GilmerFreePress.net

Courthouse

Court News

Complaint Filed against Gilmer County Prosecutor for Ethics Violation

The Gilmer Free Press has obtained the following complaint filed with West Virginia Office of Disciplinary Counsel:

 

image

 

To : Rachael L. Fletcher Cipoletti
Chief Lawyer Disciplinary Counsel

Office of Disciplinary Counsel
City Center East
4700 MacCorkle Avenue SE, Suite 1200C
Charleston, West Virginia 25304

Office: (304) 558-7999
Fax: (304) 558-4015

Let this document represent a complaint against Gerald B Hough Gilmer County Prosecutor for misconduct involving a well known felony criminal case in which the defendant Dan Bingman was wrongfully charged with three felonies.

All charges and all allegations in this case which languished in the state of West Virginia in circuit court for over two years and in West Virginia Supreme court all of 2006 until September of 2007, were false and fabricated which also includes the unlawful act of Gerald B Hough falsely paying my aunt Roanna Rafferty to testify to the fact that she was a VICTIM and owned 1/6th of 155 acres of Surface property in Dekalb in Gilmer County.

Roanna Rafferty was NOT A VICTIM and this greatly confused the jury.

Simply stated Gerald B Hough did not use due diligence in researching the case to discover who the rightful owners of the disputed property were.

THE JURY WAS TOLD FACTS THAT WERE NOT TRUE and purposely mislead by Hough.

We had no way of knowing that the title to the missing 1/6th of surface property was pulled by the commission clerk on the order of Timothy B Butcher. This is a fact and there is a witness. Hough also knew the title was pulled and knowingly brought false evidence to a grand jury which is criminal matter.

Gerry Hough ruined my 30 year broadcast career by bringing a false case against me knowingly, and he did it out of spite and malice. What Gerry Hough did was criminal and this new evidence discovered proves what we testified to was correct and the lies Gerry Hough paid cash money for were wrong.

***
While reviewing the court record of Case # 05 – F – 8 from Gilmer County the infractions involving outright lies and false facts are too numerous to mention, but here is a prime example of false facts brought before the jury.

Here is just one example, I have many.

From the court record: FALSE STATEMENT TO JURY BY HOUGH

“While the husband is sick with Cancer Shirley Ball writes a check. “

From the court record:

“While the husband is sick with Cancer Shirley Ball writes a check.“

Investigators discovered that Mr. Ball was not diagnosed with Cancer until TWO YEARS LATER!  What a bold face liar Gerry Hough is. Gerry Hough was not diagnosed with CANCER until Two years later. Mr. Ball was not sick at all on that date and did not have cancer or was he sick. Shirley Ball a state witness and Gerry Hough are both liars and lied and used malice while revealing false information to the jury.

One lie after another was told to the jury and the evidence has all surfaced now and the truth can be easily found out. What Hough did was criminal.

No farm equipment was ever sold, or moved by me.

According to the court record I never touched the equipment, but in the majority opinion published by the Supreme Court Asst AG Goldberg stated that I moved the equipment from an adjacent 100 acres never part of the court case.

Let this complaint reveal the Hough conspired with Goldberg to enter false facts as a matter of record and submitted to the Supreme Court.

Let this document reflect an official complaint against Robert GOLDBERG and Gerry Hough for this criminal act.

Mr. Ball gave me a loan, since I dropped everything, including my studio work to try to save our farm. I was paying on two vehicles to the bank plus insurance. A check was written for $500.00 – Gerry gave a few different of his full time employee’s loans, since he was the man that owned the company he started from his garage.

Investigators discovered that a man named Terry that has long blonde hair also got a similar loan at the same time and had the same status as me, an employee that had been laid off. Our whole shift was laid off. Yes I actually had to work for once in my life instead of having a dream job as a disc jockey, but Hough told the jury that I did not even know Mr. Ball. Hough lied to the jury and is not such a great guy!

Gerry Hough told the jury I did not even know MR BALL when I was his employee for two years and he was well aware of the fact that my name was Dan Bingman, but this truth was suppressed and the jury believed MR BALL did not know me, but we were friends.

I made 26, 000 and 28,000 I believe as Gerry’s employee right after I lost my show at WMMS in Cleveland 100.7FM due to the station being sold to Clear Channel who I competed against for years with my show “West in the Morning” broadcast on 92.1 FM in the major market of San Diego.

In April of 2004 I gave the employee’s of GERRY Ball’s car care service $400 dollars to fix my Volvo. I called Gerry and said I had 400 of the 500 hundred I owed him, but that I had to use it to get my Volvo fixed.  I made the call in front of a man named Kevin Wiese, but Oshoway refused to call him as a witness. I ask Oshoway to call him as a witness, let this document reflect my complaint against F JOHN OSHOWAY for knowingly suppressing evidence that would have proved me innocent.

When Gerry Ball died just before my arrest for felony charges in Gilmer Country, my car was stolen by his wife Shirley Ball and I never saw my VOLVO again, and I believe Hough could have been in on that disappearance of my vehicle.

In October of 2010 Major Ingold ordered Trooper Smith of the WVSP to find my car, but they never really looked for it.

Recently Gerry Hough put ads in the Glenville Democrat and Pathfinder and paid for the ads involving a hate site directed towards me personally, and that is a serious violation of ethics.

Please find the evidence involving those advertisements and another published ad sent by e-mail as official evidence in this complaint of misconduct.

Please consider the above facts and please find reason for immediate suspension of the license to practice law for Gerald B Hough.

