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
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.
Conclusion
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
1.304.456.4954
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.
Provided to:
LAW OFFICES OF DAVID
A. SIMS, PLLC
Attorneys at Law /
Counsel for Plaintiff
P.O. Box 2659
Elkins, West Virginia 26241
Fax: 1.304.636.8001
* * * * * * *
For all those who
believe what is written herein-above is true and correct for straightening out
this county – you still have a chance to do just that…
THAT’S WHY…
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
The Pocahontas Crier is an independent Internet News Service that has now endorsed
two candidates for County Commission
– CHARLES WILFONG & NORMAN LEE ALDERMAN –
in addition to providing in depth news reporting on important issues
directly affecting the Citizens of Pocahontas
County!
► The Pocahontas Crier is a free,
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authority, challenging corruption, and offering Common Sense Alternatives for The Greater Common
Good before Self or any Special Interests!
We struggle for Social Justice on all levels and are part of The Crier Coalition of Internet News Services
comprised of The
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