(#112) 24 November 2015, Vol.2, No.26 > ‘FINALLY
– AN HONEST JUDGE’!
The
POCAHONTAS CRIER
‘When the Righteous succeed the
people rejoice,
But when the bad govern, men groan!’
– Proverbs 29:2
FINALLY –
AN HONEST JUDGE!
Is it a ‘miracle’? Is it a ‘mirage’?
Or is it really true that at last Pocahontas County has an HONEST JUDGE who knows the difference between DUE PROCESS & THE EQUAL PROTECTION OF THE LAWS – as well the difference between SUBSTANTIVE LAW & PROCEDURAL LAW
– as defined in the Fifth & Fourteenth Amendments to the U.S. Constitution
and respective sections of the Constitution of the State of West Virginia and
its applicable statutes and case law?
In a recent 19 page, 68 paragraph decision, dated 02 October 2015, our newest
judge, Judge Richard E. Richardson, Circuit Judge for the Eleventh Circuit
Court of West Virginia, covering Greenbrier & Pocahontas Counties, has
rendered a decision in Civil Case No. 13-C-28 against the Pocahontas County Solid Waste Authority
(PCSWA) in which the PCSWA has grossly overstepped its authority in trying to
sue vast numbers of property-owners within the county over an
arbitrarily PCSWA imposed ‘assessment fee’ , aka, ‘green-box fee’, assessed against
each household within the county, instead of placing a ‘fee’ upon ‘WEIGHT, VOLUME & USAGE’
of whatever solid-waste is actually buried in its landfill ‘open dump’!
The PCSWA can set a ‘fee’ to bury
trash at its landfill-open-dump, and that is usually done at the ‘LANDFILL SCALES’ UPON DELIVERY,
according to the State Law, and that’s what is done for commercial-enterprises! Yet when it
comes to homeowners, the PCSWA wants to impose an ‘assessment fee’ as if it is TAXING EACH HOUSEHOLD…which is ILLEGAL
UNDER THE STATE LAW!
The State Law permits local & regional solid waste authorities the
power to ‘establish
a fee’ for the disposal of solid waste at any given
landfill-open-dump within the State of West Virginia, BUT
those fees are FOR USAGE on a per-trash-bag or per-tonnage basis when the
solid-waste is actually being weighed while driving over a ‘public-scale’ at the landfill! The PCSWA has such a scale at its landfill,
but it’s only applicable for business & corporate truck usage on a per/ton
basis – it’s not permitted by the PCSWA for the rank & file common
homeowner with household solid-waste! The PCSWA has been in
violation of State Law by trying to impose an annual ‘assessment-fee’ upon each household within the county – whether
that household actually uses the landfill-open-dump and has its solid-waste
actually buried – by imposing an annual ‘assessment-fee’
– like a ‘tax’ – upon each household
instead of applying a ‘fee’ upon each
bag of trash to be buried or applying a ‘fee’
on a per/ton or any part thereof – and the ‘fee’
per/ton is less than $2.00 per/ton by law!
IF anyone has solid-waste BURIED at any given landfill-open-dump, then
they should pay a ‘fee’ for the service being rendered – but the law EXEMPTS
those who do not use an open-landfill-dump if they compost, recycle, of dispose
in an otherwise lawful manner which means selling solid-waste to authorized recycling
centers – such as metal scrap yards! And never since its inception has the PCSWA
ever followed established state law by offering EXEMPTIONS for those that
recycle, compost & dispose in an otherwise lawful manner – let alone REDUCE
and/or EXEMPT those on a fixed-income or low-income!
In Pocahontas County, the PCSWA allows businesses & corporations
to pay by the ton or any part thereof by passing over the ‘landfill-scales’ – but when it
comes to households, the PCSWA doesn’t let households pay by the ton or any
part thereof, instead the PCSWA tries to impose an arbitrary annual ‘assessment fee’,
aka, ‘green box
fee’, upon each household – WHETHER THEY USE
THE LANDFILL OR NOT!
And to add insult to injury,
the PCSWA charges ONE ‘FEE’ upon a
household IF that household pays their annual ‘assessment fee’, but IF NOT,
then the PCSWA tries to sue all persons separately that are listed on any given
household deed – claiming differing amounts even though living in the same
household or listed on the same deed!
Yet the reality of
the situation is that the PCSWA has perhaps become the MOST CORRUPT SOLID WASTE
AUTHORITY in West Virginia! It took more than 15 – 18
years for any member of the PCSWA to take an ‘Oath-of-Office’ although THE TAKING OF AN ‘Oath-of-Office’ is required by law BEFORE having its first
meeting! If the PCSWA were properly held
accountable the PCSWA would owe more than $100,000 in fines & penalties for
their individual & collective failure to take the proper & required ‘Oath-of-Office’ on a timely basis! And again, to add insult to injury, the ‘stupid’ members of the PCSWA thought
they could devise its ‘Mandatory Garbage
Disposal Regulations’ (MGDR) BEFORE THE PCSWA WAS EVER A LEGAL &
AUTHORIZED SOLID WASTE AUTHORITY!
