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West Virginia Campaign Finance Limits Challenged in Court

The Gilmer Free Press

A political group formed to aid West Virginia incumbents this November won a partial victory Thursday after suing over the state’s limits on campaign contributions and a policy addressing corporate spending.

Secretary of State Natalie Tennant, a target of the U.S. District Court lawsuit as West Virginia’s elections chief, agreed Thursday that the corporate policy is outdated and invalid. The policy is found in her office’s handbook for candidates.

The group, Stay the Course West Virginia, invoked the reason why in its federal challenge: the landmark 2010 U.S. Supreme Court ruling known as Citizens United that allowed unlimited direct spending by corporations and unions on elections, and the resulting change in state law.

“The Secretary of State regrets any misstatement in the handbook and immediately will correct the error,“ spokesman Jake Glance said in a statement Thursday. “Obviously when the code conflicts with the handbook, the code prevails. A lawsuit was not required to bring the error to the attention of the Secretary of State.“

Glance said that regulations meant to provide detail to state law also must be updated to reflect the 2010 change. He cited how Citizens United and other recent court cases have triggered rapid and ongoing changes to campaign finance rules.

Stay the Course also is challenging the $1,000-per-election cap on political contributions to non-federal candidates in West Virginia. Its lawsuit, filed Wednesday in Bluefield, argues that the cap violates the 1st Amendment right to free speech found in the U.S. Constitution.

A lawyer for the group, Allen Prunty, said that Tennant has done nothing wrong in administering current law but that the lawsuit seeks to bring those rules in line with what governs federal campaigns.

“West Virginia election laws are outmoded and inconsistent with recent decisions of the United States Supreme Court and other federal courts,“ Prunty said Thursday. “These court decisions have defined robust rights of political participation which West Virginia law unconstitutionally limits.“

Stay the Course West Virginia brought the case along with Thomas Stephen Bailey, listed as a Kanawha County resident who wants to give $1,200 to the group, and Pineville Lumber, a corporation that wants to contribute $5,000. David Bailey of St. Albans is also a plaintiff, as the group’s chairman and president.

Prunty described the group Thursday as an unaffiliated independent expenditure political action committee. Court filings show Stay the Course registered last month both with Tennant’s office as a PAC and with the U.S. Internal Revenue Service as a “527” group, referring to the relevant section the tax code. The group will disclose its contributions as required by each agency, David Bailey said in a signed statement filed with the lawsuit.

Stay the Court aims “to support one or more incumbent West Virginia state government officeholders who have contributed to improving the West Virginia business climate and strengthening the West Virginia economy,“ Bailey’s statement said. He cites the state’s government finances as being in good shape, and the unemployment rate remaining below the national average, and said the group also will oppose those challenging its favored incumbents.

Pineville Lumber’s president, Everett Hannah, and his wife each gave $1,000 to the campaign of Governor Earl Ray Tomblin in April. Both also contributed to the Democrat last year, when he narrowly won a special gubernatorial election to complete the term of now-U.S. Senator Joe Manchin. The veteran former legislator’s GOP opponent then and now, with the office up for a full four years, is Morgantown businessman Bill Maloney.

Hannah and his family members previously contributed to And For The Sake Of The Kids, a 527 group that spent more than $3.6 million in 2004 to unseat then-Supreme Court Justice Warren McGraw, a Democrat, and elect current Justice Brent Benjamin, a Republican, in his place. That group was chiefly bankrolled by Don Blankenship, the since-retired chief executive of Massey Energy. Blankenship’s spending prompted a 2009 U.S. Supreme Court ruling that barred Benjamin from hearing any cases involving Massey. Maloney’s campaign for governor, both in 2011 and this year, feature several political operatives from And For The Sake Of The Kids.

Stay the Course’s lawsuit also names Mercer County Prosecuting Attorney Scott Ash as a defendant, to represent the 55 county prosecutors because they pursue any election law violations.

G-otcha™: New York Man Sentenced for Selling Illegal Cigarette in Lewis County


A 23-year old Brooklyn, New York, resident was sentenced on May 22, 2012, in United States District Court in Elkins by Chief Judge John Preston Bailey.

United States Attorney William J. Ihlenfeld, II, announced that:

MOHAMMAD D. MOHAMMAD was sentenced to 21 months imprisonment to be followed by two years of supervised release and ordered to pay a fine of $5,000.

MOHAMMAD entered a plea of guilty on November 18, 2011, to one count of transporting and possessing contraband that is more than 10,000 cigarettes that bore no WV State tax, on March 29, 2011, in Lewis County, West Virginia.

MOHAMMAD, who is free on bond, will self-report to the designated Federal facility on June 28, 2012.

The case was prosecuted by Assistant United States Attorney Zelda E. Wesley was investigated by the Bureau of Alcohol, Tobacco and Firearms.

G-otcha™: FCI-Gilmer Federal Inmate Enters Plea for Possession Marijuana


An FCI-Gilmer inmate entered a plea of guilty and was sentenced on May 22, 2012, in United States District Court in Clarksburg before Judge Irene M. Keeley.

United States Attorney William J. Ihlenfeld, II, announced that:

EUGENE HUNT, age 40, entered a plea of guilty to one count of possession marijuana on November 12, 2011, at FCI-Gilmer.

HUNT was sentenced to 4 months imprisonment to be served consecutively with his current 180-month sentence.

The case was prosecuted by Assistant United States Attorney Brandon S. Flower and were investigated by the Federal Bureau of Investigation and the Special Investigative Services at FCI-Gilmer.

Mother of Lewis County Missing Girl Going To Federal Prison


The mother of missing Lewis County three-year-old Aliayah Lunsford was sentenced Tuesday, May 22, 2012 in Elkins to eight months in federal prison.

Lena Lunsford, age 29, of Bendale, previously pleaded guilty to federal food stamp fraud.

She sold her food stamp card.

U.S. Attorney Bill Ihlenfeld says the eight-month prison term is at the high end of the federal sentencing guidelines.

He says U.S. District Judge John Bailey said anything less may not send the right message to Lunsford.

“Two months, which was the low end of the guideline range, would not be sufficient to cause Ms. Lunsford to learn to respect the law. So he felt the high end was more appropriate so he imposed that sentence,“ Ihlenfeld said.

Lunsford was caught by the FBI and State Police in a sting operation after they heard she may have been participating in illegal activity.

“It turns out she was and there was a controlled transaction that took place and it was recorded,“ Ihlenfeld said.

The money that changed hands was $114.

Ihlenfeld believes there’s more food stamp fraud in West Virginia than most people are aware of.

‘It’s important that we enforce that because ultimately it’s children that suffer,“ he said.

Ihlenfeld said again Tuesday the case is separate from the ongoing search for Lunsford’s daughter.

“The FBI continues to look into that, to receive information, to do their own investigation and will continue to do so,“ he said.

The young girl has been missing since last September.

Lena Lunsford will be on supervised release for one year after serving her eight-month sentence.

Pennsylvania Gas Driller Sues Doddridge County over Permit

The Gilmer Free Press

A gas company is suing Doddridge County officials for revoking a flood plain permit after it spent $300,000 on the permitting process.

Pittsburgh-based EQT is seeking an injunction in circuit court so it can proceed with plans for 12 wells.

WDTV-TV reported that the permit was revoked after the county’s flood plain manager realized homes and livestock were vulnerable.

EQT said the county and the state Department of Environmental Protection granted permits, and the manager had no authority to revoke them.

The manager also sits on the County Commission.

Landowner Joye Huff called EQT’s actions rude, stubborn and intimidating.

Huff said the Federal Emergency Management Agency pointed out the potential problems and the flood plain manager had no choice but to withdraw the permit.

County commissioners declined comment.

Elkins: Lena Lunsford Sentencing Set For Tuesday 05.22.12


Sentencing for Lunsford is set for 2:30 PM Tuesday afternoon, May 22. 2012.  in the U.S. Northern District Court of West Virginia for Lena Lunsford.

Lunsford, age 29, pleaded guilty in January to a single count of federal welfare fraud.

