25 JUNE 2014, Vol.1, No.60 > JUDICAL ‘HELLHOLE’…YOUR RIGHTS IN MAGISTRATE COURT!
The POCAHONTAS CRIER
‘When the Righteous succeed the people rejoice,
But when the bad govern, men groan!’ – Proverbs 29:2
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YOUR RIGHTS IN
PART OF THE PROBLEM
All around the nation, West Virginia is known as the ‘Judicial Hellhole’ of the USA, and within West Virginia, Pocahontas County is known as the ‘Judicial Hellhole’ of West Virginia – pursuant to bad judicial decisions, failure to provide timely Court Orders, and the number of appeals filed to the Supreme Court of Appeals of West Virginia! So Congratulations, those of us living in Pocahontas County are living at the bottom, or center, depending on your location, of ‘Dante’s Hell’ – the ‘Seventh Circle’, a place where bankers / usurers are LOWER than blasphemers, sodomites, pedophiles, and murderers!
When looking at the ersatz Greenbrier Valley Economic Development Corporation (GVEDC) and its thievery of land & funds FROM this county – led by bankers – that scenario paints a pretty accurate picture TODAY considering that Durante degli Alighieri, simply called Dante, wrote his classical work, ‘The Inferno’, between 1306 – 1321 as a satire against the corruption of his time; similar to that when Niccolò di Bernardo dei Machiavelli wrote his satirical masterpiece, ‘The Prince’, reflecting the corruption of his time between 1498 - 1512! They are but two in a very long line of great men who spoke out and wrote SATIRE against political, religious, social and economic corruption through the centuries! Like King Solomon said, ‘There is nothing new under the Sun’. Thus the line of ‘muckrakers’ challenging corruption is long & distinguished indeed!
In all fairness, those calling West Virginia the ‘Judicial Hellhole’ of America are in fact the most corrupt of all comprised MOSTLY OF MONEYLENDERS & INSURANCE COMPANIES, as well as Pharmaceutical companies for flooding the State with illegal drugs, that have been sued by our former State Attorney General, Darrell McGraw, who filed lawsuits and won BILLIONS for the Citizens of this State! But McGraw was defeated after five-terms in office by a ‘lobbyist-lawyer’, Patrick Morrisey, who worked for the predatory corporations that outspent McGraw ten-to-one in the last election since McGraw was keeping the predatory-capitalist-corporations in check on behalf of ‘We The People’! In short, corporations NEVER want to a admit any wrongdoing even when an employee is permanently injured or killed! Nor do corporations ever want to pay any restitution for any injuries, lost of limbs or eyes for any employee – or pay any death-benefits to the family of any employee – even if the employee was the main income provider for the family!
And we’ve all seen this here in this county as well, as the owners of the most dangerous jobs in this county, i.e., timber-processors, have REFUSED to pay Workman’s Compensation, and even fought against paying Workman’s Compensation and other benefits to employees injured on the job pursuant to the FAILURE of the owners to provide proper safety equipment! How many times have workers been told to use a ‘weed-eater’ WITHOUT BEING GIVEN ANY SAFETY GOOGLES? How many times have workers been severely injured when loading or unloading logging trucks – or working the ‘Green Line’ – and only provided limited benefits? Yet the owners of these timber-enterprises have been given thousands of acres of public land & millions of board-feet to cut to stay in business from the federal government as ‘corporate welfare’ – yet only pay their workers minimum-wages, fight against Workman’s Compensation, fire injured employees and willing to pay thousands to have a horse X-rayed to see the sex of its fold! Hypocrites that want us to think they are ‘Christians’ and belong to a secret ‘benevolent-society’!
