24 JU LY 2014, Vol.1, No.63 > COURT BATTLE WITH PCSWA CONTINUES!
The POCAHONTAS CRIER
‘When the Righteous succeed the people rejoice,
But when the bad govern, men groan!’ – Proverbs 29:2
[New Email address: email@example.com]
COURT BATTLE WITH PCSWA CONTINUES!
As reported & misreported in The Pocahontas Times last week (17 July 2014), the Supreme Court of Appeals of West Virginia once again STABBED Pocahontas County in the back with one of its most egregious ‘Memorandum Decisions’ yet on record in a ‘collections-agency’ case in which almost 1/3 (one-third) of all households and property owners within the county have been sued for not paying a ‘mandatory green-box assessment fee’ levied upon the Citizens of this county without any voter approval! It would be the same as if the Board of Education levied a new school tax upon all property-owners without a voter referendum – but no one has ever accused this current state supreme court of being very wise or showing any individual or collective intelligence and this case was no different as this state supreme court IGNORED every argument made – the same as did the 11th Circuit Court under former Judge Joseph Pomponio, Jr. who finally retired and got out-of-the-way fortunately! He definitely was taking up space that an otherwise intelligent person with COMMON SENSE could have fulfilled!
THAT’S THE BAD NEWS! BUT THE GOOD NEWS IS THAT NOW THAT THIS MATTER HAS GONE THROUGH THE STATE PROCESS – it is RIPE for entering into the Federal Court System as a CLASS ACTION for the violation of Civil Rights with RICO applications! So now the fun really begins!
Below, kindly find the MOTION FOR RECONSIDERATION PURSUANT TO CASE DISCREPANCIES as timely filed by Defendant/Petitioner Charlotte W. Elza. No one is expecting the state supreme court to actually ‘reconsider’ anything since they never want to admit any mistakes on their part – but the filing of this court document now opens the door for entering into the realm of the ‘Bill of Rights’, and all those CIVIL RIGHTS violated by the PCSWA since its inception, including those committed by the ‘collections-agency’ in Elkins with RICO implications which means TRIPLE DAMAGES on behalf of all those sued within this county to date! So onward goes the fight for Social Justice!
* * * * * *
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
AT CHARLESTON, WEST VIRGINIA
John Leyzorek, Douglas H. Bernier,
and Charlotte W. Elza,
Defendants Below, Petitioners,
Vs. ) Nos. 13-1160, 13-1161, 13-1182 (Pocahontas County 07-C-30)
Pocahontas County Solid Waste Authority,
Plaintiff Below, Respondent.
DEFENDANT ELZA (13-1182): MOTION FOR RECONSIDERATION
PURSUANT TO CASE DISCREPANCIES
COMES NOW, your above-named Petitioner, pro se, on a timely basis, pursuant to the Revised Rules of Appellate Procedure, as amended, and pursuant to Memorandum Decision of this Court, dated 27 June 2014, thereby files this Motion for Reconsideration Pursuant to Case Discrepancies, and for the record says as follows:
Judicial Notice of Case Discrepancies
1. In the Memorandum Decision of this Court, filed 27 June 2014, in the second paragraph it states that ‘the Court finds no substantial question of law and no procedural error’; yet at the same time this same Court apparently decided to ignore the Constitutional requirements for a ‘fair trial’, ‘due process of law’, and ‘the equal protection of the laws’ since within the past seven (7) years that this case has lingered in the Circuit Court of Pocahontas County, the record is very clear that there was never any type of trial at any time – no admissible evidence of any wrong-doing was ever presented against your Petitioner, nor any witnesses permitted any type of testimony – even after certain persons were subpoenaed by your Petitioner – to show whether your Petitioner ever violated any specific law, statute or regulation of the State of West Virginia in the disposal of solid waste. Such absence would appear to be both substantive and procedural, but apparently has now become part and parcel of the systemic judicial problems of West Virginia for both the circuit court system and for this Court respectively.
