CATCHING UP: Groups want to join Mountain Watch coal suit

By John O'Brien | Aug 9, 2006

CHARLESTON - Groups are lining up to be involved in Coal River Mountain Watch's lawsuit against the state's Department of Transportation and Public Service Commission.

But this is no class action suit. Two groups have thrown in their names with the hope of becoming defendants.

Obviously, it's become anything but an ordinary case, and it's enough to make attorney John Skaggs chuckle.

"Nothing I'm involved in has ever happened before," said a laughing Skaggs, who is representing CRMW in its effort to overturn the state Legislature's creation of the Coal Resource Transportation System.

On May 10, the West Virginia Natural Resources Transporters Association filed a petition with Kanawha Circuit Judge Irene Berger to intervene as a defendant. Another coal association, Skaggs said, also has been accepted as a defendant.

Skaggs, of Charleston's The Calwell Practice, couldn't come up with another instance in which he has seen this.

"They wanted to make sure their own interests are protected," he said.

The Transporters Association petition, filed June 1, says, "The interveners seek to represent the interest of the state in this matter, to the extent that both have proffered answers. The intention of the interveners is to participate fully in these proceedings as an advocate for the complete constitutionality of the statutes in issue."

The following is a look at the recent movements of this case and six others that were filed this year in Kanawha Circuit Court:

Coal River Mountain Watch v. Danny Ellis, Cabinet Secretary of the West Virginia Department of Transportation, et al.

PA-John Skaggs; J-Berger

A scheduling order has been issued by Berger that sets the trial date as June 4, 2007. The lawsuit was filed Feb. 10.

However, Skaggs says certain procedures can be accelerated if Berger agrees with his Motion for Partial Summary Judgment, which was filed July 10, on the issue.

He is seeking agreement on one of three issues: That the idea of the state Legislature managing roadways is unconstitutional because it should be the Department of Transportation's job; That the addition of certain roads in Webster, Nicholas and Braxton counties into the CRTS by the Legislature was unconstitutional; or the Legislature's creation of the CRTS was not a reasonable government purpose.

Coal River Mountain Watch says coal transport trucks are being allowed to exceed DOT weight restrictions on bridges and roads and are causing damage to the CRTS roads and citizens who live along them.

"It could accelerate the case, if she grants us this motion," Skaggs said.

"Our original motion does put the state in a little bit of a bind because the Department of Transportation, I think, would want to agree they are the authority in charge of the state's highways and the Legislature is not allowed to micro-manage state roads."

Skaggs says there is "all kinds of case law" to support the unconstitutionality of the creation of the CRTS, which occurred in 2003.

The case file, which is already held in two folders because it has become so thick, includes pictures of destruction to the roads and the contamination of the water supply along them.

Department of Transportation Legal Director Anthony Halkias said in March that the real defendant should be the Legislature and not Ellis because he does not have the authority to disobey the laws of the state.

Case number: 06-C-257


Tammy Conley, Administratrix of the Estate of John Cody Conley, a deceased minor v. Jerry Stollings, et al.

PA-John Einreinhofer; J-Walker

Stollings filed a cross-claim June 7 against all other defendants (Joseph, Steven and Cynthia Richards, Cabot Oil and Gas Corp. and West Virginia Department of Transportation, Division of Highways), claiming he had nothing to do with the death of John Cody Conley and the other defendants should pay his court costs.

Conley died in April 2005 while riding an all-terrain vehicle through a plot of land in Logan County that his mother Tammy alleges was previously owned by the Richards and is currently owned by Stollings. His neck struck a cable that had allegedly been placed to deter riders.

Tammy Conley filed the lawsuit Jan. 27.

"The defendant/cross-claimant Stollings had absolutely nothing to do with the fabrication, erection and maintenance of the cable that is the subject of the incident described in the complaint," Stollings says through Williamson attorney Cecil Varney.

Peggy Collins of Collins and Courtright in Charleston is defending the Richards, who denied Conley's allegations.

April Robertson of the Department of Transportation's legal division filed a Motion to Dismiss, saying Conley did not provide the government agency 30 days of notice prior to filing the suit, which she is required to do.

Johnnie Brown of Charleston's Pullin, Fowler and Flanagan is representing Cabot Oil. Conley says Cabot had an agreement to use the land.

Case number: 06-C-148


J.A. by her parent and next friend D.A., et al. v. Kanawha County Board of Education, et al.

PA-John Barrett; J-Zakaib

Former Capital High School teacher Tyrone Persinger responded to the allegations of seven former students who filed a sexual harassment lawsuit against him Feb. 23.

On May 10, he denied any wrongdoing through attorney Mark Browning of Shuman, McCuskey and Slicer in Charleston, though he did admit to a few statements made by the plaintiffs.

What they called a "Butt Club" in their complaint, he called a "Princess Club" and admitted that a few of the plaintiffs were members. However, he denied creating it.