Truly myself, my family and legal representatives feel Hough should go to prison for the crimes committed involving my case, which include the crime of subornation of perjury.

Dan Bingman
130 Hollywood Ave.
Cuyahoga Falls, Ohio 44221

Gilmer County Circuit Court Report - 08.22.11

image

The Gilmer County Chief Judge Richard A. Facemire presided over his regular monthly motion day Monday, August 22, 2011 in Gilmer County.


Two fugitives from justice waived extradition as follows:


image


•  Chaz Keon Davis waived extradition to New York.

He was represented by T.J. Drake of Gassaway.

Authorities from New York have until 4:00 PM on Wednesday, August 31, 2011 to pick Him up at Central Regional Jail or he will be released.

image


•  Corey Devery Hamlet waived extradition to New Jersey.

He was represented by T.J. Drake of Gassaway.

Authorities from New Jersey have until 4:00 PM on Wednesday, August 31, 2011 to pick Him up at Central Regional Jail or he will be released.


•  Several juveniles were heard and reset as follows: Monday, November 28, 2011 at 9:00, 9:10, 9:20, and
9:30 PM.


•  One juvenile case will be dismissed because the juvenile has turned 18.


•  State of West Virginia vs. Jimmy Sandy

He was sentenced to 1-5 years in the penitentiary and fined $5,000.00 to be paid within 18 months of his release.

He was represented by Christopher Moffatt of Charleston.


•  State of West Virginia vs. Laura LaFever

She was sentenced to 1 year in the Central Regional Jail with sentence being suspended and she was admitted to 2 years probation and must pay $300.00 as a fine for the petit larceny charge and $100.00 as a fine for the trespassing.

She was represented by David Karickhoff of Sutton.


•  State of West Virginia  vs. Roseann Shelton

She was ordered to self report for diagnosis and classification for 60 days with her sentencing to be at 9:40 AM on Monday, October 24, 2011.

She was also represented by David Karickhoff.


•  The civil case of Gary Green vs. Preston Dyechem Co. Inc. was dismissed without prejudice by the Court.

One name change was granted.


•  In the case involving Richard Zalonko the matter was to be referred to Adult Protective Services of the DHHR and they must investigate and file a report in the matter.

G-otcha™: Braxton County Individual Sentenced in Federal Court

image

A Braxton County man was sentenced last week in United States District Court in Clarksburg by Judge Irene M. Keeley.

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

BRANDON GUM, age 26, of Flatwoods, West Virginia, was sentenced on August 19, 2011, to six months imprisonment to be followed by two years of supervised release, with the first six months of his supervised release to be served under home detention.

GUM entered a plea of guilty on May 16, 2011, to one count of selling and disposing of a stolen firearm on October 29, 2009, in Braxton County.

GUM, who is currently free on bond, will self-report to the designated Federal institution.

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

GSC Public Service Officer Behind Bars for Night Time Burglary

image

Cymone Andrae Wright was arrested in the early morning hours on Wednesday, August 17, 2011 by the Gilmer County Sheriff Deputy Cason Jones in Glenville.

Wright, 28, is charged with night time burglary.

According to Glenville State College website Wright is a Public Safety Officer for the college.

He was arraigned before Gilmer County Magistrate Carol Wolfe.

He is behind bars in Central Regional Jail.

His bond is set at $25,000.00.

According to reports, Wright approached a home close to Glenville (on WV Hwy 5 W towards Grantsville) in his uniform during his burglary attempt.

According to information obtained from various sources at the college, Dr. Barr, the GSC President, is not planning to take any disciplinary action against the officer.

The Gilmer Free Press has received multiple concerns about the possible release of Wright from jail to public due to his recent public behavior as well as the safety concerns about the victim in this incident.

08.17.2011
CommunityGilmer CountyGlenvilleEducationNewsArrestsCourthouse

Permalink - Link to This Article

~~~ Readers' Comments ~~~

Print This Article

Court Rules Part of Obamacare Unconstitutional

image

The core of President Barack Obama’s landmark health care legislation is unconstitutional, a federal appeals court panel ruled Friday.

Congresswoman Shelley Moore Capito and Congressman David McKinley both released statements supporting the 11th Circuit Court’s ruling that the Affordable Care Act’s individual mandate runs contrary to the country’s constitution.

“I applaud the 11th Circuit Court of Appeals for following the law and protecting our constitutional rights,” said McKinley.

“Today a federal appeals court in Atlanta ruled what we’ve known all along: bureaucrats in Washington cannot force Americans to buy something against their will,“ added Capito.

The health care overhaul, colloquially known as Obamacare, has been a topic of debate among lawmakers since passing Congress in March 2010.

At the center of the disagreements has been the individual mandate, which requires Americans to have some kind of health care coverage.

The ruling did not strike down the entire law as unconstitutional.

It’s widely assumed the Supreme Court will eventually have to make a decision on the Affordable Care Act.

“It is my hope that the Supreme Court will determine this law to be unconstitutional,“ McKinley said.

Braxton County Woman Says Bar Over-Served Her Alcohol

image

A Braxton County woman is suing Lucky Laverty’s after she claims the bar over-served her alcohol.

Christopher J. Laverty, the owner of the bar, was also named as a defendant in the suit.

On July 02, 2010, Brittney J. Wilson was admitted entrance to the bar and was socializing with her friends, according to a complaint filed June 29 in Kanawha Circuit Court.

Wilson claims while at the bar, the bartenders and/or employees negligently over-served her and her friends alcohol and contributed to her intoxication.

At one point, Wilson exited the bar to look for one of her friends and when she attempted to go back into the bar, Laverty and other employees demanded that she expose herself or they would not let her back into the bar, according to the suit.

Wilson claims she was offended by the demand and attempted to enter the door of the bar when the defendants shut the door, trapping her arm.

Wilson began to bang on the door in an attempt to extricate herself and in doing so, caused minor damage to the door, at which time Laverty exited abruptly and struck Wilson “with the door, an object or himself, causing her serious injuries,“ according to the suit.

The defendants’ conduct was negligent and caused Wilson injuries.

Wilson is seeking compensatory damages with pre- and post-judgment interest. She is being represented by Michael J. Romano and Gina M. Renzelli.

The case has been assigned to Circuit Judge Paul Zakaib Jr.

Kanawha Circuit Court case number: 11-C-1094

~~  by By Kyla Asbury - WVRecord ~~

08.10.2011
CommunityBraxton CountyCourthouseBusiness

Permalink - Link to This Article

