ACLU-WV Petition Seeks Transparency For Alleged ‘Secret Prison Laws’

The American Civil Liberties Union of West Virginia has alleged the state Division of Corrections and Rehabilitation and Department of Homeland Security attempted to hide a set of legislative rules from public view.

The American Civil Liberties Union of West Virginia has alleged the state Division of Corrections and Rehabilitation and Department of Homeland Security attempted to hide a set of legislative rules from public view.

The ACLU’s legal filing alleges Corrections and Rehabilitation provided a partial and inaccurate version of its Policy Directives Manual after it was requested by the organization in January. 

It also alleges that after the ACLU requested access to the manual from the Secretary of State’s office, certain access was restricted after some time at the request of Homeland Security. The agency also allegedly requested a removal of the documents from the Secretary of State’s office, which was denied.

“What we were initially looking at, it’s unclear the extent to which that was accurate in the first place. But at this point, we don’t have access to the full document,” ACLU-WV Managing Attorney Aubrey Sparks said.

The manual is considered a legislative rule in West Virginia code. The ACLU petitioned the Kanawha County Circuit Court to order the agencies to provide a complete and accurate version of the policies, claiming the two agencies were creating “secret laws.”

Sparks said legislative rules act differently than internal policies or procedure guides.

“The issue here is that this is a legislative rule, which means that it has the full force of law, and yet it’s not accessible to the public,” Sparks said.

The request for the DCR documents comes after a 2021 report that ACLU-WV published with findings that West Virginia has some of the nation’s deadliest jails.

“We were interested in seeing how those jails are run, if that document, that legislative rule conferred any substantive rights on the people who were incarcerated that could be useful in trying to improve the conditions of the prisons and jails,” Sparks said.

According to the legal filing, the Division of Corrections and Rehabilitations claimed the initial request for the document was treated as a Freedom of Information Act request, with some of the records removed “pursuant to W. Va. Code § 29B-1-4(a)(19),” which states certain records relating to facilities, directives and operational procedures could be used “to escape a facility, or to cause injury to another inmate, resident, or to facility personnel” if they are released.

The ACLU argued in the filing that the public still had a right of access and that further access was withheld to documents which were not initially restricted.

West Virginia Public Broadcasting reached out to the DHS and DCR for comment. The DHS declined to comment, while the DCR has not yet provided a response as of the story’s publication.

W.Va. Abortion Law’s First Legal Test Comes Monday

When the U.S. Supreme Court overturned Roe v. Wade, it sent abortion law decisions back to the states.

When the U.S. Supreme Court overturned Roe v. Wade, it sent abortion law decisions back to the states.

Attorney General Patrick Morrisey’s initial opinion was that a 19th century felony law banning all abortion was valid, but needed legislative clarification due to subsequent restrictive abortion rulings.

A group of reproductive rights advocates are asking the court for an injunction to prevent enforcement of the old law. They say laws that both restrict and ban abortion conflict and need legislative clarification.

“For the past half century the criminal abortion ban has lain dormant, and has been replaced by a modern, comprehensive statutory regime that recognizes and regulates the provision of legal abortion in West Virginia,” the lawsuit contends.

A response and memorandum filed by the attorney general’s office in the injunction case denies there’s a conflict. The documents state that the original law was never repealed and legislative interests have always been to limit abortions to the fullest extent possible.

“The statutory scheme shows that the Legislature never intended to repeal the Act through those regulations, and even if a conflict existed (and one does not), the ‘general rule’ to strike the Act is in apropos because of the unique Roe-specific intent behind the civil regulations,” the response states.

The response also states plaintiffs are not specific individuals seeking abortions and therefore have no legal standing here.

“Plaintiffs do not have the special standing to bring a claim on behalf of all pregnant women in West Virginia seeking an abortion, so they cannot claim any irreparable injury to pregnant women as relates to their request for a preliminary injunction,” the response states.

The hearing begins next Monday in Kanawha County Circuit Court.

W. Va. Attorney General Files Lawsuits Against Two More Opioid Manufacturers

West Virginia’s Attorney General filed two lawsuits against a pair of opioid-manufacturers in Boone County Circuit Court on Monday, alleging the internationally operating companies have illegally misrepresented their products and downplayed the risks associated with opioid painkillers.  

Mallinckrodt Pharmaceuticals and Endo Health Solutions, Inc. are the most recent organizations to be called out in a string of lawsuits filed by Attorney General Patrick Morrisey this year, bringing the total number of lawsuits to five 

In all these suits, Morrisey has requested preliminary and temporary injunctions to stop the manufacturers from their allegedly unlawful conduct. Morrisey also is suing for equitable relief, including civil penalties of up to $5,000 per each violation of the state’s Consumer Credit and Protection Act.  

In Thursday’s more-than-sixty page suit against Endo Health Solutions, the lawsuit describes a product-line of prescription painkillers that were commonly associated with addiction and medical consequences.  