2. In the third paragraph, the Memorandum Decision (herein ‘Memorandum’) states that ‘[i]n 2007, respondent sued several Pocahontas County residents’; yet once again on the face of the record, the real facts are that the Respondent, Pocahontas County Solid Waste Authority (PCSWA), under the color of law, actually sued approximately 500 (five-hundred) RESIDENTS in 2007, and all toll to date, has sued close to 900 (nine-hundred) RESIDENTS, which represents about 1/3 (one-third) of the approximately 3400 (three-thousand-four-hundred) households still left in Pocahontas County in which over 600 (six-hundred) of those sued to date are Senior Citizens and others on a fixed-income entitled by law to a reduction or exemption of any solid waste fee(s) accordingly – but instead now face an additional financial burden in the form of an Abstract of Judgment Lien of thousands of dollars, with continuing interest, all because of an arbitrary ‘assessment-green-box-fee’ levied against them without voter approval – but this is yet another discrepancy ignored by this Court without notice. Fact: WVC §22C-4-10(c).
3. In footnote 1 of the ‘Memorandum’, it states that those sued was for “unpaid ‘green box’ fees from 2001 through 2006’” pursuant to Respondent’s local ‘Mandatory Garbage Disposal Regulations’ (MGDRs) that became effective in 1995. Of interest however is the fact that this Court failed to address the lack of legal consistency between what state laws & regulations require as to the proper disposal of solid waste, including exemptions & reductions for persons on fixed-incomes, exemptions for those who recycle, compost and dispose in an otherwise lawful manner, as well as the fact that state law specifically states, ‘Each person occupying a residence’ while the Respondent’s MGDRs changed that to, ‘Each person owning a residence’, a distinct difference indeed as set forth in your Petitioner’s Brief, Reply Brief & Appendix Record, including the fact that the Respondent totally ignores ‘recycling’ of ALL recyclable items as required by law yet not addressed in any manner within this Court’s Memorandum Decision. Fact: WVC §22C-4-10(a)(1)(2), WVC §33-7-1 & WVC §33-7-2, respectively. 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).
4. Further, for the record, yet another case discrepancy, there is no requirement in the 1995 MGDRs for providing either a ‘Free-Day’ as required by State Law, let alone for the showing of any monthly landfill-receipt for using the ‘Free-Day’, both allegations of which are what the Respondent alleges is the reason for their 2007 lawsuit and the basis for their alleged ‘Summary Judgment’. This too would appear to a reasonable person as a violation under the color of law of both substantive law and procedural error on the face of the record alone. Fact: Exemption from all fees for using the ‘Free Day’, WVC §20-11-5(e)(3); WVC §22-15-7; WVC §22-15A-18(e)(3). There is no consistency or compliance between state laws & regulations within the various MGDRs of the PCSWA; let alone via any comparison to the other 55 counties of West Virginia – IF only this Court had done any sort of comparison.
5. Another discrepancy completely ignored by this Court is the inconsistency and unequal protection of the laws when all counties except Pocahontas County establish their solid waste disposal fee for the burying of solid waste in their respective landfill upon WEIGHT, VOLUME & USAGE – while the Respondent in this case requires a ‘mandatory green-box fee’ regardless of Weight, Volume or Usage. Perhaps the State Legislature should require every vehicle owner to pay for a full tank-of-gas each month from their nearest gas-station whether the fuel is used or not. Perhaps the same should be required by the Federal Government whereby the local post office must be paid a ‘mandatory-flat-fee’ each month – from EACH HOUSEHOLD – whether any letters or packages are mailed or not. Fact: WVC §22-15-11(a).
6. This issue also goes to that of the alleged ‘mandatory green-box assessment- fee’, NOT SET by WEIGHT, VOLUME or USUAGE, as well as the acclaimed ‘statutory penalties, plus costs and pre- and post-judgment interest’; when statutory law requires any alleged violation of the proper disposal of solid waste – WHICH WAS NEVER AN ALLEGATION IN THIS CASE…No, in this case there was never any admissible evidence to show that any resident-defendant improperly disposed of their solid waste pursuant to existing state laws & regulations – the only allegation in this case is just that they did not pay an arbitrary-flat-fee to the self-serving PCSWA – when the actual statutory law requires any allegations of violations to be investigated by the state Department of Environmental Protection (DEP), AND IF, any kind of violation was alleged and proved in a court of law, THEN a penalty could be imposed by the Public Service Commission (PSC). But this checks & balances significance too was ignored by this Court along with the other case discrepancies pertaining to the lack of due process and the equal protection of the laws.