What the corporatists want is to put an end to Citizen-Juries setting the amount of damages in malpractice & injury cases, etc., and ‘cap-all-lawsuits’ for damages & permanent injuries at $250,000 as a one-time fee! This is what those corporation-sponsored-groups want that place billboards along the highways wanting ‘Judicial Reform’, etc. – IT’S A BIG SCAM TO ONCE AGAIN CHEAT THE RANK & FILE CITIZEN INSTEAD OF MAKING THE CORPORATIONS PAY FOR THEIR CORRUPT PRACTICES!
For example, look at General Motors (GM) at the present time, KNOWINGLY allowing defective ignition parts to cause accidents & death – but determining that the cost of fighting the lawsuits would be CHEAPER than fixing the problem! A simple example of PUTTING PROFITS BEFORE PEOPLE! So if you find yourself in such an accident pursuant to their neglect, would you want a JUDGE to tell you that the TOTAL you can receive is $250,000, as a one-time payment, for you to suffer the rest of your life with permanent pain, injury & loss? What if a child or spouse were killed? Would $250K be enough to forget them or compensate for your loss? OR would you like a JURY to determine how much you should receive based upon THE GOLDEN RULE, i.e., doing unto others what you would want done unto you? The basis of our current legal system is based upon the COMMON LAW, that was based upon The Divine Laws as found in the first five books of the Bible written by Moses as he was directed in order for all of us to have an ‘Operations Manuel’ for personal, family, communal and National Social Order!
And how about those ‘refinancing companies’ that promise lower interest rates, and ‘cash-equity’, for those who need extra funds so try refinancing? Know anyone who has tried that system only to find that using their home-equity to finance any type of purchase usually ends up in the hands of ‘collection-agencies’ after the home-equity-company SELLS your DEBT to some other debt-collector? Not only does it usually end of costing your more – but when any type of financial SETTLEMENT is reached – try getting that company to file a RELEASE OF DEBT in the county courthouse to show you are now ‘debt-free’! In nine of ten cases, the holding company is an out-of-state collections-agency and WILL NOT spend a dime to ‘set-you-free’ – instead, you will have to file a complaint in circuit court, pay court costs, wait for the out-of-state collections-agency to refuse to answer and ignore your request – then you will have to get a ‘default-judgment’ and then take that court order to the county commission to order the county clerk to remove the Debt from the county lien book – all of course at YOUR EXPENSE!
THE MAGISTRATE COURT SYSTEM
For those that know their Bible, both Old & New Testaments – and this does not include ‘evangelical-churches’ that mistakenly believe the Old-Testament has been done away with – in Exodus 18, Moses was overwhelmed with judicial decisions from petty disputes all the way to capital-punishment! So in Exodus 18: 17-23, Moses was advised to choose ‘capable men from all the people – men who feared YaHoVaH Our Creator, trustworthy men who hate dishonest gain – and appoint them as officials over thousands, hundreds, fifties and tens’, etc.
Magistrate Courts, as we now know them, were originated in West Virginia pursuant to the Common Law whereby legal disputes were to be settled accordingly. At first it was a ‘Tribunal’ of three elected county officials who made the decisions known as the ‘County Court’; but as the population grew, so too was the ‘County Court’ overwhelmed with all kinds of ‘citizen-disputes’, so the ‘County Court’ became the County Commission, and the Magistrate Court was formed under the Judiciary Branch of government as a ‘Citizen-Court’ comprised of lay persons, i.e., rank & file Citizens, including the right to have a ‘Jury of your Peers’, i.e., folks that know you, etc., hear your dispute and hopefully ‘choose wisely’ & honestly!
BUT LIKE MOST THINGS – bring in a ‘lawyer’ and things go to proverbial hell-in-a-hand-basket! Now for the most part, the Magistrate Court is simply a Medieval ‘Star Chamber’ whereby the Office of the County Prosecutor tells the Magistrate what to do! And the history of this county has shown that few magistrates have had either the intelligence or the moral-courage to do what they know to be right, instead of simply ‘rubber-stamping’ the opinions of the Office of the County Prosecutor – forcing an ‘Appeal’ to Circuit Court for a de novo trial, i.e., start over from the beginning! And since most folks cannot afford an attorney, the ‘government always wins’ – OR SO MOST FOLKS THINK!