~~~ Readers' Comments ~~~

Print This Article

Verizon Wireless: Proposed Class Action Settlement Concerning America’s Choice II Customers

image

If you subscribed to Verizon Wireless’s America’s Choice II calling plans, you could receive benefits from a class action settlement.

A proposed settlement has been reached with Verizon Wireless (“Verizon Wireless”) in a class action, Cowit, et al., v. Cellco Partnership d/b/a Verizon Wireless, No. A0505869 (Ct. of Common Pleas,Hamilton County, Ohio), related to a lawsuit about whether Verizon Wireless failed to provide roaming service without any roaming charges under the America’s Choice II Calling Plan. Verizon Wireless denies all of the claims.


WHO IS INCLUDED?
The Settlement Class includes all current and former customers of Verizon Wireless who, since February 21, 2005, subscribed to its America’s Choice II Calling Plan. If you are a member of the Settlement Class, you have certain rights and options, such as submitting a claim for benefits, requesting exclusion from the settlement, or objecting to the settlement.


SETTLEMENT BENEFITS.
In summary, current Verizon Wireless customers whose calling plan provides for a specific allowance of minutes as part of their monthly access fee automatically will receive 25 additional wireless calling minutes, which they can use for a period of one year, or, in the alternative, if these class members submit a Claim Form they can receive a transferable PIN for 40 calling units, which will be valid for 24 months, that can be used to make domestic or international long distance calls. Current Verizon Wireless customers whose calling plan provides for an unlimited number of minutes as part of the monthly access fee will automatically, without filing a Claim Form, receive a transferable PIN for 40 calling units, which will be valid for 24 months, that can be used to make domestic or international calls. Former Verizon Wireless customers must submit a Claim Form to receive a transferable PIN for 40 calling units, which will be valid for 24 months, that can be used to make domestic or international calls.

You can submit your claim online at www.cowitsettlement.com or by mail. The claim deadline is November 08, 2011.

As part of the settlement, Class Counsel will submit a request for attorneys’ fees, expenses, and incentive awards for the Class Representatives as more fully set forth in the Full Notice described below which will be paid by Verizon Wireless and will not affect the benefits to the class under the Settlement.


OTHER OPTIONS.
If you do not want to be legally bound by the settlement, you must exclude yourself by September 27, 2011. If you stay in the Settlement Class, you may object to the settlement, the attorneys’ fees or the incentive payments by September 27, 2011. The Full Notice includes complete information on how to request exclusion or object to the settlement. The Court will hold a hearing on October 28, 2011, to consider whether to approve the settlement and the request by Class Counsel for attorneys’ fees and incentive payments.


THIS IS ONLY A SUMMARY NOTICE.
A more complete description of this class action and proposed settlement, including how to exclude yourself from the class, claim benefits, or object to the settlement, is contained in the Full Notice. You may review the Full Notice at www.cowitsettlement.com, or send a written request for a copy to: Verizon Wireless America’s Choice II Litigation, c/o Epiq Systems, Claims Administrator, P.O. Box 3967, Portland, Oregon 97208-3967, or call 1.866.408.4551.

Anderson/Miller vs. Gilmer County Board of Education

image

The Gilmer County Chief Judge Richard A. Facemier has ruled in favor of the Gilmer County Board of Education.

Judge Facemier denied the claim of Dr. Eddie Anderson and Dr. Hillary Miller wanting their children to go to Glenville Elementary School.

Judge said the children must go to the school in their residency zone, and denied the claims of dual residency by Anderson/Miller.

Following is the ruling:

Case No, 10-C-26

IN THE CIRCUIT COURT OF GILMER COUNTY, WEST VIRGINIA
EDDIE E. ANDERSON, individually;
HILARY D. MILLER, individually;
and as parents and next friends of
K. A., an infant,

Petitioners,

v.

THE BOARD OF EDUCATION OF THE COUNTY OF GILMER, a West Virginia Corporation;
MISTY PRITT, ALTON SKINNER, II, PHYLLIS STARKEY, TOM RATLIFF, and DOROTHY RHOADES,
its members; and JOHN D. BENNETT, its Superintendent,
Respondents.

ORDER

        This matter initially came before the Court pursuant to W. Va. Code §53-5-1 et seq. on September 21, 2010, when the Petitioners, by verified Petition, sought a temporary injunction, specifically an Order from this Court (a) enjoining, restraining and prohibiting defendant Board of Education and its Superintendent, and/or their agents or employees, from enforcing the Superintendent’s decision drafted September 14,2010, requiring the transfer of the Petitioners’ child K.A. from Glenville Elementary to Normantown Elementary, with a provision indicating that K..A. could remain at Glenville Elementary if Petitioners would fill out and file a student transfer request form. On this same day, the Petitioners filed their Petition for Writ of Mandamus, and this Court entered an Order Issuing Rule to Show Cause, returnable before the Court on December 10, 2010.

