Court Tosses Convictions Of Corrupt Judge
When Matt Klubeck landed in juvenile court four years ago for throwing a piece of steak at his mother's boyfriend during an argument, he figured the judge would dismiss the simple assault charge that had been lodged against him.
Instead, Luzerne County Judge Mark Ciavarella denied Klubeck his right to an attorney, presided over a hearing that lasted barely a minute or two, then forced the 13-year-old - only 4-foot-2 and 82 pounds at the time - to spend 48 terrifying days in a youth detention center.
Klubeck was among hundreds of juveniles Ciavarella sent to a private lockup run by PA Child Care LLC. In exchange, prosecutors say, Ciavarella took millions of dollars in kickbacks in one of the most egregious cases of judicial corruption ever seen.
On Thursday, Pennsylvania's highest court overturned hundreds of juvenile convictions issued by Ciavarella, ruling the disgraced judge violated the constitutional rights of youth offenders who appeared in his courtroom without lawyers between 2003 and 2008.
For Klubeck, who sank into a scared, lonely depression as he did time with much larger boys who had committed far more serious crimes, the decision means vindication - and a fresh start.
"This is great. This is great," said an exultant Klubeck, now 17, given the news by a reporter. "I can't believe he tried to ruin kids' lives in exchange for money. I'm glad he got caught."
Federal prosecutors charged Ciavarella and another Luzerne County judge, Michael Conahan, with taking $2.6 million in payoffs to put juvenile offenders in privately owned lockups.
The judges pleaded guilty to fraud last month and face sentences of more than seven years in prison.
"Today's order is not intended to be a quick fix," Chief Justice Ronald Castille said in a statement. "It's going to take some time, but the Supreme Court is committed to righting whatever wrong was perpetrated on Luzerne's juveniles and their families."
He decided that expungement was the most appropriate remedy for low-level offenders who appeared in Ciavarella's courtroom without lawyers - a group he has said numbered "easily into the hundreds."
Under Pennsylvania law, a juvenile may not waive his right to an attorney unless the decision is made "knowingly, intelligently and voluntarily." The judge must also formally question defendants to make sure they understand their rights, something Ciavarella routinely did not do.
In a report to the Supreme Court released Thursday, Grim said he has determined that "a very substantial number of juveniles who appeared without counsel before Judge Ciavarella ... did not knowingly and intelligently waive their right to counsel."
Grim next will review cases involving more serious juvenile offenses.
Prosecutors have described a scheme in which Conahan, Luzerne County's former president judge, shut down the county-owned juvenile detention center in 2002 and signed an agreement with PA Child Care LLC to send youth offenders to its new facility outside Wilkes-Barre.
Ciavarella, who presided over juvenile court, sent youths to the detention center and to a sister facility in western Pennsylvania while he was taking payments, prosecutors said.
PA Child Care LLC has not been charged. Former co-owner Robert Powell, who made the payments, has said he was the victim of extortion.
Even before the scandal became public in late January, youth advocates had complained for years that Ciavarella was a harsh jurist who deprived youths of their constitutional rights.
Youths were routinely brought before Ciavarella without a lawyer, given hearings that lasted only a minute or two, and then sent to detention for offenses as minor as stealing change from cars and writing prank notes.
In his report, Grim said "there was routine deprivation of children's constitutional rights to appear before an impartial tribunal and to have an opportunity to be heard."
The Philadelphia-based Juvenile Law Center asked the Supreme Court to intervene in Luzerne County last year, citing statistics that Ciavarella was opting for detention in far high numbers than would be expected. The justices rejected the request without comment in early January, then changed their mind after Conahan and Ciavarella were charged.
Marsha Levick, chief counsel of the law center, said that the unprecedented scope of the scandal will take time to fully address, but that Thursday's order was a start.
She said there are many inside the Luzerne County court system, including attorneys and probation officials, who had to know the rights of juvenile defendants were being routinely violated.
"Their failure to either individually or collectively speak out against what was going on in Judge Ciavarella's courtroom, I think, let all of these kids down," Levick said.
