John Raby, Author at West Virginia Public Broadcasting

W.Va. Supreme Court Issues Opinion In Scholarship Ruling

West Virginia’s Supreme Court released a full opinion Thursday in an order it issued last month that allowed a non-public school scholarship program to continue.

The five-member court on Oct. 6 reversed a lower court’s ruling that had blocked the Hope Scholarship Program. The program was supposed to start this school year and is one of the most far-reaching school choice programs in the country. It incentivizes West Virginia families to pull their children out of K-12 public schools by offering them state-funded scholarships.

A Charleston-area judge in July ruled the program violated the state’s constitutional mandate to provide “a thorough and efficient system of free schools.”

Writing for the majority, Justice Tim Armstead said in a 49-page opinion that the state Constitution “does not prohibit the Legislature from enacting the Hope Scholarship Act in addition to providing for a thorough and efficient system of free schools.”

“The Constitution allows the Legislature to do both of these things,” Armstead said. “Therefore, we find that the circuit court abused its discretion by permanently enjoining the State from implementing the Hope Scholarship Act.”

The higher court’s decision was not unanimous. In a dissenting opinion, Chief Justice John Hutchison argued that the state Constitution provides “that the Legislature’s obligation to provide a through and efficient education is limited to doing so only by a system of free schools, not through subsidizing private educational systems.

“As such, the Hope Scholarship Act and its subsidization of private education is prohibited by the West Virginia Constitution. I would, therefore, have affirmed the circuit court,” he wrote.

Passed by the Republican-controlled Legislature last year, the law that created the Hope Scholarship Program allows families to apply for state funding to support private school tuition, homeschooling fees and a wide range of other expenses.

More than 3,000 students were approved to receive around $4,300 each during the program’s inaugural cycle, according to the West Virginia State Treasurer’s Office. The first payments were supposed to go out in August but were put on hold while the lower court’s block on the program was in place.

Families can’t receive the money if their children were already homeschooled or attending private school. To qualify, students have to have been enrolled in a West Virginia public school last year or had to be set to begin kindergarten this school year.

In January, three parents of special education students sued the state, saying the scholarship program takes money away from already underfunded public schools. The lawsuit was supported by the West Virginia Board of Education. One family later withdrew from the case.

W.Va. House Speaker Plans Resumption To Abortion Bill Session

West Virginia's House speaker says he plans to contact members next week to call them back for a special session, likely to discuss an ongoing abortion bill.

The speaker of the West Virginia House of Delegates said Friday he plans to contact members next week to call them back Sept. 12 for a special session likely to discuss an ongoing abortion bill. The call drew a terse response from the state Senate president, who said it took him by surprise.

Speaker Roger Hanshaw, a Clay County Republican, said the return of lawmakers would coincide with regularly scheduled interim committee meetings.

In July, the Legislature met in special session to address bills on abortion and on an income tax reduction. Neither bill passed before lawmakers adjourned.

Senate President Craig Blair, a Berkeley County Republican, said that when he learned about Hanshaw’s statement, “to say I was shocked is an understatement.

“Communication is vital to ensuring government works in an efficient and productive manner,” Blair said. “While there has been communication on modifications to House Bill 203 that would be acceptable to both chambers, to date no agreement has been reached.”

The House, which earlier passed its version of an abortion bill, refused to concur with Senate amendments. Instead, delegates asked for a conference committee to iron out differences.

The bill, which some lawmakers complained was not vetted by any Senate committees, would ban abortions except in case of rape or incest. The Senate approved an amendment sponsored by a physician, Kanawha County Republican Tom Takubo, that would remove criminal penalties of three to 10 years upon conviction for any medical provider who performs an abortion.

A statement issued by the House on Friday said conference committee members must be announced during a House session. Because it had already adjourned, the Senate has yet to receive the House’s request for the conference committee.

Blair said that while he supports passing abortion legislation, “I will not cause further chaos and disruption to the process, or burden our taxpayers with unnecessary expenses, by calling Senators back into session without a concrete plan for producing a bill that has the votes to pass both chambers.”

Abortions remain legal in West Virginia after a judge blocked enforcement of the state’s 150-year-old abortion ban in July.

Judge Rejects Plea Agreement In Submarine Secrets Sale Case

A Navy nuclear engineer and his wife have withdrawn their guilty pleas in a case involving the sale of secrets about American nuclear submarines. The moves by Jonathan and Diana Toebbe came Tuesday in a federal court in West Virginia after a judge rejected plea agreements that had called for specific sentencing options.