        Thereafter the Respondents, by counsel, filed a Motion to Dismiss, and a hearing on said motion was heard on November 29, 2010. By Order of this Court, entered December 26, 2010, the Respondents’ motion was denied, with exceptions and objections of the Respondents noted, and all proceedings on the Petitioners’ Petition for Writ of Mandamus were stayed. By the same Order, this Court required the Petitioners to file an appeal of the Superintendent’s September 14, 2010 decision with the Board of Education.

        On December 15 and 20, 2010, a hearing was held before the Board of Education on the Petitioners’ appeal of the Superintendent’s September 14, 2010 decision, without the presence of counsel. A vote on a motion to overrule the Superintendent’s decision failed and the Petitioners were notified of the same. See Transcript of December 20, 2010 Board Hearing at 21. On January 13, 2011, pursuant to the Court’s earlier Order, the Petitioners filed with the Clerk of Courts, and all counsel of record, a notice of their desire to proceed further with their Petition for Writ of Mandamus.

        On March 28, 2011 at 11:00 a.m., the parties and their respective counsel, Mark McMillian and Richard Boothby, appeared before the Court once again in a final hearing on the Petitioners’ Petition for Writ of Mandamus. Prior to the same, the Respondent filed additional motions to dismiss, and the Court took the same under advisement. Oral argument was heard from both counsel in open court, and the Court inquired of counsel during the same. Thereafter, the Court entered an Order on March 31, 2011 making the transcription of the hearing before the Board of Education on December 15 and 20, 2011 a part of the record of these proceedings, and requiring the parties, by counsel, to submit no later than April 11, 2011, their respective Proposed Findings of Fact and Conclusions of Law.

        The Court, having reviewed the record of these proceedings, all the filings of the parties and exhibits thereto, including the parties’ Proposals, as aforesaid, and the argument of counsel, rules that the Petition for Writ of Mandamus must be and is DENIED. The Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

        1. West   Virginia school   boards   are permitted to divide their individual counties into various school attendance zones in order to determine the schools that the students of the county shall attend. See W. Va. Code §18-5-16.

        2. In Gilmer County, the Board of Education has divided the county into four school attendance zones for elementary schools, and set up rules applicable to the same via two written and adopted board policies, Policy 5117 and Policy 5118 respectively. The two zones at issue in this case are the Glenville zone and Normantown zone.

        3. Policy 5117 states, “All students must attend the Elementary School within the zone they legally reside.“

        4. K. A. attended kindergarten at Glenville Elementary, and started first grade there in the 2010-2011 school year.

        5. According   to   a   development   permit   application,  the   same introduced as evidence at the hearing before the Board of Education, the Petitioners applied to build a doctor’s office at 604 West Main Street in Glenville, WV on November 5, 2007.

        6. Petitioner Dr. Hillary Miller operates Little Kanawha Family Medicine at 604 West Main Street. See Transcript of December 15, 2010 School Board Hearing at 8.

        7. The basement level of the doctor’s office at 604 West Main Street also contains living quarters that Drs. Miller and Anderson have used as a home. See Transcript of December 15, 2010 School Board Hearing at 8 (“We purchased land on West Main Street and proceeded to construct a residence and an office building on that land.“).

        8. The Petitioners continue to use the basement level of the 604 West Main Street property, and stay in it at various times.  See Transcript of December 15, 2010 School Board Hearing at 45-46.

        9. At the School Board Hearing, the Petitioners submitted various documents to support their argument that they reside at the 604 West Main Street property, including utility bills, tax records, bank accounts, voter registration, and DMV records.

        10. In 2008, the Petitioners began construction on a home in the Normantown school attendance zone.  See Transcript of December 15, 2010 School Board Hearing at 8; Development Permit Application dated April 29, 2008 (introduced at hearing before the Board of Education). The address for this home is 778 Heritage Lane.

        11. By their own admission, it is widely known in Gilmer County that the Petitioners own the properties at 604 West Main Street and 778 Heritage Lane.  See Transcript of December 15, 2010 School Board Hearing at 9.

        12. At some time prior to August 24,2010, the issue of the Petitioners’ residence for school zone attendance purposes was raised to a sufficient degree to warrant some investigation by David Bishop, attendance director for Gilmer County Schools.  See Transcript of December 15, 2010 School Board Hearing at 8-9, 24.

        13. The principal of Glenville Elementary School, Tony Bishop, contacted David Bishop about his concern that though the Petitioners were now apparently living in the Normantown school attendance zone at 778 Heritage Lane, their child K.A. was still attending school at Glenville Elementary School—the same requiring that a student transfer request form be filled out. See Transcript of December 15, 2010 School Board Hearing at 25.

        14. On or about August 24, 2010, the second day of school, David Bishop made contact with Dr. Eddie Anderson, K.A.‘s father, about the concerns raised by the school principal. Id.

        15. Dr. Anderson, in response, filled out a residency affidavit form, pursuant to Policy 5118 and returned the same to David Bishop. Id.

        16. Listing 604 Main Street, in the Glenville school attendance zone, as their residence, the notarized residency affidavit signed by Dr. Anderson also states, in relevant part, “As the enrolling parent(s)/guardian, I, Eddie Anderson, attest that I do not live in any other residence.  I also attest that the living arrangement is not solely for the purpose of establishing school attendance eligibility.“  See Gilmer County Schools, Residency Affidavit Form dated August 26, 2010, entered as evidence in the hearing before the Board of Education.