Hillary Transue, 17, who appeared in Ciavarella's courtroom in 2007 and spent a month in a wilderness camp for building a MySpace page that lampooned her assistant principal, was elated that her record would be expunged.
She did not have an attorney when she went before Ciavarella, nor was she told of her right to one.
"I feel incredible, not even just for myself, but for everyone who is involved in this whole thing, all of the kids who are going to have clean records now," Transue said.
The judges and others tied to the scandal face at least three lawsuits, including one filed by the Law Center.
A defendant in two of the lawsuits, former Chief Juvenile Probation Officer Sandra Brulo, illegally tampered with juvenile court records last month in an attempt to evade liability. She pleaded guilty Thursday to a federal charge of obstruction of justice.
© 2009 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. Instead, Luzerne County Judge Mark Ciavarella denied Klubeck his right to an attorney, presided over a hearing that lasted barely a minute or two, then forced the 13-year-old - only 4-foot-2 and 82 pounds at the time - to spend 48 terrifying days in a youth detention center.
Klubeck was among hundreds of juveniles Ciavarella sent to a private lockup run by PA Child Care LLC. In exchange, prosecutors say, Ciavarella took millions of dollars in kickbacks in one of the most egregious cases of judicial corruption ever seen.
On Thursday, Pennsylvania's highest court overturned hundreds of juvenile convictions issued by Ciavarella, ruling the disgraced judge violated the constitutional rights of youth offenders who appeared in his courtroom without lawyers between 2003 and 2008.
For Klubeck, who sank into a scared, lonely depression as he did time with much larger boys who had committed far more serious crimes, the decision means vindication - and a fresh start.
"This is great. This is great," said an exultant Klubeck, now 17, given the news by a reporter. "I can't believe he tried to ruin kids' lives in exchange for money. I'm glad he got caught."
Federal prosecutors charged Ciavarella and another Luzerne County judge, Michael Conahan, with taking $2.6 million in payoffs to put juvenile offenders in privately owned lockups.
The judges pleaded guilty to fraud last month and face sentences of more than seven years in prison.
"Today's order is not intended to be a quick fix," Chief Justice Ronald Castille said in a statement. "It's going to take some time, but the Supreme Court is committed to righting whatever wrong was perpetrated on Luzerne's juveniles and their families."
The Supreme Court approved the recommendations of Berks County Senior Judge Arthur Grim, whom the justices appointed in February to review cases handled by Ciavarella.
He decided that expungement was the most appropriate remedy for low-level offenders who appeared in Ciavarella's courtroom without lawyers - a group he has said numbered "easily into the hundreds."
Under Pennsylvania law, a juvenile may not waive his right to an attorney unless the decision is made "knowingly, intelligently and voluntarily." The judge must also formally question defendants to make sure they understand their rights, something Ciavarella routinely did not do.
In a report to the Supreme Court released Thursday, Grim said he has determined that "a very substantial number of juveniles who appeared without counsel before Judge Ciavarella ... did not knowingly and intelligently waive their right to counsel."
Grim next will review cases involving more serious juvenile offenses.
Prosecutors have described a scheme in which Conahan, Luzerne County's former president judge, shut down the county-owned juvenile detention center in 2002 and signed an agreement with PA Child Care LLC to send youth offenders to its new facility outside Wilkes-Barre.
Ciavarella, who presided over juvenile court, sent youths to the detention center and to a sister facility in western Pennsylvania while he was taking payments, prosecutors said.
PA Child Care LLC has not been charged. Former co-owner Robert Powell, who made the payments, has said he was the victim of extortion.
Even before the scandal became public in late January, youth advocates had complained for years that Ciavarella was a harsh jurist who deprived youths of their constitutional rights.
Youths were routinely brought before Ciavarella without a lawyer, given hearings that lasted only a minute or two, and then sent to detention for offenses as minor as stealing change from cars and writing prank notes.
