Heinemann's Legal Brief

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

AT CHARLESTON, WEST VIRGINIA

CHARLOTTE W. ELZA, and

JEROME E. HEINEMANN,

                        Petitioners / Appellants,

Vs. ) Nos. 13-1182 and 13-1183                                                       

POCAHONTAS COUNTY SOLID WASTE AUTHORITY,

                        Respondent / Appellee.

_________________________________________________

PETITIONERS / APPELLANTS BRIEF

__________________________________________________

Bifurcated from Petitioners / Appellants

John Leyzorek, No. 13-1160, and Douglas H. Bernier, No. 13-1161

Pursuant to ORDER dated 03 January 2014

CHARLOTTE W. ELZA, Pro Se

Petitioner / Appellant

3785 Wesley Chapel Road

Green Bank, West Virginia 24944

Phone: 1.304.456.4354

Email:  elzacw@yahoo.com

and

JEROME E. HEINEMANN, Pro Se

Petitioner / Appellant

7837 Wesley Chapel Road

Green Bank, West Virginia 24944-9745

Phone: 1.304.456.4565 & 3282 (also fax)

Email:  jerryh15@juno.com

I.                   TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………………..3

Cases:…………………………………………………………………………………..3

Federal Constitution:…………………………………………………………….……3

WV Constitution:……………………………………………………………………...3

Statutes:………………………………………………………………………………..3

Code of State Rules:……………………………………………………………..……4

Rules:…………………………………………………………………………………..4

ASSIGNMENTS OF ERROR / QUESTIONS PRESENTED………………………….4

STATEMENT OF THE CASE…………………………………………………………...5

SUMMARY ARGUMENT………………………………………………………………..6

STATEMENT REGARDING ORAL ARGUMENT & DECISION…………………..7

ARGUMENT………………………………………………………………………………7

CONCLUSION…………………………………………………………………….……..15

CERTIFICATE OF SERVICE…………………………………………..……….…….16

II.                TABLE OF AUTHORITIES

Cases:

Arlan’s Dep’t Store of Huntington, Inc. v. Conaty, 1622 W.Va. 893, 253 S.E.2d 552 (1979)……..10

Bee v. City of Huntington, 114 W.Va. 40, 171 S.E. 539 (1933).........................................................14

Brooks v. Harris, 201 W.Va. 184, 495 S.E.2d 555 (1997)……………………………………………8

City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536 (1995)……………………………...14

Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996)…………………………………………….10

Frazier v. Pioneer Chevrolet-Cadillac, Inc., 192 W.Va. 468, 452 S.E.2d 926 (1994)……………....10

Graf v. West Va. Univ., 189 W.Va. 21, 429 S.E.2d 496 (1992)……………………………………….8

James M.B v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995)……………………………………8

Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992)……………………………………………8

Miller v. Triplett, 203 W.Va. 351, 507 S.E.2d 714 (1998)………………………………………....…..8

Montgomery v. Montgomery, 147 W.Va. 4449, 128 S.E.2d 480 (1962)……………………………….8

Morrison v. Sharma, 200 W.Va. 192, 488 S.E.2d 467 (1997)…………………………………………8

Sargent v. Malcomb, 150 W.Va. 393, 146 S.E. 2d 561 (1966)………………………………………...8

Steptoe v. Mason, 153 W.Va. 783, 172 S.E.2d 587 (1970)…………………………………………….8

Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996)……………………………………...8

Rollyson v. Rader, 192 W.Va. 300, 452 S.E.2d 391 (1994)…………………………………………...10

U.S. Constitution:

Bill of Rights………………………………………………………………………………………..…14

WV Constitution:

Bill of Rights……………………………………………………………………………………..........14

W.Va. Constitution, Article IX, §5………………………………………………………………....…9

W.Va. Constitution, Article IV, §6……………………………………………………………….…...9

Statutes:

WVC §6-1-1, et seq…………………………………………………………………………………..…9

WVC §6-1-7…………………………………………………………………………………………….9

WVC §6-2-1, et seq……………………………………………………………………………………..9

WVC §6-2-4…………………………………………………………………………………………9, 10

WVC §7-1-1, et seq……………………………………………………………………………………12

WVC §20-11-5a(e)…………………………………………………………………………….11, 12, 13

WVC §20-11-5b(e)…………………………………………………………………………….11, 12, 13

WVC §22-15-11(e)…………………………………………………………………………….11, 12, 13

WVC §22-16-4(e)……………………………………………………………………….……..11, 12, 13

WVC §22C-4-1, et seq……………………………………………………………………….……..…10

WVC §22C-4-8(b)(4)……………………………………………………………………….……..11, 12

WVC §22C-4-9……………………………………………………………………………………7, 8, 9

WVC §22C-4-10…………………………………………………………………………………..11, 12

WVC §22C-4-10c………………………………………………………………………………….….11

WVC §22C-4-30(e)……………………………………………………………………………11, 12, 13

WVC §22C-15-1, et seq…………………………………………………………….…………………13

WVC §56-8-12…………………………………………………………………………………...……10

Code of State Rules:

33CSR7.1, et seq. (§33-7-2)…………………………………………………………………….….6, 12

54CSR6.4 (§54-3-6.4)…………………………………………………………………………….…..10

Rules:

Rule 59, W. Va. R. Civ P………………………………………………………………………….……8

W. Va. R. Appellate P. 20 (2010)………………………………………………………………………7

III.             ASSIGNMENTS OF ERROR – QUESTIONS PRESENTED

1.      When the Legislature specifically requires authorization within a statutory code from the Office of the Attorney General to carry out specific duties, can a county solid waste authority circumvent the jurisdiction and statutory duty of the Attorney General and conduct its own unregulated agenda?

2.      Does a body of appointed public officials have proper jurisdiction to conduct its affairs without first taking an ‘Oath-of-Office’ or becoming ‘Bonded’, while enacting local regulations against county residents which regulations ignore and stand contrary to existing statutory laws?

3.      Does a county solid waste authority have proper jurisdiction to usurp the statutory authority of the Public Service Commission and the Department of Environmental Protection?

4.      Can a ‘trial’ be considered valid and in compliance with due process and the equal protection of the laws when no admissible evidence has been entered against your Appellants, and only the ‘testimony’ is from the counsel for the Appellee?

IV.             STATEMENT OF THE CASE

This instant matter has been an ongoing controversy and ‘festering-sore’ within Pocahontas County ever since the Pocahontas County Solid Waste Authority (PCSWA) came into existence in 1989 pursuant to the Legislative Acts establishing local control over ‘open-dump-landfills’.  One of the first problems with the PCSWA was that for over eighteen (18) years, the PCSWA only had one (1) member that ever took the required ‘Oath-of-Office’, yet was never ‘Bonded’, while the four (4) other members of the board ignored the taking of an ‘Oath-of-Office’ and were never ‘Bonded’.  Yet during this time of never being ‘officially established’ as a qualified government agency, pursuant to the State Constitution and applicable laws, as a matter of law and fact, the PCSWA enacted two sets of ‘Mandatory Garbage Disposal Regulations’ (MGDRs) and a ‘Comprehensive Litter & Solid Waste Control Plan’ (CLSWCP), in 1991 & 1995, the subject of this appeal since neither of which were in compliance with existing state law, yet were used as the grounds for first suing your Appellants.  The key controversy is that, unlike other counties in West Virginia that charge a ‘fee’ based upon usage to bury solid waste in their ‘open-dump-landfills’, the PCSWA enacted a ‘mandatory-flat-fee’, also called an ‘assessment-fee’ and ‘green-box-assessment-fee’, that it expected each property-owner to pay regardless of whether those property-owners used the ‘open-dump-landfill’ or whether they were exempted pursuant to state law by recycling and disposing of their solid waste in an otherwise proper lawful manner as allowed by statutory law.  The PCSWA refuses to acknowledge recycling and the selling of recycled items, including metal to metal recycling centers as part of an otherwise lawful manner, or as part of its local MGDRs.

Even so, it was not until a private-attorney-collections-agency was acquired, not by contract or majority approval of the PCSWA, but via a private arrangement with the then chairman, that a series of ‘mass-lawsuits’ began in which hundreds of county property-owners began being sued under a single civil action case number, yet each defendant had to defend themselves on an individual instead of a class-action basis.  This series of activity has now escalated to the point that nearly one-third of all county households have been or are being sued, resulting in massive default and summary judgments, evolving into Abstract of Judgments Liens, and now the private-attorney-collections-agency threatens seizure of personal property and the actual real estate.   See Exhibit 1, (A.R. 01 – A.R. 29); Exhibit 9, (A.R. 118 – A.R. 120).

