Thursday, May 1, 2014

FIGHTING FOR SOCIAL JUSTICE!



01 MAYDAY 2014, Vol.1, No.39 > FIGHTING FOR SOCIAL JUSTICE!

The POCAHONTAS CRIER
‘When the Righteous succeed the people rejoice,
But when the bad govern, men groan!’ – Proverbs 29:2
[New Email address: pocahontascrier88@gmail.com]

FIGHTING FOR SOCIAL JUSTICE…against the county solid waste authority!

As most everyone knows, we have a ‘corrupt’ county solid waste authority, that without any authorization as required by law, has hired a private ‘collections-agency’ to force property-owners to pay an ‘assessment-fee’ upon their households & dwellings, regardless of usage, volume or the weight of any household trash buried in the landfill.  A civil action that began on 29 June 2007 is NOW BEFORE THE SUPREME COURT OF APPEALS OF WEST VIRGINIA and the final Joint Reply Brief is posted below.  Of the hundreds sued, the last four defendants of that civil action were John Leyzorek, Doughlas H. Bernier, Charlotte W. Elza & Jerome E.  Heinemann.  Leyzorek & Bernier both filed their own Appellant & Reply Briefs, separately, and Elza & Heinemann filed theirs as Joint Appellant & Reply Briefs.  This whole issue is about SOCIAL JUSTICE for the Citizens of Pocahontas County in the face of ‘corrupt public officials’ that are either too incompetent or too wicked to simply FOLLOW THE LAWS OF THIS STATE as done in other counties!

♦ ♦ ♦ ♦ ♦ ♦ ♦

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 REPLY 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)


TABLE OF CONTENTS BY TOPICAL HEADINGS

TABLE OF AUTHORITIES……………………………………………………..…..iii

Cases:………………………………………………………………………..……..iii

WV Constitution:…………………………………………………….………….....iv

Statutes:……………………………………...……………………………….....iii, iv

Code of State Rules:…………………………………………………………..……iv

Rules:……………………………………………………………………………….iv


KIND OF PROCEEDING & NATURE OF RULING…………………………..…1

SUMMARY OF SYSTEMIC CASE PROBLEMS ………………..……………….3

DUPLICITY, DISCREPANCIES & MISREPRESENTATIONS…………..……..6

     Duplicity – ‘Owning’ verses ‘Occupying’…………………………..…………….6

     Duplicity & Discrepancies – ‘Exemptions’ & ‘Free Day’ – Mandated by Law...8

Exemptions………………..……………………………………….…………8

            Free Day……………………………………..………………………...……..9

     Duplicity & Misrepresentations – ‘Oath of Office’ & ‘Not Bonded’
     Controversy.....................................................................................….10

     Duplicity & Misrepresentations – Mandatory Garbage Disposal
     Regulations……………………………………………………………………….. 12

     Duplicity, Discrepancies & Misrepresentations – Conclusion Disparities…….14

MGDR…………………..………………………………………………….....14

            CLSWCP…………………………………………..………………………….15


REPLY SUMMARY OF LEGAL ARGUMENT………………………….....…….17

REPLY BRIEF CONCLUSION…………………...………………………………..18

CERTIFICATE OF SERVICE…………………………………..…………….…….20

APPENDIX RECORD – TABLE OF CONTENTS (Petitioners Brief)………..…21



TABLE OF AUTHORITIES

CASES:

Cavender v. Fouty, 195 W.Va 94, 464 S.E.2d 736 (1995)……………………….…..17

City of Huntington v. Bacon, 196 W.Va. 457, 473 S.E.2d 743 (1996)………....……18

City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536 (1995)………………18
Cooper v. City of Charleston, 218 W.Va. 279, 624 S.E.2d 279 (2005)………………18

Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12 (1995)…………………..……..…..17

WV CONSTITUTION:

W.Va. Constitution, Article IV, §5…………………………….……………...……11

STATUTES:

WVC §6-1-1, et seq…………………………………………………………….……11
WVC §6-1-7…………………………………………………………………………11
WVC §6-2-1, et seq……………………………………………………………….…12
WVC §6-2-4…………………………………………………………………………12
WVC §7-5-1, et seq………………………………………………………….………11

WVC §20-11-5(a)……………………………………………………………………8
WVC §20-11-5(e)(2)…………………………………………………………..……..8
WVC §20-11-5(e)(3)………………………………………………...……………….8

WVC §22-15-7………………………………………………………………….……9
WVC §22-15-2(10)…………………………………………………………..………8
WVC §22-15-11………………………………………………………………..…….9
WVC §22-15-11(a)…………………………………………………….……3, 8, 9, 13
WVC §22-15-11(b)(1)………………………………………………………….……9
WVC §22-15-11(e)…………………………………………………………..………9
WVC §22-15-11(e)(2)……………………………………………………………….9
WVC §22-15-11(e)(3)……………………………………………………….………9
WVC §22-15-15(a)(4)……………………………………………………….………4
WVC §22-15-15(f)…………………………………………………………………..4

WVC §22-15A-5(c)………………………………………………….……………....5
WVC §22-15A-5(c)(2)(A)(B)(i)(ii)(iii)……………………………………………...5
WVC §22-15A-18(e)(2)………………………………………………………..……8
WVC §22-15A-18(e)(3)……………………………………………………………..8

WVC §22-16-4………………………………………………………………...…….9
WVC §22-16-4(a)………………………………………………………………8, 9, 13
WVC §22-16-4(b)(1)………………………………………………..……………….9
WVC §22-16-4(e)…………………………………………………………..………..9
WVC §22-16-4(e)(2)………………………………………………………….….…..9
WVC §22-16-4(e)(3)……………………………………………………..…………..9

WVC §22C-4-1, et seq………………………………………………………….……12
WVC §22C-4-1(3)………………………………………………………..…………..6
WVC §22C-4-3(b)……………………………..…………………………………….11
WVC §22C-4-8(b)(4)………………………………………………………...………8
WVC §22C-4-9……………………………………………………………………4, 18
WVC §22C-4-10…………………………………………………………………..7, 19
WVC §22C-4-10(a)………………………………………………..,….……7, 8, 13, 19
WVC §22C-4-10(a)(1)(2)…………………………………………………...…….7, 13
WVC §22C-4-10(c)……………………………………...……………….…5, 8, 10, 13
WVC §22C-4-23(1)………………………………………………….………………14
WVC §22C-4-23(14)…………………………………………………………………14
WVC §22C-4-23(16)…………………………………………………...……………14
WVC §22C-4-30……………………………………………………………………..9
WVC §22C-4-30(e)……………………………………………………………..……9
WVC §22C-4-30(e)(2)……………………………………………………...………..9
WVC §22C-4-30(e)(3)………………………………………………………...……..9

CODE OF STATE RULES:

33CSR7.1, et seq. (WVC §33-7-1)………………………………………….……7, 15
33CSR7.2, et seq. (WVC §33-7-2)……………………………………………….7, 15
54CSR6.4 (WVC §54-3-6.4)……………………………………………..…………12

RULES:

Rev. R.A.P. 10(d)……………………………………………………..…………..3, 4
Rev. R.A.P. 10(g)…………………………………………………………………1, 2
MGDR § 3.3………………………………………………………...……………....13
MGDR § 4.1………………………………………………………..11, 12, 13, 14, 18
MGDR § 4.2………………………………………..………....6, 7, 10, 11, 13, 14, 18
MGDR § 6.1…………………………..…………………………...……………….13
CLSWCP, § V……………………………………….…………….….…………….5
CLSWCP, § XVII………………….………………………………………………16



KIND OF PROCEEDING & NATURE OF RULING 

While this Court Ordered a bifurcation of this matter, dated 03 January 2014, between Petitioners John Leyzorek, No. 13-1160, and Douglas H. Bernier, No.13-1161, on the one-hand, and your Joint-Petitioners Charlotte W. Elza, No. 13-1182, and Jerome E. Heinemann, No. 13-1183, on the other, for reasons set forth in the pleadings and Order; Respondent, through counsel, nevertheless filed a belated ‘Consolidated Response to Petitioners’ Petition for Appeal’, as well as a separate ‘Motion to Dismiss Petitioner, Jerome E. Heinemann’s Petition for Appeal’, answered by Petitioner Heinemann under separate cover.  The convoluted nature therefore of Respondent’s ‘Consolidated Response’, and its scattered cross-assignments of error, in conjunction with its accompanying ‘Motion to Dismiss’ a Joint-Petitioner, makes it rather awkward to file a Reply Brief in any other manner other than via topical headings (Rev. R.A.P 10(g)) – as set forth below herein – for the Court to see the larger issues in the context of the specific issues set forth by all the respective Petitioners and Respondent in general, and the Respondent’s ‘new argument’ set forth for the ‘first time’ in its ‘Consolidated Response’ – an argument never presented before in any Circuit Court hearing.

