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
normanalderman@yahoo.com
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: So what was the Supreme Court’s response or was it
notified 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 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