V.                SUMMARY ARGUMENT

While this instant matter focuses on whether or not the Pocahontas County Solid Waste Authority (PCSWA) has the substantive & procedural jurisdiction to do the things it is doing, i.e., usurping the designated powers of the Department of Environmental Protection – Office of Waste Management (DEP) to investigate whether or not any given individual property-owner is properly disposing of their solid waste in a lawful manner, 33CSR7.1, et seq., §33-7-2; and also whether or not the PCSWA is also usurping the designated powers of the Public Service Commission (PCS) which has the power to levy a fee & fine upon those persons willfully refusing to dispose of their solid waste in a lawful manner, after a proper determination has been made by the Department of Environmental Protection, requiring a conviction in a court of law before a fine can be imposed.  Thus a clear ‘checks & balances’ exist as a separation of powers between the DEP investigatory powers and the PSC civil penalty powers.  But, as the record clearly shows in this instant manner, the PCSWA has taken it upon itself to levy a ‘mandatory-assessment-flat-fee’, similar to a mandatory ‘ad valorem property tax’, then attempt to enforce a ‘collections’ against all those property-owners it determines is not paying its ‘mandatory-flat-fee’, then declaring a default or summary-judgment, followed by an Abstract of Judgment Lien, and threats of seizure, etc.  As substantively & procedurally egregious as all this may seem, although no investigation is either requested or performed by the DEP, as required by law, against any given property-owner in Pocahontas County, the PCSWA is simply using the criteria for filing a civil action the simple fact that any given property-owner has not come into its office and paid the levied ‘mandatory-assessment-flat-fee’   –  absolutely no consideration is granted or accepted for those homeowners who actually are following the state law when they recycle and dispose of their solid waste in an otherwise lawful manner pursuant to the laws set forth by the State Legislature.  See Exhibit 7, (Affidavits, A.R. 101 – A.R. 106).

A primary concern also pertaining to the lack-of-jurisdiction is the fact that pursuant to WVC §22C-4-9, the Office of the Attorney General has to provide ‘written approval’ before the PCSWA can employ private counsel to represent it – and not only has the Office of the Attorney General never given such approval – there is no statutory provision found anywhere in the West Virginia Code that permits a county solid waste authority permission to hire a collections-agency to sue property-owners, obtain default & summary judgments, issue Abstract of Judgment Liens, and then threaten property-owners with the loss of their personal and real property!

And lastly, one of the systemic problems facing those having cases heard in the Eleventh Circuit Court is the fact that even when motions are properly filed, noticed, and hearings scheduled, the Circuit Court refuses to consider such motions in whole or in part.  See Exhibit 4 (A.R. 50 – A.R. 52) and Exhibit 5 (A.R. 53 – A.R. 74) for an example of denial after denial.  This judicial-inbred-policy therefore makes it extremely difficult for the proper issues and genuine issues of material facts to be raised for purposes of argument and appeal – unless this Court is willing to look upon these matters and issues in a substantive & procedural light as a ‘first impression’ since it is a known fact that the PCSWA is following its own policies totally contrary to the policies followed in all other counties within West Virginia, thereby denying the Citizens of Pocahontas County their proper due process and equal protection of the laws.  All counties are in compliance except Pocahontas County.

VI.             STATEMENT REGARDING ORAL ARGUMENT & DECISION

Your Petitioners believes that if oral argument is required that it would follow pursuant to an issue of ‘first impression’, i.e., whether or not specific statutes are required to be followed, or are they discretionary on the part of any given public agency, and whether or not any given pubic agency has proper jurisdiction when said agency is not following the necessary laws to fulfill its proper duties and responsibilities as intended by the Legislature.  The issue of ‘first impression’ is also believed to be applicable when the Citizens of Pocahontas County are being denied their rightful due process and equal protection of the laws, compared to the other Citizens of West Virginia whose respective county and regional solid waste authorities are in compliance with all existing state laws regarding solid waste and its proper disposal accordingly.  Taken separately or together, if oral argument is required pursuant to review, then it would most likely fall under the issues set forth in W. Va. R. Appellate P. Rule 20.  

VII.          ARGUMENT

A.  ASSIGNMENTS OF ERROR / QUESTIONS PRESENTED

            1.  When the Legislature specifically requires authorization within a statutory

           code from the Office of the Attorney General to carry out specific duties, can

           a county solid waste authority circumvent the jurisdiction and statutory duty

           of the Attorney General and conduct its own unregulated agenda?