        17. David Bishop, knowing of the family’s home at 778 Heritage Lane, and concerned that Dr. Anderson had erred in filling out the residency affidavit, consulted with then Superintendent John D. Bennett and the county prosecutor, the latter being statutory counsel to the Board of Education. See Transcript of December 15, 2010 School Board Hearing at 25.

        18.  Thereafter, on September 3, 2010, the Petitioners and their then legal counsel Timothy Butcher had a meeting with the Superintendent at his office to discuss the matter of the Petitioners’ residence for school zone attendance purposes.  See Transcript of December 15, 2010 School Board Hearing at 26.

        19.  At the September 3, 2010 meeting, the Petitioners and their counsel raised the notion of having dual residence for school attendance zone purposes.  See Transcript of December 15, 2010 School Board Hearing at 26-27.

        20.  At this same meeting, the Superintendent mentioned that the West Virginia Secondary Schools Activities Commission considered a student’s residence to be where the student slept most nights, and also that he saw this as a reasonable way to make the residency determination. See Transcript of December 15, 2010 School Board Hearing at 27.

        21.  Superintendent Bennett mentioned to the Petitioners at this meeting that dual residency was not covered by Policies 5117 and 5118.  See Transcript of December 15, 2010 School Board Hearing at 26.

        22.  On or about September   14, 2010,  Superintendent Bennett informed the Petitioners in writing that he was ordering that their child, K.A., be transferred from Glenville Elementary School to Normantown Elementary School by September 28, 2010. However, the Superintendent further informed the Petitioners that their child could stay at Glenville Elementary School so long as they submitted the proper form. See Exhibit A attached to Respondent’s Hearing Memorandum (“However, if you wish for K.A. to remain at Glenville Elementary School then you need to complete by 10:00 a.m. Wednesday September 22, 2010 a Student Transfer Request-Within County so that your daughter may continue to attend Glenville Elementary School.“).

        23.  The Petitioners did not complete the transfer form as requested by the Superintendent, but rather began the present litigation by requesting and obtaining the aforementioned temporary injunction and filing their Petition for Writ of Mandamus.

        24.  When asked during the Board hearing where they lived, the Petitioners refused to provide a meaningful answer, but instead said that where they lived varied. See Transcript of December 15, 2010 Board Hearing at 44-46.

        25.  The   Board   ultimately   agreed   with   the   decision   of   the Superintendent to request that K. A. be transferred to Normantown, finding that the Petitioners legally reside at 778 Heritage Lane.

CONCLUSIONS OF LAW

        1. Mandamus is a drastic remedy to be invoked only in extraordinary situations.  A petitioner seeking such writ must satisfy three conditions:  1) there are no other adequate means for the party to obtain desired relief; 2) the party has a clear and undisputable right to issuance of the writ; and 3) there is legal duty on part of respondent to do that which petitioner seeks to compel.  And issuance of writ of mandamus is normally inappropriate unless the right or duty to be enforced is not discretionary.  According to the West Virginia Supreme Court of Appeals, “[t]he importance of the term ‘nondiscretionary’ cannot be overstated—the judiciary cannot infringe on the decision-making left to the executive branch’s prerogative.“ McComas v. Board of Educ. of Fayette County, 475 S.E.2d 280, 285 (W.Va. 1996).  See also W. Va. Const. Art. 8, §6; W. Va. Code, §53-1-2.

        2. Courts may not “interfere with the decisions of a school board without strong evidence justifying such interference.“ McComas at 285.    However, a school board’s powers are not unlimited, and a writ of mandamus is appropriate when a board oversteps, or fails to meet its clear legal duties.  Id.  Mandamus will lie to control a board of education in the exercise of its discretion upon a showing of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of the law. Thus, the use of mandamus is appropriate to confine a school board to a lawful exercise of its authority when compelled to do so by statute. ld.

        3. Unless the Petitioners can show that the Respondent Board of Education’s actions—upholding Superintendent Bennett’s finding that the Petitioners “legally resided” in the Normantown school attendance zone and his related September 14, 2010 order that the Petitioners’ child be transferred—were violations of a clear legal duty and/or the result of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of the law, a writ of mandamus is inappropriate.

        4. For this Court to ultimately issue a Writ of Mandamus, the following three requirements must be established: (1) A clear legal right in the petitioner to the relief sought; (2) A legal duty on the part of respondent to do the things which the petitioner seeks to compel; and (3) The absence of another adequate remedy.  State ex rel. Kucera v. City of Wheeling, 170 S.E.2d 367 (1969).

        5. West Virginia Code §18-5-16(a) creates no legal duty on the Superintendent of Gilmer County Schools other than to transfer students from one school to another within the county upon the written request of a parent, or for reasons affecting the best interests of the schools.    The statute states, “Any aggrieved person may appeal the decision of the county superintendent to the county board, and the decision of the county board shall be final.“ Therefore the only duty of the Board of Education is to review the Superintendent’s decision and make a final ruling.