Other improprieties show that Ed Riley has been in charge of all PCSWA
funds for 25 years or more – WITHOUT EVER MAKING A PUBLIC DISCLOSURE OR PUBLIC AUDIT
– contrary to federal & state law requiring a public-accounting
& budget on a YEARLY BASIS! Since
Riley has been in charge of all those PCSWA funds held in
Certificate-of-Deposits (CDs) in increments of $100,000 and now $250,000 in
banks under FDIC that only he has chosen – there is
no telling how much of those funds have been used by him as collateral in the
various land-schemes & purchases that he has made in the past 25 years when
he has purchased land and then resold the same land shortly thereafter – called ‘flipping real-estate’! BUT WE ARE SURE A FEW FEDERAL AUDITORS MAY BE
INTERESTED!
And as for Jim Burks who has also been on the PCSWA since its
inception starting as the owner of County Disposal, Inc. in which he had a direct hand in setting the
price/per/ton for his trucks to pay while passing over the ‘landfill-scales’ – and at the same time setting the annual ‘assessment fee’ for each household – Burks has been able to make his profits at the expense of
every household in the county – although the State Law FORBIDS HAVING A DIRECT
FINANCIAL INTEREST WHILE ON A GIVEN BOARD!
This has taken place at the same time as his (former) ‘pharmacy’ was filling the prescriptions
of Dr. John Sharp that placed Pocahontas County as the third-worst county in
all of America with the plague of ‘prescription
drug abuse’! And did we mention that Burks was ILLEGAL all the years that he made
decisions on the PCSWA for the ‘fee’
charged per/ton at the landfill-scales for his trucks & profit at the same
time setting an annual ‘assessment fee’
upon each household?
Last but not least, the ‘shyster-lawyer’
that Riley has used through the years to persecute & prosecute the
household homeowners in this county – has himself been acting ILLEGAL and contrary to EXISTING
State Law! But just as Riley,
Burks & Simms prepare to continue the scam of their lawsuits in Magistrate
Court – since as PER THE RECENT NEW COURT DECISION
they have effectively been thrown out of Circuit Court for the moment – a
new lawsuit is also being prepared as a TRUE CLASS ACTION (and possible RICO
style case) against the PCSWA & others on behalf of the Citizens of this
county! As a direct & proximate
result, it should all be coming to a head in the very near future…
For those that know, Judge Richardson simply ruled that the PCSWA
violated PROCEDURAL DUE PROCESS – still to come is a decision on the
SUBSTANTIVE LAW in which the PCSWA violates both constitutional & statutory
law!
In a Court Hearing on 20 November 2015, the
PCSWA begged the Court to reverse its ruling of 02 October 2015 and allow the
PCSWA to continue suing hundreds of homeowners in bulk – while not calling their case a ‘class action’ case -
BUT THE COURT RULED AGAINST THE PCSWA for continuing their violation of
Procedural Law! Now
the PCSWA has to pay a filing fee for each case it sues in Magistrate Court,
and for everyone of low-income that loses – they
can still file for a wavier-of-fees and move their case into Circuit Court
where the matter can be heard AGAIN FROM THE BEGINNING!
Below is a Judicial Notice, as filed by Thomas
Stratton, in which the Court took judicial notice and set a hearing date on 11 December
2015 to force the PCSWA to show cause as to whether it has any real
jurisdiction over Mr. Stratton since he is a Citizen of the Commonwealth of
Virginia, and not of the State of West Virginia, specifically because his
property is located on the border between Virginia & West Virginia and the
bulk of his property is within the Commonwealth of Virginia. Even so, Mr. Stratton set forth a number of
issues still not decided in any Court of Law so far as to the numerous
discrepancies continued to be carried out by the PCSWA. Now that we finally have an HONEST JUDGE in Pocahontas County – we duly await a Righteous
outcome!
********************
IN THE CIRCUIT COURT
OF POCAHONTAS
COUNTY
MARLINTON, WEST VIRGINIA
POCAHONTAS COUNTY
SOLID WASTE
AUTHORITY,
Plaintiff,
v. Civil
Action No. 13-C-28
LARRY W. ALDERMAN, et
al.,
Defendants.
DEFENDANT STRATTON: THIRD JUDICIAL
NOTICE OF CASE
DISCREPANCIES AS PER PLAINTIFF’S MOTION
TO ALTER OR AMEND JUDGMENT OF COURT’S ORDER DATED 01 OCTOBER 2015
COMES NOW, your
Defendant, Thomas G. Stratton, pro se,
and files this Third Judicial Notice of Case Discrepancies as per Plaintiff’s
Motion to Alter or Amend Judgment of Court’s Order dated 01 October 2015, for
reasons set forth herein, and for the record says as follows:
1. On or about 05 January 2015, your Defendant
filed his First Judicial Notice of Case Discrepancies as it pertained to
the failure of the Plaintiff to have proper jurisdiction over your Defendant
whose property in question is situated within the Commonwealth of Virginia and
not in the State of West Virginia apparently as falsely presumed. To
date the Plaintiff has failed to prove by a preponderance of evidence or by any
certified survey that your Defendant is situated in the State of West Virginia,
as clearly set forth in this matter by your Defendant to date therein.