Although the issue of whether or not the Pocahontas County Solid Waste Authority (PCSWA) had proper jurisdiction to issue its ‘Mandatory Garbage Disposal Regulations’ (MGDRs) on 29 August 1991 & again on 01 September 1995, the subject of this instant matter, prior to it ever establishing itself as a lawful public body since for over eighteen (18) years only one of the five board members ever took his proper ‘Oath-of-Office’ is chronologically the first issue of priority, logically speaking, but since the PCSWA has begun suing county property-owners for not paying its questionable assessed ‘mandatory-flat-fee’, that has raised a statutory dilemma that places proper jurisdiction as the very first issue for consideration.

The statutory dilemma becomes a primary issue and concern since at no time since the inception of the PCSWA in 1989 has any direct authority, written or otherwise, ever been granted to the PCSWA, or to any private-counsel or collection-agency by the Office of the Attorney General, as is required by law pursuant to WVC §22C-4-9, which specifically states, to wit:

            “The attorney general shall provide legal counsel and representation to each

            county and regional solid waste authority for purposes of this article within the

            existing resources and appropriations available for such purposes, or with written

            approval of the attorney general, said authority may employ counsel to represent it.”

            [Underline emphasis]. 

In an answer, dated 23 July 2008, to a specific inquiry into the employment of WVC §22C-4-9, the reply from the Office of the Attorney General specifically states, to wit:

            “The Attorney General’s office has not represented Pocahontas County directly nor

            have we appointed anyone to represent Pocahontas County.” [Underline emphasis]. 

See Exhibit 7, (A.R. 107).

These matters were specifically addressed to the Eleventh Circuit Court in Appellant Heinemann’s Motion to Dismiss / Judicial Notices of Case Discrepancies as genuine issues of material fact still unresolved that went to the issue of proper jurisdiction; as well as Appellant Heinemann’s Amended Motion for New Trial, pursuant to Rule 59, West Virginia Rules of Civil Procedure, whereby said motion is entitled to a new trial to challenge the sufficiency of any judgment, or to alter or amend any judgment, as a matter of law and fact pursuant to the lack of due process and the equal protection of the laws as set forth as a matter of record accordingly.  See Exhibit 6 (A.R. 75 – A.R. 79) & Exhibit 8 (A.R. 113 -  A.R. 117), respectively.

Supporting the respective motions timely filed in the Eleventh Circuit Court at the time included Appellant Heinemann’s judicial notice of case discrepancies pursuant to Miller v. Triplett, 203 W.Va. 351, 507 S.E.2d 714 (1998); this instant matter is a proper case for jury determination, Sargent v. Malcomb, 150 W.Va. 393, 146 S.E. 2d 561 (1966); motions of defendant have set out errors, Montgomery v. Montgomery, 147 W.Va. 4449, 128 S.E.2d 480 (1962); grounds via motions have been set out with particularity, Steptoe v. Mason, 153 W.Va. 783, 172 S.E.2d 587 (1970);  discrepancies were timely filed, Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992), Graf v. West Va. Univ., 189 W.Va. 21, 429 S.E.2d 496 (1992), James M.B v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995), Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996); and substantial justice has not been done, including issues of discretion, Morrison v. Sharma, 200 W.Va. 192, 488 S.E.2d 467 (1997), Brooks v. Harris, 201 W.Va. 184, 495 S.E.2d 555 (1997).

Your Joint Appellants do not believe that the Appellee has proper jurisdiction to conduct the collection activities it has begun, nor to acquire private legal counsel as a collections-agency pursuant to the strict reading of WVC §22C-4-9, and the specific response from the Office of the Attorney General denying permission as per a matter of law and the prima facie facts set forth herein.

           2.   Does a body of appointed public officials have proper jurisdiction to conduct

                 its affairs without first taking an ‘Oath-of-Office’ or becoming ‘Bonded’, while

                 enacting local regulations against county residents which regulations ignore

     and are contrary to existing statutory laws?