The ‘new argument’ that the Respondent now wishes to make are two-fold: (1) that the Respondent is only required by implementing a ‘mandatory assessment fee’, which it calls a ‘green box fee’, upon each household & dwelling in Pocahontas County, whether used or not, instead of a fair & honest method of assessment by weight, volume and usage as found elsewhere in West Virginia, for all those not subscribing to a private disposal hauler; and, (2) that all ‘exemptions’ mandated within the various statutes by the State Legislature are now declared only ‘discretionary’ on the part of the Respondent to either follow or enforce so as to maximize its profits and income.

To further convolute this entire matter, the Final Order issued on 13 October 2013, was written by a private ‘collections-agency’, representing the Respondent, and not the office of the attorney general or delegated to the local county prosecutor as an extension of the attorney general, and as a direct and proximate result the Final Order is full of mistakes, grammatically and factually whether by duplicity, discrepancies or misrepresentations, and instead of waiting the five (5) days for corrections to be suggested and made, the presiding judge in the Eleventh Circuit Court signed the proposed Final Order within two (2) days apparently without even reading it – since the grammatical and factual errors are so egregious.  This has been a major systemic problem in that court, only made worse within the past year or more as the presiding judge has one foot out-the-door on his way to retirement.  But this can easily be verified by a cursory review of Joint-Petitioners Exhibit 2, Final Order, (A.R. 30 – A.R. 42) in comparison to Joint-Petitioners Exhibit 3, Suggested Corrections, (A.R. 43 – A.R. 49).  Therefore, your Joint-Petitioners not only had to contend with a poorly written and factually faulty Final Order, but also with a ‘Consolidated Response’ which is almost as convoluted.  Thus your Joint-Petitioners have chosen to present their Reply Brief using topical headings accordingly. Rev. R.A.P 10(g).

Although specific issues were raised within the Eleventh Circuit Court as genuine issues in dispute, as seen in the filings of all the Petitioners, respectively, the nature of the Final Order of the Eleventh Circuit Court in this matter failed to reflect that there was no admissible evidence nor any witnesses permitted to be brought forward for testimony, thereby denying the opportunity for direct, cross-examination, or redirect, and thereby denying due process and the equal protection of the laws for your Joint-Petitioners pursuant to the Rules of Evidence and Trial Court Rules, respectively.  And since the Respondent claims that its ‘Mandatory Garbage Disposal Regulations’ (MGDR) constituted ‘the legal foundation upon which summary judgment was based’ (p.15, Respondent’s ‘Consolidated Response’), it’s odd, since the Eleventh Circuit Court never allowed any testimony to show the MGDR non-compliance with State Laws, nor did the Respondent produce the MGDR, or anything else, as part of the Appendix Record. There were simply too many genuine issues of material fact ignored by the Eleventh Circuit Court when a comparison is made between State Laws and the Respondent’s conclusions.  See Joint-Petitioners Id. Exhibit 2 (A.R. 30 – A.R. 42), & Id. Exhibit 3 (A.R. 43 – A.R. 49), respectively.  Nor did the Eleventh Circuit Court permit sufficient time to address the various genuine issues of material fact as set forth in Exhibit 4 (A.R. 50 – A.R. 52), Exhibit 5 (A.R. 53 – A.R. 74), 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. 

And although not a ‘class-action’ lawsuit, albeit that hundreds were sued in a singular action, the respective Petitioners filing Appeals in this matter were lumped-together when the case was resumed approximately four (4) years after the Respondent failed to provide proof of its legal-line-of-continuity or continue prosecution of the case as it pertained to your respective Petitioners as seen in Exhibit 1, (A.R. 24, line 1176, 19 November 2008 until A.R. 26, line 1299, 18 October 2012, and following).  No one Petitioner was ever given the time required to set forth their respective defenses with witnesses or direct testimony pursuant to the Rules of Evidence or the Trial Court Rules pursuant to alleged ‘time constraints’ imposed by the Eleventh Circuit Court, another known systemic problem in that circuit.

SUMMARY OF SYSTEMIC CASE PROBLEMS

The Respondent, Pocahontas County Solid Waste Authority (PCSWA), since its inception has NOT conducted its affairs pursuant to the comprehensive purpose or entirety of the West Virginia Code regulating the proper disposal of solid waste in West Virginia – and that includes its ignoring and refusing to participate in recycling, whether reducing the fee for bringing recyclables to the landfill, or the overall reducing of solid waste buried in the landfill according to its ‘Mandatory Garbage Disposal Regulations’ (MGDR), or its ‘Comprehensive Litter & Solid Waste Control Plan’ (CLSWCP).  This may be due in part to the fact that the Legislature left it up to each county and regional solid waste authority to establish its own local regulations for the disposal of solid waste, rather than create a singular uniform set of procedures equally applicable in all counties.  As a direct and proximate result, the PCSWA is the only local authority not in conformity to the methods used in other counties – and that raises the issues of both proper jurisdiction and denial of due process and the equal protection of the laws – issues that the Respondent failed to address as it pertains to the arguments made by your Joint-Petitioners in their Petitioners Brief.  And that then raises the issue if the silence on the part of the Respondent on these matters means agreement with the Petitioners view of the issues.  Rev. R.A.P 10(d).

For example: just as the U.S. Postal System has a ‘mandatory fee’ for the cost of postage pursuant to the weight & volume of the letter or package to be mailed – so too do other county and regional solid waste authorities which sell coupons or ‘stamps’ that stick on the trash bags of household solid waste that’s picked up by a private or county disposal service, based upon usage.  Other counties, however, permit residents to bring their household trash to the ‘landfill’, get weighed on the tipping scale before entry, and again upon leaving, and pay whatever part per/ton, or any portion thereof, their local ‘mandatory fee’ per/ton, or any portion thereof requires.  WVC §22-15-11(a).

In all other counties in West Virginia, except in Pocahontas, as shown in these examples, the cost of disposing of solid waste is SET BY USUAGE & BY WEIGHT & BY VOLUME – according to State Laws – and NOT set by an arbitrary ‘mandatory assessment fee’ placed upon each household and dwelling within the county in the same manner as an ‘ad valorem tax’.  Other than Pocahontas, all the others, place an ‘assessment’ upon the weight, volume, & amount of solid waste being disposed and buried at the landfillthey do not place a ‘flat-fee’ upon the generating person or household regardless of usage.  Putting that same policy into the example of the U.S. Post Office, a ‘mandatory assessment fee’ as imposed within Pocahontas County would require each household/dwelling in any given Zip Code to pay the local post office an ‘assessment fee’via residency & property-ownershipregardless if any stamps were purchased or not, or whether any letter or packages were mailed.  The fee would be upon the residency, not upon ‘usage’.  Thus the ‘mandatory assessment fee’, called a ‘green box fee’, imposed by the PCSWA is NOT SET BY USAGE, WEIGHT OR VOLUME, as done elsewhere in West Virginia, but by an arbitrary decree pursuant to situate of property within the county, then enclosed as a billing-invoice from the PCSWA to each household/dwelling when the annual property-tax notification is sent from the Office of the County Sheriff.  The invoice-billing is thereby cloaked as an additional tax or surcharge on the property and has nothing to do with the usage, volume or weight of any ‘solid waste’ when buried in the landfill.

