*** SupCo calendar for 9/14 issue

By The West Virginia Record | Sep 17, 2009

Argument Docket

Argument Docket
Tuesday, Sept. 22
at Marshall University, Huntington

1. State of WV v. John R. Mullens - 34584 - Plaintiff appeals from his conviction for the offense of driving under the influence of alcohol. Defendant appealed his magistrate court conviction to the circuit court on the sole issue of whether probable cause existed for the traffic stop. The circuit court found that there was probable cause. Defendant seeks to have his conviction set aside.

State of WV v. Linda S. Sigler aka Linda S. Mullens - 34741 - Plaintiff appeals her conviction for driving under the influence of alcohol, third offense. She entered a conditional guilty plea, reserving the right to appeal the denial of her motion to suppress evidence obtained at what she asserts was an illegal and unconstitutional police roadblock.

2. Charleston Town Center Co., LP v. The WV HRC and Steven and Cynthia Bumpus - 34739 - Petitioner appeals from the final order of the West Virginia Human Rights Commission in favor of respondent in this administrative action alleging racial profiling. Petitioner seeks a reversal asserting that complainant failed to make a prima facie case of discrimination in a place of public accommodation; that complainants did not attempt to avail themselves of the services and privileges provided by petitioner; that the actions of petitioner did not deny complainants any such access or privileges; and that the actions of the Charleston police officers cannot be attributed to petitioner.

Charleston Town Center Co., LP v. The WV HRC and August Robinson - 34740 - Petitioner appeals from the final order of the West Virginia Human Rights Commission in favor of respondent in this administrative action alleging racial profiling. Petitioner seeks a reversal and asserts that complainant failed to make a prima facie case of discrimination in a place of public accommodation; that complainant did not attempt to avail himself of the services and privileges provided by petitioner; that the actions of petitioner did not deny complainant any such access or privileges; and that the actions of the Charleston Police Officers cannot be attributed to petitioner.

3. State of WV v. Michael E. Martin - 34709 - Defendant appeals from his convictions for first degree murder without mercy and conspiracy. He was sentenced to life without the possibility of parole. Defendant challenges the verdict on the sufficiency of the evidence and alleges errors relating to jury instructions and the use of Rule 404(b) evidence. Defendant seeks a dismissal or remand for a new trial.

4. State of WV v. Ronnie Allen Rush - 34721 - Defendant appeals following his convictions on two counts of manslaughter, one count of first degree robbery, one count of burglary, and one count of conspiracy to commit burglary. Defendant challenges the circuit court's denial of his motions for a mistrial. Defendant seeks a reversal of his convictions or, in the alternative, a remand for a new trial.

Argument Docket
Wednesday, Sept. 23

1. State ex rel. Alex Farmer v. Thomas McBride, Warden - 34157 - Alex Farmer appeals the circuit court's denial of his omnibus petition for post-conviction habeas corpus. He was previously convicted of First Degree Murder with a recommendation of mercy, two counts of First Degree Sexual Assault, and Burglary. He asserts several constitutional arguments based upon Zain 1 and Zain 3, the admission of certain evidence and statements, the court's denial of his motion for judgment of acquittal and motion to strike a juror for cause, alleged juror misconduct, and alleged sentencing error.

2. Randy D. Burgess v. Daniel W. Moore, Sheriff of Raleigh County - 34587 - Randy D. Burgess appeals the circuit court's order which affirmed the ruling of the Raleigh County Deputy Sheriff's Civil Service Commission upholding Burgess' demotion in rank and pay. He asserts that he was improperly denied a pre-disciplinary hearing and that the punishment was too harsh in light of the facts of the case.

3. SER John Doe v. Honorable Michael Thornsbury, Judge - 34859 - Petitioner in State of West Virginia ex rel. John Doe, a certain individual subpoenaed in a matter currently pending before the Mingo County Grand Jury v. The Honorable Michael Thornsbury, No. 090469, seeks a writ of prohibition to prohibit the circuit court from denying petitioner's counsel's claim of legislative immunity and/or enforcing a capias against petitioner who was issued a subpoena duces tecum to produce records at a grand jury. - Dismissed.

4. SER Progressive Classic Insurance Co. v. Honorable Thomas A. Bedell, Judge - 34858 - Petitioner in Progressive Classic Insurance Company v. The Honorable Thomas A. Bedell, No. 090468, seeks a writ of prohibition to challenge the enforcement of an order holding petitioner in contempt and issuing sanctions relative to a subpoena duces tecum.