A Navy nuclear engineer and his wife withdrew their guilty pleas Tuesday in a case involving an alleged plot to sell secrets about American nuclear-powered warships after a federal judge rejected plea agreements that had called for specific sentencing guidelines.

Jonathan and Diana Toebbe of Annapolis, Maryland, pleaded guilty in February in federal court in Martinsburg, West Virginia, to one count each of conspiracy to communicate restricted data.

The sentencing range agreed to by lawyers for Jonathan Toebbe had called for a potential punishment between roughly 12 years and 17 years in prison. Prosecutors said Tuesday that such a sentence would be one of the most significant imposed in modern times under the Atomic Energy Act of 1954. Prosecutors also sought three years for Diana Toebbe.

U.S. District Judge Gina Groh said that while she generally honors plea agreements, in this case she said the sentencing options were “strikingly deficient” considering the seriousness of the charges.

Groh said the act to which the couple pleaded guilty was done “for selfish and greedy reasons, but could have caused great harm” to the Navy and others.

“I don’t find any justifiable reasons for accepting either one of these plea agreements,” Groh said.

Wearing orange jail jumpsuits and seated at separate tables, the couple then separately withdrew their guilty pleas, leading Groh to set a trial date for Jan. 17.

Prosecutors said Jonathan Toebbe abused his access to top-secret government information and repeatedly sold details about the design elements and performance characteristics of Virginia-class submarines to someone he believed was a representative of a foreign government but who was actually an undercover FBI agent.

Diana Toebbe, who was teaching at a private school in Maryland at the time of the couple’s arrest last October, was accused of acting as a lookout at several prearranged “dead-drop” locations at which memory cards containing the secret information were left behind.

The memory cards were devices concealed in objects such as a chewing gum wrapper and a peanut butter sandwich. The couple was arrested after he placed a memory card at a dead drop location in Jefferson County, West Virginia.

None of the information was classified as top secret or secret, falling into a third category considered confidential, according to testimony Tuesday.

The FBI has said the scheme began in April 2020, when Jonathan Toebbe sent a package of Navy documents to a foreign government and wrote that he was interested in selling to that country operations manuals, performance reports and other sensitive information. He included in the package, which had a Pittsburgh return address, instructions to his supposed contact for how to establish a covert relationship with him, prosecutors said.

That package was obtained by the FBI in December 2020 through its legal attaché office in the unspecified foreign country. That set off a monthslong undercover operation in which an agent posing as a representative of a foreign country made contact with Toebbe, ultimately paying $100,000 in cryptocurrency in exchange for the information Toebbe was offering.

Jonathan Toebbe, who held a top-secret security clearance through the Defense Department, had agreed as part of the plea deal to help federal officials with locating and retrieving all classified information in his possession, as well as the cryptocurrency paid to him.

The country to which Jonathan Toebbe was looking to sell the information has not been identified in court documents and was not disclosed in court.

FBI agents who searched the couple’s home found a trash bag of shredded documents, thousands of dollars in cash, valid children’s passports and a “go-bag” containing a USB flash drive and latex gloves, according to court testimony last year.

During a December 2021 hearing, Diana Toebbe’s lawyers denied prosecution assertions that cited 2019 messages exchanged by the couple in which she had contemplated fleeing the United States to avoid arrest. Instead, the defense said it was contempt for then-President Donald Trump as the reason behind the couple’s emigration plans.

W.Va. Governor: Voters Shouldn't Decide Abortion Access Issue

West Virginia Gov. Jim Justice has rejected a suggestion by Democrats to let voters decide whether abortion should continue to be allowed in the state.

West Virginia Gov. Jim Justice scoffed Monday at a suggestion by Democratic lawmakers to let voters decide whether abortion should continue to be allowed in the state.

The Republican governor said the state’s abortion law falls under the scrutiny of the Legislature and the attorney general.

During a legislative special session initiated by Justice last month, majority Republicans failed to pass legislation criminalizing abortion.

On Friday, top Democrats asked Justice and leading GOP lawmakers to bring the Legislature back to consider a resolution to allow voters to consider a constitutional amendment for “reproductive freedom.”

Justice wanted no part of that.

“Unfortunately, this place is surrounded with constant grandstanding,” the governor said at a news conference. “I think that’s what the Democrats are doing.”

Abortion had been banned after 20 weeks of pregnancy in West Virginia until the U.S. Supreme Court overturned the constitutional right to abortion. After that ruling, Attorney General Patrick Morrisey said abortion was banned completely in the state because of an 1800s-era law that had been unenforceable while abortion was federally protected.