Now what has been in effect in point of principle and fact since the beginning, is the fact THAT ANYONE CAN REPRESENT ANOTHER PERSON in Magistrate Court WITHOUT BEING A LAWYER! It depends on the person needing a matter settled in Magistrate Court, for less than $5000, if civil; and it’s a right handed down via our Common Law Roots – and was just RESTATED IN AN OPINION OF THE NEW STATE ATTORNEY GENERAL on 06 May 2014, as follows:
State of West Virginia Office of the Attorney General
Patrick Morrisey (304) 558-2021
Attorney General Fax (304) 558-0410
Ms. Anita R. Casey Executive Director The West Virginia State Bar 2000 Deitrick Boulevard Charleston, WV 25311
Dear Ms. Casey,
You have asked for an Opinion of the Attorney General pertaining to the authority of unlicensed individuals to practice law in West Virginia Circuit Courts on behalf of limited liability companies ("LLCs"). This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law ... whenever required to do so, in writing, by ... [a] state officer, board or commission." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your letter to the Attorney General's Office. You explain that your Unlawful Practice of Law Committee has received an inquiry from an unlicensed attorney who wishes to purchase an LLC, serve as its sole member, and routinely represent that LLC in suits to collect on accounts of the LLC in matters in West Virginia Circuit Courts, when the matters at issue exceed the monetary jurisdictional ceiling for magistrate courts.
Your letter raises the following legal question:
Does the exemption of West Virginia Code § 50-4-4a, which permits a party to be represented by an "agent" in magistrate court proceedings, permit a non-lawyer to represent an LLC in Circuit Court?
West Virginia has adopted the well-accepted rule that only an attorney licensed to practice law can practice law in a court of record, except in cases where a person is appearing on his own behalf (pro se). See W. Va. Trial Ct. R. 4.03 ("Every party to proceedings before any court, except parties appearing pro se, shall be represented by a
Ms. Anita R. Casey May 6, 2014 Page 2
person admitted to practice before the Supreme Court of Appeals of West Virginia and in good standing as a member of its bar."); accord W. Va. Code § 30-2-4 ("[i]t shall be unlawful for any natural person to practice or appear as an attorney-at-law for another in a court of record in this state ... without first having been duly and regularly licensed and admitted to practice law in a court of record of this state"). As our Supreme Court of Appeals has explained, "[t]he reason for the requirement that the practice of law be engaged in only by duly licensed practitioners of the law is to establish and maintain a legal standard by which the rights of persons may not be jeopardized or sacrificed by counsel and advice of unlicensed and incompetent persons." West Virginia State Bar v. Earley, 144 W. Va. 504, 528, 109 S.E.2d 420, 435 (1959).
Consistent with this principle, the Supreme Court of Appeals has long held that a non-licensed person may not appear in a court of record on behalf of a corporation. See West Virginia State Bar v. Earley, 144 W.Va. 504, 526-527, 109 S.E.2d 420, 435 (1959). The harms that such a person might cause are no different than when a corporation is not involved. Like any other non-lawyer, a "non-lawyer corporate agent's lack of legal expertise could 'frustrate the continuity, clarity and adversity which the judicial process demands."' Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W. Va. 762, 766, 724 S.E.2d 733, 737 (2012) (quoting State ex rel. Western Parks, Inc. v. Bartholomew County Court, 383 N.E.2d 290, 293 (Ind. 1978)). Nor is there any argument that such a person falls within the exception for unlicensed pro se representation. The person is appearing not on his own behalf, but rather as an agent of the corporation, which is "an artificial entity created by law" that can only act "through an agent or representative." Id. at 767, 724 S.E.2d at 738; see also id. at 766, 724 S.E.2d at 737 ("it is a well-settled legal principle that a corporation must be represented by a lawyer in a court of record").