7. Now in the section regarding the ‘Discussion – Whether Summary Judgment for Respondent was Appropriate’, this Court, referencing Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), quotes, ‘[a] circuit court’s entry of summary judgment is reviewed de novo’. But this Court did NOT review this matter de novo since it failed to address the specific issues dealing with whether or not the Respondent had proper JURISDICTION to bring a ‘collections’ action against several hundreds of Senior Citizens and persons on fixed-incomes, contrary to WVC §22-15-7; and in direct violation of WVC §22C-4-9 since the Respondent never had authorization from the Office of the Attorney General, Exhibit 7 (A.R. 107); and further, Respondent has no contract with the current ‘collections-agency’ representing them in this matter. But these discrepancies too are ignored by this Court along with the others as set forth herein and as set forth in your Petitioner’s Brief, Reply Brief & Appendix Record as if the violated statutes had no existence or purpose.
8. Now while Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12 (1995), clearly states, 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).
It is abundantly clear on the face of the record to any reasonable person, let alone a ‘trier of fact’, that this matter is still NOT SETTLED ON ITS MERITS since there is an abundance of genuine issues of material facts still not addressed by either any circuit court or by this Court, as addressed herein and as set forth in your Petitioner’s Brief, Reply Brief & Appendix Record that have never been addressed. And the MOST EGREGIOUS is the fact that under the color of law this Court is trying to force a municipal case, City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536 (1995) upon the backs of the Citizens of Pocahontas County WITHOUT ANY VOTE OF APPROVAL by either the county commission or by a referendum vote.
IF Stamper is applicable to the Citizens of Pocahontas County, then Stamper would also be applicable to every other county in West Virginia – but it isn’t. And IF Stamper were applicable, then so too would Cooper v. City of Charleston, 218 W.Va. 279, 624 S.E.2d 279 (2005) pertaining to a ‘city service fee’ whereby EVERY WORKER in West Virginia would also have to make a payment from each paycheck as do the Workers within the city limits of Charleston are required to do by that local ‘Municipal Ordinance’. Common Sense should dictate that there would no end to the confusion if ‘municipal ordinances’ were applicable to respective county residents let alone all citizens within any given state if they did not live or work within that specific municipality. IF so, then there would be no need for respective levels of government, no need for a separation-of-powers, no need for a checks & balances system, everything could simply be dictated from the top down via a federal government, king, potentate, private-corporation, or feudal lord – including all regulations regarding disposal of all solid waste. Heck, in that manner the entire state could resort to being a ‘company store’.
And just because this Court, in Supreme Court No. 070195, refused to hear Petitioner Bernier in his appeal dated 12 September 2006, this Court’s refusal is no more a precedent than this Memorandum Decision since both referenced Stamper, a decision applicable ONLY to the City of Princeton. And while this Court claims that this instant action is pursuant to the 1995 MGDRs of the PCSWA, for the years ‘2001 through 2006’ (footnote 1); so too does it claim that Supreme Court No. 070195 also applied for ‘2001 through 2005’ – and IF so, then Petitioner Bernier may have faced ‘double jeopardy’ let alone finding that the matter was not settled on its merits as required by Lantz. And let’s not forget Cavender v. Fouty, 195 W.Va. 94, 464 S.E.2d 736 (1995), which states, 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).
It might yet prove interesting what a jury, as the ‘trier of facts’, might infer as ‘credibility determinations’ where these matters to have a fair and impartial hearing pursuant to the issues of due process and the equal protection of the laws – especially since this Court failed to remand this matter to a neutral circuit court as requested since the 11th Circuit Court provided no declaratory review, and no trial proceedings, even when repeatedly requested in this case as shown on the face of the record.