But even more egregious, to add insult to injury, the PCSWA, without any contract, and in direct violation of WVC §22C-4-9, Joint-Petitioners Id. Exhibit 7, (A.R. 107), has a ‘collections-agency’ actively suing county residents and property-owners for not paying the ‘green box fee’ – that’s placed upon their property and not upon the usage, weight or volume of their household trash – up to the point whereby the ‘collections-agency’  is placing ‘Abstract of Judgment Liens’ upon property-owners.  See Joint-Petitioners Exhibit 9, (A.R. 118 – 120).  Having private counsel as a ‘collections-agency’ directly circumvents WVC §22-15-15(a)(4) and WVC §22-15-15(f), respectively, which requires either the attorney general or the county prosecutor, as an extension of the attorney general at the local level, to prosecute any civil or criminal action pursuant to this article.  This is a key issue that the Respondent failed to address in its ‘Consolidated Response’ as it pertains to the arguments made by your Joint-Petitioners in their Petitioners Brief.  Rev. R.A.P.10(d).  And it’s a key as well as a genuine issue of material fact raised in various pleadings in which the Eleventh Circuit Court neither considered nor required a response from the Respondent even when requested.

At the present time, almost one-third (1/3) of the approximately 3400 households in Pocahontas County have been sued at least once, some more than once, for not paying the ‘green box fee’.  And the ‘collections-agency’, as represented by counsel for Respondent, is suing in five (5) year increments everyone listed on any recorded property deed, including minors & deceased, for not just the alleged annual ‘green box fee’, but additionally for five-year annual penalties, five-year annual interest, and for their ‘attorney fees & costs’, etc.  Yet the Respondent has consistently refused to state under which ‘edition’ of the MGDR it is using – since all MGDR ‘editions’ issued prior to 2006 lacked a legal-line-of-continuity – yet the Eleventh Circuit Court failed to bring forward the genuine issue even when requested – and it is found lacking in the Final Order.  The ironic and tragic aspect of this is that the vast majority of those sued are senior citizens, and others, on fixed incomes, which pursuant to WVC §22C-4-10(c) requires a ‘reduction-of-fee or exemption’.  Yet the PCSWA refuses any exemptions for anything for any reasons – claiming it’s at its ‘discretion’for sustaining its profits – yet this policy stands contrary to existing State Laws that regulates the disposal of solid waste, as set forth herein and in previous pleadings that were not addressed, although genuine issues of material fact, including the refusal of the PCSWA to engage in ‘recycling’ that is supposed to offset landfill costs.  The Respondent has never made public any financial report, if any, validating the sale of recyclable items to offset the cost of operating a landfill.  Its recent claims to be permitting ‘voluntary recycling’ has been a subterfuge and public relations gimmick since its ‘Comprehensive Litter & Solid Waste Control Plan’ (CLSWCP) at pg. 7, §V, clearly states, to wit:  “[A] mandatory county-wide source separation program is felt to be impractical, economically unfeasible, and will not be implemented.  [Underline emphasis].  Stating that no source-separation recycling program will be implemented, yet demanding an arbitrary ‘green box fee’ upon every household/dwelling, and ignoring ‘exemptions’, stands contrary to existing State Laws, such as WVC §22-15A-5(c), Government Recycling Responsibilities, which requires:

“(2) To further promote recycling and reduction of the waste stream, county and municipal governments shall consider the establishment of recycling programs as provided in this section in the operation of their facilities and shall evaluate the cost-effectiveness of:
(A) Procedures that separate identifiable recyclable materials from solid waste collected; and
(B) Programs that provide for:
(i) The establishment of a collection place for recyclables at all landfills and other interim solid waste collection sites and arrangements for the material collected to be recycled;
(ii) Public notification of such places and encouragement to participate;
(iii) The use of rate differentials at landfills to facilitate public participation in on-site recycling programs.” 
[Bold & Underline emphasis].

Equally egregious is that a singular ‘green box fee’, is being imposed upon each household/dwelling when paid; but when not paid – instead of a single lawsuit against any given individual dwelling in the same manner as it is being billed – Respondent is suing each person listed as an owner on any given recorded deed – whether a minor or deceased.  The cumulative effects are that these manufactured-debts being imposed by the arbitrary actions of the PCSWA, and its ‘collections-agency’ counsel, on each property owner being sued, not upon the singular dwelling, now amounts to multiple-thousands-of-dollars against senior citizens and others on a ‘fixed-income’ – some that are deceased and some even in nursing homes.  See Joint-Petitioners, Id., Exhibit 9, (A.R. 118 – 120). 

Last, but not least, a major systemic problem regarding the PCSWA is that neither its so-called, ‘Mandatory Garbage Disposal Regulations’ (MGDR), nor its ‘Comprehensive Litter & Solid Waste Control Plan’ (CLSWCP), are in full compliance with existing State Laws substantively or procedurally – since neither document permits ‘recycling’, let alone exempting those that do recycle.  While State Laws permits and provides for four (4) types of ‘exemptions’, actually five (5) when considering those on a ‘fixed-income’the PCSWA does not recognize any ‘exemptions’;  and while the whole concept of ‘solid waste management’ is to ‘manage’ open-dump-landfills in order to reduce the amount of ‘solid waste’ being buried – in exchange for all ‘solid waste’ that can be recycled – the goal being to reduce the eventual size and need for expanding any given landfill into what is termed ‘urban sprawl’.  The PCSWA, however, exists only for its own self-interest, nepotism, and preying upon the local citizenry by a self-serving ‘collections-agency’ – not for any environmental ulterior purposes as set forth in the state regulations – unless forced upon the PCSWA – and therefore stands contrary to WVC §22C-4-1(3), whereby ‘landfilling’ is the lowest priority in the hierarchy and involves the waste management option of last resort.  Because the PCSWA ignores any type of organized ‘recycling’ program or ‘source separation’ – it was recently forced to acquire more land to double the size of its current landfill.

DUPLICITY, DISCREPANCIES & MISREPRESENTATIONS

Duplicity – ‘Owning’ verses ‘Occupying’

In its opening paragraph, p.1, Respondent makes a patently false claim, to wit:

“The ‘green box’ fee is not a mandatory fee, but rather, is imposed upon residents in lieu of the submission of proof that the residents subscribe to
and use a private solid waste hauler operating in Pocahontas County, West Virginia or alternatively, the submission of proof of use of the ‘free day’ afforded to residents of the county.”   
            (Underline emphasis).

But throughout the rest of its ‘Consolidated Response’, the Respondent declares that the ‘assessment fee’, i.e., ‘green box fee’,  is ‘mandatory’ pursuant to its ‘Mandatory Garbage Disposal Regulations’ (MGDR), at Section 4.2, to wit:
            “Each person owning a residence in Pocahontas County shall either subscribe
to and use a solid waste collection service operating in Pocahontas County and pay the fees established therefore or in lieu thereof pay the Green Box fee and use the green boxes provided by the    Pocahontas County Solid Waste Authority.” (Bold & Underline emphasis).

As seen in MGDR § 4.2, the Respondent states, “Each person owning a residence…”; yet pursuant to WVC §22C-4-10, Mandatory disposal; proof required; penalty imposed; requiring solid waste management board and the Public Service Commission to file report; it is important to take note of the following:
  WVC §22C-4-10(a)(1)(2):
(a) Each person occupying a residence or operating a business
      establishment in this state shall either:
(1)   Subscribe to and use a solid waste collection service and
      pay the fees established therefor; or
(2)   Provide proper proof that said person properly disposes of
      solid waste at least once within every thirty-day period at
      approved solid waste facilities or in any other lawful manner.

