ELKINS – Joel Rosenthal, who made the Division of Natural Resources look foolish for prosecuting his rescue of a baby deer as a crime, now seeks to make the division pay.
Rosenthal, owner of a wildlife sanctuary at Hillsboro, seeks compensatory and punitive damages from division director Frank Jezioro in U.S. District Court in Elkins.
Division agents charged Rosenthal with illegal possession of wildlife in 2005, after local sportsmen pulled the fawn from a pond and brought it to his Point of View Farm.
Pocahontas County prosecuting attorney Walter Weiford pressed a criminal charge for the division, but Circuit Court Judge Joseph Pomponio dismissed it.
West Virginia Attorney General Darrell McGraw petitioned the Supreme Court of Appeals to prohibit enforcement of the order, and the justices granted a hearing.
One justice said he wound up wishing the court hadn't granted it.
At a January session, Rosenthal argued "pro se," without a lawyer, and he ruled the room as few lawyers have ever done.
Justice Joseph Albright told McGraw assistant William Valentino it would take a heart of concrete to treat Rosenthal as a criminal.
Albright asked Valentino if Rosenthal mistreated the animal. Valentino said no.
Albright said, "He rendered some pretty good assistance to this creature?" Valentino said he didn't know.
Rosenthal told the justices it is illegal to abandon or neglect any animal in need.
"I don't go around looking for animals to take care of," he said.
The division has brought animals to him, he said.
Chief Justice Spike Maynard said the court voted three to two to hear the case. He said, "I voted for it and now I wonder why."
Justice Robin Davis said she too wondered why the case was being considered.
"In a state with limited resources, with thousands of children being abused and criminals running free, why are we wasting taxpayer dollars prosecuting a man who is trying to do nothing but help animals?" she asked.
Valentino said he took an oath to uphold the constitution. Davis sighed.
Rosenthal succeeded too well, for the justices chose not to issue an opinion affirming Pomponio.
Three days later, they dismissed the case as "improvidently granted," in an order they did not post on their Web site.
On July 7, Rosenthal sued Jezioro, division captain Mike Pizzino, conservation officers Howard Shinaberry and Sean Duffield, and Valentino in Pocahontas County.
Rosenthal, still "pro se," claimed they violated his constitutional rights by entering his property without a search warrant.
He claimed Shinaberry searched his property when he wasn't there.
He claimed that after the Supreme Court decided the case, Jezioro sent him a "cease and desist order" in violation of his rights.
Jezioro "libeled, slandered and defamed the Plaintiff by accusing him of violating the law despite the court's decision to the contrary," he wrote.
The Pocahontas Times informed the public of the letter, he wrote.
He wrote that he has been forced to explain his adherence to the law to those who inquire about his charity.
"The subsequent diminution of donations to the charity is substantial," he wrote.
Charles Bailey of Bailey and Wyant in Charleston, representing the division, removed the complaint to U. S. district court July 28.
A week later, Bailey moved to dismiss the complaint. He argued that Rosenthal did not follow state law requiring notice to a state agency prior to the filing of a suit against it.
Bailey also argued that the statute of limitations had expired.
On Aug. 11, Rosenthal asked for a hearing on the motion to dismiss, but added that he would undergo surgery on Aug. 13.
He said it might take a couple months before he is fit to travel.