9. In the Discussion identified as ‘First’, referring to the ‘first assignment of error’, this Court again references Stamper, referring to a ‘Municipal Ordinance’ pertaining to the City of Princeton as applicable to the entire county of Pocahontas, and if so, then presumably applicable to all 55 counties in the State of West Virginia. Yet the facts show conclusively that THAT is not the scenario at all as the greatest number of counties provide a payment system for burying solid waste in any given landfill by WEIGHT, VOLUME & USAGE as Common Sense and Common Law would dictate. In fact, had this Court actually read the ‘Ordinance’ of the City of Princeton in Stamper and compared it to the Mercer County solid waste regulations, this Court might have noticed that the City Ordinance of Princeton is NOT the same as that for Mercer County or vice-versa – let alone the fact that the City Ordinance of Princeton provides EXEMPTION for persons on a fixed-income – apparently something this Court failed to recognize as important enough to either being part of the state laws & regulations or applicable to Pocahontas County via this Court’s intended imposition of Stamper.
10. Further, IF this Court wishes to continue to assert that its decision in Stamper is applicable to all, everywhere, specifically asserting ‘regardless of actual use’, then this Court stands CONTRARY to existing state law and the INTENT OF THE STATE LEGISLATURE when the Legislature specifically MANDATED a FREE-DAY as an EXEMPTION to any ‘refuse service fee’ – in addition to its other stated EXEMPTIONS for those on a fixed-income, and for those who recycle, compost, and dispose in an otherwise lawful manner. With that basis, it becomes apparent, or can be INFERRED by a ‘trier-of-facts’, that the Legislature was more interested in the ‘management of solid waste’ via the proper disposal of solid waste and recycling for the reduction of ‘urban-sprawl-landfills’ and the beautification of West Virginia rather than economic-profiteering so as to accommodate EVERYONE for the Greater Common Good regardless of income. This dilemma of the Court indeed raises the questions of due process and the equal protection of the laws with respect to Stamper; as well as to whether or not the Respondent in this instant matter had proper jurisdiction when the PCSWA was in violation of those very same state laws and regulations that govern the proper disposal of solid waste – and its alternatives – AND ITS EXEMPTIONS – as set forth herein-above and in your Petitioner’s Brief, Reply Brief & Appendix Record accordingly. In short, the Respondent, PCSWA, failed to include specific elements of the state laws & regulations pertaining to managing a proper landfill, it totally has refused source-separation recycling as a means to offset operational expenses, etc. Instead, the Respondent, PCSWA, has opted under the color of law to arbitrarily levy a ‘mandatory green-box assessment-fee’ upon every property-owner, ‘regardless of usage’, then proceeds to sue those that cannot pay, totally ignores all the specific EXEMPTIONS written into the state laws and regulations to accommodate all persons regardless of income, and then the Respondent, PCSWA, without approval from the Office of the Attorney General, engages a ‘collections-agency’ and proceeds to accumulate ‘default judgments’ and place an Abstract of Judgment Lien on the property of Senior Citizens and those on a fixed-income. Yet this Court does nothing in spite of all the evidence set before it including the Constitutional & Statutory prerequisites.
So once again for the record, the 1995 MGDRs of the PCSWA did NOT require any monthly landfill receipts as proof of disposal since the same local MGDRs did not permit any ‘Free-Day’ and therefore stood contrary to existing state laws & regulations as set forth herein and in the your Petitioner’s respective Brief, Reply Brief & Appendix Record filed in this Court accordingly. As a direct and proximate result, your Petitioner was IMPROPERLY found to be in violation of ‘local-rule(s)’ that DID NOT EXIST within the 1995 MGDRs – thereby making the alleged ‘Summary Judgment’ legally flawed by being in violation of respective Constitutional Rights, as well as numerous statutory laws and regulations. It just shows other discrepancies that fall within due process and the equal protection of the laws accordingly that this Court has chosen to ignore.