2. On or about 01 May 2015, your Defendant filed
his Second Judicial Notice as it pertained to case discrepancies,
Plaintiff’s lack of jurisdiction and opposition to Plaintiff’s Motion for
Summary Judgment in Civil Action No. 07-C-30(P), accordingly, since even if
your Defendant was under the jurisdiction of the Plaintiff, the record is clear
that the statutory laws regarding the proper disposal of solid waste in West
Virginia requires either a reduction of landfill ‘fees’ or the exemption of ‘fees’
altogether for all persons of low and/or ‘fixed-income’, such as your Defendant, a Senior Citizen, as
well as the exemption for all persons who recycle, compost, take to another
solid waste authority, or dispose in an otherwise lawful manner. WVC
§22C-4-10(c). In regards to the
exempt-issues of recycling, composting, use of the ‘free-day’, disposal in an otherwise lawful manner, or taking to
another solid waste authority, see: WVC
§20-11-5a(e) and WVC §20-11-5b(e),West
Virginia Recycling Plan; WVC §22-15-11(e),
Solid Waste Management Act; WVC §22-16-4(e),
Solid Waste Landfill Closure Assistance Program; and WVC §22C-4-30(e), County and Regional Solid Waste Authorities, respectively
– especially since the policing of all compliance, as a public utility, for the
proper disposal of solid waste rests with the Public Service Commission (PSC)
and specifically with the Division of Environmental Protection (DEP), 33CSR7.2, et seq., and not solely or even partially
does enforcement rest with the Plaintiff pursuant to all the West Virginia
State Statutes referenced-above. Yet to date, the Plaintiff has provided NO
PROVISIONS in its alleged ‘Mandatory Garbage Disposal Regulations’ (MGDRs) for
any process or procedure to provide Citizens the opportunity to apply for
exemptions for all persons that qualify as required and set forth in West Virginia State Law. Thus even IF the Plaintiff had
jurisdiction over your Defendant, your
Defendant would still be entitled to be exempt, pursuant to the various
statutes of the West Virginia Code accordingly.
3. And as it pertains to the so-called ‘Mandatory Garbage Disposal Regulations’
(MGDRs), it is rarely clear which one(s) the Plaintiff is ever referring to
since they have prepared several with little to no changes other than date of
issue. At no time to date has the Plaintiff been in full compliance with the respective
West Virginia State Laws as to the elements of EXEMPTIONS as provided by State Statutes
in any of its MGDRs. However when it
comes to providing a ‘Free Day’, as
required by State Law, the Plaintiff arbitrarily requires proof of using the ‘Free Day’ once each month – yet even IF
your Defendant was situated in West Virginia, pursuant to the fact that the
access road to and from your Defendant’s property is NOT MAINTAINED by the West
Virginia Department of Transportation, at all, let alone during the winter
months, and the fact that no private hauler in West Virginia is willing to
service the property of your Defendant at any time during the year, situated on
the mountain-ridge separating Virginia from West Virginia, thus the demand for
an ‘every month compliance’ is
specifically precluded via weather conditions as per the ‘monthly demand’ of the MGDRs.
Besides, your Defendant can more easily dispose of his solid waste via
the laws of the Commonwealth of Virginia where he is situated specifically
since those laws are more in line with Common Sense for the mutual benefit of
all concerned – compared to the self-serving monetary-scheme manipulated by the
Plaintiff which imposes an arbitrary “assessment
fee”, aka “green box fee”, without
consideration for ‘weight, volume or
usage’, upon each household and property owner while at the same
time allowing commercial enterprises to use the “landfill scales” at the landfill for disposal of their solid waste
via a rate pursuant to ‘weight, volume
& usage’ on a per/ton bases or any part thereof. This dual-payment-scheme is unequal to the rest
of the counties in West Virginia whereby ‘weight,
volume & usage’ is equally applied to all Citizens and commercial
enterprises alike inclusive, as per WVC §22-15-11(a).
Case Discrepancies to Date
4. Plaintiff refers to W.Va. Code §22C-4-10a, on p.3 of ‘Plaintiff’s Motion to Alter or Amend Judgment of Court’s Order
Dismissing Plaintiff’s Complaint for Improper Joinder and Jurisdictional
Limits’ (herein, ‘Plt’s Motion’),
whereby the Statute clearly states, “Each person occupying a residence or
operating a business….” (Bold & Underline emphasis); and on p.4,
the State Law provides disposal of solid waste “in any other lawful manner”. (Bold emphasis). Yet by contrast and discrepancy with State
Law, the Plaintiff’s 2006 MGDRs at 4.2, clearly states, “Each person owning a
residence in Pocahontas
County….” (Bold
& Underline emphasis). The changing
of the wording from ‘occupying’ to ‘owning’ creates an even more egregious
scenario whereby the Plaintiff places one arbitrary ‘assessment fee’, aka, ‘green box
fee’, upon each household in the county when that household agrees to
pay such, yet when not paid, the Plaintiff then charges & sues EACH
PERSON ON THE DEED, including children under 18 years of age as well
as deceased persons, with an ‘assessment
fee’, and a penalty fee, and additional costs, etc. – yet the Plaintiff has not been able to show it has such authority
especially in light of the ‘checks &
balances’ requirements that authorize the policing of such public utilities
as resting solely with the Department of Environmental Protection (DEP) to
investigate & prosecute any and all offenders, and the Public Service Commission (PSC) to establish a fee and
penalty for anyone found in violation of the proper disposal of any given solid
waste; as seen in: WVC §33-7-2, ‘Each person occupying
a residence…must be able to provide proof to the Division of Environmental
Protection that his solid waste was disposed of at an approved solid waste
facility’, or in an otherwise lawful manner. (Bold & Underline emphasis). See also that enforcement is relegated only
to the DEP, 33CSR7.2, et
seq., thus the Plaintiff seems to be unlawfully usurping the lawful
authority of the DEP & PSC.