Lunsford had been charged with six counts of federal welfare fraud for selling her Supplemental Nutritional Assistance Program or SNAP card.

As part of the plea agreement five of those counts were dismissed.

Prosecutors say she sold $114 dollars’ worth of welfare benefits.

The welfare fraud came to light during the FBI’s investigation into the disappearance of her three-year-old daughter Aliayah.

Aliyah disappeared from her Lewis Count home in September and there has not been any sign of her since.

Authorities have had very few leads, no suspects, made no arrests and have refused to speculate as to what may have happened to the little girl.

Volunteer search efforts have continued, including Joe “The Bloodhound” Nick and Hunter Glass coming to West Virginia in effort to find the girl.

Lunsford is facing a maximum of five years in prison and a fine of up to $250,000 and restitution.

Lunsford is currently free on bond.

Braxton County’s Grindo Has History Of Slow Response To Answering Ethics Complaints


The WV Record Reports:

The lack of urgency in responding to an ethics investigation, records show, is what led to Dan Grindo’s four admonishments.

Along with his lack of diligence in filing two appeals in 2010 and 2011 to the state Supreme Court, the Lawyer Disciplinary Board said four prior admonishments in 2008 and 2009 led it file the Feb. 21 statement of charges against him. In the four complaints filed against him between Jan. 11, 2008 and May 23, 2009, Grindo answered them only after he was served with a subpoena dues tecum.

The complaints were lodged by Linda M. Steen of Gassaway, Charles E. Ball of Sutton, Jesse A. Lynch, then an inmate at the Mt. Olive Correctional Complex near Smithers, and Robin L. Goodrich of Glenville. Steen’s and Goodrich’s complaint stem from allegations Grindo was slow in returning money due them while Ball and Lynch alleged he either failed to show or keep them informed of hearings in their respective cases.

After decided against pursing a right-of-way issue, Steen asked Grindo to refund her $1,000 retainer. When he failed to make good on his word to return it after several weeks, Steen lodged her complaint.

Records show, on Nov. 24, 2009, he sent Steen her money along with a written apology.

In her complaint, Goodrich alleged Grindo failed to timely send her a check for $3,750 she received from interests in real estate her ex-husband owned while they were married. Along with filing her ethics complaint, records show, Goodrich filed suit against Grindo in Gilmer Magistrate Court where she received default judgment against him on Oct. 14, 2008, initially for $4372.31 plus $95 in court costs.

After appealing the judgment to Gilmer Circuit Court, the pair on Nov. 21 agreed to settle the dispute with Goodrich keeping all but $517.31. The amount appears to be an unspecified medical bill Goodrich owed which, in his response to her complaint, Grindo said he felt he had an obligation to pay, and was thus the delay in getting the balance of her money to her.

Also, Grindo said in early 2008 “his attention was directed elsewhere,“ mostly on his campaign for prosecutor.

Grindo’s absence at a July 9, 2007, contempt hearing against the unnamed defendant in a property dispute involving Ball is what led Ball to file his complaint. After served with the subpoena, Grindo said he missed Ball’s hearing due to a hearing in Webster County running longer than expected.

Though he contacted the judge’s office to inform him of the delay, Grindo said the judge already denied the contempt petition. Though they later agreed to proceed to a hearing before a special commissioner involving the property, Ball later cancelled the hearing.

Records show, along with filing his ethics complaint, Ball filed suit against Grindo which was later settled on an unspecified date.

According to his complaint, Lynch says Grindo was appointed to represent him in an unspecified criminal matter in June 2008. He alleged Grindo not only failed to inform him of a hearing, but also did not respond to multiple requests for documents.

Also, Lynch said Grindo placed “a block on his phone to prevent him from calling his office collect from the prison.“

In responding to Lynch’s complaint, Grindo said he attempted to get the details of the documents Lynch wanted by discussing them with him at the prison. However, he says Lynch refused to meet with him.

According to Grindo, he later withdrew from the case.

In closing all the complaints on Dec. 16, 2009, Stephen Jory, chairman of the Board’s investigative panel, noted that Grindo “profusely apologized for his failure to respond to his client’s complaint and indicated that he had made significant changes to his law practice to ensure against the same from occurring in the future.“ Nevertheless, he was “warned that in the future, his failure to respond to the Office of Disciplinary Counsel’s request for information, will lead this Board to seek a more severe sanction with the [Court].“

~~  Lawrence Smith - WV Record  ~~

Braxton Attorney Accused of Lacking Urgency In Filing Appeals


The WV Record Reports:

A Braxton County attorney faces disciplinary charges he failed to timely file appeals of two domestic-related cases to the state Supreme Court.

The Lawyer Disciplinary Board filed a two-count statement of charges against Dan Grindo on Feb. 21. In its statement, the Board, the arm of the Court that prosecutes attorney misconduct, alleges Grindo, 34, a sole practitioner in Gassaway, committed five violations of the Rules of Professional Conduct when he first, had to be prodded to file one man’s appeal for modification for child support, and parenting time and then, missed the deadline to file an appeal of another man’s termination of parental rights.

A statement of charges acts like an indictment for disciplinary purposes.

Nine Months Late

According to the statement, Grindo on Aug. 24, 2009, filed a petition for appeal to the Court challenging a decision rendered by Braxton Family Law Judge Robert Reed Sowa denying a petition for Grindo’s client, Jeffrey E. Skidmore, to have more time with his son. In addition to denying Skidmore’s petition, Sowa granted an expedited petition filed by the boy’s mother, Crystal L. Rogers, for an uptick in child support.

Grindo filed his petition for appeal after Braxton Circuit Judge Richard Facemire affirmed Sowa’s rulings.

According to the statement, the Court on Oct. 29 agreed to hear Skidmore’s appeal. The Court on Dec. 21 set a scheduling order in which Grindo was informed he would need to file his brief within 30 days of receiving the order.

When it was not received by March 2010, the Clerk’s Office contacted Grindo about it. He said it would be submitted the next day.

However, by June 8, it hadn’t. The Clerk’s Office, in a letter dated that day, notified Grindo he had another 20 days to file his brief.

When he, again, failed to do so, the Court on Sept. 9 imposed sanctions on him. However, it gave him another 15 days to file his brief.

According to the statement, Grindo did file it on Oct. 4, 2010. A week later in response to a complaint the Court initiated with the Office of Disciplinary Counsel, Grindo said because “he was handling the matter on a pro bono basis…admitted that he failed to adhere to the Court’s briefing schedule.“

Last April, in an opinion written by Justice Margaret A. Workman, the Court upheld Sowa’s ruling on Skidmore paying more in child support, but reversed his ruling on denying Skidmore more parenting time.

Another Never Filed

Two months after the Court’s ruling in the Skidmore case, Grindo filed a notice of appeal in an abuse and neglect case involving Joseph Dobbins. According to court records, Facemire on May 17, 2011, granted a petition filed nearly a year earlier by the state Department of Health and Human Resources to terminate the parental rights of both Dobbins, and Thomasina Bennett, the mother of Dobbins’s son, Walker.

DHHR petitioned to terminate their parental rights on the grounds Bennett had two other children removed from her care in Upshur and Harrison counties, and Dobbins was “in need of a substantially lengthy rehabilitation program to treat his sexual abuse history.“ Also, DHHR said Bennett and Dobbins “did little to remedy the situation and did follow through with a reasonable family case plan” after given a six-month improvement period.

In his notice, Grindo disputed that. Dobbins, Grindo said, “was making appropriate progress during the improvement period and that the lower court improperly terminated parental rights in the face of that progress.“

According to the statement, the Court issued a briefing schedule on June 21. In it, the Court gave Grindo a month to file his brief so the appeal could be perfected.

Though he filed an appendix on July 29, Grindo failed to file the petition. In response to multiple calls from the Clerk’s Office, Grindo said “he would promptly file the brief.“

When he failed to file one by Aug. 26, DHHR filed a motion to dismiss the case. Records show, the Court granted it on Sept. 8.