In his report, Grim said "there was routine deprivation of children's constitutional rights to appear before an impartial tribunal and to have an opportunity to be heard."
The Philadelphia-based Juvenile Law Center asked the Supreme Court to intervene in Luzerne County last year, citing statistics that Ciavarella was opting for detention in far high numbers than would be expected. The justices rejected the request without comment in early January, then changed their mind after Conahan and Ciavarella were charged.
Marsha Levick, chief counsel of the law center, said that the unprecedented scope of the scandal will take time to fully address, but that Thursday's order was a start.
She said there are many inside the Luzerne County court system, including attorneys and probation officials, who had to know the rights of juvenile defendants were being routinely violated.
"Their failure to either individually or collectively speak out against what was going on in Judge Ciavarella's courtroom, I think, let all of these kids down," Levick said.
Hillary Transue, 17, who appeared in Ciavarella's courtroom in 2007 and spent a month in a wilderness camp for building a MySpace page that lampooned her assistant principal, was elated that her record would be expunged.
She did not have an attorney when she went before Ciavarella, nor was she told of her right to one.
"I feel incredible, not even just for myself, but for everyone who is involved in this whole thing, all of the kids who are going to have clean records now," Transue said.
The judges and others tied to the scandal face at least three lawsuits, including one filed by the Law Center.
A defendant in two of the lawsuits, former Chief Juvenile Probation Officer Sandra Brulo, illegally tampered with juvenile court records last month in an attempt to evade liability. She pleaded guilty Thursday to a federal charge of obstruction of justice.
Popular on CBSNews.com
- Massive tornado hits Oklahoma 69 Photos
- Children rescued from elementary school in Okla. 11 Photos
- Oklahoma tornado leaves dozens dead, including many children 90 Comments
- Oklahoma tornado carves trail of destruction Play Video
- Severe tornado tears through Oklahoma City suburb Play Video
- Oklahoma tornado as seen by storm chasers Play Video
- At least 51 dead after massive Okla. tornado
- More severe weather expected after monster tornado
2) Whoever to anser an unlawful detainer must pay the rent and with-hold the rent in COURT like Florida
3) Police must kick out the trespasser or illegal occupant, who can't prove he is a tenant after
landlord call 9-1-1
4) SC-105 request for cacellation has been submitted prior to SC-140 (request for Trial De Novo), and in
this case, the judge should not deny SC-105 becuse of the filing os SC-140, since SC-105 is the request
for defendant's claim and plaintiff's claim, but SC-140 is only for one of them, these two objectives are
different..
Respondent aver timeline:
j. Respondent/Appellee avers pro se that the Petitioner/Appellant is physically/verbally abusive and has threatened her and her family on June 25, 2008 in a false DV petition, and July 17, 2008 at the Family Court hearing.
k. Respondent/Appellee CONFESSES, with counsel, on Family Court VIDEO, she falsely filed the Domestic Violence Petition because she thought it would help here withhold custody of the child from the Petitioner/Appellant on July 17, 2008 at the Family Court hearing.
l. Respondent/Appellee avers pro se, she ?never saw or signed or read a surrogate parenting agreement? under oath before the Honorable Judge Stone, at a Motion for Preliminary Injunction hearing July 7, 2008. Avers no fraud.
m. Respondent/Appellee again avers she did not enter the agreement in a sworn written statement before a public notary, Maryanne H. Farley, with her counsel, Lynne C. Crane, July 14, 2008. Avers no fraud.
n. Respondent/Appellee again avers she did not sign, the agreement followed by ?Yes?, ?I don?t know?, in a Family Court hearing July 17, 2008 before the Honorable Judge Culpepper.
o. Respondent/Appellee through co-counsel, Douglas J. Crane makes first aver of fraud inducement verbally at the aforementioned July 17, 2008 hearing.
p. Respondent/Appellee through counsel, Douglas J. Crane makes second aver of fraud inducement verbally July 21, 2008 at a hearing before the Honorable Judge Clawges.
