WINFIELD – As one legal action a Hurricane man filed in Putnam Circuit Court gets under way, another sees some action with the appointment of a special judge, and response by the defendant.
In addition to his lawsuit against Cleveland Construction Inc., Mark V. Halburn, publisher of the news Web site PutnamLive.com, filed a writ of mandamus June 25 seeking assistance in getting the city of Hurricane to begin enforcement of its noise ordinance.
In his writ, Halburn alleges despite repeated requests, city officials have failed to take any action against "excessive noise" coming from the nearby Wal-Mart Supercenter project.
Construction on the Wal-Mart site is taking place above Courts Motors near the westbound entrance to Interstate 64 off Hurricane Creek Road, and across from Halburn's home. Halburn's complaint against excessive noise includes where Kanawha Valley Construction stores its equipment next door.
"Both sites are adjacent to homes that have been standing for more then 30 years in a residential neighborhood," Halburn said. "Common courtesy dictates that neighbors be allowed to live in peace and quiet. The city of Hurricane puts this peace and quiet into codified law."
Both Putnam judges out
A day after Halburn filed his writ, Putnam Circuit Judge O.C. "Hobby" Spaulding, who was initially assigned the case, recused himself.
In his voluntary recusal order, Spaulding cited an unflattering article Halburn previously published about him, and Halburn's repeated calls to his office the day the writ was filed to schedule a hearing.
Since then, Chief Putnam Circuit Judge Ed Eagloski has recused himself from the case. In his voluntary recusal order dated July 3, Eagloski alleged that Halburn attempted to "intimidate" him, too, into scheduling a hearing by making demands on his staff and family, including Del. Patti Eagloski Schoen (R-Putnam), the judge's sister.
On July 12, Robin Jean Davis, chief justice of the state Supreme Court, appointed Robert G. Chafin, a senior status Wayne Circuit judge, to hear the case. Since his appointment, Chafin has not set a hearing date to listen to arguments.
City moves for dismissal
However, the city of Hurricane on July 16, filed its reply to Halburn's writ. Through its attorney Ronald J. Flora, the city says the writ should be dismissed on both procedural and substantive grounds.
"West Virginia Code 53-1-3 specifically requires that all Writs of Mandamus shall be on verified Petition," Flora wrote in his reply. "Based on information and belief, the Petition or Complaint heretofore filed is not verified. ...
"The enforcement of both the Noise and Nuisance Ordinances are not purely ministerial acts as are required to form the basis for a Writ of Mandamus," Flora added. "These acts are discretionary in that the Noise Ordinance itself refers to 'excessive noise.'
"Excessive noise is largely subjective and thus cannot be considered to be a non-discretionary or purely ministerial act for the purposes of the issuance of a Writ of Mandamus."