The original complaint charged him with inappropriate touching that included an allegation that he grabbed one girl's genitals by reaching his hand down the back of her pants. It also says he made remarks of a sexual nature, telling one girl she looked like she would be good at giving oral sex.

Case number: 06-C-350


J.H. v. West Virginia Division of Rehabilitation Services

PA-Mark Moreland; J-Walker

The case of a Raleigh County man who says he was sexually abused while a patient at the West Virginia Rehabilitation Center in Institute was closed May 31 by Judge Jennifer Bailey Walker.

Walker agreed with the assessment of defense attorney Jan Fox of Steptoe and Johnson in Charleston that the plaintiff did not provide the defendant with sufficient notice of the lawsuit.

The Motion to Dismiss says the plaintiff did not provide the government agency 30 days notice prior to the filing of the lawsuit.

The plaintiff, J.H., had claimed that he was molested by another male in one of the center's rooms. J.H. says his mobility is limited and could not escape.

The lawsuit was filed March 14.


S.R. and K.R., minors by and through their mother and next friend Laura R. v. West Virginia Department of Health and Human Resources, et al.

PA-Robert Warner; J-King

A scheduling order has been entered in the case of a Princeton mother who says her children were molested while in the care of the Children's Home Society, which is also a defendant.

The lawsuit was filed March 24, the scheduling order was entered July 12 and a jury trial is set to take place May 21, 2007.

Laura R. says her children were molested by John Ray, who was in charge of transporting the children to visit their mother.

The children were put in the DHHR's care because of a criminal complaint their mother entered against their father. The father has since pleaded guilty to domestic violence and kidnapping and is serving five years in prison.

"In Jan. 2001, Laura R. began to suspect that the plaintiffs were being sexually abused either in their foster home or by other representatives, employees, agents or servants of Defendant Children's Home Society," the complaint says.

"She reported her suspicions to Defendant DHHR but no action was taken other than a cursory medical examination. Neither Defendant in this case undertook a serious investigation of Laura R.'s claim."

Kelly Morgan of Bailey and Wyant in Charleston is handling the defense. Ray is facing criminal charges in Mercer County.

Case number: 06-C-567


John McCune and Andrea McCune v. Lisa Brown, et al.

PA-Michael Clifford; J-Kaufman

The lawsuit stems over a fight between Andrea McCune and Brown at a middle school basketball game. Brown filed a counter-complaint stating McCune, who was pregnant at the time, was the aggressor.

The Kanawha County Board of Education was named as a defendant for breaching its duty to provide protection at the basketball game. On May 3, it filed a Motion to Dismiss claiming it owed no such duty.

"The Board of Education could not have prevented Ms. McCune from engaging in any sort of verbal or physical argument with Defendant Lisa Brown," it says. "Therefore, no duty was owed to prevent patrons like Ms. McCune from engaging in verbal or physical confrontations with other patrons like Ms. Brown."

It adds that a school board's duty to provide police protection at sporting events has "never been recognized in the law," and that "the Board would not generally expect adults to leave a sporting event in order to physically fight with each other."

School Board attorney Jim Withrow has stated that he believes the fight stemmed from Brown's previous romantic relationship with John McCune. Brown is a secretary at East Bank Middle School, and Withrow says she was not on the job at the game so the Board is not liable for her actions.

David Mincer of Bailey and Wyant in Charleston is handling the defense for the Board. William C. Forbes of Forbes Law Offices in Charleston represents Brown.

The lawsuit was filed March 31.

Case number: 06-C-601


Rahmet Muzaffer, M.D. v. John E. Bianconi, acting commissioner for Bureau For Behavioral Health and Health Facilities, et al.

PA-Kenneth Chittum; J-Bloom

Judge Louis Bloom entered a dismissal order July 14 in the case of Muzaffer, a doctor accused of inappropriate sexual behavior almost 10 years ago who says Bianconi and Walter Garrett (the Chief Executive Officer of Welch Community Hospital) were unfairly blocking his appointment to the staff at Welch Community.

Bloom said the plaintiff failed to provide notice to the defendants 30 days before filing the complaint, which it must do for a government agency. It also says "Relief sought for by the plaintiff as expressed by its counsel at the hearing is not included in its complaint.

"The defendants' motion (to dismiss) is therefore granted, and this case is dismissed, without prejudice."

Muzaffer was found in 1997 to have masturbated in an examination room, but the girl he was accused of doing it in front of denied that was the case.

After having his medical license suspended for two years and working as a pediatrician afterward, Muzaffer says Bianconi and Garrett made sure his application would be denied.

The complaint adds that they allowed evidence that would have been inadmissible to be entered during a hearing on Muzaffer's possible employment.

Stephen Small, Senior Assistant Attorney General, worked for the defense. The lawsuit was filed April 21.

Case number: 06-C-742

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