q. Respondent/Appellee avers she does not know if she signed the agreement in writing on July 30, 2008 with her counsel Lynne C. Crane. Avers no fraud.
r. Respondent/Appellee through counsel alleges she ?did not understand the question? asked by the Honorable Judge Stone: ?you never saw, signed, or read a surrogate parenting agreement?? Respondent replies ?No?; on September 12, 2008, in her Admittances/Interrogatories during Discovery of the Circuit Court trial.
s. Respondent/Appellee through counsel, Douglas J. Crane makes first aver of duress in writing and forth aver of fraud inducement in writing September 23, 2008 before the Honorable Judge Clawges.
t. Respondent/Appellee through counsel, Douglas J. Crane makes fifth aver of fraud inducement and second aver of duress, both verbally on October 7, 2008 and October 9, 2008, the coupled hearings before the Honorable Judge Clawges.
u. Respondent/Appellee, under oath, in testimony admits she signed the contract titled ?Surrogate Parenting Agreement? willing, voluntarily, free of duress and fraud on November 5, 2008.
v. Respondent/Appellee, under oath, in testimony, now alleges she ?was scared? to answer the truth, on November 5, 2008, when previously asked the aforementioned question by the Honorable Judge Stone. This contradicts the September 12, 2008 aver that she ?did not understand the question?.
w. Respondent/Appellee with counsel has been unsuccessfully trained to consistently, without contradiction, swear falsely under oath, verbally and/or in writing.
brent.benjamin@courtswv.gov
robindavis@courtswv.org
josephalbright@courtswv.org
pammccracken@courtswv.org
MargaretWorkman@courtswv.org
MenisKetchum@courtswv.org
Charles Alugbuo Jr.
"Daddy Loves You Lyo :)"
http://www.state.wv.us/wvsca/calendar/jan15_09w.htm
Veritas Et Aepuits
Vi Veri Vniversum Vivus Vici
ll. ?An unambiguous written contract entered into as the result of verbal or written negotiations will, in the absence of fraud or mistake, be conclusively presumed to contain the final agreement of the parties to it, and such contract may not be varied, contradicted or explained by extrinsic evidence of conversations had or statements made contemporaneously with or prior to its execution.?
mm. ?Extrinsic evidence of statements and declarations of the parties to an unambiguous written contract occurring contemporaneously with or prior to its execution is inadmissible to contradict, add to, detract from, vary or explain the terms of such contract, in the absence of a showing of illegality, fraud, duress, mistake or insufficiency of consideration.?
W. Va. Code ?48-9-201
nn. ?If the parents agree to one or more provisions of a parenting plan, the court shall so order??
i. The contract is a parenting agreement, it is titled ?parenting agreement?, the court shall order the agreement.
W. Va. State Code ?46-2-716, Buyer's right to specific performance or replevin. Quote
oo. ?(1) Specific performance may be decreed where the goods are unique or in other proper circumstances?.In the case of?personal, family, or household purposes, the buyer's right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.?
i. Child is not property, but is without a doubt unique, this is proper circumstance, and his contracted conception, carrying to term, and delivery was and is for personal and family purposes. Specific performance via court order lies in this case.
United States Constitution; Fourteenth Amendment; Equal Protection Clause.
pp. "no state shall? deny to any person within its jurisdiction the equal protection of the laws."
West Virginia State Constitution, 3-1. Bill of Rights.
qq. All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: The enjoyment of life and liberty, with the means of acquiring and possessing property, and of pursuing and obtaining happiness and safety.
West Virginia State Constitution, 3-7.
rr. Courts open to all -- Justice administered speedily. The courts of this state shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.
West Virginia Dep't of Human Servs. v. La Rea Ann C.L., 175 W.Va. 330, 332 S.E.2d 632 (1985).
ss. Child custody cases should be decided promptly.?
Syl. Pt. 2, State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 474 S.E.2d 554 (1996).
tt. ?Although an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause in Section 10 of Article III of the West Virginia Constitution.?
Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).? Syllabus point 3, Alden v. Harpers Ferry Police Civil Service Commission, 209 W. Va. 83, 543 S.E.2d 364 (2001).
uu. ?'Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.?
Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
a. ?A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.?
i. 25-218. Surrogate parentage contracts; prohibition; custody; definition
ii. D. For the purposes of this section, "surrogate parentage contract" means a contract, agreement or arrangement in which a woman agrees to the implantation of an embryo not related to that woman or agrees to conceive a child through natural or artificial insemination and to voluntarily relinquish her parental rights to the child.
WV Constitution 3-4 Writ of Habeas Corpus, contract protection guaranteed privilege.
ee. ?The privilege of the writ of habeas corpus shall not be suspended?No bill of attainder, ex post facto law, or law impairing the obligation of a contract, shall be passed.?
i. Burgett v. Oakley, 155 W. Va. 276, 184 S.E.2d 318 (1971);
ii. Jones v. Sidiropolis, 183 W. Va. 37, 393 S.E.2d 675 (1990);
iii. Miller v. Boles, 248 F. Supp. 49 (N.D. W. Va. 1965);
iv. Sheftic v. Boles, 377 F.2d 423 (4th Cir. 1967).
W. Va. Code ?49-6-7
ff. ?Consensual termination of parental rights. An agreement of a natural parent in termination of parental rights shall be valid if made by a duly acknowledged writing, and entered into under circumstances free from duress and fraud.
Syl. pt. 1, Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960)
gg. ?A parent has the natural right to the custody of his or her infant child, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.?)
Syl., State ex rel. Kiger v. Hancock, 153 W. Va. 404, 168 S.E.2d 798 (1969).
hh. ?A parent has the natural right to the custody of his or her infant child?unless the parent?has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody??
W. Va. Code ?48-22-303 the writing for parental rights is in English. Quote
ii. ?(a) A consent or relinquishment as required by the provisions of section 22-301 must be written in plain English or, if the person executing the consent or relinquishment does not understand English, in the person's primary language.?
WV Code ?48-22-302 the signing for parental rights was done before a public notary.
jj. ?(b) A consent or relinquishment executed by a parent or guardian as required by the provisions of section 22-301 must be signed and acknowledged in the presence of one of the following: (3) A notary public?
W. Va. Code ?55-8-3, action of assumpsit for breach of contract.
kk. ?An action of assumpsit shall lie in all cases to recover damages for the breach of any contract, express or implied, and, if in writing, whether under seal or not.?
i. It is a contract, it has been breached, action of assumpsit lies to recover damages, including but not limited to specific performance via court ordered relinquishment, reissuing of the birth certificate, and having the Petitioner?s name entered in the birth certificate.
y. MICHIGAN
i. SURROGATE PARENTING ACT Act 199 of 1988
ii. 722.851 Short title.
iii. Sec. 1. This act shall be known and may be cited as the ?surrogate parenting act?.
iv. History: 1988, Act 199, Eff. Sept. 1, 1988.
v. 722.853 Definitions.
vi. Sec. 3. As used in this act:
vii. (h) ?Surrogate mother? means a female who is naturally or artificially inseminated and who subsequently gestates a child conceived through the insemination pursuant to a surrogate parentage contract.
viii. (i) ?Surrogate parentage contract? means a contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artificial insemination, or in which a female agrees to surrogate gestation, and to voluntarily relinquish her parental or custodial rights to the child. It is presumed that a contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artificial insemination by a person other than her husband, or in which a female agrees to surrogate gestation, includes a provision, whether or not express, that the female will relinquish her parental or custodial rights to the child.
ix. History: 1988, Act 199, Eff. Sept. 1, 1988;?Am. 1990, Act 190, Imd. Eff. July 24, 1990
z. WASHINTON
i. RCW 26.26.210. Surrogate parenting--Definitions
ii. As used in RCW 26.26.210 through 26.26.260:
iii. (3) "Surrogate mother" means a female, who is not married to the contributor of the sperm, and who is naturally or artificially inseminated and who subsequently gestates a child conceived through the insemination pursuant to a surrogate parentage contract.