The Constitution of West Virginia requires an ‘Oath-of-Office’ PRIOR to taking office or conducting any public agency business.  Article IV, §5 and WVC §6-1-1, et seq., and WVC §6-1-7, inclusive.  The Constitution of West Virginia also requires each member to be ‘Bonded’.  Article IV, §6 and WVC §6-2-1, et seq., and WVC §6-2-4, inclusive.  Failure to give Bond – Acting without Bond, respectively, carries a financial penalty.  WVC §6-2-4.  Additionally, all ‘non-bonded’ positions are legally to be considered ‘vacant’ and fined no less than $50.00 or more than $1000.00.  No public bonding has yet occurred for any PCSWA member.  Therefore as a matter of law and fact,  NO OATH and NO BONDING for the past two-decades would exceed $100,000.00in fines upon the PCSWA if the maximum financial penalty was enforced – but unfortunately, neither the county commission nor the Eleventh Circuit Court has provided any oversight into the activities, or the lack thereof, of the Pocahontas County Solid Waste Authority (PCSWA).

The relevance to this matter is that since the PCSWA did not take any ‘Oath-of-Office’, nor was ever ‘Bonded’, this issue also goes directly to ‘Jurisdiction’  and whether or not the PCSWA has proper jurisdiction to bring forth its collection-agency lawsuits, suing county property-owners for failure to abide by the 1991 and 1995 “Mandatory Garbage Disposal Regulations” (MGDRs), or its “Comprehensive Litter & Solid Waste Control Plan” (CLSWCP), put into effect when the PCSWA was not functioning under legal authority pursuant to the Constitution of West Virginia or the laws of this State.  Yet pursuant to 54CSR6.4 (§54-3-6.4), it is the authority’s responsibility to ensure that it is legally constituted to conduct business in accord with WVC §22C-4-1, et seq. 

Yet every time this specific issue of NO OATH & NO BOND has been raised by any defendants, now Appellants, collection-agency counsel has insisted that such was either not necessary, or was a settled issue, howbeit never producing any admissible evidence or proper citations.  See Exhibit 5, (A.R. 59, line 25; A.R. 60, lines 1-3, lines 19 – 25; A.R. 61, lines 1 - 16).  Yet the fact remains that the issue regarding the lawfulness of the PCSWA to conduct its affairs in violation of the Constitution of West Virginia and the Laws of this State has never been decided either in the Eleventh Circuit Court or in this Court of Appeals.  Appellant Leyzorek raised a similar issue in Id., Exhibit 5, (A.R. 62, lines 15 – 25), which supported the earlier argument of Appellant Elza in which the Eleventh Circuit Court at its hearing on 05 August 2009, suspended all activity against Appellant Leyzorek, Appellant Bernier, Appellant Elza & Appellant Heinemann until the PCSWA could show that it was lawfully established – but NO ADMISSIBLE EVIDENCE ever came forth from the PCSWA to show any ‘Oath-of-Office’ or ‘Bonding’ on the part of its members.   See Exhibit 1, (A.R. 24, line 1185). 

The matter against these four Appellants did not resume again until four (4) years later for some, and three-&-a half (3½) years later for others.  See Id., Exhibit 1, (A.R. 26, line 1298 – A.R. 29, line 1433, inclusive).  The matter of proper jurisdiction as to NO OATH & NO BOND still remains unresolved.  In regards to the delay, the Appellee failed to show good cause such as fraud, accident, or mistake as to why this case should be reinstated after a period of over 3½ - 4 years pursuant to WVC §56-8-12; especially since the Appellee failed to give an adequate excuse for its neglect to prosecute this case, or provide timely discovery requests; and the possible prejudice inflicted upon defendants now lumped-together, instead of bifurcated, as they requested as their right since this case is not a class-action.  Arlan’s Dep’t Store of Huntington, Inc. v. Conaty, 1622 W.Va. 893, 253 S.E.2d 552 (1979); Rollyson v. Rader, 192 W.Va. 300, 452 S.E.2d 391 (1994); Frazier v. Pioneer Chevrolet-Cadillac, Inc., 192 W.Va. 468, 452 S.E.2d 926 (1994); Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996). 