While WVC §22C-4-10(a) clearly states ‘each person occupying, as does WVC §33-7-1 & WVC §33-7-2, the PCSWA changed it, as seen above in Section 4.2, MGDR, to ‘each person owning, and in that manner the ‘collections-agency’ began suing each owner or person listed on any given deed, even if a minor or deceased, and in that fashion artificially began manufacturing-debts, and exaggerating the costs, against a single household/dwelling, that it also claims to be mandatory-billing with an invoice demanding a ‘green box fee’.  Thus the Respondent sends a single invoice-billing to a dwelling, but when not paid, sues as many persons as possible associated with that same dwelling as it pertains the dwelling’s deed.  

Included in these lawsuits, there are persons, such as your Joint-Petitioners, as senior citizens on a ‘fixed-income’ that recycle, compost and dispose of their ‘solid waste’ in an otherwise lawful manner, such as selling all recyclables to commercial recyclers or users of the ‘free day’.  See Joint-Petitioners Id., Exhibit 7, (A.R. 80 – A.R. 100), Affidavits (A.R.101 – A.R. 106), Commercial Recyclers (A.R. 108 – A.R. 112).  The duplicity is that the Respondent is allowing the ‘collections-agency’ to sue everyone listed on any given deed, creating multiple defendants – while at the same time the PCSWA only sends one billing-invoice to the household/dwelling for its ‘green box fee’ totally ignoring all ‘exemptions’ placed in the statutes by the Legislature for those on a ‘fixed-income’, and/or who recycle, compost or dispose in an otherwise lawful method.  The Respondent has no provisions for proof of proper disposal other than hiring a private-hauler or paying it a ‘green box fee’ , albeit using the ‘free day’ – thus denying the citizens of Pocahontas County their due process and equal protection under the laws in regards to ‘exemptions’ as afforded all other counties in West Virginia.  As a genuine issue of material fact, the Respondent uses ‘owning’ in its MGDR, § 4.2, instead of ‘occupying’ as found in State Laws, WVC §22C-4-10(a), and within its ‘Consolidated Response’ on pages 1, 20 & 22.

Duplicity & Discrepancies – ‘Exemptions’ & ‘Free Day’ – Mandated by Law

‘Exemptions’

The Respondent accuses all Petitioners of failing “to make payment on those invoices and they failed to produce evidence that they properly disposed of their solid waste through the use of other garbage services operating in and around Pocahontas County, West Virginia.” (Bold emphasis).  ‘Consolidated Response’, p.1.  As a result, the Respondent only recognizes two (2) methods within its MGDR – and as set forth in Respondent’s ‘Consolidated Response’ – subscribing to a private hauler or paying a ‘green box fee’thereby totally ignoring the fact that there are no less than six-methods of proper disposal recognized by State Laws, four (4) of which provide ‘exemption’ from fees:
·        Subscribing to a private hauler, WVC §22C-4-8(b)(4);
·        Paying a landfill ‘assessment fee’ for the burial of solid waste, WVC §20-11-5(a);
·        Exemption from all fees for using the ‘Free Day’, WVC §20-11-5(e)(3); WVC §22-15A-18(e)(3);
·        Exemption from all fees for Reuse or Recycling of solid waste, WVC §20-11-5(e)(2); WVC §22-15A-18(e)(2);
·        Exemption from all fees for Composting, WVC §22-15-2(10) ; and,
·        Exemption from all fees for disposing ‘in an otherwise lawful manner’, such as selling recyclable items to commercial recycling centers, or disposing at any solid waste disposal facility in this state, WVC §22C-4-8(b)(4); WVC §22-15-11(a) ; & WVC §22-16-4(a).      

·        And an additional ‘exemption’ that can be included for all those on a ‘fixed-income’ pursuant to WVC §22C-4-10(c).

These six-methods with four (4) (or five) ‘exemptions’ can be found in the following statutes, but cannot be found in Respondent’s MGDR or CLSWCP.  The ‘exemptions’ belong to the people of this State, not to the county or regional solid waste authorities.  This is why the Petitioners in general assert that the Respondent is in violation of State Laws, since Respondent omits sections of the State Laws it wishes to ignore, and actually does ignore in its MGDR & CLSWCP – while your Joint-Petitioners at the same time assert that they are following the State Laws – in spite of the fact that the Respondent is refusing to accept elements of the State Laws.  These disparities constitute genuine issues of material fact never ruled upon at hearings by the Eleventh Circuit Court and found wanton in the Final Order of 13 October 2013, written by the counsel of the ‘collections-agency’.

‘Free Day’

·        WVC §22-15-7. Special provision for residential solid waste disposal.
“All commercial and public landfills shall establish and publish a yearly schedule providing for one day per month on which a person not in the business of hauling or disposing of solid waste may dispose of, in a landfill, an amount of residential solid waste, up to one pick-up truckload or its equivalent, free of all charges and fees.”

·        WVC §22-15-11, Solid Waste Management Act:
(a)    Imposition. – A solid waste assessment fee is hereby imposed upon the disposal of
solid waste at any solid waste disposal facility in this state in the amount of one dollar and seventy-five cents per ton or part thereof of solid waste;
                   (b)(1)  The fee imposed by this section accrues at the time the solid waste
                               is delivered to the solid waste disposal facility;
(e)    Exemptions – The following transactions are exempt from the fee imposed by
       this section:
                    (e)(2)  Reuse or recycling of any solid waste;
                    (e)(3)  Disposal of residential solid waste by an individual not in the business
                               of hauling or disposing of solid waste on such days and times as
                               designated by the director is exempt from the solid waste
                               assessment fee;

·        WVC §22-16-4, Solid Waste Landfill Closure Assistance Program:
(a)     same wording as WVC §22-15-11(a) – per ton or part thereof;
                   (b)(1)   same wording as WVC §22-15-11(b)(1) – fee when delivered to
                               landfill;
                        (e)   same wording as WVC §22-15-11(e) – Exemptions;
                   (e)(2)   same wording as WVC §22-15-11(e)(2) – Exempt for Reuse or
                               Recycling;
                   (e)(3)   same wording as WVC §22-15-11(e)(3) – Exempt for Free Day.
 
·        WVC §22C-4-30,  County and Regional Solid Waste Authorities:
                       (e)  same wording as WVC §22-15-11(e) &  WVC §22-16-4(e)
                             Exemptions;
                   (e)(2) same wording as WVC §22-15-11(e)(2) &  WVC §22-16-4(e)(2)
                             Exempt for Reuse or Recycling;
                   (e)(3) same wording as WVC §22-15-11(e)(3) & WVC §22-16-4(e)(3)
                             Exempt for Free Day.  (Bold & Underline emphasis throughout).

As stated herein-above, in the first paragraph, p.1, of its ‘Consolidated Response’, the Respondent claimed, to wit:

“The ‘green box’ fee is not a mandatory fee, but rather, is imposed
upon residents in lieu of the submission of proof that the residents
subscribe to and use a private solid waste hauler operating in Pocahontas
County, West Virginia or alternatively, the submission of proof of use of
the ‘free day’ afforded to residents of the county.”
            (Bold & Underline emphasis).