iv. (4) "Surrogate parentage contract" means a contract, agreement, or arrangement in which a female, not married to the contributor of the sperm, agrees to conceive a child through natural or artificial insemination or in which a female agrees to surrogate gestation, and to voluntarily relinquish her parental rights to the child.
aa. NEW HAMPSHIRE
i. TITLE XII PUBLIC SAFETY AND WELFARE CHAPTER 168-B SURROGACY
ii. Section 168-B:1
iii. 168-B:1 Definitions. ? In this chapter:
iv. II. "Birth mother'' means a woman who gestates an embryo conceived by natural or artificial insemination, in vitro fertilization, preembryo transfer or as a result of a surrogacy contract.
v. XIV. "Surrogate'' means a woman who agrees, pursuant to a surrogacy contract, to bear a child for intended parents.
bb. PENNSYLVANIA
i. HOUSE BILL No. 2699 Session of 1992
ii. This chapter shall be known and may be cited as the Surrogate Parenting Act.
iii. ? 8502. Definitions.
iv. "Surrogate carrier." A female who undergoes a surrogate gestation procedure under a surrogate parentage contract.
v. "Surrogate mother." A female who is naturally or artificially inseminated and who subsequently gestates a child conceived through that insemination under a surrogate parentage contract.
vi. "Surrogate parentage contract." A contract, agreement or arrangement in which a female agrees to conceive a child through natural or artificial insemination, or in which a female agrees to undergo a surrogate gestation procedure, and to voluntarily relinquish her parental rights to the child.
cc. ILLINOIS
i. 093_HB3314
ii. "Birth mother" means a woman who gestates an embryo conceived by natural or artificial insemination, in vitro fertilization, pre-embryo transfer, or as a result of a surrogacy contract.
iii. "Intended parent" means a person who enters into a surrogacy contract with a surrogate, in accordance with this Act, by which he or she is to become the parent of the resulting child. This term shall include the intended mother, intended father, or both.
iv. "Surrogacy" means any arrangement by which a woman agrees to be impregnated using either the intended father's sperm, the intended mother's egg, or a pre-embryo with the intent that the intended parent or parents are to become the legal parent or parents of the resulting child after the child's birth.
v. Section 20. Rights of parentage.
1. (c) Parental rights shall vest in the intended parent or parents immediately upon the birth of the child.
vi. Section 30. Legitimacy.
1. A child created through the provisions of this Act shall be considered, upon birth, the legitimate child of the intended parent or parents for all legal purposes.
o. RCW 26.26.210. Surrogate parenting--Definitions
p. As used in RCW 26.26.210 through 26.26.260:
q. (3) "Surrogate mother" means a female, who is not married to the contributor of the sperm, and who is naturally or artificially inseminated and who subsequently gestates a child conceived through the insemination pursuant to a surrogate parentage contract.
r. (4) "Surrogate parentage contract" means a contract, agreement, or arrangement in which a female, not married to the contributor of the sperm, agrees to conceive a child through natural or artificial insemination or in which a female agrees to surrogate gestation, and to voluntarily relinquish her parental rights to the child.
The five (5) of nine (9) states cited of the UPA 2002, citing attempt at marriage as means for establishing paternity. Supporting the Petitioner?s/Appellant?s argument that the attempt was done to correct the Respondent?s/Appellee?s lies to the DHHR and Mon General hospital that she did not know the father, prior to and at the birth of the child. Respondent testified she with held the Petitioner?s name from the birth certificate for no other reason but to propagate the breach. This extrinsic letter to the contract was written under the noted duress of the Petitioner when the Respondent admitted she had told the Petitioner she would abort the child early in the pregnancy, causing him to call several churches in Morgantown, WV to plead for the child?s life and write the letter, clearly under duress. This was proven via the Respondent?s/Appellee?s own testimony.
s. Washington
i. RCW 26.26.116 ? Presumption of paternity in context of marriage.
t. Alabama
i. Section 26-17-5 ? Presumption of paternity; rebuttal.
u. Delaware
i. ? 8-204. Presumption of paternity in context of marriage.
v. Texas
i. ? 160.204. PRESUMPTION OF PATERNITY.
w. North Dakota
i. Cent. Code ?? 14-20-11; 14-20-12; 14-20-50
x. * New Mexico (9th state as of 2008)
i. Alternate Means to Establish Paternity Ann. Stat. ? 24-14-13
g. ?A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.?
