Certified Question

8/14/2019 Certified Question

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IN THE CIRCUIT COURT OF POCAHONTAS COUNTY, WEST VIRGINIA

Norman AldermanPetitioner Pro Se

Vs. Civil Action No.: 08-C-29

Pocahontas County Board of EducationRespondent

MOTION FOR CERTIFIED QUESTION

JURISDICTION TO SEND CERTIFIED QUESTION TO THE WV SUPREME COURT

1. The Pocahontas County Circuit Court has jurisdiction to examine the integrity of the Grievance Process in the cases of fraud or a lack of jurisdiction on the part of

the Administrative Law Judge.West Virginia Code 29-6A-7 states as follows:

(a) The decision of the hearing examiner is final upon the parties and isenforceable in circuit court.

(b) Either party or the director of the division of personnel may appeal to thecircuit court of Kanawha County or to the circuit court of the county inwhich the grievance occurred on that grounds that the hearing examinersdecision:

i. Is contrary to law or a lawfully adopted rule or written policy of the employer;

ii. Exceeds the hearing examiners statutory authority;

iii. Is the result of fraud or deceit;

BACKGROUND

Whereas, ALJ Denise Spatafore rendered a decision that exceeded the hearing examinersstatutory authority. In this argument, we lay out (as will be seen below) that JudgeSpatafore lacked the state mandated training requirements to qualify her as anAdministrative Law Judge and that her decision is null and void in this matter. The dueprocess requirements of the WV and United States Constitution demand that a personshall have all the process that is due and that an incompetent judge cannot provide dueprocess.


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1. In 2001 Administrative Law Judge declined to follow the requirements of the West VirginiaState Bar requiring her to maintain her lawyer status with the bar by taking enumeratedcontinuing legal education courses to maintain her skills as a lawyer while conducting the dutiesof an administrative law judge. Such a decision was arbitrary and contrary to state law.

2. The effect of this decision was that those cases she conducted were conducted by anunqualified ALJ and hence, exceeded the hearing examiners statutory authority. WV Code29-6A-7 These were in direct contravention of the due process rights of plaintiff Norman LeeAlderman in that she conducted a hearing on July 29, 2006 during which time she was notqualified by law to be doing the services of a lawyer and an administrative law judge.

3. Judge Spatafore committed a fraud upon the West Virginia Grievance Board, the WestVirginia State Bar, and Grievant Norman Lee Alderman. This has led him to unnecessaryexpense and extreme emotional distress in that he has been jobless now for nearly three years.

4. ALJ Denise Spatafore rendered a decision that exceeded the hearing examiners statutoryauthority. In this argument, we lay out (as will be seen below) that Judge Spatafore lacked thestate mandated training requirements to qualify her as an Administrative Law Judge and that her decision is null and void in this matter. The due process requirements of the Constitutiondemand that a person shall have all the process that is due and that a legally incompetent judgecannot provide due process.

5. Basically, Judge Spatafore and another colleague, had declared themselves inactive as of 2001 and remained inactive until 2008 at which time the West Virginia Grievance boardsuspended them for their self-declared inactive status and failure to maintain their legal acuityas required by West Virginia Code, Judicial Canon 3 and the affirmed declaration of the WestVirginia State Bar. This means that for the five years preceding Judge Spatafores decision in mycase, she had apparently not taken any Continuing Legal Education Courses.

6. I am a teacher and we are required by law to maintain our competency by taking annualcontinuing education. This is a common sense requirement that permits teachers to stay intune with their profession. The accompanying documents will illustrate that the West VirginiaState Bar also considers continuing education to be a valuable aspect of a lawyers career.Common sense says that an administrative law judge should keep abreast of labor law.

7. In the instant case, the West Virginia State Supreme Court has reversed the judgment of a bona fide circuit judge in favor of an administrative law judge who has not maintained her legalqualifications as required by state law and common sense. I believe that this is a poor reflectionupon the court and most certainly it is a great grief to me since I am on the receiving end of thisALJs in competency.

8. The West Virginia State Bar has reaffirmed its insistence that ALJs must complete their continuing legal education requirements. Lawyers are one of the basic components of thelegal system and I presume that they have a bona fide set of reasons for requiring ALJs tomaintain their legal acuity or they would have moved to have the requirement stricken fromthe law. Judicial Canon 3 states that determination.


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LEGAL ARGUMENTS OF DUE PROCESS AS THEY RELATE TO ANUNQUALIFIED JUDGE

1. The State has a compelling interest in securing and maintaining a judiciary well qualified

in the law of the jurisdiction.In Syl. 3, State Ex Rel Haught v. Donnahoe the West Virginia Supreme Court of Appeals(1984) stated that,

The requirement contained in West Virginia Constitution, art. VIII, sec 7, that candidatesfor the office of circuit judge must have been admitted to the practice of law in the Statefor five years prior to their election advances the States compelling interest in securingand maintaining a judiciary well qualified in the law of the jurisdiction. (Emphasisadded.)

Syl. 3, State Ex Rel Haught v. Donnahoe the West Virginia Supreme Court of Appeals(1984)

A person who is not an attorney, duly licensed or authorized to practice law inthe courts of this State, is ineligible to hold the office of prosecuting attorney. (Emphasisadded)

Syl. 3, Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964)

In apply W.Va. Constitution, article VIII, sec 7. and with special emphasisto the application of that constitutional provision to be licensed attorneys atlaw, and the Court noted that due process demands a high level of

jurisdictional competence and integrity, and [r}equirements or restrictionsaffecting eligibility for judicial office that reasonable strive to meet such validpublic purposes do not impose impermissible barriers to such office. Id., at33. (As quoted from a motion in Greenbrier County Circuit Court, DavidRyder versus First National Bank.)

ALJ Denise Spatafores ruling against Norman Alderman is null and void.

Syl. 4, Smoot v. Dingess, 160 W.Va. 558, 236 S.E, 2d 468 (1977), the WestVirginia Supreme Court of Appeals stated that Orders of a special judgewho has not met the constitutional prerequisites for holding that office arevoid. (Emphasis added.

2. The WV Supreme Court has repeatedly rejected attempts to compromise theeducational and accreditation requirements. (See Re: Proposed Amendments to theRules of the Supreme Court Relating to Admissions to the Bar, 873 So.2d 295 (Fla.2004)


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RELIEF REQUESTED

I ask this court submit certified questions to the WV Supreme Court requesting a rulingregarding the impact of failure to maintain necessary continuing legal education

requirements as they relate the due process requirements of the U.S. Constitution and theConstitution of the State of West Virginia.

More specifically, I request that the WV Supreme Court answer the following questions:

1. Is it a violation of due process for an administrative law judge to disregard the legalrequirements of maintaining her continuing legal education?

2. Does such disregard impact negatively on those Grievants who appear before her incontext of the West Virginia Grievance Procedure?

3. Should a Grievant be allowed a rehearing before a qualified Administrative LawJudge or at the minimum before a qualified circuit judge?

________________________________________

Norman Lee Alderman, Pro Se

Sent to:

Respondents AttorneyChip E. Williams, #8116Pullin, Fowler, Flanagan,Brown & Poe, PLLC600 Neville Street, Suite 201Beckley, West Virginia 25801

I certify that I have mailed a copy of this document to the above and included a copy in theCircuit Court file of Pocahontas County on this day May 12, 2009

Signed: ______________________________________

Norman Lee Alderman, Pro SeHC 82, Box 223aMarlinton, WV [email protected]
mailto:[email protected]:[email protected]


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SUPPORTING DOCUMENTS

MANDATORY CLE IN WEST VIRGINIA

Rules and State Bar By-Law Amendments

Effective July 1, 1986

l. PURPOSE. These rules establish minimum objective requirements, and the means by whichsuch requirement shall be enforced, to satisfy every lawyer's obligation to continue his or her legal education throughout the period of his or her active practice.

5. MINIMUM CONTINUING LEGAL EDUCATION REQUIREMENTS. As a condition of maintaining his or her license to practice law in the State of West Virginia, every active

member of The West Virginia State Bar shall satisfy the following minimum continuing legaleducation requirements:

5.l During each of the two fiscal years (July l-June 30) following the adoption of these rules,each active member of The West Virginia State Bar shall complete a minimum of six hours of continuing legal education, as approved by these rules or accredited by the Commission.Completion of such activities should be reported by the attorney no later than July 3l of each

phase-in year.

5.2 After the above two year phase-in period, each active member of The West Virginia State Bar shall complete a minimum of twenty-four hours of continuing legal education, as approved bythese rules or accredited by the Commission, every two fiscal years .

Plaintiffs note : Judge Spatafore went inactive in 2001 and then within about 3days became active in 2008 . She would have been required to complete 24hours of CLE every two years or in this case 96 hours to catch up. There areonly 72 hours in three days. So it would have been impossible for her to catchup on her continuing legal education in that time period.

5.5 Active but not practicing members, Justices of the Supreme Court of Appeals, Circuit Judges,Family Court Judges, Senior Status Justices, Senior Status Circuit Judges, the Clerk of theSupreme Court of Appeals, the Deputy Clerk of the Supreme court of Appeals, and any other individuals as may hereafter, from time to time, be designated by the Supreme Court of Appeals,

are not required to comply with these requirements.Plaintiff s Note: There is no exemption for ALJs listed. Furthermore, shelists herself as an inactive member.

7.1 As soon as practicable after July l, the Commission shall notify all active members of TheWest Virginia State Bar who are not in compliance with the reporting or minimum continuingeducation requirements of these rules of the specific manner in which such member has failed, or appears to have failed, to comply with these rules.


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Plaintiffs Note: The State Bar has a lawful duty to ensure compliance with these rules.What were they doing during those eight years?

7.2 As soon as practicable after October l, the Commission shall give notice , by certified or registered mail to the most recent address maintained on the records of The West Virginia StateBar, to any active member of The West Virginia State Bar who has still not established himself or herself to be in compliance with these rules for the preceding two year reporting period that after thirty days, the Commission will notify the Supreme Court of Appeals of such fact and requestthe Court to suspend such lawyer's license until such time as the lawyer has established that he or she has complied with the requirements of these rules for the preceding two year reporting

period.

Plaintiffs Note: So what was the Supreme Courts response or was itnotified at all?

7.5 A lawyer who has not complied with the mandatory continuing legal education requirements by June 30 may thereafter obtain credits to be carried back to meet the requirements of thepreceding two year reporting period . However, any credit obtained may only be used to satisfy

the mandatory continuing legal education requirements for one reporting period.Plaintiff s Note: It was not legally possible for her to have caught up oneight years of continuing legal education.

7.6 No lawyer shall be permitted to make use of a transfer from active to inactive or active butnot practicing membership in The West Virginia State Bar as a means to circumvent therequirements of these rules.

Plaintiff s Note: Judge Spatafore was not allowed to circumvent theserequirements.

10. JUDICIAL CLE. Members of the State Bar recommend that a mandatory education plan,similar to the one outlined in these rules, be adopted for West Virginia judges, justices andmagistrates.

Plaintiff s Note: This proves my contention that continuing legal education just makes good common sense!!

8. Transfer from active but not practicing to active membership.

Any active but not practicing member not under suspension may be enrolled as an activemember upon written request to the secretary, and upon a showing that the member has compliedwith pertinent mandatory CLE rules and regulations. Upon such request and showing, the

member shall be immediately transferred to the active roll.


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REGULATIONS

WV MANDATORY CONTINUING LEGAL EDUCATION COMMISSION

4. "Inactive Lawyers": A member of The West Virginia State Bar who is in good standing but

who is not an active member as defined in Article II of the By-Laws of The West Virginia StateBar.

6. "Lawyer": An active member in good standing of The West Virginia State Bar.

Article II, Section 5 is amended to read as follows:

5. Transfer from inactive to active membership.

Any inactive member not under suspension may be enrolled as an active member upon writtenrequest to the secretary. Upon the filing of such request, and the payment of any unpaid fees and

penalties for prior years and the full annual active membership fee for the current fiscal year, less

any membership fee paid by him as an inactive member for the current fiscal year, and upon ashowing that the member is in compliance with the pertinent mandatory CLE rules andregulations, the member shall be immediately transferred from the inactive roll to the active.

Exhibits: Charleston Gazette 6:53 pm on Tuesday, March 10, 2009

September 21, 2008Personnel man gets 4 raisesBy Phil Kabler Staff writer

URL: http://www.wvgazette.com/News/PhilKabler/200809200287

Sticking with personnel matters, Bob Brown, chairman of the state Public Employees GrievanceBoard said the two administrative law judges who were suspended from hearing cases - BrendaGould and Denise Spatafore - have obtained the necessary continuing legal education credits toregain active status as attorneys with the West Virginia State Bar.

The board suspended Gould and Spatafore from hearing grievances on Sept. 8, after the boardwas advised that both were on inactive status with the Bar because they had not maintained their CLE credits.

(I believe that lawyers have to complete 24 hours of CLE classes every two years to maintaintheir status.)

Brown hopes the decisions on grievances heard while both were inactive will stand, noting thatall grievance board decisions are reviewed in what he called a round-robin format.

"All of the ALJs review every case," he said. "Decisions are essentially reached by consensus."

Meanwhile, Tom Gillooly, the grievance board ALJ who was fired without cause in August (amonth after he made inquiries about his colleagues' status) questions whether lawyers who have
http://www.wvgazette.com/News/PhilKabler/contact/cuvyx+jitnmrggr+pbz+return=/News/PhilKabler/200809200287http://www.wvgazette.com/News/PhilKabler/200809200287http://www.wvgazette.com/News/PhilKabler/200809200287http://www.wvgazette.com/News/PhilKabler/contact/cuvyx+jitnmrggr+pbz+return=/News/PhilKabler/200809200287http://www.wvgazette.com/News/PhilKabler/200809200287


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let their CLE credits lapse for extended periods of time should be able to get back in goodstanding simply by completing 24 hours of CLE.

If you haven't paid taxes for the past 10 years, he noted, the IRS doesn't let you off the hook if you pay taxes for 2007. (Emphasis by Plaintiff)

Pocahontas Times

Wednesday February 04, 2009 Supreme Court rules in favor of BOE

Pamela Pritt Editor

The West Virginia Supreme Court of Appeals took less than three weeks to rule that thePocahontas County Board of Education did not act improperly when it voted to dismiss anemployee for insubordination.

The Supreme Court ruled Friday that Norman Aldermans speech was not protected when hemade accusations against Superintendent of Schools J. Patrick Law and Treasurer Alice Irvineand called them names. The high court further ruled that no improvement plan would havecorrected Aldermans behavior.

Monday, Alderman announced via e-mail he would appeal the decision of the West VirginiaGrievance Board because the administrative law judge, Denise Spatafore, who heard his case in2006 had not completed her continuing education hours and was not eligible to hold her position.

Although the Charleston Gazette reported that Spatafore was suspended from her position, aspokesperson for the West Virginia State Bar said Monday that her status was inactive and thatSpatafore was never suspended.

Spatafore was not the only ALJ to have been reduced to inactive status, the spokesperson said.

The mix-up was a misunderstanding of the rules for administrative law judges, she said.Spatafore returned to active status in September.

Justice Robin Davis wrote the high courts opinion. Justice Joseph Albright did not participate.

Mr. Aldermans speech was not addressing any matters of public concern, Davis wrote.Because the issues were resolved and unsubstantiated, they were no longer being asserted byMr. Alderman as as matter of public concern. Rather, they were being asserted to embarrass andinterrupt the business of the Board and its members.

One of those issues, an allegation that $2500 intended for the PCHS Golf Teams equipment wasinstead spent for team travel expenses, was already resolved before Aldermans transfer hearingduring which he was supposed to defend his position as technology facilitator and homeboundinstructor.

Law had recommended to the board that Alderman, a teacher with more than 20 yearsexperience, be returned to the classroom so that the board would not have to cut teaching

positions.


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Instead, Alderman turned [the hearing] into a malicious bashing session over matters that areunrelated to his transfer, Davis wrote. This is a case of planned, insubordinate behavior thatundermined the Boards authority to provide effective and efficient services to its students.

Davis wrote that the issue concerning the golf money had been properly raised at a previousBoard meeting and had already been through a full investigation with a finding of noimpropriety.

Mr. Alderman was fully aware of this final resolution as he was the person who properlyraised the issue and followed through the investigation on a statewide level.

Statements that are made with the knowledge that they were false or with reckless disregard of whether they are false are not protected, Davis wrote.

The high courts ruling reverses the decision of Kanawha County Circuit Judge Irene Berger whoruled in Aldermans favor.

Alderman has asked for the West Virginia Grievance Board to rule quickly because, he said inthe e-mail, that he plans to ask the Supreme Court for a rehearing of the matter. Alderman said healso expects to file a federal case because he believes his right to due process has been violated.

Alderman was not available by telephone Monday. Plaintiffs emphasis added.

Plaintiffs Note: This is the issue which I raise that there was no evidence that theinvestigation was conducted in full and that no impropriety was found. The reality is thatthe issue was covered up and then lied about by Law and Irvine under oath. The issueswere not resolved.

Charleston Gazette

September 15, 2008

Grievance, raise issues get heavy responseBy Phil Kabler Staff writer

CHARLESTON, W.Va. - Recent coverage of state personnel matters - including Manchinadministration consultant Joe Smith's explanation of the freeze on merit raises, and the goings-onat the state Public Employees Grievance Board - kept the old e-mail inbox and phone lineshumming last week.

One state employee sent a copy of her letter to the Legislative Commission on SpecialInvestigations, calling for them to investigate the Grievance Board's firing of Administrative LawJudge Tom Gillooly.

Gillooly was fired without cause at the board's August meeting, one month after he madeinquiries to the West Virginia State Bar about whether two colleagues - Brenda Gould and DeniseSpatafore - could continue to hear cases since they were on inactive status as attorneys.

(The board last week suspended Gould and Spatafore until they restore their active status bycompleting Continuing Legal Education courses.)

In the complaint to Special Investigations, the employee wrote:
http://www.sundaygazettemail.com/News/PhilKabler/contact/cuvyx+jitnmrggr+pbz+return=/News/PhilKabler/200809140389http://www.sundaygazettemail.com/News/PhilKabler/contact/cuvyx+jitnmrggr+pbz+return=/News/PhilKabler/200809140389


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"If this is true that Mr. Gillooly was fired for bringing attention to this situation, is this another wrong decision made by the Grievance Board? ... Why is the individual that points out the wrong

punished more severely, losing his job, and the individuals who did the wrong are suspended and just need to correct it, and all will be fine?"

Other state employees said they believe Gillooly was terminated because he ruled in favor of employees too often. (Generally, employees prevail in grievance hearings only about once inevery 10 decisions.)

Others expressed concern that, while the grievance board is supposed to be an independentagency, the administration over time has come to exert too much influence over it, includinghaving the board rely on administration counsel for legal advice.

Meanwhile, DHHR employee Aline Workman was the first to file a motion for a newhearing, based on the board's action this week. Spatafore denied her grievance on Aug. 29.

Find enclosed: Letter from the State Bar indicating the inactive status of ALJ Spatafore

Sent to:

Respondents AttorneyChip E. Williams, #8116Pullin, Fowler, Flanagan,Brown & Poe, PLLC600 Neville Street, Suite 201Beckley, West Virginia 25801

I certify that I have mailed a copy of this document via first class mail to the above andincluded a copy to the Circuit Court of Pocahontas County on this day May 12, 2009

Norman Lee Alderman

Signed: _____________________________________

May 12, 2009

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