Six days later, the Court again lodged a complaint against Grindo with ODC. In his reply dated Oct. 13, Grindo “again acknowledged that he failed to either file a motion to withdraw or otherwise comply with the Order of Court directing him to perfect the appeal he filed on his client’s behalf.“

The statement accuses Grindo of violating Rules dealing with diligence, expediting litigation and fairness to opposing party and counsel. The Board opted to issue the statement against Grindo based on several aggravating factors including four prior admonishments it gave him between 2008 and 2009.

An evidentiary hearing on the statement is scheduled for Thursday, May 24 at the Flatwoods Days Inn.

West Virginia Supreme Court of Appeals case numbers 12-0228 (Grindo statement of charges), 35291 (Skidmore appeal) and 11-0931 (Dobbins appeal)

~~  Lawrence Smith - WV Record  ~~

Gilmer County Circuit Court Report – 05.14.12


Monday, May 14, 2012 motion day for Chief Judge Jack Alsop was completed by Noon.

Four fugitives from justice waived extradition back to their respective states:

•  Authorities in Virginia must pick up Charles Nowlin Jr. and Phillip Harvey by 4:00 PM on Wednesday, May 23, 2012 or Central Regional Jail will release each of them.

•  Authorities in Indiana must pick up Eudell Dickerson Jr. by 4:00 PM on Wednesday, May 23, 2012 or Central Regional Jail will release him.

•  Authorities in Pennsylvania must pick up James Hogan by 4:00 PM on Wednesday, May 23, 2012 or Central Regional Jail will release him.

All 4 were represented by David Karickhoff of Sutton.

•  Judge Alsop performed a wedding between Brandi Burkhamer and Jason Smith.

•  State of West Virginia vs. Jerry Blackwell

He was sentenced to 5-years’ probation and must perform 80 hours of community service per year of probation.

He also must pay court costs and court appointed attorney fees.

He was represented by David Karickhoff.

•  State of West Virginia vs. Karen Burns

She was sentenced to not less than 1 nor more than 5 years for child neglect creating risk of injury and not less than 1 nor more than 15 years in the penitentiary for possession with intent to deliver crack cocaine.

She will be given credit for time served and the sentences will run consecutively.

She was represented by Kevin Duffy of Clay, WV.

•  State of West Virginia vs. Bonnie Riddle

She was before the Court asking to be released from home confinement and to be placed on probation.

Judge Alsop placed her on 18 months Court ordered parole and directed that she pay court costs and court appointed attorney fees.

She was represented by Keisha May of Charleston.

•  Citibank, NA vs. Robert Spencer

He was before the Court for status hearing.

A pre-trial was scheduled for Monday, November 26, 2012 at 1:00 PM with bench trial set for Tuesday, December 04, 2012 at 9:00 AM.

Plaintiff’s attorney is Andrew Frye III and defendant is represented by Daniel Grindo of Gassaway.

•  State of West Virginia vs. Jordan Sheldon

He did not appear for his expungement hearing and Judge Alsop dismissed the case without prejudice.

Nicholas James also failed to appear as his attorney.

•  State of West Virginia vs. Matthew Capelety

He was before the Court for sentencing represented by Christopher Moffatt of Charleston.

He asked for probation or home confinement, both of which were denied.

He was sentenced to 1-5 in the penitentiary to run consecutive to his Lewis County sentence which he is currently serving.

Two name changes were before the Court:

Judge Alsop granted the name change of Britney Butler to Nickeson and took the other name change under advisement.

•  Civil Case: Michael & Rachel Langford vs. Patrick Bush, et al

The case was before the Court to hear several motions and Judge Alsop stayed further action in this case until the West Virginia Supreme Court rules on the Mason County certified question submitted to them involving State Farm.

Within 30 days of the ruling by the Supreme Court the plaintiffs’ attorney (Brent Kesner) must set this matter for status hearing.

State Farm (also a party defendant in this case) was represented by R. Carder Elkins.

•  One juvenile case was heard and reset for Monday, July 09, 2012 at 9:45 AM.

•  Another one was set for pretrial on Monday, August 13, 2012 at 9:15 AM with jury trial to follow on Thursday, August 16, 2012 at 9:00 AM.

•  A final civil case was not heard because an agreed order had been entered relieving F. John Oshoway from representing a party.

The remainder of the week Judge Alsop will be attending a judicial conference at Pipestem and will be unavailable for hearings. 

G-otcha™: Gilmer Federal Inmate Enters Plea and Is Sentenced in Federal Court


An FCI Gilmer inmate entered a plea of guilty and was sentenced on May 11, 2012, in United States District Court in Clarksburg before Judge Irene M. Keeley.

MICHAEL CHEATOM, age 32, entered a plea of guilty to one count of possession marijuana on August 21, 2011, at FCI Gilmer.

CHEATOM was sentenced to 4 months imprisonment to be served consecutively with his current 90-month sentence.

The case was prosecuted by Assistant United States Attorney Brandon S. Flower and were investigated by the Federal Bureau of Investigation and the Special Investigative Services at FCI Gilmer.

Advocate for Smaller Schools Says West Virginia Needs a New Educational Philosophy


An advocate for small community schools says, 30 years later, it should be clear the Recht decision has not worked for the benefit of West Virginia’s students.

Challenge West Virginia Executive Director Thomas Ramey says the ruling, issued in May 1982, was supposed to help students in the state’s poorest, most rural areas.

“The education systems in those counties and the education those children in those counties receive has not improved.  In many cases, it’s gotten worse,“ Ramey said on Monday’s MetroNews Talkline.

In the landmark decision in the case of Pauley v. Bailey out of Lincoln County, Ohio County Circuit Judge Arthur Recht helped change education in West Virginia when he ruled the state’s school funding system violated the Constitution and did not create a “thorough and efficient” education system.

As part of that decision, Recht ordered an overhaul to equalize the system, an order that lead to the creation of the state School Building Authority.

Now, twice a year, members of the SBA determine how the millions of dollars available for school construction and maintenance projects in West Virginia are spent.

Ramey says, over the years, the SBA has favored consolidations.

Since 1990, he says 350 schools in West Virginia have closed because of those consolidations, creating long bus rides for some students who no longer attend school in their communities.

SBA officials, though, say consolidations have led to better facilities and create more educational opportunities for students.

At the same time, they say they are helping with local projects that may not have adequate funding without the SBA.

Ramey does not agree.

He says West Virginia needs a new education philosophy.

“I actually think that children, low income children and children in rural areas, have just as much as a difficult time succeeding today than they did prior to the Recht decision,“ he said.

Braxton County: Duck Resident Enters Plea to Using a Communication Facility to Commit a Drug Felony


A 28 year old Duck, West Virginia, resident entered a plea of guilty on May 08, 2012,in United States District Court in Clarksburg before Magistrate Judge John S. Kaull.

United States Attorney William J. Ihlenfeld, II, announced that: JOCELYN M. GRAHAM entered a plea of guilty to one count of the illegal use of the United States mail on August 03, 2010, to facilitate the distribution of methamphetamine and oxycodone.

GRAHAM, who is on bond pending sentencing, faces a maximum exposure of 4 years imprisonment and a fine of $250,000.

This case was prosecuted by Assistant United States Attorney Robert H. McWilliams, Jr. and was investigated by the United States Postal Inspection Service.

Award-Winning ‘War on Kids’ Documentary Featuring John W. Whitehead


Documentary Channel to Air Award-Winning ‘War on Kids’ Documentary Featuring John W. Whitehead on Sunday, May 06, 2012, 8:00 PM EST

On Sunday, May 06, 2012, at 8:00 PM EST, the Documentary Channel will air The War on Kids, a documentary directed by Cevin Soling which examines the increasingly authoritarian nature of the public schools and their long-term impact on young people.

The documentary features an interview with constitutional attorney John W. Whitehead, who has been a vocal critic of overreaching school zero tolerance policies—one-size-fits-all disciplinary procedures that mandate suspension or expulsion for students who violate the rules, regardless of the student’s intent or the nature of the violation. The Rutherford Institute has come to the defense of hundreds of students who have run afoul of school zero tolerance policies.

Most recently, Institute attorneys asked the U.S. Supreme Court to hear the case of a 14-year-old honor student who was suspended for shooting plastic “spitwads” while at school.

