull; State of West Virginia vs. Timothy Furr
He was before the Court for reconsideration of sentence previously handed down by Judge Alsop.
After argument by defense counsel, Drannon Adkins of Sissonville and plea by defendant, Furr, Judge Alsop denied the motion and returned him to Central Regional Jail to complete his sentence.
Three juvenile matters were heard:
&Bull; One reset for Monday, August 12, 2013 at 9:00 AM
&Bull; One for Friday, June 07, 2013 at 1:00 PM
&Bull; The last one for Monday, August 12, 2013 at 9:15 AM
&Bull; State of West Virginia vs. Gerald Adkins II
He was before the Court for sentencing and after argument of counsel, Danile Grindo of Gassaway, and an impassioned request for leniency from the victim of the crime, and upon recommendation by Prosecutor Hough for probation, Judge Alsop sentenced Adkins to 120 days in Central Regional Jail for petit larceny and 1-10 years in penitentiary for forgery, with sentences to run concurrently.
Judge Alsop then ordered the petit larceny effective date of sentence to be March 10, 2013 and suspended the felony forgery sentence and placed Adkins on 5 years probation and ordered him to participate in an outpatient substance abuse program through Summit Center, make restitution in the amount of $2100.00 at a minimum of $150.00 per month, perform 120 hours community service per year of probation, maintain employment and keep child support current.
&Bull; A bench trial was scheduled for Tuesday, August 13, 2013 at 9:00 AM in a civil case between John Jordan and Victor Jordan, Plaintiff is represented by Daniel Grindo and defendant is represented by Michael Asbury Jr. of Clay.
&Bull; An injunction hearing was scheduled in the case of State of West Virginia vs. John Burrows and Charmed One Emporium, but due to the name of the company and defendant being incorrect per the Secretary of State’s Office, Gerald Hough was directed to amend the complaint and serve it through the Secretary of State’s Office and set the matter for an evidentiary hearing at 9:00 AM on Wednesday, July 03, 2013.
&Bull; Judge Alsop will hold the July, 2013 term of Court in Gilmer County.
G-otcha™: Federal Guilty Pleads for Assault and Introduction of a Prohibited Object
• JOHN THOMAS CHINNICI, age 27; VICTOR AVILES, age 32 and ALEX TEJADA, age 31, former inmates at FCI Gilmer entered pleas of guilty to “Assault.”
On June 30, 2011, CHINNICI, AVILES and TEJADA assaulted another inmate by punching, kicking and stabbing him eight times with prison-made knives.
CHINNICI, AVILES and TEJADA were each sentenced to 12 months imprisonment and remanded to the custody of the United States Marshal.
This case was prosecuted by Assistant United States Attorney Brandon S. Flower and was investigated by the Special Investigative Services Staff at FCI Gilmer.
• ZSA ZSA DEE FIELDS, age 45, of Detroit, Michigan, entered a plea of guilty to “Introduction of a Prohibited Object - Marijuana.”
On December 17, 2011, FIELDS provided marijuana to an inmate at FCI Gilmer.
FIELDS was sentenced to 18 months probation.
The case was prosecuted by Assistant United States Attorney Brandon S. Flower and investigated by the Special Investigative Services at FCI Gilmer.
G-otcha™: Lewis County Resident Entered Guilty Plea to Providing a False Statement
LAWAN GADDY, age 24, of Lewis County, West Virginia, was sentenced to 21 months imprisonment to be followed by three years of supervised release.
GADDY entered a plea of guilty on December 14, 2012, to “Providing a False Statement to a Federal Firearms Licensee in the Acquisition of a Firearm” on September 20, 2011.
GADDY, was remanded to the custody of the United States Marshal pending designation to a Federal institution.
This case was prosecuted by Assistant United States Attorney Zelda E. Wesley and investigated by the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Weston Police Department.
G-otcha™: Federal Guilty Plea for Illegal Firearm Possession by Starcher
A Roane County man who broke into a camper van and stole several firearms pleaded guilty to being a felon in possession of firearms.
Robert Allen Starcher, age 29, of Spencer, WV, entered into a guilty plea in federal court in Charleston.
On January 01, 2012, Starcher broke into a camper van that was located in Walton, Roane County, WV, and took four rifles and two shotguns that were inside.
Following the burglary, Starcher took the firearms that he had stolen from the camper, along with other stolen goods, and traded the items for an SUV.
Starcher was prohibited from possessing firearms because of multiple prior felony convictions.
Starcher was convicted in September 2007 in the Circuit Court of Ritchie County of transferring stolen goods.
Starcher was also convicted in January 2007 in the Circuit Court of Calhoun County of grand larceny.