        6. “Mandamus will lie to control a board of education in the exercise of its discretion upon a showing of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of the law,“ Dillon v. Board of Educ. of Wyoming Co., 351 S.E.2d 58, Syl. Pt. 4 (W.Va. 1986).  That showing cannot be made by the Petitioners. Under W. Va. Code §18-5-16(a), and related Board Policies 5117 and 5118, the Superintendent had to determine the school attendance zone that the Petitioners’ child must attend. As evidenced in the record, when faced with the facts that the Petitioners had a home in the Normantown school attendance zone and an office building in the Glenville school attendance zone—and after giving the Petitioners’ claims to the contrary due consideration—Superintendent Bennett determined that the Petitioners “legally reside[d]“ in Normantown, pursuant to Policy 5117.    That conclusion cannot be characterized accurately as arbitrary and capricious. Rather the same is a reasonable conclusion to draw.  “Courts may not interfere with the decisions of a school board without strong evidence justifying such interference.“ McComas at 285.  That showing has not been made by the Petitioners.

        7. The Petitioners have argued that they have “dual residence” in Normantown and Glenville as a consequence of their ownership of two properties. However, the Respondents do not recognize “dual residence” as a legitimate status with respect to its school attendance zone policies.  Instead, the Respondent Board of Education has interpreted its policy to require that students attend the school located in the attendance zone in which they are domiciled—or as the Board’s Policy 5117 clearly, if inartfully, states, the zone in which they “legally reside.“

        8. This case involves the interpretation and application of an ambiguous statute and ambiguous county board polices.    West Virginia Code §18-5-16(a) and Gilmer County Board of Education Policies 5117 and 5118 are the law and rules at issue.  Notably, West Virginia Code §18-5-16(a) has never been interpreted by the West Virginia Supreme Court of Appeals.

        9. West Virginia Code §18-5-16(a)reads, in relevant part:  “The county board may divide the county into such districts as are necessary to determine the schools the students of its county shall attend,“ (emphasis added). Although emphatic and mandatory language is used, the statute provides no standard by which to make this determination under normal circumstances, and it provides no standard to follow when confronting a claim of “dual residence” for school zone attendance purposes.

        10. Policy 5117 defines the four geographic school attendance zones for students in Gilmer County.  Policy 5117 states that “[a]ll students must attend the Elementary Schools within the zone they legally reside.“ Policy 5117’s reference to “the zone they legally reside,“ clearly contemplates that a student can have but one “zone [in which] they legally reside.“ The Court believes this is a reference to the legal concept of domicile, as one can only have a single domicile. See Lotz v. Atamcmiuk, 304 S.E.2d 20, 23 (W.Va. 1983).

        11. The law does not recognize dual residences, and for the purposes of determining where a student will attend school, it is crucial for a board of education to be able to determine the one attendance zone in which a child lives, so that it can determine the number of teachers and employees needed at each school.

        12. West Virginia Code §18-5-18a and State Board of Education Policy 2510 limit the teacher-pupil ratios in elementary schools and require that additional staff be hired when the ratio exceeds a given limit,  Since 1996, West Virginia county boards of education have been prohibited from having more than 20 students in Kindergarten classrooms and more than 25 students in classrooms serving grades 1 through 6.    When there are more than 10 students in a Kindergarten classroom, county boards must hire a classroom aide.  See W. Va. C.S.R. §126-42-7.5.4(a)(B).  When there would be more than 20 students in a Kindergarten classroom, a new Kindergarten teacher must be hired.

        13. The cost of salaries and benefits (both current and post-employment) for even a single additional teacher and/or classroom aide is considerable. Were a dual residency rule for school zone attendance purposes forced upon the Board of Education, it would have to recognize such claims from those who own property and those who merely use property in multiple school attendance zones. Obviously, such a loose rule could easily and frequently be abused, resulting in changing classroom enrollments, including enrollments beyond the classroom size limits required by law—thus necessitating the hire of additional staff. This Court cannot find that the Petitioners have a right to force the Board of Education into such a situation. The classroom size limit laws and policies exist for good reasons. The Board of Education, for equally good reasons, must enforce its school attendance zone rules without recognizing dual residency.

        14. A reviewing court is required to afford deference to an agency’s interpretation of its own regulation if the regulation contains an ambiguity.  See Consumer Advocate Div. ofPSC v. PSC of W.Va., 386 S.E.2d 650, Syl. Pt. 1 (W.Va. 1989).  While Policy 5117 states that “[a]ll students must attend the Elementary Schools within the zone they legally reside,“ the phrase “legally reside” is ambiguous and has no clear legal meaning—as the phrase is neither defined in the policy nor by reference to an external legal authority.    The Respondents’ interpretation and application of this term, giving it the meaning of domicile, is not only a reasonable and logical one, it is the only one that would give the policy (and the statutory provision upon which it is based) an effective meaning and use.  The Respondent Board of Education’s interpretation of its policy is therefore entitled to deference by this Court absent a showing that the Board’s interpretation exceeds its constitutional or statutory authority, or is arbitrary or capricious. This showing has not been made.

        15. As noted above, the Superintendent and the Board of Education are in no way compelled by statute to find that the Petitioners are residents of the living space in the basement of the Glenville office building when there is evidence and basic reasoning to indicate that they are, more likely than not, residents of a home in the Normantown school attendance zone.  The Petitioners admit to owning a house at 778 Heritage Lane, Glenville, WV 26351, and a doctor’s office in Glenville at 604 W. Main Street, Glenville, WV 26351. Based on this information alone, the Respondents could have reasonably found that a preponderance of the evidence indicated that the Petitioners are domiciled in their Normantown school zone home, and not the lower level of their office building in Glenville. Nothing more was required of the school board. Moreover, the decision of the Respondents cannot accurately be characterized as being the result of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of the law.  No evidence of the same was introduced by the Petitioners.  Rather, the decision presence of counsel. A vote on a motion to overrule the Superintendent’s decision failed and the Petitioners were notified of the same. See Transcript of December 20, 2010 Board Hearing at 21. On January 13, 2011, pursuant to the Court’s earlier Order, the Petitioners filed with the Clerk of Courts, and all counsel of record, a notice of their desire to proceed further with their Petition for Writ of Mandamus.