“For the millions of students attending elementary and secondary public schools, their time in school will be marked by overreaching zero tolerance policies, heightened security and surveillance and a greater emphasis on conformity and behavior-controlling drugs—all either aimed at or resulting in the destruction of privacy and freedom,” said John W. Whitehead, president of The Rutherford Institute. “As The War on Kids shows, the moment young people walk into school, they find themselves under constant surveillance: they are photographed, fingerprinted, scanned, x-rayed, sniffed and snooped on. Between metal detectors at the entrances, drug-sniffing dogs in the hallways and surveillance cameras in the classrooms and elsewhere, America’s schools have come to resemble prison-like complexes.”

Named the best educational documentary by the New York International Independent Film and Video Festival, The War on Kids is a 2009 documentary film about the American school system.

The film takes a look at public school education in America and concludes that schools are not only failing to educate, but are increasingly authoritarian institutions more akin to prisons that are eroding the foundations of American democracy.

The documentary features interviews with schoolchildren, high school teachers, administrators, prison security guards, renowned educators and authors, including attorney John Whitehead.

As Whitehead points out, under the guise of protecting and controlling young people, school officials have adopted draconian zero tolerance policies, which punish all offenses severely, no matter how minor.

School systems began adopting these tough codes after Congress passed the 1994 Gun-Free Schools Act, which required a one-year expulsion for any child bringing a firearm or bomb to school.

Zero tolerance rules in many states also cover fighting, drug or alcohol use and gang activity, as well as relatively minor offenses such as possessing over-the-counter medications and disrespect of authority.

Nearly all American public schools have zero tolerance policies for firearms or other “weapons,” and most have such policies for drugs and alcohol.

In the wake of the Columbine school shootings, legislators and school boards further tightened their zero tolerance policies, creating what some critics call a national intolerance for childish behavior.

In some jurisdictions, carrying cough drops, wearing black lipstick or dying your hair blue are expellable offenses.

The Rutherford Institute is regularly called on to defend students dealt excessive punishments for violating unreasonable zero tolerance policies.

GFP - 05.05.2012
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Gilmer County Circuit Court Report - 04.23.12


Judge Richard A. Facemire appeared in Gilmer County for his regular monthly motion day on Monday, April 23, 2012,

Several cases were heard by him before Noon:

•  A juvenile case was heard and rescheduled for Thursday, July 19, 2012 at 9:00 AM.


•  State of West Virginia vs. Kevin Curry

He was sentenced to 1-5 years in the penitentiary upon his former plea of guilty to child neglect creating risk of injury.

This sentence will run consecutive with other sentences he is currently serving.

He received no fine but must pay customary court costs within 18 months of his release from incarceration.

Curry was represented by Christina Flanigan of Buckhannon.


•  State of West Virginia vs. Amanda Smith

She was ordered to undergo 60 days diagnosis and classification (upon her former plea of no contest to the same charge Kevin Curry pled to) before being sentenced on Monday, August 27, 2012 at 9:00 AM.

She also flunked her urine screen before the probation officer today.

Smith was represented by Garth Beck of Clarksburg.


•  State of West Virginia vs. Casey Cottrill

She appeared for sentencing today after having a bench warrant out for her arrest earlier for failure to appear in Court.

She was also wanted in Lewis County Circuit Court and was served a capias from their Court later in the day.

She also received 60 days D&C before her scheduled sentencing on Monday, August 27, 2012 at 9:15 AM.

She too was represented by Garth Beck.


•  State of West Virginia vs. Osmond Brown Jr.

He was before the Court for sentencing upon his former plea.

He received 1-5 years in the penitentiary with his sentence being suspended and he being placed on 5-years’ probation and must perform 100 hours of community service.

At this time he is working and playing football in North Carolina, and is paying child support.

Later his probation may be transferred to North Carolina after he graduates from Glenville State College.

He was represented by Christina Flanigan also.


•  State of West Virginia vs. John Gorzynski

He was before the Court for sentencing as well.

He was denied probation or alternative sentencing and was sentenced 1-10 years in the penitentiary, with no fine but he must pay customary court costs within 18 months of his release.

Central Regional Jail was ordered to do a full medical evaluation on Gorzynski and to provide all medical treatment necessary for him.

He was represented by Daniel Armstrong of Gassaway who stood in for David Karickhoff of Sutton.

•  One name change was heard and granted.

GFP - 04.24.2012
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Weston Resident Enters Plea to Child Pornography Charge


A 45-year old Weston, West Virginia, resident entered a plea of guilty on April 20, 2012, in United States District Court in Clarksburg before Magistrate Judge John S. Kaull.

United States Attorney William J. Ihlenfeld, II, announced that: LARRY ALLEN THOMPSON entered a plea of guilty to one count of Possession of Child Pornography on December 02, 2010, in Weston.

THOMPSON, who is on bond pending sentencing, faces a maximum exposure of 10 years imprisonment and a fine of $250,000.

The case was prosecuted by Assistant United States Attorney David J. Perri and was investigated by the West Virginia State Police Crimes Against Children Unit.

This case was prosecuted as part of Project Safe Childhood, a nationwide initiative to combat the growing epidemic of child sexual exploitation and abuse, launched in May 2006 by the Department of Justice.

Led by United States Attorneys’ Offices and the Criminal Division’s Child Exploitation and Obscenity Section, Project Safe Childhood marshals federal, state, and local resources to better locate, apprehend, and prosecute individuals who exploit children via the Internet, as well as to identify and rescue victims.

For more information about Project Safe Childhood, please visit

West Virginia Juvenile Justice System to Be Examined


West Virginia’s juvenile justice system will be examined by a court-hired monitor due to concerns that it focuses more on punishment than rehabilitation.

“Currently there seems to be too little emphasis on individual programming and re-entry strategies,“ state Supreme Court administrative director Steve Canterbury said Monday in a news release.

The court has tapped Cindy Largent-Hill, a former director of the Division of Juvenile Services, for the job. Largent-Hill is a member of the Adjudicated Juvenile Rehabilitation Review Commission, which is looking at the division’s programs and operations plan for the Industrial Home for Youth in Salem and the Honey Rubenstein Center in Davis.

“This is a monitor, not a special master and not a receiver,“ Justice Margaret Workman said in the release. “It would be premature without full information and study to appoint a special master or receiver. We want to work cooperatively with the other branches of government.“

Largent-Hill will work with circuit courts and their probation staffs, visit facilities, review files of juveniles at the Salem and Davis facilities and talk with residents.

She told the Charleston Daily Mail that she wants to help change the system, and not just police it.

Most youths entering the system were abuse victims or have drug problems. But treatment opportunities sometimes are overshadowed by a focus on punishment, she said.

“They are stunted in so many ways — socially, emotionally, behaviorally — so they are much more complex, so it’s not just a teenager with a bad attitude anymore,“ she said.

The system offers vocational and educational classes and is less like prison that it was several years ago. But it could do a better job, said Denny Dodson, the current Juvenile Services director.

Dodson said some juveniles don’t want to take advantage of educational or vocational programs. Some judges also are part of the problem.

“The good judges use that rehabilitation, but some courts use it as a punishment, and it’s out of exasperation, realizing the change wasn’t going to happen,“ he told the newspaper.

WV School Building Authority Agenda for 04.23.12 – The Day of Decisions


Governor’s Press Conference Room
State Capitol Complex
1900 Kanawha Boulevard, East, Charleston.
April 23, 2012
9:30 AM

Please note: Click on the Attachment for each item to see the back-up documentation.

I. CALL TO ORDER – Mr. Kurt Dettinger


III. APPROVAL OF MINUTES - SBA Meeting of March 19 and 20, 2012   ATTACHMENT A

IV. CONSTRUCTION COMMITTEE – Steve Burton / Mr. David Sneed

          A. Cabell County – Request Green School Funding for the Huntington East Middle School ATTACHMENT B

This school was designated as one of the SBA’s LEED Silver schools when it was approved by the Authority.