Syllabus Point 2, Watzman v. Unatin, 101 W.Va. 41, 131 S.E. 874 (1926).
h. ?Under the broad liberty of contract allowed by law, parties may make performance of any comparatively, or apparently, trivial and unimportant covenant, agreement, or duty under the contract a condition precedent, and, in such case, the contract will be enforced or dealt with as made.?
Syllabus Point 3, WELLINGTON POWER CORPORATION, A PENNSYLVANIA CORPORATION v.CNA SURETY CORPORATION, DBA CNA COMMERCIAL INSURANCE, A DELAWARE CORPORATION, AND W. G. TOMKO, INCORPORATED, A PENNSYLVANIA CORPORATION, v.CNA SURETY CORPORATION, DBA CNA COMMERCIAL INSURANCE, A DELAWARE CORPORATION, Nos. 31869 & 31870, W. Va. (2005)
i. ?This State's public policy favors freedom of contract which is the precept that a contract shall be enforced except when it violates a principle of even greater importance to the general public.?
j. Petitioner/Appellant in no way violated a West Virginia statutory or constitutional mandate of greater importance to the general public in the strong desire to have a family via the entering of the Surrogate Parenting Agreement.
Richmond v. Railroad Co., 26 Iowa, 191.? Syllabus Point 1, Barnes v. Koontz, 112 W.Va. 48, 163 S.E. 719 (1932).
k. ?The judicial power to declare a contract void as contravening sound public policy 'is a very delicate and undefined power,' and should be exercised only in cases free from doubt.?
l. Clearly the Monongalia County Circuit Court explicitly stated its doubt via the words ?assuming, arguendo?. A child is too important for assumptions, they are deserving of pure fact [natural instinct]. A natural parent deserves the right of a person of authority to not assume with their child, but ?know without a doubt?. Imagine a doctor saying, ?let?s assume, arguendo, your child has this ailment?. Or a priest saying, ?let?s assume, arguendo, your child was baptized?. It?s crazy, this is my child life being taken into consideration here, please do not assume, please base the ruling on the fact of existing West Virginia statutory and constitutional mandate, not the opinion of a hypothetical ?assumption arguendo?.
Syllabus Point 1, Carbon Black Co. v. Gillespie, 87 W.Va. 441, 105 S.E. 517 (1920).
m. ?Provisions of a contract, effecting a forfeiture or exacting a penalty, are strictly construed against the party for whose benefit they were incorporated in the instrument.?
Syllabus Point 3, Carbon Black Co. v. Gillespie, 87 W.Va. 441, 105 S.E. 517 (1920).
n. ?A covenant or condition, to suffice as the basis of a forfeiture clause in a contract, expressed in general terms, must be certain, definite and unequivocal in meaning.?
Syllabus, Hutton v. Dewing, 42 W.Va. 691, 26 S.E. 197 (1896).
a. "If one, with knowledge of a fraud which would relieve him from a contract, goes on to execute it, he thereby confirms it, and can not get relief against it. He has but one election to confirm or repudiate the contract, and, if he elects to confirm it, he is finally bound by it."
b. ?Other law in West Virginia indicates, however, that where a party discovers fraud after entering into a contract, but before the contract is performed, that party must either elect to rescind the contract on the basis of the fraud or affirm the contract and accept the performance of the party who committed the fraud. The law further indicates that if the defrauded individual elects to affirm the contract and accept the performance of the party who committed the fraud, he thereby waives any subsequent action for fraud.?