On March 28, 2011 at 11:00 a.m., the parties and their respective counsel, Mark McMillian and Richard Boothby, appeared before the Court once again in a final hearing on the Petitioners’ Petition for Writ of Mandamus. Prior to the same, the Respondent filed additional motions to dismiss, and the Court took the same under advisement. Oral argument was heard from both counsel in open court, and the Court inquired of counsel during the same. Thereafter, the Court entered an Order on March 31, 2011 making the transcription of the hearing before the Board of Education on December 15 and 20, 2011 a part of the record of these proceedings, and requiring the parties, by counsel, to submit no later than April 11, 2011, their respective Proposed Findings of Fact and Conclusions of Law.

Attendance zone, not recognizing The Petitioners’ claim of dual residency, and his related September 14, 2010 order that the Petitioners’ child be transferred—were violations of a clear legal duty and/or the result of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of the law. For that reason, a writ of mandamus is inappropriate.

Therefore, it is hereby ORDERED, ADJUDGED, and DECREED:

        1. The Petition for Writ of Mandamus shall be DENIED.

        2. The Court notes that nothing in this ruling prohibits the Petitioners from seeking a transfer of K. A. to Glenville Elementary School, pursuant to the applicable policies and procedures.

        3. The Court shall note and preserve all parties’ objections and exceptions to the Court’s rulings.

        4. The Clerk of this Court shall provide copies of this Order to counsel for the Petitioners, Mark McMillian; and to counsel for the Respondents, Richard S. Boothby.
It is accordingly so ORDERED
ENTERED this the   23rd     day of JULY ,2011.

Richard A. Facemire, Judge

08.03.2011
CommunityGilmer CountyGlenvilleNormantownEducationCourthouse

Permalink - Link to This Article

~~~ Readers' Comments ~~~

Print This Article

Gilmer County Family Judget Whited Injured in a Tractor Accident‏

image

It has been reported that Gilmer County Family Judge Whited was flown to CAMC and is in intensive care after a tractor accident causing extensive injuries including fractured ribs,  possible collapsed lung, liver laceration and hip fractures.

Gilmer County Did Not Score Well at Greenbrier Classics

image

According to report filed by the Lewisburg Police Department Douglas Darrell Cottrill of Glenville, Gilmer County West Virginia was arrested on Thursday, July 28, 2011, in Greenbrier County during the Greenbrier Classics event.

Lewisburg Police Officer Brandon McCormick was on a routine traffic run at the intersection of Rt. 219 and Rt. 60 in downtown Lewisburg Greenbrier County WV, when he noticed a Red Jeep entering the intersection without its headlights on when it was dark.

The officer noticed the driver and passenger had two open containers and a box of beer in the back seat as they were passing by when he yelled for them to pull over in the parking lot nearby.

To add to the problem the officer discovered a tail light on the vehicle was also out.

After Cottrill and the passenger stepped out of the vehicle, the officer could smell the odor of Marijuana coming from the vehicle.

The report indicates there was a Crown Royal bag in plain view from the back passenger side window.

Upon looking in the bag, the officer saw a green leafy substance appearing which appeared to be Marijuana and a glass pipe in it.

The case went from bad to worse when the officer began searching the car and a duffle bag was found,  and in the middle of it he found a bag containing green leafy substance appearing to be Marijuana (less than 15 grams) and a wooden/glass bowl.

The substance was subsequently field tested which also showed it to be Marijuana.

Upon being Mirandized, Mr. Cottrill agreed that it was Marijuana.

The officer also found a pill bottle with prescription tag for Lortab and the name of Ike Morris on it.

Upon opening the bottle eight and one half yellow pills were found with the numbers 3601 imprinted on one side and V on the other (Hydrocodone/Acetaminophen).

After investigation, it was found that Mr. Cottrill had no prescription for them.

Also in the pill bottle was a little bag wrapped up containing white powder appearing to be cocaine, and the substance was subsequently field tested which also showed to be positive for cocaine.

Again Cottrill agreed that it was cocaine.


Case No.: 11-M13M-00627
Greebrier County Magistrate Court
07.29.2011

08.01.2011
CommunityGilmer CountyGlenvilleNewsArrestsCourthouse

Permalink - Link to This Article

~~~ Readers' Comments ~~~

Print This Article

Federal Court Backs WV School in Online Bullying Case

image

A federal appeals court this week upheld the suspension of a West Virginia student who created a web page suggesting another student had a sexually transmitted disease and invited classmates to comment.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously refused to reinstate Kara Kowalski’s lawsuit against school officials in Berkeley County. She claimed her five-day suspension from Musselman High School in 2005 violated her free speech and due process rights, and that school officials lacked authority to punish her because she created the web page at home.

The appeals court said the web page was created primarily for Kowalski’s classmates, so the school had the right to discipline her for disrupting the learning environment.

Kowalski was a senior at Musselman when she created a MySpace page called “S.A.S.H.“ She claimed it was an acronym for “Students Against Sluts Herpes.“

But a classmate said it stood for “Students Against Shay’s Herpes” and referred to a student who was the main subject of discussion on the page. The first of about two dozen students who joined the discussion group posted photos of the student, including one with red dots drawn over her face to simulate herpes.