Cabell County received and approved bids for the new Huntington East Middle School. Cabell County is requesting $500,000 in additional Green School Funds to provide funding for of the LEED Silver certification building components for the school.

The Construction Committee will consider this matter and will recommend approval of the final worker verification policy.

          B. SBA Project – Construction Progress Report – (Information) – ATTACHMENT C

During the recent March SBA meeting, Mr. Tom Lange requested that the SBA staff provide the status of each active SBA project awarded by the Authority. The SBA staff has compiled a progress report for all currently active SBA projects that are not closing out. The details of this report are provided in Attachment C.

V.  FINANCE COMMITTEE – Mr. Nicholas Preservati / Dr. Mark A. Manchin – (Action)

          A.Consideration and Approval of a Parameters Resolution for SBA Bonds – (Action)

Jackson Kelly PLLC (Bond Counsel) - Goodwin & Goodwin LLP (Issuer’s Counsel) - Bowles Rice McDavid Graff & Love (Bond Underwriters Counsel) - Citigroup (Senior Bond Underwriter) - Attachment D will be provided as a hand out for the Authority members review and approval on the day of the meeting.

In order to issue Lottery Capital Improvement Revenue Bonds, the members of the SBA must adopt a binding resolution. The Authorizing Resolution will Give final approval of the bonds; Set maximum principal amount and parameters of the bonds; Set parameters for the bonds and sale thereof; Approve form of bond documents; Authorize closing, incidental action and Certificate of Determinations procedure; Make related approvals and take related action; and Establish Projects to be financed by proceeds of the bonds.
Supplement and amend the original reimbursement resolution for the projects.

I respectfully recommend the Authority’s approval of the Parameters Resolution as detailed in the draft version provided in Attachment D.

          B. Consideration and Approval of a Resolution Adopting SBA Post-Issuance Compliance Policies  – (Action) – ATTACHMENT E

In 2011 the Internal Revenue Service (IRS) revised a key form (known as Form 8038-G for governmental borrowers) that the Authority executes when it issues tax-exempt bonds.

The IRS revisions to the form require a more formal approach to the Authority’s post-issuance compliance procedures. Counsel to the Authority and bond counsel for the Authority’s 2012 Bonds recommend that the Authority adopt the post-issuance compliance procedures set forth in Exhibit A of the Resolution provided in Attachment E of this agenda.

The Finance Committee will consider this matter and will be providing recommendations during the April 23, 2012 meeting.

          C. Putnam County – Return of QZAB Funding  – (Action/Information)  ATTACHMENT F

Putnam County received two allocations of Qualified Zone Academy Bond (QZAB) funding during the December 12, 2011 SBA meeting.  An $840,632 allocation was provided from 2010 QZAB Funds and $824,000 from the remaining 2011QZAB Funds.

Putnam County has determined that they do not have enough qualified expenditures to expend the full amount.

On Mach 20, 2012 we received notification that they are returning their 2011 allocation of $824,000. These funds are now available for reallocation to other counties. If the SBA approves these QZAB funds for another county, these funds must be encumbered or under contract with a vendor by December 31, 2013.

The Finance Committee will consider this matter and will be providing recommendations during the April 23, 2012 meeting.

          D.  Putnam County – Approval of an amendment of the expenditure of Putnam County’s 2010 QZAB Remaining Allocation - (Action/Information)  ATTACHMENT G

Putnam County has requested approval to adjust their 2010 QZAB funding expenditures to include projects from Conner Street Elementary School as originally approved and Winfield Elementary School.  Expenditure of these funds at both schools will allow the county to deplete all the remaining 2010 funds for projects that meet the requirements of the QZAB funding guidelines.

The Finance Committee will consider this matter and will be providing recommendations during the April 23, 2012 meeting.

          E.  School Construction Funds Available For Distribution - (Information)  ATTACHMENT H

Mr. Stewart will provide the Authority a breakdown of funds available for distribution prior to consideration of the projects.


For your study and deliberation, the SBA staff has provided staff comments regarding each of the projects submitted for “Needs” funding.

Mr. David Sneed will provide a review of staff comments and answer any questions the Authority members may have regarding each project.

At the conclusion of the review, the Authority will consider each project submitted and select those to be funded in the 2012 cycle.

To review the project details, click on the county name and the information will be shown:

•  Barbour

•  Boone

•  Brooke

•  Cabell

•  Clay

•  Fayette


•  Gilmer

•  Grant

•  Hardy

•  Jackson

•  Kanawha


•  Lewis

•  Logan

•  Marshall

•  McDowell

•  Mingo

•  Morgan

•  Pocahontas

•  Preston


•  Ritchie

•  Tyler

•  Wirt

•  Wyoming.



The Authority reserves the right to enter into executive session, based upon WV Code §6-9A-4(2) (A) relating to matters of SBA personnel.


The 2012 summer quarterly meeting of the School Building Authority of West Virginia is scheduled at 9:00 AM on June 25, 2012 with the meeting to be held at the New Cameron High School in Marshall County.

The 2012 fall quarterly meeting of the School Building Authority of West Virginia is scheduled at 9:00 AM on September 17, 2012 with the location to be determined.

The 2012 winter quarterly meeting of the School Building Authority of West Virginia is scheduled at 9:00 AM on December 17, 2012 at 2300 Kanawha Boulevard, East, Charleston.


Complaint: Calhoun Attorney Engaging in ‘Legal Tomfoolery’


The WV Record Reports:

A New York woman is accusing a Calhoun County attorney of “legal tomfoolery” in representing her interests in an estate dispute in neighboring Gilmer County.

Marlea Cottrill on April 9 filed an ethics complaint against F. John Oshoway with the Office of Disciplinary Counsel, the arm of the state Supreme Court that investigates attorney misconduct.

In her complaint, Cottrill, 51, of Jump, N.Y., a suburb of Syracuse, hired Oshoway, 60, a sole practitioner in Grantsville, to defend her in a lawsuit involving the estate of her late father, Willard, only to have him do next to nothing.

According to her complaint, Willard Cottrill passed away in October 2010 “under extreme and unusual circumstances.“ In June, Cottrill was named as a co-defendant in a suit to quiet title filed by the estate’s executor, Michael W. Murphy, her brother-in-law in Gilmer Circuit Court.

F. John Oshoway

The suit seeks to divest any interest on Willard’s property in Linn claimed by Ruth Mitchell, the other co-defendant. According to the suit, Willard in his will dated Nov. 1, 2006, requested Mitchell, “be provided a residence on his real property,“ but “‘shall not preclude divestiture of the property by heirs, and is not intended to establish a life tenancy.‘“

It was not until two months later, Cottrill says, that she found out about it, and only through Mitchell. In a panic, she says she drove nine hours to Gilmer County to find an attorney to answer the complaint or risk losing all her rights to inheritance.

Eventually, she found Oshoway who agreed to accept her case for $2,000. Initially, Cottrill paid him $500, and sent him a check for the balance after returning to New York.

Between then and last month, Cottrill says Oshoway has failed to communicate with her about not only the status of the case, but its implications. Also, he has failed to provide her copies of any court documents filed since then including her answer.

All documents she’s received have either been provided by Mitchell or her attorney, Dan Grindo. A copy of the answer Oshoway filed for Cottrill, that Grindo’s office sent her via fax on Sept. 2, 2011, does not bear the time-stamp of the circuit clerk’s office.

Because she was not properly served with a summons, and copy of the complaint, Cottrill says Oshoway should’ve moved to have her dismissed from the suit. However, he failed to do that.

Eventually, Cottrill says she received a telephone call from Oshoway early last month. In it, she says he expressed bewilderment she hadn’t received any documents from him, but would ensure she receive a copy of all pleadings made since she hired him.

However, when she did not receive anything after two weeks, Cottrill wrote him a letter asking him to withdraw from the case. In her letter, she also asked he provide an accounting of his work, and a refund of her retainer.

Shortly thereafter, Oshoway responded saying he would be filing a motion to withdraw as her attorney. However, he disputed receiving an additional $1,500 from her after the initial $500. Instead, he said the check she sent was for $1,000.