11. As pertaining to the ‘Second’ part of the Discussion, this Court again references Stamper and again fails to recognize that neither the County Commission nor the Citizens of Pocahontas County ever adopted, ratified, via referendum or otherwise, any approval of the same ‘municipal ordinance’ as the City of Princeton in Mercer County. And just because our respective Federal and State Constitutions delegate governing authority at the National, State, County and Municipal level, as a separation of powers, does NOT MEAN that a local ‘municipal ordinance’ is applicable to any governing authority other than to itself and its constituents as a matter of law and fact. It’s called Civics 101. And IF Stamper, as a ‘municipal ordinance’, is applicable at all levels, then so too would a decision in a Magistrate Court be applicable and binding in all levels of the judicial system – there would be no need for any higher ‘appellate’ court.
Also while ‘police powers’ are applicable ‘to protect the public health and welfare’ that are apparent at all levels of government – howbeit that now government agencies, congress and state legislatures are allowing private corporations to put profits before people – there is no admissible evidence that your Petitioner at any time was in violation of any local, county, state or federal laws or regulations in the disposal of her solid waste. To the contrary, your Petitioner was in full compliance at all levels and her complaint was, and is, that it was the Respondent that was in direct violation of federal and state laws and regulations – something also ignored by this Court – for IF your Petitioner was in violation, then such allegations are to be investigated by the state DEP, and if found guilty, referred to the PSC for fees, fines and penalties accordingly – something also ignored by this Court as per due process and the equal protection of the laws, as set forth herein-above and in your Petitioner’s Brief, Reply Brief & Appendix Record.
12. With respect to the ‘Third’ part of the Discussion, this Court again references Stamper and again fails to recognize that neither the County Commission nor the Citizens of Pocahontas County ever adopted, ratified, via referendum or otherwise, any approval of the same ‘Ordinance’ as the City of Princeton in Mercer County. And yet again, this Court has failed to recognize that ‘a mandatory service fee for the collection of refuse, regardless of actual use’, as it has asserted, IS NOT part of the Legislative process pursuant to the implementation of WEIGHT, VOLUME & USAGE as per WVC §20-11-5(a), whereby the paying of a landfill ‘assessment fee’ is for the burial of solid waste within the landfill – it does not state ‘regardless of actual use’ in any state statute or regulation. TO THE CONTRARY, state laws & regulations EXEMPT the ‘assessment fee’ for the burial of solid waste within a landfill for all persons who recycle, compost or dispose in an otherwise lawful manner, as well as provide an EXEMPTION or REDUCTION for persons on a fixed-income, as set forth herein as well as in your Petitioner’s respective Brief, Reply Brief & Appendix Record accordingly.
Again, this Court has apparently NOT compared the various state laws & regulations with respect to the Respondent’s ‘Mandatory Garbage Disposal Regulations’ (MGDR), or its ‘Comprehensive Litter and Solid Waste Control Plan’ (CLSWCP), which has given rise to the denial of due process and the equal protection of the laws accordingly. A cursory review of the state laws and regulations regarding the proper disposal of solid waste already clearly provides ‘a reasonable and valid exercise of the police powers’, as per Wetzel County Solid Waste Authority v. West Virginia Division of Natural Resources, 195 W.Va. 686, 466 S.E.2d 537 (1995); as well as shown above-herein and within your Petitioner’s Brief, Reply Brief & Appendix Record as it pertains to the checks and balances of the DEP and PSC for proven violations accordingly – yet no violations of any kind regarding any state laws or regulations have ever been shown against any Petitioner at any time in this instant matter on the face of the record in this case – just opposition to an arbitrary ‘assessment-fee’ levy without voter approval.