Other students posted messages commenting on the photos and ridiculing the student, whose parents complained to school officials the next day. Officials concluded Kowalski had created a “hate website” in violation of the school’s anti-bullying policy.

Along with being suspended, Kowalski was prevented from crowning her successor as “Queen of Charm” in the school’s annual Charm Review and was kicked off the cheerleading squad. She claimed her punishment left her isolated and depressed, but she got no sympathy from the appeals court.

“Kowalski’s role in the ‘S.A.S.H.‘ webpage, which was used to ridicule and demean a fellow student, was particularly mean-spirited and hateful,“ Judge Paul V. Niemeyer wrote.

“Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators,“ he wrote.

Messages left for Kowalski’s attorney, Nancy A. Dalby, were not immediately returned Wednesday.

Although the ruling in the Kowalski case was unanimous, University of Arizona cyberbullying expert Sheri Bauman said such cases present “a real conundrum” for courts trying to balance students’ First Amendment rights against the need to maintain order in schools.

“This is all quite new. That’s what makes it so difficult for schools to decide when and where they have the option to intervene,“ said Bauman, director of the university’s school counseling program and author of the book “Cyberbullying: What Counselors Need to Know.“

She said one of the issues that needs clarification is the definition of “substantial disruption” of the learning environment. She predicted that the U.S. Supreme Court eventually will be asked for guidance on this and other issues involving school cyberbullying.

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

image

An USP Gilmer inmate entered a plea of guilty and was sentenced on Tuesday, July 26, 2011, in United States District Court in Clarksburg by Judge Irene M. Keeley.

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

RICHARD NEWLAND, age 42, entered a plea of guilty to one count of possession of a prohibited object on January 19, 2010, when correctional officers searched NEWLAND’s cell and discovered a small quantity of marijuana.

NEWLAND was sentenced to four months imprisonment to run consecutively with his current 108-month sentence.

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

WV Supreme Court Justice Says Students Who Skip Out on School, Many Times, Wind Up in Jail or Prison

image

Missing school could mean more problems later for everyone.

State Supreme Court Justice Robin Davis says that’s why truancy needs to be addressed early.  “If you meet it on the front end then, hopefully, the back end goes away,“ Justice Davis said on Thursday’s MetroNews Talkline.

She was in Preston County on Thursday to speak with hundreds of members of the American Federation of Teachers about ways to solve truancy problems.

From the court side, Justice Davis will be one of the judges visiting 14 different regions in West Virginia later this year as part of an outreach program focused on cooperative efforts to get students back into the schools before they end up in the courts.

She says they’ll try to tailor programs to those different areas.

“It’s just not always the children,“ she says of the reasons why students may not be going to school.  “Sometimes, it’s the parents and, if we don’t get involved early on, it’s a lost cause.“

As an example, Taylor County Circuit Judge Alan Moats, who will also be working on solutions, estimates half of the students in Taylor County and Barbour County, the counties he serves, miss ten or more days of school every year.

On the list of people recently indicted, most did not have high school diplomas and one could not read.

Justice Davis says judges can identify clear patterns.

“All of the children that they see coming through their court system as truants, they again see either in the juvenile system or later on in the criminal system where they end up in jails or prisons,“ she says.

Gilmer County Family Court Report - 07.22.11

image

Family Court Judge Larry Whited spent most of Friday, July 22, 2011 in Gilmer County hearing cases.


•  He heard an allocation proceeding between Brian Nichols vs. Jodie L.Turner.

After which he referred them to mediation.

Ms. Turner was represented by Shelly DeMarino of Glenville.


Two divorces were granted:


•  Danny J. Mathess (36) of Cox’s Mills divorced Melissa Mathess (32) of Linn.


•  Gloria Shaffer divorced Richard D. Shaffer

But the final order has not yet been received because her attorney is preparing it.


•  A modification was heard in the case of Miranda Stump vs. Jonah Stump with a temporary order being entered.


•  A temporary order was also entered in the paternity case of Corey Dokes and Betsy Jo Wiley.


•  Genetic testing was ordered in the paternity case involving Deborah Kittle and Jeremiah Luzader.


•  A temporary order was also entered in the case of Don Marks and Heather Black.


•  A temporary order was also entered in paternity case of Gary and Stephanie Jenkins.


•  A temporary order was entered in the modification involving Donna Davisson and Ricky Pettit.


•  Two hearings were cancelled.

07.26.2011
CommunityGilmer CountyCox's MillsGlenvilleLinnCourthouse

Permalink - Link to This Article

~~~ Readers' Comments ~~~

Print This Article

WV Truancy Plan to Be Detailed Thursday

image

Robin Jean Davis, a justice on the state Supreme Court of Appeals, will make a major policy speech about a new initiative to combat truancy at 8:30 AM Thursday, July 28, 2011 at the Camp Dawson Conference Center in Preston County, WV, according a press release issued by the court.

Davis will speak to more than 160 teachers and school service personnel at the Kingwood facility.

Her presentation will be part of a week-long summer school sponsored by the West Virginia Federation of Teachers.

This year’s seminar this year is focused in part on family and community involvement in school improvement and behavior management.

Davis has been appointed by the Supreme Court to coordinate the efforts of numerous circuit judges throughout West Virginia who are working with their local schools on anti-truancy and anti-dropout programs.

The Court hopes Davis’ leadership will encourage more judges and schools to work together on the issues.

Click Below for additional Articles...

Page 43 of 72 pages « First  <  41 42 43 44 45 >  Last »


MTS





The Gilmer Free Press

Copyright MMVIII-MMXV The Gilmer Free Press. All Rights Reserved