In her complaint, Cottrill says that “is absolutely untrue” and provided a copy of the cancelled check Oshoway cashed for $1,500. Also, she made clear the basis of her complaint she was not disputing Oshoway’s fee, but instead his “lack of communication, and zealous representation for the work I thought I paid him to do.“

“One of my concerns,“ Cottrill said, “is the area of West Virginia that Mr. Oshoway works from is severely economically depressed and I wonder how often this sort of legal tomfoolery happens.“

“I fear for the people of Calhoun and Gilmer counties that have no other means of justice as Mr. Oshoway doesn’t seem the least bit inclined to follow up on clients’ needs or wishes once he has been paid,“ Cottrill added. “And even then, Mr. Oshoway doesn’t seem to feel the need to accurately reflect records of payment received by those clients.“

When reached for a comment about Cottrill’s complaint, Oshoway said “I was not aware it.“ Also, he said “I wouldn’t comment on it” after seeing it.

According to ODC, Cottrill’s complaint is one of four pending against Oshoway.

~~  Lawrence Smith - The WV Record  ~~

Gilmer County Family Court Report - 04.18.12


Family Court Judge Larry Whited heard a full docket on Wednesday, April 18, 2012.

Three domestic violence cases were heard and one was rescheduled.

Two other domestic cases were heard with no orders entered as of yet.

Two divorce cases were heard and one was granted:

Geanna Matthews (41) of Weston, WV divorced Wayne Matthews (age unknown) of Glenville, WV.

Gilmer County Circuit Court Report - 04.19.12


On Friday, April 13, 2012, Chief Judge Jack Alsop presided over 2 cases in Circuit Court.

•  A bench trial in the civil case of CitiMortgage Inc. vs. Hannah Smith was heard and Judge Alsop granted judgment against defendant in the amount of $31,473.36 plus interest.

Jane Ann Pancake represented the plaintiff and the defendant represented herself.

•  An adoption hearing was heard and the attorney was given 45 days to get personal service on the natural father.

On Wednesday, April 18, 2012 Judge Alsop presided over Court until 4:30 PM hearing several cases:

Imprisonment Status:Pre-Trial Felon
Full Name: Bonnell,Thomas William
Height: 5’11”
Weight: 160 lbs.
Birth Date: 01.01.1975
Gender: Male
Booking Date: 04.03.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11F-16 GILMER COUNTY - Bail Amount: $100,000.00

•  State of West Virginia vs. Thomas Bonnell Jr.

He was before the Court for docket call, having missed it earlier because he was in the hospital.

He is represented by Kevin Duffy of Clay and his pre-trial is set for Thursday, May 31, 2012 at 2:00 PM with his trial being Tuesday, June 19, 2012 at 9:00 AM.

He remains in Central Regional Jail in lieu of $100,000.00 bond.

•  One defendant was before the Court for pre-trial but there were no motions to be heard so his case remains on the docket for jury trial on Tuesday, April 24, 2012 at 9:00 AM.

He is represented by Daniel Grindo of Gassaway.

•  Several juvenile cases were heard and reset as follows:

1) Monday, July 09, 2012 at 9:30 AM

2) Thursday, May 31, 2012 at 11:00 AM

3) Friday, April 27, 2012 at 1:30 PM

4) Thursday, May 31, 2012 at 9:00 AM

5) Monday, June 11, 2012 at 10:00 AM

•  State of West Virginia vs. Timothy Furr

He was before the Court for a bond reduction hearing.

However, after his attorney failed to appear the matter was continued.

He is represented by Drannon Adkins of Sissonville and remains in Central Regional Jail under $100,000.00 bond.

•  State of West Virginia vs. Joshua Hoover

He will enter a plea at 10:00 AM on Thursday, May 31, 2012.

He is represented by David Karickhoffof Sutton.

A fugitive from justice was before the Court.

Imprisonment Status:Pre-Trial Felon
Full Name: Thomas, Calvin
Height: 5’6”
Weight: 185 lbs.
Birth Date: 04.14.1967
Gender: Male
Booking Date: 04.18.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
12P22 FUGITIVE - Bail Amount: $0.00

•  Calvin Thomas was wanted in the state of Ohio and waived extradition and will be released to authorities from Ohio by 4:00 PM on Monday, April 30, 2012 or Central Regional Jail will release him.

He was represented by Daniel Grindo of Gassaway.

On Thursday, April 19, 2012, Judge Alsop came to Gilmer County for recall of March term grand jury.

The jurors returned 2 criminal indictments, received their jury pay and were free to go before l0:00 AM.

Those indicted were:

•  State of West Virginia vs. Jimmie Glen Stewart

He was indicted for 5 counts of sexual abuse in the first degree.

Stewart is represented by Steve Nanners of Buckhannon.

•  State of West Virginia vs. Charles Dale Emerson

He was indicted for 2 counts of sexual abuse in the first degree and 2 counts of sexual assault in the first degree.

Emerson is represented by Kevin Duffy of Clay.

Both new indictees will be arraigned at 1:30 PM on Friday, April 27, 2012.

•  Judge Alsop also performed a marriage ceremony before leaving Gilmer County for hearings in Braxton County.

West Virginia Joins Multi-State Challenge to EPA


West Virginia Governor Tomblin has joined twenty-one other states in challenging President Obama’s Environmental Protection Agency (EPA) and its latest attack on jobs and West Virginia coal.

Governor Tomblin directed West Virginia Attorney General Darrell McGraw to join a Petition for Review in the United States Court of Appeals for the District of Columbia Circuit challenging the EPA’s MACT Rule.

This rule has already caused electric utilities to announce plans to shut down coal-fired power plants in West Virginia.

“This is a shining example of the EPA, an unelected federal bureaucracy, making policy without regard to the economic impact of its decisions,” said Governor Tomblin. “I will continue to fight for West Virginia jobs and against the EPA’s ideologically driven, job-killing agenda.”

Last year, the State of West Virginia joined twenty-four other states and the Territory of Guam in filing a brief, as amici curiae, in the underlying MACT Rule litigation.

The MACT rule regulates emissions of hazardous air pollutants from coal-fired electric plants.

Lewis County Man Sentenced on Incest Charges


Lewis County Circuit Judge Thomas Keadle sentenced Harry Goldsmith of Lewis County to 10 to 25 years in jail on Monday, April 16, 2012 for 4 counts of incest involving his children and grandchildren.

Goldsmith sexually abused his children and grandchildren 20 to 40 years ago.

Trooper Also Defendant in ‘96 Shooting Death of Calhoun Woman


The WV Record Reports:

Records show prior to the one filed against him recently, a State Trooper was also named as a co-defendant in another civil rights suit involving a Calhoun County woman 16 years ago.

Last month, Jackie L. Denmark filed suit in U.S. District Court against Cpl. D.B. Starcher accusing him of falsely arresting her in March 2010 on charges of aiding and abetting kidnapping. In her suit, Denmark alleges Starcher arrested her in an effort to get her disclose the location of David Wayne Beech, a missing teenager from Roane County.

Denmark’s son, Seth, was also arrested in March 2010, and charged with kidnapping Beech, whose body has yet to be discovered. Though charged with it last year, Seth Denmark was formally indicted for Beech’s murder by a special grand jury last month.

Last April, the aiding and abetting charge against Jackie Denmark was dismissed.

In 1998, Starcher was named as the lead defendant in suit filed by Donald Jones, as the administrator of the estate of his wife, Patricia. In his suit, Jones alleged Starcher, the State Police, then Calhoun County Sheriff William Stemple and Deputy Sheriff George Settles were negligent in shooting, and killing Patricia two years earlier when Starcher and Stemple were called to the Joneses home in Big Springs in response to an apparent domestic dispute.

‘Confrontation’ turns fatal

According to the suit, which was filed on June 11, 1998, also in U.S. District Court, Starcher and Settles were dispatched to the Jones home on June 14, 1996 “to investigate an allegation of domestic violence.“ After arriving at the scene, Starcher and Settles “entered into a confrontation” with Patricia.