But a Charleston judge barred the state from enforcing the ban, ruling it had been superseded by a slew of conflicting modern laws, including the 20-week ban. Morrisey has appealed the ruling to the state Supreme Court, which is expected to take up the case this fall.

“Coming down from the U.S. Supreme Court, this is the responsibility of our Legislature and our attorney general,” Justice said. “And absolutely I’ve said over and over and over, I don’t want to impose anything, any ideas or anything.”

“Now, if they bring me something that I cannot sign, I won’t sign it. But actually, I don’t think that’ll happen. I think our Legislature is abound with good people and they should get through this and bring me something that I will absolutely welcome and sign. And I think that’s exactly what will happen.”

In 2018, West Virginia voters approved a constitutional amendment saying that nothing in the state Constitution “secures or protects a right to abortion or requires the funding of abortion.”

During the special session, the House of Delegates passed a sweeping abortion ban that would have made providing the procedure a felony punishable by up to 10 years in prison. The measure included exceptions for victims of rape and incest, as well as for medical emergencies. The Senate passed its version that removed penalties for physicians who perform illegal abortions.

The House of Delegates quickly refused to concur with the Senate changes, instead asking for a conference committee to iron out differences among the bills. More than two weeks later, no such committee has been announced.

The West Virginia Democrats’ call for a referendum came after residents in Kansas, another state with a GOP-controlled Legislature, rejected a ballot measure that would have allowed lawmakers to tighten restrictions or ban the procedure outright. Despite the big margin, Kansas plans to recount the vote by hand.

“This is a very important issue,” West Virginia Senate Minority Leader Stephen Baldwin said in an email Monday. “We need a resolution sooner rather than later. The legislature had a chance to act and failed. We should let the people decide. This is a constitutional question, and our constitution empowers the people to decide it on the ballot.”

After West Virginia Opioid Verdict, Another Case Postponed

The trial for a lawsuit accusing three major U.S. drug distributors of causing a health crisis throughout West Virginia has been postponed.

A trial in a lawsuit accusing three major U.S. drug distributors of causing a health crisis throughout West Virginia was postponed Tuesday, a day after the companies prevailed in another case in the state.

Attorneys who represented Cabell County and the city of Huntington on the losing end of a verdict announced in federal court Monday were granted a continuance of a trial a day later in Kanawha County Circuit Court. The trial involves more than 100 other cities and counties statewide against the same defendants: AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp.

Attorneys for the municipalities and the companies met in the judge’s chambers just prior to the start of the hearing. Once in the courtroom, attorneys for the plaintiffs asked that the start of the trial be continued. The defense had no objections and the request was approved.

In the federal bench trial, U.S. District Judge David Faber said the plaintiffs offered no evidence that the companies distributed controlled substances to any entity that didn’t hold a proper registration from the U.S. Drug Enforcement Administration or the state Board of Pharmacy. The defendants also had systems in place to monitor suspicious activity, as required by the Controlled Substances Act, he said.

“Plaintiffs failed to show that the volume of prescription opioids distributed in Cabell/Huntington was because of unreasonable conduct on the part of defendants,” Faber wrote in a decision that came nearly a year after closing arguments in that case.

The Cabell County-Huntington lawsuit alleged the distributors created a public nuisance by flooding the Ohio River community with 81 million pills over eight years. The suit sought more than $2.5 billion that would have gone toward abatement efforts. But Faber said West Virginia’s Supreme Court has only applied public nuisance law in the context of conduct that interferes with public property or resources. He said to extend the law to cover the marketing and sale of opioids “is inconsistent with the history and traditional notions of nuisance.”

The companies blamed an increase in prescriptions written by doctors along with poor communication and pill quotas set by federal agents.

Huntington has long been an epicenter of the nationwide opioid addiction and overdose epidemic that has been linked to more than 500,000 deaths over the past two decades. That status led West Virginia to being aggressive in lawsuits over the trauma earlier than most states. It settled with the three distributors in 2017 and 2019 in deals worth a total of $73 million.

But the state did not participate in a $21 billion nationwide settlement with those companies that was finalized this year and would have resulted in a larger payout for West Virginia than what the state received in the earlier deals.

The nationwide impact of Monday’s ruling in West Virginia could be muted because the companies have struck the broader settlement, which is intended to have most of the funds go to fighting the opioid crisis.

In another lawsuit, the state of West Virginia reached a tentative $161.5 million settlement in May with Teva Pharmaceuticals Inc., AbbVie’s Allergan and their family of companies and a $26 million settlement in March with Endo Health Solutions.