Yet throughout the entirety of the ‘Consolidated Response’, the Respondent claims that pursuant to MGDR § 4.2, there are only two ways that Respondent recognizes, contracting with a private hauler, or paying the ‘green box fee’.  And as far as the ‘Free Day’ is concerned, Respondent now contends a ‘new argument’ that it’s discretionary’ on its part and that allowing persons to be ‘exempt’ for any reason will cost it operating funds.  And as far as the Respondent is concerned, providing any type of ‘exemption’, especially the ‘Free Day’ in lieu of the ‘green box fee’, ‘the landfill could not continue to operate as no resident would utilize the ‘green box’ system or subscribe to a private hauler’.  See ‘Consolidated Response’, p.25.  This is a patently false statement; however, since the ‘Free Day’ was included in the MGDR in 2006, Respondent has not suffered financially.  But just making such a statement goes to the heart of the controversy within Pocahontas County since the overwhelming majority of property-owners believe the ‘green box fee’ to be an ‘added tax’ on top of their real estate taxes, while others recycle, compost, use the ‘Free Day’ or dispose in an otherwise lawful manner, such as selling recyclables to commercial recyclers or disposing of solid waste in another solid waste facility – activities that the Respondent wants to forbid via its MGDR & CLSWCP.  And with the numerous persons on a ‘fixed-income’ the Respondent even refuses to exempt those folks, or even provide for a lower-fee system.  WVC §22C-4-10(c).  Claiming only two (2) options, using a private hauler or paying the ‘green box fee’ can be found throughout the ‘Consolidated Response’ at pgs.1, 9, 13, 16, 19, 20, 22, 25, 26, 27, 28, 29, 33, 34, respectively.  These pages stand contrary to Respondent’s statement that “[t]he ‘green box’ fee is not a mandatory fee”, and represent a genuine issue of material fact still in dispute, as well as the genuine issues of material fact surrounding the various ‘exemptions’ for those that recycle, compost, or dispose in an otherwise lawful manner – and for those on a ‘fixed-income’.  Yet on p.15, ‘Consolidated Response’, the Respondent claims the MGDR is ‘the legal foundation upon which summary judgment was based’.

Duplicity & Misrepresentations – ‘Oath of Office’ & ‘Not Bonded’ – Controversy

The ‘Consolidated Response’ at p.17, attempts to explain Respondent’s claim that four (4) of the five (5) members of the PCSWA board had taken an ‘Oath-of-Office’ prior to the filing of Civil Action No. 07-C-30(P) on 29 June 2007, against the hundreds of property-owners sued, including your Joint-Petitioners – but ‘when this civil action was filed’ – was never the controversy.  The real controversy is the fact that NO ONE ever took an ‘Oath of Office’ or were ‘Bonded’ pursuant to law  PRIOR to the first meeting of the PCSWA back in 1989 up until 25 February 2004, the date when Edward Riley became the first board member to take & file his ‘Oath’ with the County Clerk, absent for a period of fifteen (15) years; no member of the PCSWA board had ever taken an ‘Oath-of-Office’ or been ‘Bonded’ at any time from 1989 prior to that date of 25 February 2004 for Ed Riley. 
And while Respondent claims that the following board members took their respective ‘Oath’ as follows: John Leyzorek on 26 October 2005; Samuel Elliot on 31 March 2006; David Henderson on 26 July 2006; and James Burks on 30 June 2010; Riley & Burks have both been on the PCSWA board since its inception in 1989.  But instead of all PCSWA funds placed under the control of the County Sheriff as the ‘Ex Officio Treasurer’ of the county for all government agencies as per WVC §7-5-1, et seq; Ed Riley has solely controlled all PCSWA funds, and held those funds in Certificate of Deposits (CDs) in different banks for the past twenty-five (25) years with a current estimated total of several millions of dollars, albeit no public record or accounting has been provided.  As for James Burks, he also has been a board member of the PCSWA since its inception in 1989, and first took his ‘Oath’ on 30 June 2010, absent a period of 21 years.  Yet Burks was the owner of County Disposal Service, Inc., a private-hauler, and helped implement the MGDR that placed a ‘mandatory green box fee’ upon each household/dwelling while he paid whatever part per/ton, or any portion thereof since his trucks were weighted on the tipping scales.  The method employed by the PCSWA forced the households & dwellings to pay 76% (seventy-six percentile) of landfill operational costs while generating only 23% (twenty-three percentile) of total solid waste volume; while Burks, as a commercial hauler, only paid 24% (twenty-four percentile) of the landfill operational costs while filling the landfill in excess of 77% (seventy-seven percentile) from the SOLID WASTE VOLUME coming from Snowshoe & Silver Creek ski resorts.  For more than half the time, since its inception, that Burks has been a member of the PCSWA board, he stood in violation of WVC §22C-4-3(b), whereby; No member who has any financial interest in the collection, transportation, processing, recycling or the disposal of refuse, garbage, solid waste or hazardous waste shall vote or act on any matter which directly affects the member's personal interests.”  That genuine issue of material fact plays an important element in considering the disparity in the MGDR, Sections  4.1 & 4.2, as discussed herein-below.
Issues like that constitutes the controversy that the Eleventh Circuit Court has failed to address or rule upon since ALL THE VARIOUS EDITIONS OF THE MGDR, prior to 06 December 2006, never had any legal-line-of-continuity pursuant to the Constitution of West Virginia, Article IV, §5; WVC §6-1-1, et seq.; and WVC §6-1-7, respectively.  In addition, each member of the PCSWA must be ‘Bonded’ pursuant to WVC §6-2-1, et seq.; and WVC §6-2-4, Failure to give Bond – Acting without Bond, respectively.  Yet NO public bonding has yet occurred for any PCSWA member.  And pursuant to WVC §6-2-4, non-bonded positions are legally to be considered ‘vacant’ and fined no less than $50 or more than $1000.  NO OATH and NO BONDING for the past two-decades would exceed $100,000.00 upon the PCSWA by now if the maximum fine was enforced against it.  And pursuant to 54CSR6.4 (WVC §54-3-6.4), it’s the PCSWA’s responsibility to ensure that it is legally constituted to conduct business in accord with WVC §22C-4-1, et seq.  Again, this goes towards determining whether or not the PCSWA has ‘proper-jurisdiction’ to file this lawsuit or enter into collection-actions – let alone establishing genuine issues of material fact still in dispute as set forth in the various pleadings of the Petitioners in general.

Duplicity & Misrepresentations – Mandatory Garbage Disposal Regulations


In Respondent’s ‘Consolidated Response’, there are multiple references to the ‘Mandatory Garbage Disposal Regulations’ (MGDR), howbeit that the Respondent did not wish to include the MGDR as part of the Appendix Record, nor any other exhibits.  And as shown above-herein, the MGDR adopted 06 December 2006 was the first and only ‘edition’ that had any type of a legal-line-of-continuity since by that time, absent 17 (seventeen) years,  four (4) of the five (5) members of the PCSWA board had at least taken an ‘Oath-of-Office’ prior to its adoption, while no member ever became ‘Bonded’ as referenced herein-above.  What is significant about these genuine issues of material fact are that your Joint-Petitioners, along with the hundreds of other property-owners that were sued – they were all sued under an ‘older- edition’ of the MGDR that was written prior to PCSWA board ever having a lawful quorum to vote on any edition of the MGDR or CLSWCP.  And equally egregious, while the PCSWA may have had a quorum in which 4 of 5 members had taken their respective ‘Oath’ for the purposes of filing this instant civil action against your Joint-Petitioners, the PCSWA surely DID NOT HAVE A QUORUM when it filed collection-agency civil actions against an untold number of property-owners prior to this instant civil action that was filed on 29 June 2007.

The disparity within the MGDR can be shown in Section 4, MANDATORY DISPOSAL, to wit:

4.1              Each person operating a business establishment in Pocahontas County
shall either subscribe to and use a solid waste collection service operating in Pocahontas County and pay the fees established therefore
or in lieu thereof use landfill and pay the appropriate fee.

4.2              Each person owning a residence in Pocahontas County shall either subscribe to and use a solid waste collection service operating in Pocahontas County andpay the fees established therefore or use in lieu thereof pay the Green Box fee and use the green boxes provided by the Pocahontas County Solid Waste Authority.  (Bold & Underline emphasis).