5. On p.4, ‘Plt’s
Motion’, the Plaintiff also references W.Va. Code §22C-4-8, whereby it states “or (ii) proper disposal at an approved
solid waste facility or in an otherwise
lawful manner”. (Bold
emphasis). At no time or place in any of
its MGDRs to date does the Plaintiff define its interpretation of what “an
otherwise lawful manner” means to them particularly when State Law EXEMPTS all those that compost, recycle
and dispose in an otherwise lawful manner such as selling all recyclables to
qualified metal salvage yards, glass & paper collection services, and
plastic collection services, etc., etc.
The Plaintiff has no provisions for any Citizen to provide
Proof-of-Compliance outside of a payment to the PCSWA or a private hauler
contrary to State Law.
6. Also on p.4, ‘Plt’s Motion’, the Plaintiff claims that it has a “Comprehensive Litter and Solid Waste
Control Plan” (CLSWCP), allegedly
in compliance with W.Va. Code §22C-4-8
& §22C-4-8(b)(4) & §22C-4-8(a), respectively; yet the Plaintiff has
never made public any financial reports, if any, validating the sale of
recyclable items to offset the cost of operating its landfill. Its recent claims to be permitting ‘voluntary recycling’ has been a subterfuge and public relations gimmick since
the very same CLSWCP clearly states at CLSWCP,
pg. 7, §V, to wit: “[A] mandatory county-wide source
separation program is felt to be impractical, economically unfeasible, and will
not be implemented”. [Bold
& Underline emphasis]. Stating that
no source-separation recycling program will be implemented, yet demanding an
arbitrary ‘assessment fee’, aka, ‘green
box fee’ upon every household / dwelling, and ignoring ‘exemptions’, stands
contrary to existing State Laws, such as WVC
§22-15A-5(c), Government Recycling
Responsibilities, which
clearly requires:
“(2) To further promote recycling and reduction of the waste stream,
county and municipal governments shall consider the establishment of recycling
programs as provided in this section in the operation of their facilities and
shall evaluate the cost-effectiveness of:
(A) Procedures that separate identifiable recyclable materials from
solid waste collected; and,
(B) Programs that provide for:
(i) The establishment of a collection place for recyclables at all landfills
and other interim solid waste collection sites and arrangements for the
material collected to be recycled;
(ii) Public notification of such places and encouragement to participate;
(iii) The use of rate differentials at landfills to facilitate public
participation in on-site recycling programs.” [Bold & Underline emphasis].
7. Throughout ‘Plt’s Motion’, the Plaintiff accuses all its Defendants of failing
“to make payment on those invoices and they failed to produce evidence that they
properly disposed of their solid waste through the use of other garbage
services operating in and around Pocahontas
County, West Virginia.”
(Bold emphasis). Yet the Plaintiff only
recognizes two (2) methods within its MGDRs – subscribing to a private hauler
or paying the mandatory ‘assessment fee’,
aka, ‘green box fee’ – thereby totally ignoring the fact that there are no less than six-methods of
proper disposal recognized by State Laws, four (4) of which provide ‘exemption’ from fees:
·
Subscribing to a private hauler, WVC §22C-4-8(b)(4);
·
Paying a landfill ‘assessment fee’ for the burial of solid waste, WVC §20-11-5(a);
·
Exemption
from all fees for using the ‘Free
Day’, WVC §20-11-5(e)(3); WVC §22-15A-18(e)(3);
·
Exemption
from all fees for Reuse or Recycling of solid waste, WVC §20-11-5(e)(2); WVC §22-15A-18(e)(2);
·
Exemption
from all fees for Composting, WVC
§22-15-2(10) ; and,
·
Exemption
from all fees for disposing ‘in an otherwise lawful manner’,
such as selling recyclable items to commercial recycling centers, or disposing at any solid waste disposal facility in
this state, WVC §22C-4-8(b)(4); WVC §22-15-11(a) ; & WVC §22-16-4(a).
·
And an additional ‘exemption’ that can be
included for all those on a low ‘fixed-income’ pursuant to WVC §22C-4-10(c).