13. Pertaining to the ‘Fourth’ part of the Discussion, this Court argues that ‘the green-box fee’ is not a ‘tax’, howbeit that the ‘mandatory green-box assessment-fee’ is levied on every property-owner situate within Pocahontas County WITHOUT voter approval – with the SAME FORCE & EFFECT as if a school board levy were implemented without the required voter referendum. Now while this Court acknowledges that ‘county and regional solid waste authorities have a duty to develop a comprehensive litter and solid waste control plan’, pursuant to their respective ‘rule-making authority’, this Court also failed to determine IF the local ‘rule-making’ can ignore existing state laws and regulations, pick and choose what it wishes to include or exclude among the state laws & regulations, and deny due process and the equal protection of the laws when it comes to REFUSING to have source-separation recycling within Pocahontas County – as done in other counties as a means of off-setting the cost of operating the landfill as done in other counties to defray their respective regulatory costs. And this Court also failed and ignored the fact that there exists within the state laws & regulations EXEMPTIONS for those on a fixed-income as well as for those that recycle, compost and dispose of solid waste in an otherwise lawful manner. Again these discrepancies all give rise to the challenge of due process and the equal protection of the laws.
Now while in Wetzel County Solid Waste Authority one of the main issues was a fee ‘based on actual usage’, in this instant matter ‘the green box fee is not based on actual usage’ and is required ‘regardless of actual use’; as well as being required CONTRARY to the ACTUAL EXEMPTIONS established by the State Legislature as set forth herein-above and in your Petitioner’s respective Brief, Reply Brief & Appendix Record accordingly. Again these discrepancies all give rise to the challenge of the lack of due process and the equal protection of the laws.
14. Finally, as it pertains to the ‘Fifth’ and final part of the Discussion, while this Court properly acknowledges that WVC §6-1-3, et seq. requires all state officers to take an Oath-of-Office, this same Court fails to acknowledge that the taking of the Oath-of-Office is REQUIRED PRIOR to the carrying out of any and all required duties of that respective office. And then to pretend that the FAILURE to take an Oath-of-Office for a period of 15 (fifteen) years, from 1989 to 2004, on the part of one board-member of the PCSWA, and 21 (twenty-one) years, from 1989 to 2010, on the part of another board-member, especially since both persons have been on the board since its inception in 1989, is simply according to this Court, ‘dilatory’, i.e., delay, slow, tardy, etc., such defies all sensibilities of Common Sense especially when this Court then equivocates that WVC §22C-4-1 to §22C-4-30 does not require an Oath-of-Office, when the Common Sense of a reasonable person, as a ‘trier-of-facts’, could easily INFER that the Constitutional & Statutory requirement to take an Oath-of-Office, pursuant to WVC §6-1-3, et seq., PRECEEDS, i.e., PRIOR to the first meeting, of the actual carrying out of those Duties pursuant to WVC §22C-4-1 to §22C-4-30.
Further convoluting this issue is the fact that this Court argues that even if WVC §6-1-3, et seq. governs all state officials PRIOR to the assumption of public service, that your Petitioner, and the other Petitioners, pursuant to Kerns v. Wolverton, 181 W.Va. 143, 149, 381 S.E.2d 258,264 (1989), would have to show ‘that they were prejudiced by the tardiness of the board members’ in taking a timely Oath-of-Office prior to assuming their Duties back in 1989. Well it does not take a ‘rocket-scientist’ to realize and calculate that this case began pursuant to the allegations of the Respondent that your Petitioner, and all the other persons sued in this matter, were sued in 2007 for alleged non-compliance with the 1995 MGDRs when those MGDRs were IMPOSED WITHOUT ANYONE on the board of the PCSWA properly seated pursuant to their failure to comply with the State Constitutional & Statutory requirements for the taking of an Oath-of-Office – and that failure existed FROM 1989 TO 2004, inclusive. Yet 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., since by law the Respondent IS NOT considered a lawful public body UNTIL ALL MEMBERS TAKE THEIR RESPECTIVE OATH-OF-OFFICE.
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 your Petitioner and the other Petitioners in general – yet ignored by both the 11th Circuit Court and this Court, inclusive. A reasonable person, as a ‘trier-of-fact’, might very well INFER that the arbitrary ‘mandatory green-box assessment-fee’, imposed ‘regardless of use’, plus all penalties, costs, and pre- and post-judgment interest, ad nauseam, is indeed very prejudicial especially from folks on the board of the PCSWA who actually violated Constitutional Requirements & Statutory Laws – something that was NOT DONE by your Petitioner nor any other person sued by the ersatz-Respondent. Therefore, it is indeed disingenuous for this Court to facetiously assert that by the time this lawsuit was filed against your Petitioner and the several hundreds of others that ‘a majority of the current board members had taken oaths of office’ – a lapse of some 18 (eighteen) years from 1989 to 2007 before the Respondent, the Pocahontas County Solid Waste Authority (PCSWA), became a lawful governmental public body – simply defies Common Sense and Common Law.
