Latest / WCHS Network Podcasts / 05/22/2025 Ask the Lawyer with Harvey Peyton

Transcript

05/22/2025 Ask the Lawyer with Harvey Peyton · WCHS Network Podcasts

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  Speaker 2: the side.
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  Speaker 1: We have the court room experience of such you need.
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  Speaker 3: We never give up.
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  Speaker 4: We're prepared to fight for your rights.
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  Speaker 2: When you need action, count on us. Put the power
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  Speaker 2: of patron on your side, the power of pay.
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  Speaker 5: Hey, guess what you can put the power of patent
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  Speaker 5: on your side this morning. You can do it right now,
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  Speaker 5: give us a call. Threes are A four three four
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  Speaker 5: five fifty eight fifty eight, three four five fifty eight
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  Speaker 5: fifty eight.
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  Speaker 2: Put the power of peton on your side this morning.
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  Speaker 5: I'm del Cooper in studio with us this morning is
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  Speaker 5: Harvey Peyton from the Paton Law From Good morning, Harvey,
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  Speaker 5: how you doing this morning?
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  Speaker 6: Well, Coop, I'm doing quite well. And hear myself on
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  Speaker 6: the microphone. We've got to flip a switch here, folks.
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  Speaker 6: We got this new studio which is really quite nice.
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  Speaker 6: Hopefully soon we're going to have the uh the television feed,
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  Speaker 6: so not only can you ask the expert, not just
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  Speaker 6: this show, but the other ask the expert shows that
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  Speaker 6: are on. But and you'll be able to live stream this.
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  Speaker 6: Just put a face with a voice which may be
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  Speaker 6: good or it may be bad.
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  Speaker 2: Can you hear it? Okay?
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  Speaker 6: Mart I hear fauk. I hope the listening audience can
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  Speaker 6: hear a bit. It was a beautiful morning this morning.
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  Speaker 6: It's cooled off a bit, which is good. This is
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  Speaker 6: really good growing weather for the gardens. You get a
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  Speaker 6: little rain, it never gets really cold at night. It
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  Speaker 6: hovers in the fifties. It gets up into the feecun
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  Speaker 6: fertile seventies in the daytime.
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  Speaker 2: With some oyster and the soil.
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  Speaker 6: My my corn is now all about six eight inches high.
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  Speaker 6: The tomatoes are looking good.
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  Speaker 2: Oh nice.
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  Speaker 6: Uh. Well, didn't want to say one thing this morning.
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  Speaker 6: You know, I've spoken on the show before about and
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  Speaker 6: I grew up in Saint Albans, well, not in Saint
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  Speaker 6: Albys but on the west side of Saint Albans.
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  Speaker 2: That's why we're well, we are Hilltoppers.
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  Speaker 6: You yeah, Grade School which is now My dad my
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  Speaker 6: uncle Jim both went to Fairview Grade School back in
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  Speaker 6: the thirties. I was there in the sixties and it
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  Speaker 6: closed before my grandkids where our kids were a Central
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  Speaker 6: took all the students Central and Anne Bailey. But A
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  Speaker 6: practiced law since nineteen seventy seven at an office in Nitro.
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  Speaker 6: First office was near it was two blocks from the
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  Speaker 6: Puttnam County line. And then when we moved thirty years
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  Speaker 6: ago to the Putnam County end of Nitro. And you know,
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  Speaker 6: I've seen the county grow from the time I started practicing.
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  Speaker 6: There of a little over thirty thousand people. Well, the
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  Speaker 6: only thing at the Winfield interchange was a little truck
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  Speaker 6: stop that a man named Frank Schertzinger ran. The truck
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  Speaker 6: stops still there. Frank's long since retired. There was an
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  Speaker 6: Exellon station run by man named Paul Cooper, and then
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  Speaker 6: there was the Mount Vernon Baptist Church.
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  Speaker 2: That was it the.
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  Speaker 6: Town of Buffalo, which I traveled to a lot when
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  Speaker 6: I was a kid because that's where some of my
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  Speaker 6: grandmother Peyton family were from the Buffalo area, Buffalo Robertsburg.
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  Speaker 6: And you know, you get to know people who are
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  Speaker 6: good citizens, who make counties and towns better places to live.
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  Speaker 6: And two of those people that are and two were
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  Speaker 6: Bill and Sophie Whittington. Bill Whittington was a really smart guy.
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  Speaker 6: He worked up at Ravenswood, worked at Kaiser as it
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  Speaker 6: was referred to then, and of course the men drove
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  Speaker 6: every day a couple of hours to and from work.
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  Speaker 6: And he married Sophie Grimes, who was born right near there,
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  Speaker 6: just below by Buffalo. Manila Ridge wrote out to Mela Ridge.
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  Speaker 6: They had two kids, Melody Whinntington Matthews who's worked in
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  Speaker 6: our office for thirty years, and then Billy, his son
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  Speaker 6: who worked at Power Company. Grandson was Anthony Winnington, who
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  Speaker 6: was a really great baseball pitcher. Might remember about twenty
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  Speaker 6: years ago. He was a really hot article, big left
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  Speaker 6: handed fireballer. Got picked in the second round of the
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  Speaker 6: baseball draft, actually by the I think it was the Angels.
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  Speaker 6: Passed up a scholarship to Oklahoma State back in joined
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  Speaker 6: the state police here and he served honoribly since well
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  Speaker 6: Bill was mayor Buffalo, and he's always really good to me.
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  Speaker 6: I represented the town of Buffalo for a long time
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  Speaker 6: and in matters that involved interfacing with Toyota when they
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  Speaker 6: came in and developed.
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  Speaker 2: He was a good mayor.
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  Speaker 6: He saved the town a lot of money, made sure
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  Speaker 6: that they weren't obligated to pay anything on the infrastructure