As it stands now, the PCSWA and its unauthorized collection-agency has been suing some of the same property-owners in the county every five (5) years pursuant to the enactment of its MGDRs that are dated, to wit:  29 August 1991, 01 September 1995, 06 December 2006, and 01 July 2010, respectively.  The 1991 & 1995 MGDRs only allowed two of the six methods for disposal of solid waste in the two methods that brought money into the PCSWA, paying a private-hauler or paying the ‘assessed-mandatory-flat-fee’ – and those MGDRs were enacted when the PCSWA only had one member that took an ‘Oath-of-Office’ but was never ‘Bonded’ – which is why the challenge to jurisdiction keeps arising.  The 2006 & 2010 MGDRs expanded to permit the ‘free-day’ once per/month, thus permitting three of the six methods established by State Law.  But at no time has any MDGR ever permitted ‘recycling’, ‘composting’, or disposal in ‘an otherwise lawful manner’, such as selling recyclable items, that are allowed by State Law, and as permitted by all other counties in West Virginia – except Pocahontas County.  Nor has the PCSWA ever ‘exempted’ Senior Citizens or folks on a fixed-income as required by WVC §22C-4-10(c). 

For the record, the definition of ‘in an otherwise lawful manner’, pursuant to WVC §22C-4-8(b)(4) and WVC §22C-4-10, respectively, is defined in the following, to wit:

·         WVC §20-11-5a(e) and WVC §20-11-5b(e), the West Virginia Recycling Plan;

·         WVC §22-15-11(e), Solid Waste Management Act;

·         WVC §22-16-4(e), Solid Waste Landfill Closure Assistance Program; and,

·         WVC §22C-4-30(e), County and Regional Solid Waste Authorities. 

All of these matters go directly to the issue of whether or not the PCSWA has proper jurisdiction to arbitrarily impose a self-serving ‘mandatory-assessment-flat-fee’ upon every property-owner in the county, then turn over control to an unauthorized collection-agency to sue county property-owners, obtain default or summary judgments, convert those to Abstract of Judgment Liens, and then threaten to seize personal and real property.  See Exhibit 9, (A.R. 118 –  A.R. 120), brother of your Appellant Charlotte Elza. 

3.       Does a county solid waste authority have proper jurisdiction to usurp the

 statutory authority of Department of Environmental Protection – Office of

 Waste Management and the Public Service Commission?

Another issue that goes directly to challenging proper jurisdiction is that the PCSWA, as in this case, is trying to prosecute ‘collection cases’ against the homeowners and landowners of Pocahontas County via its arbitrary annual fixed-assessment-fee, called ‘green-box-fee’; any comparison of WVC §22C-4-8(b)(4) and WVC §22C-4-10 to the Code of State Rules at 33CSR7.1, et seq., §33-7-2, shows that all proof of proper disposal is relegated only to the Division of Environmental Protection – Office of Waste Management, §2.1, whenever asked, not to the Pocahontas County Solid Waste Authority, and includes all disposal ‘in an otherwise lawful manner’, which includes recycling, composting, the free-day, or taking to another solid waste authority pursuant to: WVC §20-11-5a(e) and WVC §20-11-5b(e),West Virginia Recycling Plan; WVC §22-15-11(e), Solid Waste Management Act; WVC §22-16-4(e), Solid Waste Landfill Closure Assistance Program; and WVC §22C-4-30(e), County and Regional Solid Waste Authorities, respectively – especially since the policing of all compliance, as a public utility, for the proper disposal of solid waste rests with the Public Service Commission (PSC) and specifically with the Division of Environmental Protection (DEP), not with the PCSWA whose primary function is to properly operate a landfill in compliance with WVC §20-11-5a(e) and WVC §20-11-5b(e),West Virginia Recycling Plan; WVC §22-15-11(e), Solid Waste Management Act; WVC §22-16-4(e), Solid Waste Landfill Closure Assistance Program; and WVC §22C-4-30(e), County and Regional Solid Waste Authorities, respectively. 

Simply put, does the PCSWA have ‘proper-jurisdiction’ to prosecute ‘collection cases’ against the homeowners and landowners of Pocahontas County, as well as to whether or not the PCSWA is unlawfully usurping the express powers of specific state agencies already charged with these specific duties and responsibilities?  Pursuant to State Law, as enumerated above, only the Department of Environmental Protection (DEP) has the authority to require ‘proof-of-disposal’, NOT the PCSWA; and only the Public Service Commission (PSC) has the authority to force payment and/or fines upon any given household, NOT the PCSWA.  Thus, as a matter of law and fact, the PCSWA lacks the ‘proper-jurisdiction’ to bring these collection-actions before any court.  And this also goes to recognizing a genuine issue of material fact in need of complete discovery since it’s doubtful that the PSC has been made aware of the current dispute and multiple-violations of State Law regarding the disparity of the local PCSWA, and its MGDR and CLSWCP.