Another egregious discrepancy is the fact that this Court suggests that just because it was IN EXCESS of FIFTEEN (15) years, and up to twenty-one (21) years, before all the members on the board of the Respondent, PCSWA, took an Oath-of-Office, that all THAT can be considered just ‘dilatory’ since at least they all took an Oath-of-Office prior to initiating their lawsuit on 29 June 2007 against your Petitioner and the several hundreds of other property-owners of Pocahontas County . Yet this same Court simply ignores the fact that ALL MGDRs from 1989 to 2004 were implemented by board-members that did not constitute a lawful county solid waste authority, and that: (1) the MGDRs were NOT in full compliance with all the elements required by state laws & regulations for the proper ‘management of solid waste’, pursuant to items to be recycled to reduce the expansion via regulations of what is to be buried in landfills; and, (2) the MGDRs do not provide the necessary EXEMPTIONS required under state law. As a direct & proximate result, it is obvious that this Court has never compared the Respondent’s various MGDRs to existing state laws and regulations; nor has this Court considered the question of whether or not the Respondent had proper jurisdiction to bring forth this lawsuit when the issues alleged in their ‘Summary Judgment’ – and the Final Order – do not compare to the 1995 MDGRs that this Court recognizes as the basis of this lawsuit as set forth herein and in your Petitioner’s Brief, Reply Brief & Appendix Record accordingly. And THAT FACT is the reason why your Petitioner, and others, have requested a REMAND of this case to a neutral circuit court.
15. When it comes to the section of the ‘Memorandum’ entitled, ‘Whether Pre-Judgment Interest was Appropriately Awarded’, this Court asserts that is can find no abuse of discretion, yet acknowledges that ‘[t]he award of pre-judgment interest is a matter of discretion’, and therefore will not disturb the circuit court’s award of pre-judgment. Yet this same Court also fails to acknowledge the agreement reached in the hearing held on 12 December 2012 with the 11th Circuit Court and your Petitioner, and the other Petitioners, Exhibit 5 (A.R. 53 – A.R. 74); and the disparity between that agreement and the content of the convoluted Final Order, dated 13 October 2013, Exhibit 2 (A.R. 30 – A.R. 42). By the time of the hearing held on 12 December 2012, the 11th Circuit Court had refused to hold any type of ‘trial’ or allow any of the remaining defendants, now Petitioners, to bring forth any of the issues that still stood out as genuine issues of material fact still in dispute, as well as all the multiple discrepancies within this case, so the hearing devolved from an attempt to argue the outstanding issues, as enumerated herein, to that of the economic impact upon your Petitioner and the others pursuant to the arbitrary ‘assessment-fee’, penalties, costs, and such.. But cumulate, this too goes to the questions of due process and the equal protection of the laws not addressed in any court of law to date.
Taken as a whole in reviewing this Court’s Memorandum Decision, it appears to your Petitioner that this Court would rather take the ‘easy way out’ than to properly address and set the record straight that the Respondent, Pocahontas County Solid Waste Authority (PCSWA), as been flawed from its inception by failing to comply with the Constitutional and Statutory Requirements on a timely basis to become a lawful governmental body prior to claiming to conduct its required duties. And that failure then lead to its failure to establish local rules, known as ‘Mandatory Garbage Disposal Regulations’ (MGDR), and its ‘Comprehensive Litter and Solid Waste Control Plan’ (CLSWCP), that should be in full compliance with existing state laws and regulations and that those local rules are still not in compliance as of this date. The chairman of the PCSWA, on his own, then hired a collections-agency – without approval from the Office of the Attorney General, as required by law – to begin a massive lawsuit, yet not a class-action, against several hundreds of county residents, most of whom are Senior Citizens and persons on a fixed-income for the nonpayment of an arbitrary ‘mandatory green-box assessment-fee’, ‘regardless of usage’, that has resulted in judgments against almost one-third of the remaining households in Pocahontas County. While in the 11th Circuit Court, no jury-trial was permitted, no witnesses allowed, no admissible evidence was ever entered onto or within the record showing any violation of any federal or state laws pertaining to the disposal of solid waste. The only allegation was that your Petitioner and all the others sued had failed to pay the arbitrary ‘mandatory green-box assessment-fee’ that had been levied under the color of law against every household but never approved by any referendum or by any other democratic-process.