These six-methods with four (4) (or five) ‘exemptions’ can be found in the referenced
statutes, but cannot be found in Respondent’s MGDRs or CLSWCP. The ‘exemptions’
belong to the people of West Virginia,
not to the county or regional solid waste authorities. This is why your Defendant and others in
general assert that the Plaintiff is in violation of West Virginia State Laws,
since the Plaintiff omits sections of the State Laws it wishes to ignore, and
actually does ignore in its MGDRs & CLSWCP – while your Defendant and others at the same time assert that they are
following the State Laws – in spite of the fact that the Plaintiff is refusing
to accept specific elements and aspects of the State Laws. Other than the use of the ‘free day’, the Plaintiff has never
provided in any of its MGDRs all the various Proofs-of-Compliance, nor is the
Plaintiff authorized to enforce the solid waste laws – other than run its
open-dump-landfill – since all enforcement powers rests with the DEP & PSC,
respectively, for verification of the various Proofs-of-Compliance.
As
for ‘Free Day’
·
WVC §22-15-7. Special provision for residential solid waste disposal.
“All commercial and public landfills shall
establish and publish a yearly schedule providing for one day per month on which a person not in the
business of hauling or disposing of solid waste may dispose of, in a landfill,
an amount of residential solid waste, up to one pick-up truckload or its
equivalent, free of all charges and fees.”
·
WVC §22-15-11, Solid Waste Management Act:
(a) Imposition.
– A solid waste assessment fee is hereby imposed upon the disposal of solid
waste at any solid waste disposal
facility in this state in the amount of one dollar and seventy-five
cents per ton or part thereof
of solid waste;
(b)(1) The fee imposed by this section accrues at the time the solid waste is
delivered to the solid
waste disposal facility;
(e)
Exemptions –
The following transactions are exempt
from the fee imposed by
this section:
(e)(2) Reuse or recycling of any solid waste;
(e)(3) Disposal of residential solid waste by an
individual not in the business of
hauling or disposing of solid waste on such days
and times as designated
by the director is
exempt from the solid waste assessment fee;
.
·
WVC §22-16-4, Solid Waste Landfill
Closure Assistance Program:
(a) same wording as WVC §22-15-11(a) – per ton or part thereof;
(b)(1) same wording as WVC §22-15-11(b)(1) – fee when delivered to landfill;
(e) same wording as WVC §22-15-11(e) – Exemptions;
(e)(2) same wording as WVC §22-15-11(e)(2) – Exempt for Reuse or
Recycling;
(e)(3) same wording as WVC §22-15-11(e)(3) – Exempt for Free Day.
·
WVC §22C-4-30, County
and Regional Solid Waste Authorities:
(e) same wording as WVC §22-15-11(e) & WVC §22-16-4(e) – Exemptions;
(e)(2) same wording as WVC §22-15-11(e)(2) & WVC §22-16-4(e)(2)
– Exempt
for Reuse or
Recycling;
(e)(3) same wording
as WVC §22-15-11(e)(3) & WVC
§22-16-4(e)(3) – Exempt
for Free Day. (Bold & Underline emphasis throughout).
Imposition of a Municipal Ordinance upon a County
8. While the Plaintiff, p.5, ‘Plt’s Motion’, likes to claim reliance
upon the Supreme Court of West Virginia decision City of Princeton v. Stamper,
195 W.Va.
685, 466 S.E.2d 536 (1995), for imposing a City of Princeton Ordinance upon the
Citizens of Pocahontas County, without Pocahontas Citizen elective approval, it
has never been clarified as to just how this specific Princeton City Ordinance
is applicable to Pocahontas County and no other county in West Virginia; nor
why the City Ordinance in the City of Charleston taking $1.00 (one-dollar) from
every paycheck from everyone who works in the City of Charleston is not
applicable to all the Citizens of Kanawha County, let alone everyone in every
other county within West Virginia. Yet
even so, the City of Princeton
Ordinance, at §1131.10, clearly provides EXEMPTION for all persons unable to pay
the fee imposed pursuant to low income indigence. Both forms and criteria are established by
the City of Princeton, yet not included in its applicability to Pocahontas
County apparently, relevant to specific financial circumstances similar to
those applicable exemptions for the filing of civil cases, costs & fees, in
the Magisterial, Circuit and Supreme Court of West Virginia – something
glaringly absent in the Plaintiff’s MGDRs.
9. At p.9, ‘Plt’s
Motion’, the Plaintiff complains that the Court’s Order, ‘Dissmissing this civil action on the basis
of improper joinder merely compounds the problem of enforcing mandatory
disposal regulations for the reasons set forth herein’; is a prime example
of the Plaintiff ignoring due process and the equal protection of the laws to
make it convenient for the Plaintiff and the placing of the expenses upon the
Citizens of Pocahontas County – IN THE SAME MANNER as it wishes to impose its
defective MGDRs upon the Citizens of this county for its own monetary
advantage. IF this county had source separation of solid waste, as
recycling would entail, then the Plaintiff would be obligated by State Law to
SELL ITS RECYCLABLE MATERIALS to offset the cost of operating its
open-dump-landfill, but instead, the Plaintiff chooses to impose a mandatory ‘assessment fee’, aka, ‘green box fee’
upon every household in the county, regardless of ‘weight, volume or usage’, while permitting commercial enterprises
to use the ‘scale’ at the landfill
for their ‘weight, volume & usage’ and pay a fee by the ton or any
part thereof. This duplicity &
disparity forces the households to involuntarily subsidize the landfill, and
the commercial enterprises, to the extent that households pay 75+% of the cost
while using only 23% of the landfill volume, while commercial enterprises only
pay 25% of costs while using 75% of the landfill volume – and this includes the
area ski resorts as the largest landfill users.