Syllabus Point 3, Timberlake v. Heflin, 180 W.Va. 644, 379 S.E.2d 149 (1989).
c. ?The operation of the statute of frauds goes only to the remedy; it does not render the contract void.
W. Va. Code ?48-22-803 (e) (3).
d. ?This section does not prohibit the payment or receipt of the following: Fees and expenses included in any agreement in which a woman agrees to become a surrogate mother.?
e. ?West Virginia seems to implicitly legalize surrogate contracts by excluding them from baby-selling statues?. Petitioner concurs, there is no other legislative guidance for surrogate (or gestational) contracts, as this is the only West Virginia statue which mention surrogate mothers. Therefore, the Petitioner contract is valid, enforceable, and cannot be judicially voided via sound judicial discretion as it violates the statutory and conditional mandates of West Virginia.
Reddy v. Community Health Foundation of Man, 171 W. Va. 368, 373 (1982).
f. ?[T]he failure to read a contract before signing it does not excuse a person from being bound by its terms.?
?This State's public policy favors freedom of contract which is the precept that a contract shall be enforced except when it violates a principle of even greater importance to the general public.? Syllabus Point 3, WELLINGTON POWER CORPORATION, A PENNSYLVANIA CORPORATION v.CNA SURETY CORPORATION, DBA CNA COMMERCIAL INSURANCE, A DELAWARE CORPORATION, AND W. G. TOMKO, INCORPORATED, A PENNSYLVANIA CORPORATION, v.CNA SURETY CORPORATION, DBA CNA COMMERCIAL INSURANCE, A DELAWARE CORPORATION, Nos. 31869 & 31870, W. Va. (2005)
?When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.? Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
The surrogate mother (Appellee), as stated in her MCCCourt November 5, 2008 submitted testimony, page 31:
4. Q. Okay, but you do admit you saw surrogate
5. mother, and that was you, and it said print your name
6. there as surrogate mother and sign your name there, and
7. READ that and you did that?
8. A. YES.
The W. Va. ?surrogate mother? statue clearly and unambiguously states in plain legislative intent of language, that the contractual ?receipt? of a child(ren), via an ?agreement in which a woman agrees to become a surrogate mother? cannot be prohibited, as it is against public policy of W. Va. to prohibit such agreements. Furthermore, it states that any expenses and/or payment, ?commercial or altruistic?, cannot be prohibited from ?surrogate mother agreements?. The legislator does not limit nor prohibit the Agreements? contemplated insemination in any way, shape, or form. The MCCCourt does not sit as a ?superlegislature? therefore it should not have exercised power even the W. Va. Supreme Court chooses not to exercise.
West Virginia Judicial Opinion issued November 18, 1992, CC-91-243, per curiam. ?In Restatement, Contracts 2d, it is provided in pertinent part: Sec. 344. Purposes of Remedies. Judicial remedies under the rules of this Reinstatement serve to protect one or more of the following interests of the promisee: (a) his "expectation interest," which is his interest in having the profit of his bargain by being put in as good a position as he would have been had the contract been performed; (b) his "reliance interest," which is his interest in being reimbursed for loss caused by reliance on the contract by being put in as good a position as he would have been in had the contract been performed; or (c) . . . . The Restatement makes the comment that Sec. 347 attempts to put the injured party in as good a position as he would have been in had the contract been performed, that is, had there been no breach. Consistent with the Restatement, Contracts 2d, Secs. 344 and 347, are the following decisions of the Supreme Court of Appeals in West Virginia: Polino v. Kech, 80 W.Va. 426, 96 S.E. 665 (1917); Berry v. Huntington Masonic Temple Ass'n., 80 W.Va. 342, 93 S.E. 355 (1917); and Franklin v. Pence, 128 W.Va. 353, 36 S.E.2d 505 (1945). See also 22 Am. Jur. 2d 692, Damages Sec. 63.? West Virginia Judicial Opinion issued November 18, 1992, CC-91-243, per curiam. Had there been no breach, the child would be in the custody of the father, the Petitioner