While the Pocahontas County Commission (PCC), pursuant to WVC §7-1-1, et seq., has supervisory authority over the local PCSWA, there has been little to no interaction since the PCSWA has failed to establish a comprehensive program of controlling all phases of solid waste management, contrary to WVC §22-15-1, et seq.  Therefore if the primary function of the PCSWA is to properly operate a landfill in compliance with WVC §20-11-5a(e) and WVC §20-11-5b(e),West Virginia Recycling Plan; WVC §22-15-11(e), Solid Waste Management Act; WVC §22-16-4(e), Solid Waste Landfill Closure Assistance Program; and WVC §22C-4-30(e), County and Regional Solid Waste Authorities, respectively – then how is it that appointed members to the PCSWA are operating as a ‘taxing-power’  suing for collections and placing Abstract of Judgment Liens upon real and personal property?  Just what statutes in the West Virginia Code authorize county and regional solid waste authorities with that type of ‘taxing-power’ & ‘confiscation-power’ when they are not elected as a municipal or county governing body?

4.      Can a ‘trial’ be considered valid and in compliance with due process and the

equal protection of the laws when no admissible evidence has been entered against

your Appellants, and only the ‘testimony’ is from the counsel for the Appellee?

A cursory review of Id., Exhibit 1, (A.R. 01 – A.R. 29) quickly shows the hundreds of property-owners trapped in default or summary judgments, including Abstract of Judgment Liens, in which few if any had a chance to ‘defend-themselves’ or present any type of defense.  And a cursory review of Exhibit 6, (A.R. 75 – A.R. 79); Exhibit 7, (A.R. 80 – A.R. 112); and Exhibit 8, (A.R. 113 – A.R. 117), respectively, also shows a cross-section of the type of genuine issues of material fact that each of the Appellants in this appeal tried in various ways at various times to have resolved, but as shown in Exhibit 4, (A.R. 50 – A.R. 52) and Exhibit 5, (A.R. 3 – A.R. 74), all had the same results.  And of particular note is the egregious manner in which Exhibit 2, (A.R. 30 – A.R. 42) was written, and allowed to stand with all its grammatical and factual mistakes, errors, and falsehoods.  There was supposed to be a period for corrective suggestions to be made by each of the Appellants, and Exhibit 3, (A.R 43 – A.R. 49) is but one of those corrective attempts.  Nevertheless, as can be seen in Id., Exhibit 3, there was no admissible evidence ever presented at any time to support any of the allegations contained in Id., Exhibit 2.  Throughout the entire proceedings in this matter, no one, i.e., no witness, was ever permitted to provide direct testimony, be cross-examined, or redirected, as per proper ‘trial etiquette’, etc.

The only ‘evidence’ ever submitted was a series of ‘affidavits’ allegedly prepared by an employee of the PCSWA, and counsel for the collection-agency simply claimed before the court that those persons listed in the ‘affidavits’ had not paid any ‘assessed-mandatory-green-box-fee’.  From thence onward, the case was simply to obtain either a default or summary judgment against everyone who did not pay the ‘assessment-fee’.  Thus the only testimony provided at any given hearing was that of the counsel for the collection-agency – no other testimony was ever permitted or solicited contrary to the Rules of Evidence and Trial Court Rules.  Why this is relevant is the simple fact that the PCSWA employee that wrote the respective ‘affidavits’, apparently was only concerned about who showed up in her office to pay the ‘assessment-fee’, nothing else.  Had she been put on the witness stand, then she could have been questioned concerning her knowledge, if any, as to whether or not the persons she was writing ‘affidavits’ against have indeed properly disposed of their solid waste in an otherwise lawful manner or whether they were in fact exempt from any ‘assessment-fee’ pursuant to the various elements of proper disposal methods within the state law.  Thus each of your Appellants in this matter were denied their due process and equal protection of the law, as well as denied a ‘fair & impartial’ trial by a jury of their peers.  See Id., Exhibit 1, (A.R. 27, lines 1327 – 1329). 