As shown herein, § 4.1, applicable for persons ‘operating a business’, i.e., a commercial enterprise, can either subscribe to a private hauler, or in lieu thereof use landfill and pay the appropriate fee.’  Section 4.1 therefore is in full compliance with WVC §22C-4-10(a)(1)(2), and more importantly in full compliance with WVC §22-15-11(a), which specifies paying a fee per ton or part thereof of solid waste’.  A commercial enterprise can therefore pay by weight, volume & usage – but as shown herein and below – that same reality is NOT AFFORDED to property-owners in Pocahontas.

As shown above, § 4.2, the Respondent changed ‘each person occupying a residence or operating a business’ as declared in WVC §22C-4-10(a), to ‘each person owning a residence or operating a business’, and then requires either using a private hauler or paying the ‘green box fee’not by weight, volume or usage – as permitted a commercial enterprise – but by being situate in the county.  The household/dwelling is DENIED the right to dispose of solid waste in the same manner as a commercial enterprise, since the household/dwelling CANNOT dispose by weight, volume & usage, but must pay a mandatory ‘green box fee’ regardless of usage or having anything to bury in the landfill.  These are factors that raise genuine issues of material fact still in dispute that remain unresolved – the most egregious of which is that neither the MGDR nor the CLSWCP take into consideration recycling, composting, or in an otherwise lawful method – nor even a reduction or exemption for those on a ‘fixed income’, as shown herein.

And defined and stated in MGDR § 3.3, RESIDENCE“Any structure or shelter or any part thereof in which a person spends one or more nights per year.”  Thus if someone comes into Pocahontas County and spends one night in a tent, lean-too, sleeping-bag, or any other type of shelter on their land or ‘camp’; they are required to pay the ‘green box fee’ for the entire year, and denied the right to take whatever trash/solid waste they might generate and either dispose of it at the PCSWA landfill or dispose of it  at any solid waste disposal facility in this state’ – such as in their own county – in direct violation of WVC §22-15-11(a) and WVC §22-16-4(a), respectively.  And paying the ‘green box fee’ for the entire year would include even if those persons spending one night, and then taking their trash, if any, to the PCSWA landfill on a ‘free day’ – since “[a] receipt must be provided for each month.”  MGDR, § 6.1.  

These genuine issues of material fact are but examples of the controversy replete throughout this civil matter ignored by the Eleventh Circuit Court, regardless of the type or volume of pleadings set forth by Petitioners in general, or specifically, as shown in Joint-Petitioners, Id.,Exhibit 3, Exhibit 6, Exhibit 7, and Exhibit 8, respectively & inclusive.  These types of disparities is why your Petitioners have stated that the Respondent is not in compliance with existing State Laws, and why a remand to a circuit court for a declaratory review is requested, as long as the circuit court chosen is not within the Eleventh Circuit Court.

Duplicity, Discrepancies & Misrepresentations – Conclusion Disparities

MGDR

On page 16, ‘Consolidated Response’, pursuant to WVC §22C-4-23(1), Respondent claims the right to sue “residents of Pocahontas County in order to collect unpaid ‘green box’ fees”; yet Respondent disclaims that WVC §22C-4-23(16) requires it to contact the DEP for violations, to wit:

(16) Enforce the hours of operation of a solid waste facility and the mandatory disposal provision in section ten of this article by referring violations to the division of environmental protection or the appropriate law-enforcement authorities.  (Bold & Underline emphasis).

Respondent further claims that Petitioners’ ‘interpretation of this statute is incorrect’ in lieu of other powers granted to it.  And then Respondent points to WVC §22C-4-23(14) in which it claims powers, to wit:
            (14) Charge, alter and collect rentals, fees, service charges and other charges
        for the use or services of any solid waste facilities or any solid waste
        collection, transportation and processing services provided by the authority.

No one has ever challenged the right of the Respondent to create charges for the operation of the landfill when disposal equals the burial of solid waste – but this statute references ‘the use or services of any solid waste facilitieswhich in the case of a landfill would mean the burial of solid waste pursuant to weight, volume and usage – as well as using any solid waste authority in this state or elsewhere.  What has been challenged is the inequity between the disposal by weight, volume & usage provided commercial enterprises pursuant to MGDR § 4.1; and a ‘mandatory green box fee’ arbitrarily placed upon each household/dwelling simply by its situate in the county and not equally imposed by weight, volume & usage as granted to commercial users, as stated in MGDR § 4.2.  And the added grievance is the refusal of the Respondent to permit any ‘exemptions’ to the ‘mandatory green box fee’ as allowed by existing State Laws as enumerated herein, and those not enumerated pursuant to time & circumstance accordingly – such as the Respondent’s failure to have a statutory plan for recycling and source separation to both reduce the size of the landfill and to offset the cost of operations as reflected within the State Laws.

However the Respondent by asserting a usurpation of the powers granted to the DEP, in the matter of any violation of proper disposal, has taken it upon itself, without any verification to the contrary, to force a ‘mandatory green box fee’ upon each household/dwelling pursuant to that household/dwelling being situate in the county – and NOT pursuant to usage, weight or volume.  Yet the investigative power for violations of improper disposal is specifically granted to the DEP, not the PCSWA pursuant to:
TITLE 33, INTERPRETIVE RULE, DIVISION OF ENVIRONMENTAL PROTECTION - OFFICE OF WASTE MANAGEMENT, to wit:

WVC §33-7-1.  General.

1.2. Scope and Purpose.  – This rule provides guidance to persons occupying a
       residence or operating a business establishment in this state regarding
       the approved method of providing proof of proper solid waste disposal to
       the Division of Environmental Protection.

WVC §33-7-2.  Proof of Proper Solid Waste Disposal.

      2.1 Applicability. – Each person occupying a residence or operating a business
            establishment in this state must be able to provide proof to the Division of
            Environmental Protection that his solid waste was disposed of at an
            approved solid waste facility.  (Bold & Underline emphasis).

Your Joint-Petitioners discuss this scenario of the ‘checks & balances’ between the investigatory powers of the DEP, and the enforcement powers of the PSC (Public Service Commission) in the ‘Summary Argument’ of their Petitioners Brief, p.6, 7, inclusive.  This is yet another issue in which the Respondent remained silent in both the ‘Consolidated Response’ and the Final Order – even though this too is a genuine issue of material fact still in dispute.

CLSWCP

While trying to go into every discrepancy, detail by detail, would be both excessive and exhaustive in which either the Respondent’s ‘Mandatory Garbage Disposal Regulations’ (MGDR), or its ‘Comprehensive Litter and Solid Waste Control Plan’ (CLSWCP), were not in full compliance with existing State Laws towards the overall intent of preventing recyclables from entering landfills, and removing recyclables from disposal towards saving resources – all the way to making landfills themselves ‘recyclable’ by burying only solid waste that can be ‘composted’ so that specific ‘cells’ of a landfill can become ‘humus earth’ once again – could become a monumental task in deciphering what the Respondent says compared to what the Respondent does.  Nevertheless it goes a long way in answering the question as to why there is so much local opposition to what the Respondent has done already to reach the point where almost one-third (1/3) of the county households/dwellings have to be sued by a rogue ‘collections-agency’ without contract or authorization.  Each disparity can of and by itself become a genuine issue of material fact, but something ignored by the Eleventh Circuit Court whereby the mindset of the presiding judge was on retirement rather than correcting the administrative and statutory mistakes of the Respondent.  The grammatical and factual errors in the Final Order, compared to the suggested corrections, clearly show a different mindset than ‘justice’.