This same usurpation of powers is also applicable to the usurpation of
the Plaintiff over the authority granted to the DEP & PSC pertaining to
enforcement of solid waste laws which does not authorize the Plaintiff in its ‘collections collective lawsuits’
currently against as many as one/third of county households to date.
Lack of Authorization = Lack of Jurisdiction
10. Of the many discrepancies involved in this
long-running dispute with the Plaintiff, as the Pocahontas County Solid Waste
Authority (PCSWA), a public utility, the one major element that has never been
addressed, let alone decided, by any court to date, is found in WVC §22C-4-9 whereby NO
WRITTEN AUTHORIZATION EXISTS from the Office of the Attorney General of
West Virginia to permit the PCSWA to hire any private-attorney to enforce any
of its claims alleging collection-cases from an arbitrary annual fixed ‘assessment fee’, aka, ‘green box fee’,
established in what normally would be called an ultra vires
manner. Yet on or about 29 June 2007,
the PCSWA, through a private-collections-attorney, initiated Civil Action No. 07-C-30(P) against
more than 430, and as many as 500 or more persons in toto pursuant to the defective “Mandatory Garbage Disposal
Regulations” (MGDR) initiated on or about 1 July 1991, that totally ignored the
‘exemption
sections’ of the State Statutes, and stands contrary to W. Va. Codes §22C-4-8(b)(4) and §22C-4-10, respectively. As a direct and proximate result of the
current counsel representing the Plaintiff, as a public utility, stands in
direct violation of WVC §22C-4-9, thus
all activities and filings from the Plaintiff should be considered, as a matter
of law and fact, void ab initio.
And this instant action is but an extension of Civil Action No. 07-C-30(P) in which most of those cases were filed
against Senior Citizens who in the majority never were able to respond due to
lack-of-knowledge and lack-of-funds to obtain counsel. NOW
THE PLAINIFF wishes to sue the same persons again and again, every five (5) years,
and run up thousands & thousands-of-dollars in ‘Abstract Judgments’ in order to start foreclosing & seizing
private households that receive low-wages or fixed-incomes – all the while the
Plaintiff NEVER provides the EXEMPTIONS allowed by law in its MGDRs – nor does
the Plaintiff ever define a lawful definition to disposing of solid waste IN AN
OTHERWISE LAWFUL MANNER. Since the
MGDRs do not provide provisions for exemptions, of any kind, then it becomes
impossible for anyone to show Proof-of-Compliance pursuant to State Law instead
of local ordinance MGDRs that ignore existing State Laws.
Denying Due Process & Equal Protection of Laws
11. On p.19, ‘Plt’s
Motion’, the Plaintiff specifically resorts to it claims that ONLY TWO
OPTIONS are available: (a) pay the arbitrarily ‘assessment fee’, aka, ‘green box fee’, or (b) pay a private
hauler. Absent as a matter of law and
fact is the STATE STATUTES that permit EXEMPTIONS as set forth
herein-above. By denying the State
Exemptions, the Citizens of Pocahontas County are being denied what other
Citizens of West Virginia are permitted to do; and by refusing to recycle or
establish source-separation, the
Citizens of Pocahontas County are forced to support a ‘sprawling-open-dump-landfill’
instead of benefiting from solid waste REDUCTION as intended by the laws of
West Virginia and elsewhere. Recycling
not only reduces the burial of solid waste by eliminating recyclable items, and
burying only compost waste, it also makes open-dump-landfills recyclable in a
decade or less to eliminate ‘open-dump-sprawl’.
12. On p.20 & 23, ‘Plt’s Motion’, the Plaintiff complains about previous ‘collection-cases’ being appealed from
Magistrate Court to Circuit Court in forma pauperis in which no
court fees were collected – which is a direct & proximate result of persons
in Pocahontas County living on minimum wages, instead of living-wages, and/or
fixed-incomes of SS, SSD, etc. Yet IF
the Plaintiff were to follow the laws of West Virginia, instead of just their
arbitrarily created MGDRs, they would be involved in raising funds via selling
recyclables accordingly – and the sale of former ‘landfill-cells’ for compost accordingly as intended by law. But Common Sense would indicated that IF
persons have to file for an exemption of fees to use the court system, that
THAT is also an indication that a very large number of persons are of low or
fixed-incomes that they cannot pay the Plaintiff’s annual ‘assessment fee’, aka, ‘green box fee’ pursuant to low or
fixed-incomes as well. As it stands now,
almost one-third of the approximate 3400 households have been sued by the
Plaintiff to date without authorization from the Office of the Attorney General
of West Virginia.