U.S. Judge Finds For 3 Drug Distributors In W.Va. Opioid Lawsuit

A federal judge has ruled in favor of three major U.S. drug distributors in a landmark lawsuit filed in West Virginia.

A federal judge on Monday ruled in favor of three major U.S. drug distributors in a landmark lawsuit that accused them of causing a health crisis by distributing 81 million pills over eight years in one West Virginia county ravaged by opioid addiction.

The verdict came nearly a year after closing arguments in a bench trial in the lawsuit filed by Cabell County and the city of Huntington against AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp.

“The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington. And while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law,” U.S. District Judge David Faber wrote in the 184-page ruling. “In view of the court’s findings and conclusions, the court finds that judgment should be entered in defendants’ favor.”

Cabell County attorney Paul Farrell had argued the distributors should be held responsible for sending a “tsunami” of prescription pain pills into the community and that the defendants’ conduct was unreasonable, reckless and disregarded the public’s health and safety in an area ravaged by opioid addiction.

The companies blamed an increase in prescriptions written by doctors along with poor communication and pill quotas set by federal agents.

While the lawsuit alleged the distributors created a public nuisance, Faber said West Virginia’s Supreme Court has only applied public nuisance law in the context of conduct that interferes with public property or resources. He said to extend the law to cover the marketing and sale of opioids “is inconsistent with the history and traditional notions of nuisance.”

Faber noted that the plaintiffs offered no evidence that the defendants distributed controlled substances to any entity that didn’t hold a proper registration from the Drug Enforcement Agency or the state Board of Pharmacy. The defendants also had suspicious monitoring systems in place as required by the Controlled Substances Act, he said.

“Plaintiffs failed to show that the volume of prescription opioids distributed in Cabell/Huntington was because of unreasonable conduct on the part of defendants,” Faber wrote.

In a statement, Cardinal Health said the judge’s ruling “recognizes what we demonstrated in court, which is that we do not manufacture, market, or prescribe prescription medications but instead only provide a secure channel to deliver medications of all kinds from manufacturers to our thousands of hospital and pharmacy customers that dispense them to their patients based on doctor-ordered prescriptions.

“As we continue to fulfill our limited role in the pharmaceutical supply chain, we operate a constantly adaptive and rigorous system to combat controlled substance diversion and remain committed to being part of the solution to the opioid crisis.”

Attorneys for the plaintiffs said they were “deeply disappointed” in the ruling.

“We felt the evidence that emerged from witness statements, company documents, and extensive datasets showed these defendants were responsible for creating and overseeing the infrastructure that flooded West Virginia with opioids. Outcome aside, our appreciation goes out to the first responders, public officials, treatment professionals, researchers, and many others who gave their testimony to bring the truth to light.”

Huntington Mayor Steve Williams said the ruling was “a blow to our city and community, but we remain resilient even in the face of adversity.

“The citizens of our city and county should not have to bear the principal responsibility of ensuring that an epidemic of this magnitude never occurs again.”

The plaintiffs had sought more than $2.5 billion that would have gone toward abatement efforts. The goal of the 15-year abatement plan would have been to reduce overdoses, overdose deaths and the number of people with opioid use disorder.

Last year in Cabell County, an Ohio River county of 93,000 residents, there were 1,067 emergency responses to suspected overdoses — significantly higher than each of the previous three years — with at least 158 deaths. So far this year, suspected overdoses have prompted at least 358 responses and 465 emergency room visits, according to preliminary data from the state Department of Health and Human Resources’ Office of Drug Control Policy.

The U.S. addiction crisis was inflamed by the COVID-19 pandemic with drug overdose deaths surpassing 100,000 in the 12-month period ending in April 2021, according to the Centers for Disease Control and Prevention. That’s the highest number of overdose deaths ever recorded in a year.

The Cabell-Huntington lawsuit was the first time allegations involving opioid distribution ended up at federal trial. The result could have huge effects on similar lawsuits. Some have resulted in multimillion-dollar settlements, including a tentative $161.5 million settlement reached in May by the state of West Virginia with Teva Pharmaceuticals Inc., AbbVie’s Allergan and their family of companies.

In all, more than 3,000 lawsuits have been filed by state and local governments, Native American tribes, unions, hospitals and other entities in state and federal courts over the toll of opioids. Most allege that either drug makers, distribution companies or pharmacies created a public nuisance in a crisis that’s been linked to the deaths of 500,000 Americans over the past two decades.

In separate, similar lawsuits, the state of West Virginia reached a $37 million settlement with McKesson in 2019, and $20 million with Cardinal Health and $16 million with AmerisourceBergen in 2017.