In 1964, Endo’s oxycodone-aspirin product Percodan reportedly was reclassified as a Class A narcotic, only available by prescription. In 1966, Morrisey’s lawsuit reports people were abusing Endo’s tablet products, Numorphan, via injection.  

By the 1970s, Endo reportedly succumbed to “regulatory pressure” and withdrew Numorphan from the market.  

Endo reportedly asked the federal Food and Drug Administration to reactivate the company’s authority to sell tablets again in 1996, after witnessing Purdue’s success with selling their opioid product, Oxycontin.  

According to the lawsuit, Endo’s rebranded its tablets under the new name Opana in 2006 and went on to persuade doctors and patients it was appropriate for long-term treatment of minor pain.  

“Opioid manufacturers are responsible, in part, for the State’s opioid epidemic,” the lawsuit said. “Over time, opioid manufacturers overcame physicians’ reluctance to prescribe opioid pain relievers …They [manufacturers] claimed doctors were confusing addiction with physical dependence and stated that addiction was rare and completely distinct from physical dependence, and claimed that physical dependence was clinically unimportant.” 

As for the lawsuit against Mallinckrodt, Morrisey’s lawsuit calls the company the “largest U.S. supplier of opioid pain medications and among the top ten generic pharmaceutical manufacturers in the U.S.”  

The document also includes emails reportedly from the company to prove Mallinckrodt leadership was aware of the addictive risks associated with their product.  

In one email, the lawsuit quotes a conversation between Vice President Steven Cochran of the distributor Keysource Medical, Inc., and Victor Borelli, Mallinckrodt’s national retail account manager, who compared his company’s products to “Doritos.”  

“Keep ‘em comin’,” Cochran allegedly wrote to Borelli. “Flyin’ out of here. [It’s] like people are addicted to these things or something. Oh, wait, people are …”  

“Just like Doritos,” Borelli said. “Keep eating. We’ll make more.”  

Morrisey’s office has filed three other lawsuits in Boone County Circuit Court against large-scale manufacturers Purdue PharmaTeva and Johnson and Johnson.  

Rallies, Legal Action, Grassroots Movements – Nearly a Year of Rockwool Debate

This summer will mark one year since thousands of residents in Jefferson County, West Virginia started a movement to rally against a Denmark-based company called Rockwool. The company’s proposed West Virginia plant would manufacture stone wool insulation across the street from an elementary school. The issue has sparked contention throughout the region. The voices from those against Rockwool have grown louder, but so too have those who do want Rockwool in West Virginia.

Mention Rockwool to anyone in Jefferson County, and you’ll likely get a range of responses. If you drive along almost any road in the county, you’ll find sign after sign that read, “Say No To Rockwool” or “Stop Toxic Rockwool.” In fact, along some roads, there are giant signs propped up on trucks and trailers saying that same message. It’s clear, many in the county do not want this plant built.

Pro and Anti-Rockwool Groups Emerge

Since pushback to the proposed Rockwool plant erupted almost a year ago, the community has only grown more divided. Those against the plant have taken their challenges to the courts.

But those in support of the plant have gotten more organized, too.

“I am the secretary of Jefferson County Prosperity. It is ‘prosperity for all of Jefferson County,’” Kearneysville resident Barbara Fuller told West Virginia Public Broadcasting.

Jefferson County Prosperity formed as a result of the strong opposition to Rockwool and is the only pro-Rockwool group in the county, with 50 active members and more than 1,000 likes on Facebook.

“Everybody [in the group] wants [Jefferson County] to be back the way it used to where people weren’t at each other’s throats,” she said. “I mean, I can go into Walmart now, and they’ll know who I am. And you know, I’ll get nasty glares, which is crazy. And it never used to be like that. Jefferson County used to be so warming.”

Fuller first spoke with West Virginia Public Broadcasting at one of Rockwool’s open houses last August.

At that time, she wasn’t totally on board with Rockwool yet. But after doing her own research and going to the company’s open houses, she said she’s now strongly supportive and believes Rockwool will be a good neighbor, safe and stand by their promises.

“They want to give back. They want the people around to be happy. They want their employees to be happy,” she said.

FOIAs, Lawsuits and Election Upset

Denmark-based Rockwool makes stone wool insulation by melting down basalt rock and recycled slag, and then those fibers are spun to create a wool-like material used to insulate buildings, industrial applications or acoustic ceilings.

The company wants to build a 460,000-square-foot plant in Ranson, Jefferson County, and it would employ about 150 people earning wages between $35,000 and $85,000 a year. But it’s two, 21-story smokestacks would tower over a local elementary school.

Some in the county feel as if they were blindsided by state and county officials who invited Rockwool to locate here.

“You weren’t sure if this was scary or not,” Harpers Ferry resident Shaun Amos said. Amos is a board member of the leading Rockwool opposition group called Jefferson County Vision. The not-for-profit group formed out of a Facebook group called “Concerned Citizens Against Rockwool” that has nearly 11,000 members.