And as set forth herein, the disparity between disposing of solid waste by weight, volume & usage afforded a commercial enterprise, compared to the forced ‘mandatory green box fee’ with no consideration of weight, volume or usage imposed upon private households & dwellings, can best be shown in Section XVII, of the CLSWCP, as referenced on p.24, ‘Consolidated Response’.  While the opening paragraph of the Respondent’s ‘Consolidated Response’, p.1, emphatically denies and states that the ‘green box fee is not a mandatory fee’on p.24, Respondent quotes Section XVII, CLSWCP, entitled, Mandatory Garbage Disposal, which states the ‘assessment fee’ is mandatory, to wit;

            “The Pocahontas County Solid Waste Authority has instituted a mandatory
            solid waste disposal program for all dwellings located in the county.  A solid
            waste assessment fee is placed on all dwellings in the county which are
            occupied at least one night per year…The bill for the fee is included with the
            tax tickets when they are mailed….”

The only way the ‘assessment fee’ upon each dwelling can be waived, is:

            “If the recipient of the bill for the assessment fee provides proof to
            the authority by way of a receipt from a private hauler….” 

Again, the contention becomes circular whereby the Respondent only offers two ways: using a private hauler or paying the ‘green box assessment fee’ – while all ‘exemptions’ are ignored by the Respondent in the face of existing statutes to the contrary.  And while commercial enterprises can dispose of solid waste by weight, volume & usage – dwellings located in the countyfind a solid waste assessment fee is placed on all dwellings in the county  and the ‘assessment fee’ is not by weight, volume or usage.

This again all goes towards the Petitioners’ in general complaint that the citizens of Pocahontas County are being denied due process and the equal protection of the laws in comparison to the existing State Laws being followed in other counties, except Pocahontas, throughout the State.  And that if the Respondent is not in full compliance with all existing laws and regulations – does the Respondent have proper jurisdiction to bring its massive lawsuits furthering the poverty and pauperism already found throughout the county pursuant to those on a ‘fixed-income’ or existing at ‘minimum-wages’.


REPLY SUMMARY OF LEGAL ARGUMENT

When the pleadings of the Petitioners in general, and your Joint-Petitioners in particular, are compared to the Final Order granting summary judgment, replete with all its mistakes, grammatical & factual, as set forth herein and in the Appendix Record, and in comparison to Respondent’s ‘Consolidated Response’, with its duplicity, discrepancies and misrepresentations; a jury of reasonable persons as the trier of facts could very well conclude that the controversies of this matter have not yet been disposed or concluded.  This therefore is the opposite of what is found in Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12 (1995), in which this Court ruled, to wit:

            “A decision is final when it disposes of the entire controversy and leaves
            nothing further for the circuit court to consider.  A case is final only when
            it terminates the litigation between the parties on the merits of the case
            and leaves nothing to be done but to enforce execution of what has been
            determined.”  (Bold & Underline emphasis).

In this instant case, the record shows that there was no admissible evidence or witnesses to present or defend any affidavits, nor bring testimony or raise issues of disparities; instead, the only ‘testimony’ came from ‘collections-agency’ counsel for Respondent which the presiding judge allowed over objection.  And while the Eleventh Circuit Court seemingly allowed ‘municipal case law’ to be entertained, by comparison it did not wish to engage in the discrepancies between the MGDR & CLSWCP and existing State Laws to proceed as shown by examples herein.  Therefore, as shown in Cavender v. Fouty, 195 W.Va. 94, 464 S.E.2d 736 (1995), to wit:

            “The court must grant the nonmoving party the benefit of inferences,
            as credibility determinations, the weighing of the evidence, and the
            drawing of legitimate inferences from the facts are jury functions, not
            those of a judge.”  (Bold & Underline emphasis).

Requesting a jury trial in a change of venue has been a consistent request by the Petitioners in general, and your Joint-Petitioners in particular in the respective pleadings since a just settlement in this matter would be the proper determination of the rights, status and legal relationships between the parties involved, and the various governing statutes in comparison to Respondent’s MGDR & CLSWCP, respectively.

Last, but not least, the Respondent relies upon ‘municipal case law’ to justify its actions upon a county, referencing: Cooper v. City of Charleston, 218 W.Va. 279, 624 S.E.2d 279 (2005) pertaining to a ‘city service fee’; City of Huntington v. Bacon, 196 W.Va. 457, 473 S.E.2d 743 (1996) pertaining to a ‘user fee not a tax’; and, City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536 (1995) pertaining to preventing a health menace.  Yet even if ‘municipal case law’ were applicable to the counties in which the municipalities in these cases are located, which they weren’t, ‘municipal ordinances’ would still not be applicable to other counties unless made applicable by law by the State Legislature.  And even so, in each of these municipal cases, the ordinances were applicable to all on an equal basisand not one in which the commercial enterprises had one set of disposal options, as in Pocahontas County, and the private households & dwellings have only two options, as per Respondent.  As shown in MGDR § 4.1 compared to § 4.2, respectively.  And in addition to this disparity, the existing State Laws regulating county and regional solid waste authorities requires certain ‘exemptions’ for specific circumstances and conditions – that are being ignored by the Respondent.  Therefore, genuine issues of material fact are still in dispute and constitute controversy still not terminated in a just and honorable manner as per Id., Strahin.

REPLY BRIEF CONCLUSION

Your Joint-Petitioners would like this Court to consider the four (4) questions that they originally set forth in their Petitioners Brief, as if included again within this Reply Brief, since they were not specifically addressed in Respondent’s ‘Consolidated Response’, for the simple reason that your Joint-Petitioners raised the issue of ‘jurisdiction’, and whether or not the Respondent had proper ‘jurisdiction’ to bring its civil action against either your Joint-Petitioners or the hundreds of residential citizens that have been sued to date, Id., Exhibit 1 (A.R. 01 – A.R. 29); particularly since the Respondent never had authorization from the Office of the Attorney General, Id., Exhibit 7 (A.R. 107), contrary to WVC §22C-4-9, and has no contract with the current ‘collections-agency’ representing them in this matter.  These are issues raised in various pleadings, but never permitted discussion at any hearing even when requested and brought forward.

Yet when considering the content of the ‘Consolidated Response’, called ‘Conslolidated’ by Respondent, with its grammatical and factual errors similar to those found in the Final Order, from which to decide to make a reply, the issues become ‘blurred’ and difficult to decipher when the Respondent, referencing WVC §22C-4-10, for example, categorically states, each resident is required to subscribe to and use a solid waste collection service and pay the fee established for it.”  (Underline emphasis). ‘Consolidated Response’, p.28.  In reality, though, as shown herein-above, WVC §22C-4-10(a) actually states ‘each person occupying a residence or operating a business… shall’, either subscribe to a collection service, or provide proof that disposal was to an approved solid waste facility or in an otherwise lawful manner.  But since the Respondent is represented by a ‘collections-agency’, and since the ‘collections-agency’ is suing each person listed as an owner for not paying the ‘green box fee’, one could get the quick impression that ‘each resident’ of the county has to pay Respondent’s arbitrary ‘fee’, which would include everyone in any given household/dwelling, including minors – when in reality it’s referring to each household and dwelling.  Yet the record shows in Joint-Petitioners, Id., Exhibit 1 (A.R. 01 – A.R. 29), that minors and deceased have been sued and have had a judgment placed against them respectively.  And this convolution is made even more distinct when in a sentence or so later a misrepresentation is made either inadvertently or willfully, to wit:  “[t]he stature also permits other methods of lawful disposal, but it is up to the Respondent to make the decision as to what constitutes other methods of lawful disposal.”  If this statement was not an inadvertence, then it becomes a patently false statement of willful misleading that is a long way from a just resolution or disposing of the entire controversy – especially in light of the fact that the intentions of ‘exemptions’ by the State Legislature was to afford a safer & healthier environment in general over and above any ‘profit-motive’ on the part of a government agency and to make the disposal of solid waste ‘affordable’ to everyone – even those citizens on a ‘fixed-income’.  This issue alone would be interesting indeed for reasonable persons on a jury as the trier of facts to determine.