5. SER Jill Clites v. Honorable Russell M. Clawges, Jr., Judge - 34887 - Petitioner seeks a writ of prohibition to prohibit the enforcement of the circuit court's order of February 6, 2009 granting Defendant's Motion for Stay and compelling arbitration. The Defendant refused to exercise jurisdiction over Petitioner's Human Rights petition compelling arbitration.

6. SER Amos Martin and Tammy Martin v. Honorable James Stucky, Judge - 34949 - Petitioners seek a writ of prohibition to correct a legal error in the lower court's order granting Defendant's Motion to File a Third Party Complaint and Motion for Continuance to implead The Cleveland Clinic Foundation. This case involves a medical malpractice claim for failure to timely diagnose colon cancer in a 52 year old male. By continuing this case, the Petitioner argues he could be dead before his case is presented to a jury.

7. SER Gregory Burdett v. Honorable Paul Zakaib, Jr., Judge - 34857 - Petitioner seeks a writ of mandamus to compel the circuit court to grant a motion for post-conviction DNA testing filed in this habeas action. - To be presented on briefs only without oral argument.

8. SER Lloyd's Inc. v. Honorable Richard A. Facemire, Judge - 34948 - Petitioner seeks a writ of prohibition to prevent the circuit court from enforcing a March 27, 2009 order granting Defendants' below an injunction enjoining Lloyd's, Inc. from transferring, dissipating and/or wasting assets. The Petitioner argues the circuit court granted the injunction; without any evidence of possible irreparable injury; without a hearing; without requiring any security; and without citing specific authority.

9. Ronald Lee Harrison and Brenda G. Harrison v. Skyline Coporation - 34706 - The circuit court has certified the following questions to this Court by Order entered August 11, 2008:

QUESTION 1): Does the preemption provision found at 42 U.S.C. § 5403(d)* preempt and bar Plaintiffs' common law negligence claim based upon formaldehyde exposure when the Plaintiffs do not claim, and cannot establish, that the Defendants failed to comply with the formaldehyde standards established in 24 CFR §§ 3280.308 and 3280.309? ANSWER: NO

QUESTION 2): May the plaintiffs present evidence of ambient air testing for the presence of formaldehyde in support of their common law negligence claim when HUD specifically considered and rejected the ambient air standard of case.?* ANSWER: YES

QUESTION 3): Does the "savings clause" of 42 U.S.C. § 5409(c) preclude the Court from granting the Defendants' motions for summary judgment when despite the legislative history which establishes that it was HUD's Intention that federal stands Preempt State and local formaldehyde standards in accordance with 42. U.S.C. 5403(d)? ANSWER: YES

10. SER Warren D. Franklin v. Thomas McBride, Warden - 34595 - Petitioner appeals from the circuit court's order denying his petition for a writ of habeas corpus. Petitioner raises trial error, as well as constitutional issues related to his sentencing and his lack of oral presentation in his direct criminal appeal.

11. Sheila D. Allen (now Elias) v. Michael L. Allen - 34628 - Mr. Allen appeals the circuit court's 03/13/08 Order Affirming in Part and Reversing the Final Order of the Family Court Entered 03/09/07 arguing inter alia that the family court did not have subject matter jurisdiction over Ms. Elias's Petition for Modification of Child Support because an appeal of the family court's 01/31/05 Final Order was pending at the time.

12. Kenneth Edward Chance, Jr. v. George Hill, Superintendent, et al. - 34627 - Mr. Chance appeals the 04/15/08 order of the Circuit Court of Fayette County dismissing without prejudice Mr. Chance's Complaint finding that proper venue for his civil action "is clearly and unmistakably in the Circuit Court of Kanawha County, West Virginia. - To be presented on briefs only without oral argument.

13. SER Office of Disciplinary Counsel v. Joseph P. Albright, Jr. - 34973 - Petitioner seeks a Rule to Show Cause why Respondent should not be held in contempt of this Court's Order of January 10, 2007. Petitioner requests Respondent's law license to be immediately suspended until Respondent is in compliance with this Court's Order.

14. SER James Berry, Sr. v. Honorable Alfred E. Ferguson, Jr., Judge - 34890- Pro se inmate files this writ of prohibition. Judge Ferguson resigned from office in October, 2008. Because of his retirement Judge Ferguson lost jurisdiction and has suspended action of Petitioner's habeas pleadings. - To be presented on briefs only without oral argument.

15. SER Gary Daniel Jones v. Honorable Tod J. Kaufman, Judge - 34891- Dismissed.

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