As seen in Id., Exhibit 5, (A.R. 66, lines 8 – 22, ff), reference is made to City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536 (1995), acclaimed by the Appellee that Eleventh Circuit Court Judge Rowe ruled in Civil Action No. 04-C-37, that he relied upon Id. Stamper, yet on the face of the record that particular decision by this Court was applicable only to ‘municipalities’ who had the authority to ‘impose a fee upon every household in the municipal limits’ [Underline emphasis] – a decision applicable to every municipal-corporation – that decision is by no means applicable to an ‘unincorporated-enity’, especially one that doesn’t even have any countywide zoning such as Pocahontas County.  And as for municipal-corporations within Pocahontas County, there used to be three such entities, Durbin, Hillsboro, and Marlinton – but it now appears that Hillsboro no longer has a mayor and town council, and that Durbin which has lost its town-charter may no longer show a legal-line-of-continuity to sustain its ordinances, and has town counsel members who now wish to exempt themselves from any town ‘assessment-fees’.  Thus it seems that the Id., Stamper, decision is applicable only to Marlinton which already has placed a ‘collection-fee’ for ‘every household in the municipal limits’.   See also Bee v. City of Huntington, 114 W.Va. 40, 171 S.E. 539 (1933), applicable only to municipalities.  But besides that, under the State Laws, each incorporated town is supposed to have its own comprehensive solid waste program.

And as for the added twist that a ‘mandatory-assessment-fee’ is necessary for ‘public-health & safety-matters’, let’s not forget that while the Id., Stamper, decision “enacted an ordinance which is designed to address a public health problem, and the solution to the problem for the benefit of all citizens of Princeton binds the entire community to subsidize a uniform and efficient system of refuse collection and disposal” [Underline emphasis]; the situation here in Pocahontas County with the PCSWA is in no way applicable since the ‘flat-assessment-fee’ being charged by the MGDR is simply a forced ‘subsidy’ placed upon each landowner and household to subsidize the privately-owned county disposal service for filling up the ‘landfill-open-dump’ with 76% of solid waste volume while only paying 25% of ‘landfill-open-dump’ operational costs.  And this disparity could easily be fixed and adjusted once source-separation and recycling were implemented in an honest comprehensive plan that included recycling across the board in this county – something that the PCSWA in its CLSWCP claims “will not be implemented” (CLSWCP, pg.7, §V).  Besides being a denial of due process and the equal protection of the laws, this instant matter goes to recognizing a genuine issue of material fact in need of complete discovery and reorganization – the essence of which is that no regulations or ordinances applicable to a ‘municipality’ can be imposed upon any given ‘county’ or ‘state’ as a matter of law and fact pursuant to the enumerated powers within the respective Federal and State Constitutions and our ‘Bill of Rights’.

VIII.        CONCLUSION

Due to the long-running controversy, multiple disparities, questionable jurisdiction, usurping of the powers of the DEP and PSC, the arbitrary imposition of a ‘mandatory-assessment-flat-fee’ , without voter approval, whether Citizen property-owners use the ‘open-dump-landfill’ or dispose of their solid waste in an otherwise lawful manner as allowed by State Law, the standing contrary to all other county and regional solid waste authorities in the entire State creating a constitutional dilemma of the lack of due process and equal protection of the laws, the unlawful hiring of a private-collections-agency without written approval from the Office of the Attorney General to harass and intimidate county property-owners, the refusal to exempt all Senior Citizens and those on ‘fixed-incomes’, and to then place Abstract of Judgment Liens against the real and personal property of county Citizens who try to follow the State Law, etc., ad nauseam, is all similar and reminiscent to the type of egregious abuse Our Founding Fathers faced when they drew up their ‘Bill of Particulars’, calling it ‘The Declaration of Independence’, against those who would eat-out their substance and defame their land rights, and then were forced into the War for Independence.  While this type of appeal to this Court is also long overdue in the face of the Pocahontas County Solid Waste Authority (PCSWA) claiming that it can impose a ‘forced-flat-fee’ upon its Citizens without their express approval whether they use the services of the PCSWA or not, contrary to State Law and all other county and regional solid waste authorities, is only made even more egregious when the PCSWA claims these self-imposed-powers are derived from ‘municipal-ordinances’ found elsewhere throughout the State of West Virginia – to then try and impose such upon the people of Pocahontas County.

Therefore, for all the foregoing reasons, and based upon the record and prima-facie exhibits, your Petitioners respectfully request this Honorable Court to decide this case on its merits, or in the alternative to remand this matter back to a Circuit Court with a change of venue for a full and complete declaratory judicial review of the rights, status and legal relationships of all parties involved; and, grant such other and further relief, equitable and otherwise, as this case and social justice may require.