Supporting Case Law
13. Your Defendant has filed on a timely basis
his judicial notice of case discrepancies pursuant to Miller v. Triplett,
203 W.Va.
351, 507 S.E.2d 714 (1998); this instant matter is a proper case for jury
determination, Sargent v. Malcomb, 150 W.Va. 393, 146 S.E. 2d 561
(1966); motions of defendant have set out errors, Montgomery v. Montgomery,
147 W.Va. 4449, 128 S.E.2d 480 (1962); grounds via motions have been set out
with particularity, Steptoe v. Mason, 153 W.Va.
783, 172 S.E.2d 587 (1970);
discrepancies were timely filed, Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d
600 (1992), Graf v. West Va. Univ., 189 W.Va. 21,
429 S.E.2d 496 (1992), James M.B v. Carolyn M., 193
W.Va. 289, 456 S.E.2d 16 (1995), Richardson v. Kennedy, 197
W.Va. 326, 475 S.E.2d 418 (1996); and substantial justice has not been done,
including issues of discretion, Morrison v. Sharma, 200 W.Va.
192, 488 S.E.2d 467 (1997), Brooks v. Harris, 201 W.Va.
184, 495 S.E.2d 555 (1997).
14.
A jury of reasonable persons as the trier of facts could very well
conclude that the controversies of this matter have not yet been
disposed or concluded. This therefore is
the opposite of what is found in Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12
(1995), in which the State Supreme Court ruled, to wit:
“A
decision is final when it disposes of the entire controversy and leaves
nothing
further
for the circuit court to consider. A
case is final only when it terminates
the litigation between the parties on
the merits of the case and leaves nothing to be
done but to enforce execution of what has
been determined.”
(Bold & Underline emphasis).
As for this instant case, it was set to
proceed in the same order as Civil
Action No. 07-C-30(P), whereby the
record shows that there was no admissible evidence or witnesses to present or defend
any affidavits, nor bring testimony or raise issues of disparities; instead,
the only ‘testimony’ came from ‘collections-agency’ counsel for the
Plaintiff which the presiding judge allowed over objection. AT NO TIME DID THE PLAINTIFF EVER ALLEGE
THAT ANY DEFENDANT DID NOT DISPOPSE OF THEIR SOLID WASTE IN AN UNLAWFUL MANNER
– just that the Plaintiff wasn’t paid any fees. And while the Eleventh Circuit Court seemingly
allowed ‘municipal case law’ to be
entertained, by comparison it did not wish to engage in the discrepancies
between the MGDRs & CLSWCP and existing State Laws to proceed as shown by
examples therein. Therefore, as shown in
Cavender v. Fouty, 195 W.Va. 94, 464 S.E.2d 736
(1995), to wit:
“The
court must grant the nonmoving party the benefit of inferences, as
credibility
determinations, the weighing of the
evidence, and the drawing of legitimate
inferences from the facts are jury
functions, not those of a judge.” (Bold
&
Underline emphasis).
Requesting a jury trial in a change of venue
had been a consistent request by your Defendant and others in Civil Action No. 07-C-30(P), and a just settlement in this matter would
be the proper determination of the rights, status and legal relationships
between the parties involved, and the various governing statutes in comparison
to Plaintiff’s MGDRs & CLSWCP, respectively.
15. Last, but not least, in Civil Action No. 07-C-30(P) the Plaintiff relied upon ‘municipal case law’ to justify its
actions upon a county, referencing: Cooper v. City of Charleston, 218 W.Va. 279, 624 S.E.2d 279 (2005) pertaining
to a ‘city service fee’; City of Huntington v. Bacon,
196 W.Va. 457, 473 S.E.2d 743 (1996)
pertaining to a ‘user fee not a
tax’; and, City of
Princeton v. Stamper, 195 W.Va.
685, 466 S.E.2d 536 (1995) pertaining to preventing a health menace. Yet even if ‘municipal case law’ were applicable to the counties in which
the municipalities in these cases are located, which they weren’t applied, ‘municipal ordinances’ would still not be applicable to other counties unless
made applicable by law by the State Legislature. And even so, in each of these municipal
cases, the ordinances were applicable to all on an equal basis – and
not one in which the commercial enterprises had one set of disposal options, as
in Pocahontas County, and the private households & dwellings have only two
options, as per the Plaintiff that are not the same as applicable to
commercial enterprises. As shown
in MGDR § 4.1 compared to § 4.2, respectively.
And in addition to this disparity, the existing State Laws regulating
county and regional solid waste authorities requires certain ‘exemptions’ for specific
circumstances and conditions – that are being ignored by the Plaintiff – thus
denying specific rights to the Citizens of Pocahontas County enjoyed in all
other counties. Therefore, there are
many case discrepancies appearing as genuine issues of material fact still in
dispute in this instant matter that constitute controversy still not terminated
in a just and honorable manner as per Id.,
Strahin.