“People had questions,” Amos said. “And we weren’t sure how we had gone from nothing. And then sort of just this trickling of information about some Danish company that was coming, to, oh, my gosh, there’s a giant polluting factory about to be dropped down in the backyard, across the street from an elementary school.”

Jefferson County Vision’s mission statement includes fighting for clean air, clean water, and clean government. The group has filed legal action throughout the year; FOIA requests against the Jefferson County Commission and the Jefferson County Development Authority, or JCDA, all related to Rockwool. They’ve also filed lawsuits against the JCDA and the state.

One lawsuit questions the constitutionality of a PILOT agreement made between West Virginia and Rockwool. A PILOT agreement stands for “payment in lieu of taxes,” and it’s used as an incentive to attract businesses to West Virginia. Another lawsuit questions how the land was zoned on the location where Rockwool is expected to be built.

These lawsuits are still pending, but Amos is confident that Rockwool will be defeated.

“This factory is not coming here, because the citizens have decided that it will not be built here,” he said. “This will not happen here, and it’s just a matter of time before this water flood of citizenry finds the weak places in the wall and undermines the foundation that this thing came here on.”

The debate over Rockwool even sparked upset during the 2018 election. Some new Jefferson County Commissioners were elected, and two House of Delegates seats in Jefferson County flipped from red to blue.

Dels. Sammi Brown and John Doyle, both Democrats, were elected, and both are adamantly opposed to Rockwool.

“I would venture to say, if an accurate poll were taken; if you hired an expensive polling firm to do a thoroughly accurate poll, that the results would be something like 20 percent of the county’s population would be in favor of Rockwool, 60 percent against, and 20 percent undecided,” Del. Doyle said. “So, it’s essentially among those who have an opinion, it’s 3 to 1 against.”

Despite this though, Rockwool isn’t backing down.

What’s Happening Now?

Rockwool has been active within the county in the past year. The company has attended various community events and even donated $30,000 to the Shepherdstown Volunteer Fire Department.

“We really respect the commitment that we made to the community; to build the factory and create the jobs; that was the commitment on our side, and they made some commitments to us,” Rockwool’s North American President Trent Ogilvie said in a Skype interview with West Virginia Public Broadcasting.

Ogilvie said Rockwool will install two independent, public air quality monitoring stations for residents to check. Rockwool said this third-party group is an environmental consultant called ERM. Rockwool admits, however, they are still confirming this will be the consultant for the Jefferson County plant. Rockwool also said they are in the process of commissioning a third-party, human health risk assessment that will investigate the health impacts of the Jefferson County facility. Rockwool did not share the name of this group with West Virginia Public Broadcasting.

WVPB asked Rockwool if it was still worth locating to Jefferson County, given the level of pushback from so much of the community.

“We respect that some local citizens may have a different view and have a right to air their concerns,” Ogilvie said. “And there, all we ask, is to engage in constructive, fact-based, open-minded conversation. We respect concern, and we just want to make sure we can engage and be transparent and answer their questions.”

But Rockwool is facing a new challenge.  

The Jefferson County Board of Education, in April, offered to purchase the land from Rockwool and use eminent domain if necessary. The Jefferson County BOE intends to use the site to build a regional student support center.

Rockwool filed a lawsuit against the Board of Education stating the move violates the company’s state and federal constitutional rights.

Despite the pushback and division within the county, Rockwool President Ogilvie said he expects the plant to be operational by mid-2020.

***Editor’s Note: This piece was edited to clarify and add details about the Rockwool v. Jefferson County Board of Education lawsuit.

Two More West Virginia Counties Sue Drug Companies

Two more West Virginia communities have joined others around the state in suing drug companies over the opioid epidemic.

Media report the Berkeley County Council and the Jefferson County Commission filed lawsuits recently against drug manufacturers and distributors, accusing them of fueling the local opioid epidemic by shipping too many pain pills. The companies have denied wrongdoing.

The move comes shortly before a hearing where a panel of judges will decide whether to consolidate dozens of similar lawsuits filed across West Virginia and other states.

Martinsburg lawyer Stephen Skinner, who’s representing the two counties, says he favors consolidating the cases to get efficient justice. Media report at least eight local governments in West Virginia oppose combining the lawsuits, saying it would drive up costs.

7 more Municipalities Join Lawsuits Against Drug Companies

Seven more municipalities across West Virginia are joining in on lawsuits against several drug distributors accused of fueling the local opioid epidemic by shipping far too many painkillers there.

WSAZ-TV reports that five of the plaintiffs are in the Tri-State and Kanawha Valley area: the cities of Logan, Montgomery, Summersville, the town of Wayne and Nicholas County.

The lawsuits say AmerisourceBergen, Cardinal Health and McKesson Corp. flooded the state with highly addictive pain pills.

The state has already recently settled multiple similar lawsuits against wholesalers for a total of about $47 million. The companies have denied any wrongdoing.

A Charleston Gazette-Mail investigation found drug wholesalers shipped 780 million hydrocodone and oxycodone pills to West Virginia in six years, a period when 1,728 people statewide fatally overdosed.

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