The nature of the confrontation is not specified in the suit. However, as a result “Starcher and/or ...George Settle [sic], negligently, willfully, wantonly and intentionally, in disregard of the civil rights of the said Patricia Ann Jones, shot and killed” her.

The suit does not provide much detail about Jones’ death except she “was severely wounded by one or more gunshots and later died.“ Also, the suit maintains Starcher and Settles “used excessive force to restrain ... Jones at a time when they were not permitted to do so.“

According to an Associated Press report in the June 16, 1996, edition of the Charleston Gazette, Jones, 38, was shot after she pointed a rifle at Starcher and Settles, and fired one shot. According to 1st Sgt. Carl Berlin with the State Police’s Spencer detachment, “Police returned fire, killing Jones.“

Four days later, The Calhoun Chronicle reported that, after they arrived at her house, Jones pointed an unspecified weapon at Starcher and Settles. When she fired at Starcher, “Settles had no choice but to fire once, fatally wounding Jones,“ the article said.

According to her death certificate, Jones died of a shotgun wound to her chest.

Prior to the shooting, The Chronicle reported Stemple, and Deputy Steve Lampos spoke with Jones via telephone. Along with Starcher and Settles, Stemple and Lampos “repeatedly asked and ordered [Jones] to surrender her weapon.“

According to The Chronicle, Donald Jones was not at the home after Starcher and Settles arrived.

Along with a claim the State Police did not do likewise with Starcher, the suit alleges Stemple “failed adequately to train or otherwise direct ... George Settle [sic], concerning the rights of citizens, thereby causing ... [him], to engage in the unlawful conduct described above.“ According to the state Law Enforcement Professional Standards Subcommittee, Settles never received the training necessary to be a certified law enforcement officer.

Suit dies, too

In the suit, Jones asked that he be awarded $500,000 in damages for Patricia’s death. Also, his attorney, Keith White of St. Marys, asked he recover the costs of litigating the suit, including his fee.

Records show, those proved to be minimal as Judge Irene B. Keeley dismissed the suit on Jan. 25, 1999 on the grounds White failed to serve any of the defendants with a copy of the complaint, and a summons. Though Keeley dismissed the suit without prejudice which allowed an opportunity for White to re-file it, records show he never did.

The West Virginia Record attempted to obtain a comment from White about the suit. He did not return repeated calls by presstime.

Also, repeated messages left with Settles and Stemple were not returned by presstime.

Because he was constitutionally barred from seeking a third successive term as sheriff, Stemple successfully ran for the House of Delegates in 1996. He held the seat, which, along with Calhoun included Gilmer and Clay counties, until 2008.

In May’s Democratic primary, Stemple, 64, is again a candidate for sheriff. His opponent is incumbent Sheriff Allen Parsons, who succeeded Stemple in 1997.

Currently, Starcher is assigned to the Wirt County detachment in Elizabeth.

U.S. District Court for the Northern District of West Virginia case number 98-cv-96

~~  Lawrence Smith - The WV Record  ~~

G-TechNote™: West Virginia Joins E-Book Lawsuit


West Virginia is one of 15 states now part of a law enforcement action filed against Apple and three of the largest book publishers in the United States.

The claim is that those companies worked together to artificially inflate prices for electronic books.

The action was filed in U.S. District Court for the Western District of Texas.

In addition to Apple, Penguin Group USA, Macmillan Holdings and Simon & Schuster are named in the filing.

The alleged conspiracy drove up the price of e-books from $9.99 to $12.99 and $14.99.

Officials with state Attorney General Darrell McGraw’s Office say the rights for those books had previously been sold to online sellers like Amazon so the books could be sold at any price.

However, as part of the scheme, contract terms were imposed that required all e-book outlets to sell their products at the same price, eliminating retail price competition.

Customers ended up paying $100 million more because of it.

“These companies colluded to allow publishers, rather than the marketplace, to set the price of e-books,“ Attorney General McGraw said in a statement.

Sentencing Set For Lena Lunsford


The mother of missing Lewis County three-year-old Aliayah Lunsford will be sentenced in May on welfare fraud charges.

A May 22, 2012 sentencing was set on Thursday, April 12, 2012 for Lena Lunsford.

She pleaded guilty previously to selling her food stamp card.

Aliayah Lunsford went missing last September.

Gilmer County Circuit Court Report - 04.10.12


On Monday, April 09, 2012 Chief Judge Jack Alsop had his monthly motion day in Gilmer County.

•  State of West Virginia vs. Jerry Duelley II

He was before the Court for revocation of his home confinement.

He was represented by Daniel Grindo of Gassaway.

After taking much testimony Judge Alsop released Duelley from Central Regional Jail pending final hearing on Thursday, May 31, 2012 at 2:00 PM.

Several juvenile matters were heard and reset as follows:

•  1) Monday, July 09, 2012 at 9:00 AM
•  2) Monday, July 09, 2012 at 9:15 AM
•  3) Wednesday, April 18, 2012 at 2:30 PM
•  4) Monday, May 14, 2012 at 11:15 AM
•  5) Wednesday, June 13, 2012 at 11:30 AM
•  6) Monday, June 11, 2012 at 9:30 AM
•  7) Wednesday, June 13, 2012 at 1:00 PM
•  8) Wednesday, June 13, 2012 at 1:30 PM
•  9) Monday, June 11, 2012 at 9:45 AM

Two civil matters were before the Court as follows:

•  First Resolution Investment vs. Leonard F. Terrango

The case was heard with plaintiff’s attorney, Steven Mulrooney of Mapother & Mapother of Louisville, KY appearing by telephone.

Defendant Terrango did not appear.

However, service had been made upon him by Gilmer County Sheriff’s Department and no answer had been filed on his behalf so Judge Alsop directed Mulrooney to submit an order for entry of default judgment.

•  Ford Motor Company vs. Lucas McCune

Mulrooney appeared by telephone and a default judgment order came in the mail to the Circuit Clerk later in the morning and was granted and entered by Judge Alsop.

An expungement hearing was held in the case of Roxanne McAtee who represented herself in the proceedings.

Judge Alsop took the matter under advisement and will issue his ruling at a later date.

•  State of West Virginia vs. Jimmie Stewart

He was represented by Steve Manners of Buckhannon

He was before the Court and several motions were heard.

The state through her prosecutor moved to amend the indictment, which motion the Judge denied.

Defense counsel moved to dismiss the indictment, which the Judge took under advisement until after the grand jury meets again on Thursday, April 19, 2012 for further consideration.

WACO Oil and Gas, XTO Energy Dismissed from Drilling Lawsuit


A federal judge has dismissed Glenville-based Waco Oil and Gas from a lawsuit that a Marion County man filed over plans to use his property for deep, horizontal wells that would drain natural gas from his neighbors’ reserves.

Richard Cain initially sued Waco and Exxon Mobil subsidiary XTO Energy in circuit court last summer, but the case was transferred to U.S. District Court in Clarksburg. In a recent ruling, Judge Irene Keeley said she’ll retain jurisdiction, but she granted Waco’s motion to dismiss claims against it.

The case illustrates the complexity and intertwined nature of mineral and surface rights in a region where companies are rushing to tap the vast deposits of the Marcellus shale field.

Cain concedes he does not own the mineral rights, which were sold in 1881 and have changed hands several times. But he claims ownership of those mineral rights does not give a company the authority to drill multiple wells or disrupt 36 of his 105 acres to get oil and gas from neighboring estates.

Cain contends the amount of gas to be recovered is too minute to justify such extensive surface disruption and insists he is the only party with the “legal right” to lease his surface.

There is no dispute that Cain bought the land in 1989, Keeley said.

“The ownership history of the oil and gas rights themselves, however, is somewhat more convoluted.“

Waco, which sold leases to Linn Energy Holdings LLC in 2003, argued it had done nothing wrong and that Cain’s fight is with the current leaseholder, XTO.

After Cain sued the two companies, Waco sold “the entirety of its interests in the oil and gas estate” under Cain’s property to XTO.

XTO, meanwhile, has also denied doing anything illegal.

It argues it paid $63,000 for a pipeline right-of-way easement to transport oil, gas water and other substances across Cain’s property.