Further your Joint-Petitioners believe that there are enough genuine issues of material fact still unresolved and in dispute that a reasonable jury as the trier of facts would find as disparities and discrepancies in a comparison with the various existing State Laws regulating county and regional solid waste authorities and landfills to justify a declaratory review were the case remanded accordingly.  This would include all inferences that could be made comparing existing State Laws requiring specific actions on the part of the PCSWA, while the Respondent’s ‘Mandatory Garbage Disposal Regulations’ (MGDR), and its ‘Comprehensive Litter & Solid Waste Control Plan’ (CLSWCP) contain elements that do not following the entirety of existing State Laws – and that again includes the ‘exemptions’ afforded by State Laws, yet denied by the Respondent’s MGDR & CLSWCP inclusive.

Lastly, while the Scheduling Order of this Court for this case required a Responsive Brief on or before 07 April 2014, the Respondent did not file one until 11 April 2014, out-of-time, and then when challenged, filed a request to accept its ‘Consolidated Response to Petitioners’ Petition for Appeal’ and ‘Motion to Dismiss Petitioner, Jerome E. Heinemann’s Petition for Appeal’, under the excuse of having a family member die, and having a legal partner recovering from a medical procedure.  The tragic irony of this request is that while the Respondent requests a self-serving ‘enlargement of time’, as an exception to the rules for not filing its documents timely, and factually ‘out-of-time’, were the situation reversed for a household or dwelling in Pocahontas County to miss going to the landfill – using one or both of the same reasons used by Respondent – and missing just one ‘free day’ in any month out of twelvethat same household or dwelling would be required to pay the ‘green box fee’ for the entire year since the ‘fee’ is not based on usage, weight or volume – and if not paid, then face a ‘collections-lawsuit’ – against everyone listed as an ‘owner’  and suffer undue prejudice  from the same ‘collections-agency’ now making its request to this Court for leniency, while hypocritically presuming that its filing out-of-time was not prejudicial to the Petitioners.  So while this Court acquiesced to Respondent’s request – the Petitioners in general can only hope for a reciprocal virtual reality and consideration.

Therefore, for all the foregoing reasons, and based upon the record and prima-facie exhibits, your Joint-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.

Respectfully Submitted By:
            s / s                                                                         s / s
_______________________________                  ______________________________

Jerome E. Heinemann, Petitioner Pro Se           Charlotte W. Elza, Petitioner Pro Se

7837 Wesley Chapel Road                                          3785 Wesley Chapel Road
Green Bank, West Virginia 24944-9063                       Green Bank, West Virginia 24944
1.304.456.4565 or 3282 (also fax)                              1.304.456.4954


            s / s
____________________________________
Kurt K. Heinemann, Petitioner Pro Se
336 Willow Springs Drive
Coppell, Texas 75019


CERTIFICATE OF SERVICE

The above signed do hereby certify that the foregoing PETITIONERS / APPELLANTS

REPLY BRIEF, has been served on the following by electronic facsimile and/or via mailing a true copy thereof via United States Postal Service prepaid, or via hand delivery, on this the _28th   day of April, 2014.


PROVIDED TO:

LAW OFFICES OF DAVID A. SIMS, PLLC
Attorneys at Law / Counsel for Plaintiff
P.O. Box 2659
Elkins, West Virginia 26241
Fax: 304.636.8001





PETITIONER’S APPENDIX RECORD
Volume 1 of Number 1

TABLE OF CONTENTS


Exhibit 1     >       Certified copy of complete Docket Sheet from 29 June
[A.R .01 - A.R. 29]          2007 to 30 December 2013…………...5, 10, 13, 14


Exhibit 2     >        13 October 2013, Order Granting Plaintiff’s Motion
[A.R. 30 - A.R. 42]           for Summary Judgment…………………..……13


Exhibit 3     >         15 October 2013, Defendant Heinemann:
 [A.R. 43 - A.R. 49]           Correction of Plaintiff’s Proposed Order for
                                Summary Judgment………………………...…13


Exhibit 4     >         13 March 2013, Order denying Defendants’ motions
[A.R. 50 – A.R. 52]            from hearing held on 12 December 2012…...7, 13


Exhibit 5     >          12 December 2012, Transcript of Hearing…7, 10, 13,
[A.R. 53 – A.R. 74]                                                                                                 

Exhibit 6     >           05 December 2012, Defendant Heinemann: Motion
[A.R. 75 – A.R. 79]                     to Dismiss…………………..…….....…..8, 13, 14


Exhibit 7     >          27 December 2012, Defendant Heinemann:  
[A.R. 80 – A.R. 112]           Response to Plaintiff’s Motion for Summary
                                 Judgment and Why It Is Premature…...6, 8, 13 

Exhibit 8     >           29 October 2013, Defendant Heinemann: Amended
[A.R. 113 – A.R. 117]                 Motion for New Trial………………..……..8, 13

Exhibit 9     >          23 January 2014, sample of Demand Letter
[A.R. 118 – A.R. 120]          from PCSWA regarding  Abstract of Judgment
                                 Lien placed upon a property-owner confined to a
                                 nursing home pursuant to having a stroke…5, 11

♦ ♦ ♦ ♦ ♦ ♦ ♦

BOTH 
NORMAN LEE ALDERMAN (Rep-SD) 
&
 PATTI HEINEMANN (Dem-ND) 
have promised to:

1.     FIRE ED RILEY!  Demand a full accounting!  Reorganize the Pocahontas County Solid Waste Authority (PCSWA) by appointing ALL NEW MEMBERS that will follow the law – End all Lawsuits & Expunge all Judgments & Liens and Exempt all persons on fixed-incomes pursuant to State Law!

THIS TIME…there’s no excuse…
 IT’S YOUR CHOICE…
TO CHANGE FOR THE BETTER!

Just say ‘NO’ to those who want to keep this county in Poverty & Pauperism
– and –
Just say ‘YES’ to real Progress & Prosperity for the future!

On Primary Day – YOU have a chance to elect two persons that will always put YOU first!  They know that:

THE GREATER COMMON GOOD ALWAYS COMES BEFORE SELF OR ANY SELF-SERVING SPECIAL INTERESTS!

Keep up to Date – Stay tuned to these Websites:




  IF YOU are registered to vote as a Republican, you can
       Vote for Norman Lee Alderman in the Primary Election
       on 13 May 2014;
  IF YOU are registered to vote as a Democrat, you can
      Vote for Patti Heinemann in the primary election on
      13 May 2014;
  If you are registered to vote, but with no party
      affiliation, then you must request Loud & Clear either
      a Republican or Democrat ballot on Primary Day when
      you go to the polls;  &
  Since Norman is unopposed, he recommends that you 
      request a Democrat ballot to vote for Patti so that this 
      county can again have an Honest & Just county 
      commission!
   Early Voting is from 30 April 2014 to 10 May 2014 – so
       Vote Early & avoid the rush!

The Pocahontas Crier is an independent Internet News Service that has so far endorsed two candidates for County Commission
       one a Republican & the other a Democrat   
in addition to providing in depth news reporting on important issues directly affecting the Citizens of Pocahontas County!

Email comments & suggestions to: pocahontascrier88@gmail.com  
[Our apologies for any & all inconveniences for NEW EMAIL]

If you wish to financially assist, kindly send all campaign contributions to: The United Campaign for County Commission (UCCC), c/o Citizens for Common Sense Alternatives (CCSA), a registered Political Action Committee, 7837 Wesley Chapel Road, Green Bank, West Virginia 24944-9063 
Phone: 1.304.456.4565 or 3282 (also fax)

[The Pocahontas Crier is part of The Crier Coalition of Internet News Services comprised of The Pocahontas Commentator, The Pocahontas Crier, Signal Fires of WV, Rolling Thunder &  Echoes from the Holl’r.]


No comments:

Post a Comment