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)
Email: jerryh15@juno.com
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 landfill – they 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-ownership – regardless 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].
(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.”
“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
(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
facilities’ which 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 county – find 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 basis – and
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 twelve – that 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!
[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.]
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