The court ruled that XTO’s lease gives it the clear right to access adjoining property through pipelines but said it “does not otherwise provide the right to use the surface of the tract to explore for or produce oil and gas from neighboring oil and gas estates.“

Still, Keeley said, Cain lacks grounds for a dispute with Waco.

Cain and XTO have until Friday to submit a proposed plan for evidence in the case.

A scheduling conference is set for April 20, 2012.

Ohio Man Appeals Dismissal of Ethics Complaint against Gilmer Prosecutor


The WV Record Reports:

Citing a failure to consider new evidence, an Ohio man is asking a state ethics panel to reconsider his complaint of improper conduct by Gilmer County’s prosecuting attorney in his 2005 criminal case.

The Office of Disciplinary Counsel on Sept. 6 dismissed the complaint Dan Bingman filed against Gerry Hough. In her dismissal letter, Lawyer Disciplinary Counsel Jessica Donahue Rhodes, said the information Bingman included in his Aug. 24 complaint of Hough paying one of Bingman’s relatives to testify against him, and advertisements Hough placed in the Glenville Democrat-Pathfinder accusing Bingman of “cyberbulling,“ not only failed to show a violation of the Rules of Professional Conduct, but was also time-barred.

“Nothing in those two (2) documents reflect [sic] any violation of the Rules of Professional Conduct,“ Rhodes said. “Furthermore, you have not provided any proof that Mr. Hough paid Mrs. Rafferty to testify during the trial.“

“Those allegations are far too vague and unclear to discern what actions you believe Mr. Hough has taken that amount to an allegation of a violation of the Rules of Professional Conduct,“ Rhodes added. “It appears you have been aware of most of what you allege in your second complaint when your first complaint was filed and two (2) years before the first complaint was filed.“

“Thus, your complaint appears to be time-barred,“ Rhodes said.

Records show, Bingman, of Cuyahoga Falls, Ohio, was indicted in March 2005 by the Gilmer County grand jury on a charge of grand larceny, a felony. He was accused of stealing, and later selling farm equipment, a brush hog, valued at nearly $2,500 on Jan. 31, 2002.

However, a jury on Dec. 14, 2005, convicted Bingman of petit larceny, a misdemeanor. Bingman maintained he should’ve never been indicted, let alone convicted, since the brush hog was valued at less than $400, and sat idle for over 20 years on property belonging to his family.

In his complaint, Bingman accused Hough of suborning perjury by getting Roanna Rafferty, Bingman’s aunt, to testify falsely she had a 1/6th interest in the property. Also, Bingman maintains Hough was aware the value of the brush hog was well below the $1,000 threshold for a grand larceny charge.

The allegations raised in his Aug. 24 complaint were similar to ones raised in a complaint he filed against Hough on Dec. 20, 2007, that was dismissed a month later. However, in his response dated Sept. 8 to their dismissal letter, Bingman said ODC failed to consider two new pieces of evidence included in his recent complaint that came to light last year.

One was a title opinion that was introduced last July in a civil suit showing Rafferty did not own the 1/6th share of the property she claimed. Another was bills received in October for back taxes on the property that, Bingman said the county previously refused to let his family pay.

The title opinion and tax tickets, Bingman says, show that his new complaint against Hough not only falls within the statute of limitations, but also he had no business prosecuting him in what amounted to a family squabble.

“The new evidence in this case proves that it should not be time-barred,“ Bingman said. “It proves that due diligence was not practiced and a human being suffered severely as a result.“

“A case should never be brought to court by a Prosecutor who has not used due diligence to establish the facts,“ he added. “When Hough could not locate the 1/6th claimed, the court should have been notified (despite his embarrassment) a mistrial declared and perjury charges brought against the Prosecutors [sic] witness in my opinion.“

“Because there was no title proof of ownership, the jury, and the court could not know that there was equal ownership in a property dispute that somehow turned into a criminal case, although experts say it should have been a civil action all along.“

In response to his letter, Chief Lawyer Disciplinary Counsel Rachel L. Fletcher Cipoletti said ODC was treating Bingman’s dissatisfaction of their dismissal of his complaint as an appeal and would be placing it on the agenda for the next meeting of the Lawyer Disciplinary Board’s investigative panel. Though she did not say when the next meeting would take place, Cipoletti said she would notify Bingman in writing of their decision.

When reached for a comment about Bingman’s complaint prior to its dismissal, Hough said he had yet to see it. However, he said this was Bingman’s latest attempt to retry his case.

“Every citizen has a right to complain and have their voice heard somewhere,“ Hough said. “He’s been busy for the last four years reinventing the trial that took place, and his conviction, which was found by a jury of his peers guilty of larceny from his family.“

~~  Lawrence Smith - WV Record  ~~

Gilmer County Family Court Report - 03.28.12


On Wednesday, March 28, 2012 Family Court Judge Larry Whited appeared and held Court in Gilmer County.

Three divorces were granted as follows:

•  Tina M. Ward (37) of Sand Fork, WV divorced Mark Aaron Ward (37) of Sutton, WV .

•  Elizabeth Moss (47) of Glenville, WV divorced Jeffrey Moss (52) of Glenville, WV .

•  Maria Taylor (29) of Sand Fork, WV divorced Andrew Taylor (30) of Sand Fork, WV .

•  A contempt hearing was dismissed.

Gilmer County Circuit Court Report - 03.27.12


On Monday, March 26, 2012 Judge Richard A. Facemire held his regular monthly motion day in Gilmer County.

Several juvenile hearings were held and reset as follows:

•  One for Monday, June 25, 2012 at 10:00 AM,

•  One at 10:10 AM,

•  One at 10:20 AM,

•  One at 10:30AM.

•  Another one was set for judicial review on Friday, July 06, 2012 at 10:00 AM.

•  A status conference was held in a criminal case wherein the defendant is in a group home and further status will be held on Monday, September 24, 2012 at 9:00 AM.

•  State of West Virginia vs. Roy Jenkins Jr.

He was before the Court for reconsideration of his sentence, which was denied by Judge Facemire and he was returned to Central Regional Jail.

Jenkins was represented by Clinton Bischoff of Summersville.

•  vState of West Virginia vs. Mark Aaron Ward

He was before the count for sentencing and received 2-10 years in the penitentiary with no fine, but customary and usual costs to be paid within 18 months of his release.

He was denied probation by Judge Facemire and was represented by David Karickhoff of Sutton.

•  State of West Virginia vs. John Gorzynski

He was before the Court for sentencing but upon motion to continue being filed his sentencing was reset for Monday, April 23, 2012 at 10:15 AM.

He was also represented by David Karickhoff.

•  An infant summary case was before the Court and granted and completed.

•  A forfeiture of $565.00 in a drug case was granted and directed to be paid to the State Police, who already had the money in their custody.

•  State of West Virginia vs. Holly Morning McCraw

She was before the Court for revocation of her probation and after she admitted to the allegations in the petition filed against her.

Judge Facemire sentenced her to 1-5 in the penitentiary, with credit for time previously served.

She may also ask for reconsideration if a suitable placement is found for rehab for her.

She was represented by David Karickhoff.


On Tuesday, March 27, 2012 Chief Judge Jack Alsop presided over Court in Gilmer County.

•  A jury trial had been scheduled in the case of State of West Virginia vs. Matthew Capelety.

However, last week Capelety decided to enter a plea.

Judge Alsop accepted his plea to failure to register change of information as a sex offender, and set sentencing for Monday, May 14, 2012 at 10:30 AM.

He was represented by Christopher Moffatt of Charleston.

•  A juvenile matter was heard and set for further hearing on Wednesday, April 18, 2012 at 1:00 PM.

•  State of West Virginia vs. James McCune

He was before the Court for revocation of his home confinement.

McCune had recently been found with his ankle monitor removed and he was intoxicated when Deputy Huffman responded to a late night call about residents being disturbed by a 4 wheeler.

McCune admitted to violating home confinement rules and regulations and Judge Alsop sentenced him to not less than 1 year nor more than 5 years in the penitentiary upon his earlier conviction.
Moffatt also represented Mr. McCune.

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