Starcher also had prior felony convictions in Gilmer and Braxton counties from 2006.
Starcher faces up to 10 years in prison and a $250,000 fine when he is sentenced on August 15, 2013 by United States District Judge John T. Copenhaver, Jr.
This case was brought as part of Project Safe Neighborhoods.
Project Safe Neighborhoods is a nationwide commitment to reduce gun crime in the United States by networking existing local programs targeting gun crime.
G-otcha™: Federal Court: Bank Employee Indicted for Embezzlement of Nearly $250,000
• DEBORAH D. RADCLIFF, age 41, of Weston, West Virginia, was named in an eight-count Indictment charging her with one count of “Embezzlement by a Bank Employee” and seven counts of “Structuring.”
According to the Indictment, while serving as the branch manager of the Weston branch bank of Huntington National Bank from July 01, 2011, to November 05, 2012, RADCLIFF embezzled and misapplied $247,249.88 from depositors’ accounts and engaged in acts of structuring to cause the bank to fail to file a Currency Transaction Report for currency transactions of $10,000 or more.
To execute the scheme, RADCLIFF utilized her position as branch manager to issue or direct to be issued cashier’s checks from funds withdrawn from depositors’ accounts issued in the name of the depositor.
RADCLIFF would take possession of the cashier’s check, forge the name of the depositor and cash the checks for her own personal benefit.
The ages of the alleged victims ranged from 56 to 90 years, with all but one alleged victim 64 years or older.
The Indictment also seeks the forfeiture of a money judgment of the $247,249.88.
If convicted, RADCLIFF faces up to 30 years imprisonment and a $1,000,000 fine on the embezzlement count and up to 10 years imprisonment and a $500,000 fine on each of the structuring counts.
This case will be prosecuted by Assistant United States Attorney John C. Parr and was investigated by the Federal Bureau of Investigation.
• SHANE O. BRANTLEY, age 36, of Sutton, West Virginia, was named in a one-count Indictment charging him with “Felon in Possession of a Firearm” on April 25, 2012, in Braxton County.
If convicted, BRANTLEY faces a maximum exposure of 10 years imprisonment and a fine of $250,000.
Judge Sets Hearing Date in Lena Lunsford Case
A federal judge will hear arguments later this month on a plan to move the mother of a missing West Virginia girl from Wheeling to the Clarksburg area, where she says publicity about the disappearance has made her a “social pariah.“
U.S. District Judge John Preston Bailey has scheduled a status hearing for May 23, 2013 in Wheeling.
Lena Lunsford was freed from a federal prison earlier this year after serving eight months for welfare fraud and was placed on one year of supervised release. But federal probation officials now want to move her, and Lunsford is opposing the relocation.
She has been living at a YWCA, attending West Virginia Business College and working at a pizza shop, public defender Brian Kornbrath said. She’s also now pregnant with her eighth child.
Three-year-old Aliayah Lunsford went missing in September 2011 from a rented home near Bendale in Lewis County. Authorities have never found the toddler or charged anyone in connection with the disappearance.
Lena Lunsford has denied involvement in the disappearance and any knowledge of what happened to her daughter.
Lunsford’s other six children are in state care, and the state Supreme Court has upheld a Lewis County judge’s order terminating her parental rights.
Kornbrath says the U.S. Probation Office ordered Lunsford to relocate to serve her remaining nine months because she can’t afford to pay the rent owed to the YWCA.
He contends moving Lunsford will undercut her chances of succeeding. It would be difficult for her to find a job and she has nowhere to live, he said.
Gilmer County Circuit Court Report – 05.02.13
On Tuesday, April 30, 2013 Judge Jack Alsop presided over Court in Gilmer County.
He heard 3 juvenile cases with 2 being reset as follows:
• One for Monday, May 13, 2013 at 10:00 AM and the other for Friday, June 07, 2013 at 10:30 AM.
• One civil hearing was cancelled without hearing.
• State of West Virginia vs. Mark Taylor
He was before the Court for a preliminary hearing on probation revocation.
Taylor was represented by Daniel Grindo of Gassaway.
Probable cause was found by Judge Alsop, and he set the matter for final hearing on Friday, June 07, 2013 at 11:00 AM.
On Thursday, May 02, 2013 Judge Alsop heard a juvenile matter by video conference from Braxton County and reset it for Friday, June 07, 2013 at Noon.
On Friday, May 03, 2013 Chief Judge Richard A. Facermire presided over Court in Gilmer County.
• He cancelled all of the cases set but one and reduced the bond in the case of State of West Virginia vs. Donald Skinner to $5,000.00.
Skinner was represented by Daniel Grindo of Gassaway, WV.
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