While the Supreme Court of Appeals has not had occasion to consider whether a non-attorney may appear in a court of record on behalf of an LLC, we have no reason to doubt that the Court would find such an appearance impermissible. The risks presented by a non-lawyer representative of an LLC are similar—if not the same as—those presented by a non-lawyer corporate agent. Moreover, there is likewise no argument that such a person is engaged in pro se representation. An LLC—no less than a corporation— is an artificial legal entity. See W. Va. Code § 31B-2-201 (defining an LLC as a "legal entity distinct from its members"). Thus, a person seeking to represent the LLC in court would not be acting on his own behalf, but rather as an agent of the LLC. Notably, the overwhelming majority of cases outside of West Virginia hold that a non-attorney may not appear in court on behalf of an LLC. See Lattanzio v. COMTA, 481 F.3d 137 (2d Cir. 2007) (per curiam); United States v. Hagerman, 545 F.3d 579 (7th Cir. 2008); Collier v. Cobalt, LLC, No. Civ. A. 01-2007, 2002 WL 726640, at *1 (E.D. La. 2002) ("Whether the LLC is characterized as a corporation, a partnership, or a hybrid, it may only appear in court through counsel."); J. William Callison & Maureen A. Sullivan, Ltd. Liability Co. § 1:1, n.6 (2013) (collecting cases).
Ms. Anita R. Casey May 6, 2014 Page 3
You ask whether West Virginia Code § 50-4-4a creates an exception to this rule for a non-lawyer to represent an LLC in a West Virginia Circuit Court. That law provides: "Any party to a civil action in a magistrate court may appear and conduct such action in person, by agent or by attorney. Appearance by an agent or attorney shall have the same effect as appearance by the party represented, and the appearance by an agent shall not constitute the unlawful practice of law." Id. (emphasis added). The Supreme Court of Appeals has construed this provision narrowly to permit an "isolated or casual appearance by a non-lawyer friend or relative of a party to proceedings in magistrate courts for the purpose of assisting such party in representing himself in the litigation." State ex rel Frieson v. Isnei\ 168 W. Va. 758, 778, 285 S.E.2d 641, 654 (1981).
We agree with the Unlawful Practice Committee that Section 50-4-4a has no application to the facts as presented. By its plain terms, this provision "authorizes a party to appear by a lay agent in magistrate court—not a court of record," such as a Circuit Court. Shenandoah Sales, 228 W. Va. at 770, 724 S.E.2d at 741. This distinction is significant. Where a statute has sought to permit a non-natural person such as a corporation "to retain a non-lawyer representative to act as an agent on their behalf and engage in activities which constitute the practice of law in a circuit court" the Supreme Court of Appeals has found the law to be a violation of the Court's "inherent and constitutional authority to define, regulate and control the practice of law." Id. Accordingly, we conclude that Section 50-4-4a does not permit an LLC member not licensed to practice law in West Virginia to appear in a West Virginia Circuit Court on the LLC's behalf.
Patrick Morrisey Attorney General
What this means is that ANYONE – lawyer or no lawyer – that any given person wishes to have present their side of any issue in Magistrate Court can be done so under West Virginia law! Now if only the Office of the County Prosecutor would simply present its ‘case’ and leave it at that – without telling the Magistrate what to say & do for its advantage – then maybe the Magistrate, or Jury, could make a decision based on THE COMMON LAW instead of the intimidation, threats, and plea-bargains that usually take place to the detriment of the ‘victim’ before the court!
In the meantime…
On 04 NOVEMBER…there’s no excuse…
IT’S YOUR CHOICE…
TO CHANGE THINGS 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:
On 04 NOVEMBER it doesn’t matter how you are registered – YOU CAN VOTE for:
CHARLES WILFONG – ND
NORMAN LEE ALDERMAN - SD
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