When this matter was brought before this Court, the same indifference has again occurred in spite of the case discrepancies listed herein and on the face of the record. While your Petitioner is grossly disappointed in this Court’s failure to adequately address the Constitutional issues, the lack of due process and the equal protection of the laws, as set forth herein in your Petitioner’s Brief, Reply Brief & Appendix Record accordingly – your Petitioner, as a woman and Senior Citizen, finds herself not really that much surprised by the lack of concern this Court has shown for either women or Senior Citizens and those on a fixed-income, and for ignoring all the EXEMPTIONS approved by the State Legislature – pursuant to this Court’s callousness as it pertained to the appeal of a multiply raped female prisoner in Supreme Court No. 13-0037, January 2014 Term, in West Virginia Regional Jail and Correctional Facility Authority v. A.B., filed 27 March 2014, all because the profits of an insurance company came before the general and specific welfare of people in general and this imprisoned female prisoner in particular.
Because of this Court’s failure to address the issues presented to it by your Petitioner and others, several hundreds of persons in Pocahontas County have already been sued, and/or are about to be sued again by an unauthorized collections-agency, pursuant to the Respondent’s flawed and dishonest ‘Mandatory Garbage Disposal Regulations’ (MGDR), and its ‘Comprehensive Litter and Solid Waste Control Plan’ (CLSWCP) simply because this case was not remanded to a neutral circuit court for a full review. Why? All because this Court established its own policy, circumventing the State Legislature, in City of Princeton v. Stamper, via a ‘municipal ordinance’ that this Court has tried to impose upon Pocahontas County and who knows where else. Yet no where in the laws of West Virginia does anyone have to pay for something ‘regardless of use’ as this Court is now trying to contend – especially from a small group of people in the county solid waste authority that took between 15 – 21 years to become a lawful government public entity – and it took 18 years in order to claim the right to sue fellow citizens, a claim that is usurped under the color of law and not granted.
As a direct and proximate result, your Petitioner now understands why West Virginia is considered a ‘Judicial Hellhole’ nationally, and why the 11th Circuit Court is considered the ‘Judicial Hellhole’ of West Virginia. There’s only one way this Court can redeem itself – to do the RIGHT CONSTITUTIONAL things all the time as intended for the Courts by Our Founding Fathers – and as required in the Oath-of-Office. And there is only one way this Court can rectify its wrongs against the people of Pocahontas County and that is to remand this case for a declaratory review to a neutral circuit court for a fair and impartial hearing.
WHEREFORE, your Petitioner, pro se, respectfully, for the reasons set forth herein and as set forth in your Petitioner’s Brief, Reply Brief & Appendix Record respectively, does require this Honorable Court to grant this motion for reconsideration, or in the alternative, to remand this case to a neutral circuit court for a full declaratory review; and grant all other and further relief, equitable and otherwise, as this case and social justice may require.
Respectfully Submitted By:
– S/S –
Charlotte W. Elza, Petitioner Pro Se
3785 Wesley Chapel Road
Green Bank, West Virginia 24944
CERTIFICATE OF SERVICE
The above signed does hereby certify that the foregoing has been served on a timely basis to 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 _18th day of _July , 2014.
LAW OFFICES OF DAVID A. SIMS, PLLC
Attorneys at Law / Counsel for Plaintiff
P.O. Box 2659
Elkins, West Virginia 26241
* * * * * * *
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– and –
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