Conclusion
16. While the Plaintiff would like this Court to
issue a ‘Case Management Order’ to
justify and mask their continuing lawsuits against the hundreds-of-households
that have “not complied with mandatory
disposal regulations” – the Court must recognize that the Plaintiff HAS NOT COMPLIED with existing State
Laws in its ‘mandatory disposal
regulations’ that provide EXEMPTIONS ‘from all fees’, and/or
the reduction or exemption of fees for the burial of solid waste in the
open-dump-landfill for all persons of low-incomes or fixed-incomes
accordingly. Also the Plaintiff has in
effect two (2) different solid waste collection systems, one for commercial
enterprises permitted to use the ‘landfill
scales’ and pay on a per/ton or any portion thereof basis; and the
other an annual mandatory ‘assessment
fee’, aka, ‘green box fee’ arbitrarily placed against each household /
dwelling whether used or not, and contrary to existing State Law that requires
the payment of landfill-fees to be paid ‘when delivered to landfill’ – with the exception of the ‘free day’ – as enumerated
herein-above.
For the Court to grant the
Plaintiff its wishes to continue to lump all Defendants into the same pot and
expect different results, the reality would be no different than those found in
Civil Action No. 07-C-30(P) whereby
no single Defendant was allotted enough time to set forth their reasons for
non-compliance of the ‘mandatory disposal
regulations’, nor time to call, question, or cross-examine any witnesses,
even those claiming affidavits, let alone have the Court examine the MGDRs in
comparison to existing State Laws. And
pursuant to the lack of sophistication of the Defendants in general, the
Plaintiffs method of ‘extortion’ was
completed since all the Plaintiff was interested in was an ‘Abstract Judgment’ for
them to obtain a gain at the expense of the low-income private household
owners.
Before this instant case should
move forward – a complete analysis of the MGDRs and existing State Laws should
be determined for the mutual benefit of all concerned – including establishing
the legal rights, status & legal relationships involved – especially in
light of the fact that so many households / dwellings are not paying, or cannot
pay, the ‘mandatory disposal regulations’. And that then raises the nebulous situation
of having an UNELECTED quasi-government-agency of appointed-persons arbitrarily
placing ‘Abstract Judgments’ against private-property-owners allegedly
for ‘collections’
and then trying to force ‘FORECLOSURES’ upon all those with ‘Abstract
Judgments’ via ‘mass-collection-cases’
– not just once, but multiple times over with cumulative ‘Abstract Judgments’ carrying
usury charges. Foreclosures over an ‘annual
mandatory fee’ in Pocahontas County while in all other counties in West
Virginia solid waste disposal is conducted on a ‘weight, volume & usage’
basis as set forth in the State Law.
Never has the Plaintiff ever alleged that anyone has ever not disposed
of their solid waste in an otherwise lawful manner – the only accusation is
that the Plaintiff was not paid its annual ‘assessment
fee’, aka, ‘green box fee’.
WHEREFORE, your Defendant, pro se, respectfully requests this
Honorable Court to require Plaintiff to show by a preponderance of evidence
that it has proper jurisdiction over your Defendant based upon a verified
survey or otherwise pursuant the property in question situate between Virginia
and West Virginia; to grant a complete analysis of the Plaintiff’s MGDRs compared
to existing State Laws; to demand a showing of proof that the Plaintiff is duly
authorized by the Office of the Attorney General to hire private counsel and
pursue ‘collection cases’ & issue ‘Abstract Judgments’; and grant
such other and further relief, equitable and otherwise, as this case and social
justice may require.
Respectfully
Submitted By:
S / S
____________________________
Thomas G. Stratton,
Defendant Pro Se
Apt. 504
800 West Ridgeway Street
Clifton Forge,
Virginia 24422
1.540.865.0305
CERTIFICATION OF SERVICE
I, THOMAS G. STRATTON, Defendant pro se, do hereby certify that I have
provided a copy
of
the foregoing via first-class mail, U.S. Postal Service; or in the alternative,
via facsimile to
Counsel
for Plaintiff, at their last known address listed below; on this the 17th day of
November, 2015.
Mailed to:
LAW OFFICES OF DAVID
A. SIMS, PLLC
P.O. Box 5349
Vienna, West Virginia 26105
Fax: 1.304.428.5293
ONE WAY OR ANOTHER…WE ALL REAP WHAT WE HAVE
SOWN…& then some!
♦♦♦♦♦♦♦♦♦♦♦♦♦♦♦
The Pocahontas Crier is an independent, free, non-subscription, Internet News Service
providing in depth reporting on important issues directly affecting the
Citizens
of Pocahontas County, West Virginia, and meant for entertainment in
the true ‘muckraking’ & ‘iconoclast’
tradition of questioning authority, challenging corruption, exposing
impropriety and the appearance of impropriety, and offering Common Sense
Alternatives for
THE
GREATER COMMON GOOD BEFORE SELF…
or any
Special Interests!
We fight for Social
Justice on all fronts and are an integral part of The
Crier Coalition of Internet News Services comprised of The Pocahontas Commentator, The Pocahontas Crier,
Signal Fires of WV, &
Rolling Thunder in association with
Echoes from
the Holl’r.
Email comments & suggestions to:
