Certified Question

IN THE CIRCUIT COURT OF POCAHONTAS COUNTY, WEST VIRGINIA Norman Alderman Petitioner Pro Se Vs.

Civil Action No.: 08-C-29

Pocahontas County Board of Education Respondent 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 is enforceable in circuit court. (b) Either party or the director of the division of personnel may appeal to the circuit court of Kanawha County or to the circuit court of the county in which the grievance occurred on that grounds that the hearing examiner’s decision: i. Is contrary to law or a lawfully adopted rule or written policy of the employer; ii. Exceeds the hearing examiner’s statutory authority; iii. Is the result of fraud or deceit; BACKGROUND Whereas, ALJ Denise Spatafore rendered a decision that exceeded the hearing examiner’s statutory authority. In this argument, we lay out (as will be seen below) that Judge Spatafore lacked the state 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 WV and United States Constitution demand that a person shall have all the process that is due and that an incompetent judge cannot provide due process.

1. In 2001 Administrative Law Judge declined to follow the requirements of the West Virginia State Bar requiring her to maintain her lawyer status with the bar by taking enumerated continuing legal education courses to maintain her skills as a lawyer while conducting the duties of 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 an unqualified ALJ and hence, “exceeded the hearing examiner’s statutory authority.” WV Code 29-6A-7 These were in direct contravention of the due process rights of plaintiff Norman Lee Alderman in that she conducted a hearing on July 29, 2006 during which time she was not qualified 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 West Virginia State Bar, and Grievant Norman Lee Alderman. This has led him to unnecessary expense 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 examiner’s statutory authority. In this argument, we lay out (as will be seen below) that Judge Spatafore lacked the state 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 Constitution demand that a person shall have all the process that is due and that a legally incompetent judge cannot 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 board suspended them for their self-declared “inactive” status and failure to maintain their legal acuity as required by West Virginia Code, Judicial Canon 3 and the affirmed declaration of the West Virginia State Bar. This means that for the five years preceding Judge Spatafore’s decision in my case, 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 annual continuing education. This is a common sense requirement that permits teachers to stay in “tune” with their profession. The accompanying documents will illustrate that the West Virginia State Bar also considers continuing education to be a valuable aspect of a lawyer’s 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 legal qualifications as required by state law and common sense. I believe that this is a poor reflection upon the court and most certainly it is a great grief to me since I am on the receiving end of this ALJ’s in competency. 8. The West Virginia State Bar has reaffirmed its insistence that ALJ’s must complete their “continuing legal education requirements.” Lawyers are one of the basic components of the legal system and I presume that they have a bona fide set of reasons for requiring ALJ’s to maintain their legal acuity or they would have moved to have the requirement stricken from the law. Judicial Canon 3 states that determination.

LEGAL ARGUMENTS OF DUE PROCESS AS THEY RELATE TO AN UNQUALIFIED 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 candidates for the office of circuit judge must have been admitted to the practice of law in the State for five years prior to their election advances the State’s compelling interest in securing and maintaining a judiciary well qualified in the law of the jurisdiction.” (Emphasis added.) 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 in the courts of this State, is ineligible to hold the office of prosecuting attorney.” (Emphasis added) 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 emphasis to the application of that constitutional provision to be “licensed attorneys at law”, and the Court noted that “due process demands a high level of jurisdictional competence and integrity”, and “[r}equirements or restrictions affecting eligibility for judicial office that reasonable strive to meet such valid public purposes do not impose impermissible barriers to such office. Id., at 33. (As quoted from a motion in Greenbrier County Circuit Court, David Ryder versus First National Bank.) ALJ Denise Spatafore’s ruling against Norman Alderman is null and void. “ Syl. 4, Smoot v. Dingess, 160 W.Va. 558, 236 S.E, 2d 468 (1977), the West Virginia Supreme Court of Appeals stated that “Orders of a special judge who has not met the constitutional prerequisites for holding that office are void.” (Emphasis added. 2. The WV Supreme Court has repeatedly rejected attempts to compromise the educational and accreditation requirements.” (See Re: Proposed Amendments to the Rules of the Supreme Court Relating to Admissions to the Bar, 873 So.2d 295 (Fla. 2004)

RELIEF REQUESTED I ask this court submit certified questions to the WV Supreme Court requesting a ruling regarding the impact of failure to maintain necessary continuing legal education requirements as they relate the due process requirements of the U.S. Constitution and the Constitution 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 legal requirements of maintaining her continuing legal education? 2. Does such disregard impact negatively on those Grievants who appear before her in context of the West Virginia Grievance Procedure? 3. Should a Grievant be allowed a rehearing before a qualified Administrative Law Judge or at the minimum before a qualified circuit judge? ________________________________________ Norman Lee Alderman, Pro Se Sent to: Respondent’s Attorney Chip E. Williams, #8116 Pullin, Fowler, Flanagan, Brown & Poe, PLLC 600 Neville Street, Suite 201 Beckley, West Virginia 25801 I certify that I have mailed a copy of this document to the above and included a copy in the Circuit Court file of Pocahontas County on this day May 12, 2009 Signed: ______________________________________ Norman Lee Alderman, Pro Se HC 82, Box 223a Marlinton, WV 24954 [email protected] 304-799-7374

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 which such 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 legal education 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 by these rules or accredited by the Commission, every two fiscal years…. Plaintiff’s note: Judge Spatafore went “inactive” in 2001 and then within about 3 days became “active” in 2008. She would have been required to complete 24 hours of CLE every two years or in this case 96 hours to “catch up.” There are only 72 hours in three days. So it would have been impossible for her to “catch up” 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 the Supreme 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 ALJ’s listed. Furthermore, she lists herself as an “inactive” member. 7.1 As soon as practicable after July l, the Commission shall notify all active members of The West Virginia State Bar who are not in compliance with the reporting or minimum continuing education requirements of these rules of the specific manner in which such member has failed, or appears to have failed, to comply with these rules.

Plaintiff’s 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 State Bar, 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 request the 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. Plaintiff’s Note: notified at all?

So what was the Supreme Court’s response or was it

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 the preceding 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” on eight years of continuing legal education. 7.6 No lawyer shall be permitted to make use of a transfer from active to inactive or active but not practicing membership in The West Virginia State Bar as a means to circumvent the requirements of these rules. Plaintiff’s Note: Judge Spatafore was not allowed to circumvent these requirements. 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 and magistrates. 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 active member upon written request to the secretary, and upon a showing that the member has complied with pertinent mandatory CLE rules and regulations. Upon such request and showing, the member shall be immediately transferred to the active roll.

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 State Bar. 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 written request 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 a showing that the member is in compliance with the pertinent mandatory CLE rules and regulations, 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, 2008 Personnel man gets 4 raises By Phil Kabler Staff writer URL: http://www.wvgazette.com/News/PhilKabler/200809200287 Sticking with personnel matters, Bob Brown, chairman of the state Public Employees Grievance Board said the two administrative law judges who were suspended from hearing cases - Brenda Gould and Denise Spatafore - have obtained the necessary continuing legal education credits to regain active status as attorneys with the West Virginia State Bar. The board suspended Gould and Spatafore from hearing grievances on Sept. 8, after the board was 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 maintain their status.) Brown hopes the decisions on grievances heard while both were inactive will stand, noting that all 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 (a month after he made inquiries about his colleagues' status) questions whether lawyers who have

let their CLE credits lapse for extended periods of time should be able to get back in good standing 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 the Pocahontas County Board of Education did not act improperly when it voted to dismiss an employee for insubordination. The Supreme Court ruled Friday that Norman Alderman’s speech was not protected when he made accusations against Superintendent of Schools J. Patrick Law and Treasurer Alice Irvine and called them names. The high court further ruled that no improvement plan would have corrected Alderman’s behavior. Monday, Alderman announced via e-mail he would appeal the decision of the West Virginia Grievance Board because the administrative law judge, Denise Spatafore, who heard his case in 2006 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, a spokesperson for the West Virginia State Bar said Monday that her status was inactive and that Spatafore 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 court’s opinion. Justice Joseph Albright did not participate. “Mr. Alderman’s speech was not addressing any matters of public concern,” Davis wrote. “Because the issues were resolved and unsubstantiated, they were no longer being asserted by Mr. Alderman as as matter of public concern. Rather, they were being asserted to embarrass and interrupt the business of the Board and its members.” One of those issues, an allegation that $2500 intended for the PCHS Golf Team’s equipment was instead spent for team travel expenses, was already resolved before Alderman’s transfer hearing during which he was supposed to defend his position as technology facilitator and homebound instructor. Law had recommended to the board that Alderman, a teacher with more than 20 years experience, be returned to the classroom so that the board would not have to cut teaching positions.

Instead, Alderman “turned [the hearing] into a malicious bashing session over matters that are unrelated to his transfer,” Davis wrote. “This is a case of planned, insubordinate behavior that undermined the Board’s 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 previous Board meeting and had already been through a full investigation with a finding of no impropriety. “Mr. Alderman was fully aware of this final resolution as he was the person who properly raised 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 court’s ruling reverses the decision of Kanawha County Circuit Judge Irene Berger who ruled in Alderman’s favor. Alderman has asked for the West Virginia Grievance Board to rule quickly because, he said in the e-mail, that he plans to ask the Supreme Court for a rehearing of the matter. Alderman said he also expects to file a federal case because he believes his right to due process has been violated. Alderman was not available by telephone Monday. Plaintiff’s emphasis added. Plaintiff’s Note: This is the issue which I raise that there was no evidence that the investigation was conducted in full and that no impropriety was found. The reality is that the issue was covered up and then lied about by Law and Irvine under oath. The issues were not resolved. Charleston Gazette September 15, 2008 Grievance, raise issues get heavy response By Phil Kabler Staff writer CHARLESTON, W.Va. - Recent coverage of state personnel matters - including Manchin administration consultant Joe Smith's explanation of the freeze on merit raises, and the goings-on at the state Public Employees Grievance Board - kept the old e-mail inbox and phone lines humming last week. One state employee sent a copy of her letter to the Legislative Commission on Special Investigations, calling for them to investigate the Grievance Board's firing of Administrative Law Judge Tom Gillooly. Gillooly was fired without cause at the board's August meeting, one month after he made inquiries to the West Virginia State Bar about whether two colleagues - Brenda Gould and Denise Spatafore - 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 by completing Continuing Legal Education courses.) In the complaint to Special Investigations, the employee wrote:

"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 in every 10 decisions.) Others expressed concern that, while the grievance board is supposed to be an independent agency, the administration over time has come to exert too much influence over it, including having the board rely on administration counsel for legal advice. Meanwhile, DHHR employee Aline Workman was the first to file a motion for a new hearing, 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:

Respondent’s Attorney Chip E. Williams, #8116 Pullin, Fowler, Flanagan, Brown & Poe, PLLC 600 Neville Street, Suite 201 Beckley, West Virginia 25801 I certify that I have mailed a copy of this document via first class mail to the above and included a copy to the Circuit Court of Pocahontas County on this day May 12, 2009 Norman Lee Alderman Signed: _____________________________________ May 12, 2009