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  Speaker 6: improvements that the state was demanding to get Toyota in play.
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  Speaker 6: So they put have been placed, but only with the
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  Speaker 6: guarantee that the Town of Buffalo would never have to
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  Speaker 6: be paying for this. Uh.
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  Speaker 2: He passed away a few years ago. Nice, nice man.
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  Speaker 6: Well Sophie his wife, she passed away Saturday. And I
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  Speaker 6: went yesterday down to the Church Church of God there
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  Speaker 6: in Buffalo to the Beautiful Service funeral service and Jimy
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  Speaker 6: Eves s They sang Jim Reves song about coming home
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  Speaker 6: for supper anyway, just sort of a shout out, really
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  Speaker 6: good for I mean, there's Whittington's, there's a lot of Whittington's.
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  Speaker 6: I mean there are certain names. If you practice is
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  Speaker 6: I got to tell people that if you want to
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  Speaker 6: go hire somebody that advertises on TV from Florida and
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  Speaker 6: tells you on their ads. I'm not licensed to practice there,
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  Speaker 6: but I'd like to take some of your money and
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  Speaker 6: just to well, okay, and how do you know what.
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  Speaker 2: You're doing when you go where you're going.
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  Speaker 6: I mean, if you practice law down in Putnam County
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  Speaker 6: effectively to represents your clients, you better know how many
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  Speaker 6: Whittingtons there are, and how many gividends, and how many castles,
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  Speaker 6: and how many Baileys, and how many abstence there are
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  Speaker 6: and Jefferies and who they're related to and who they know.
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  Speaker 6: And that's how you That's why dealing with people who
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  Speaker 6: you can see every day and talk to and who
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  Speaker 6: you know and who be in the community for fifty
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  Speaker 6: years is to my estimation, a better thing for you
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  Speaker 6: if you need a lawyer to think about than an
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  Speaker 6: ad talking about how rich the out of state lawyers
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  Speaker 6: are who want to get your money. That's just my opinion.
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  Speaker 6: I mean, I hate to segue into sort of a
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  Speaker 6: commercial aspect of it, because really, just because Bill and
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  Speaker 6: Sophie were really good people, they changed the community that
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  Speaker 6: he lived in. The donation request by the family was
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  Speaker 6: to the Buffalo All Horse Parade because the Buffalo All
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  Speaker 6: Horse Parade, which is very pretty neat to go. All
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  Speaker 6: the proceeds direct from that go to hospice. So, I mean,
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  Speaker 6: that's the kind of folks we're talking about, a big
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  Speaker 6: seather having the burial service today. It's privately for the
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  Speaker 6: family and those of us in down Putnam County. We
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  Speaker 6: were thinking about you, and so that's what I wanted
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  Speaker 6: to say.
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  Speaker 2: Amen.
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  Speaker 6: Amen, that was the purpose. That was the theme of
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  Speaker 6: the of the service yesterday. Well, I wanted to talk
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  Speaker 6: a little bit if we could sort of in the abstract.
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  Speaker 6: Hopefully we'll have some calls this morning if you have
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  Speaker 6: a question about the law or an issue. You know
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  Speaker 6: what we deal in. Primarily that the Peyton Law Firm
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  Speaker 6: is injury claims. Folks have been injured in car wrecks
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  Speaker 6: or work accidents, or have suffered a disability or financial loss.
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  Speaker 6: Perhaps you've got a claim with an insurance company that's
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  Speaker 6: not being properly honored, a life insurance company's refusing to
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  Speaker 6: pay you, a bank has done something wrong with your account.
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  Speaker 6: I mean those sort of consumer oriented people orient I
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  Speaker 6: had types of claims and litigation or what we do
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  Speaker 6: A lot of I do now, because I'm the older
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  Speaker 6: person in the firm, do mostly transitional work. I help
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  Speaker 6: folks you have questions about kind of closing the state,
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  Speaker 6: or perhaps there's an issue to litigate in.
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  Speaker 2: A a state.
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  Speaker 6: I serve as a producer andy commissioner for Putnam County,
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  Speaker 6: so I hear some the state disputes and make recommendations
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  Speaker 6: to the county commission to decide those. But you know,
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  Speaker 6: when I got out of law school, I went to
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  Speaker 6: work for the federal courts in Elkins. I really wasn't
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  Speaker 6: much of a job seeker right into how you went
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  Speaker 6: about that. I went to law school and you know, look,
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  Speaker 6: spring of seventy four came around and I was I
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  Speaker 6: didn't have a job. And I walked past the associate
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  Speaker 6: dean's office one day, Johnny Fisher, who later became dean
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  Speaker 6: of the law school, as they said, army, where are
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  Speaker 6: you going to work? So I have a Dean Fisher,
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  Speaker 6: I don't know, I don't really have a job. And
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  Speaker 6: he said, you know, I was a law clerk for
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  Speaker 6: Bob Mike, Judge, Barbara Maxwell and Elkins when I go
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  Speaker 6: out to law school. I was just on the phone
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  Speaker 6: with him and he's looking for a law clerk. Would
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  Speaker 6: you be interested as well? My grades are good enough.
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  Speaker 6: You know. I was in the top level of the class,
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  Speaker 6: like ordered the koy from law Review. But he said, well,
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  Speaker 6: let me call it. So I said, all right, can
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  Speaker 6: you go over there for an interview? Well, here I am.
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  Speaker 6: You know, I'm green as grass.
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  Speaker 2: Uh.
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  Speaker 6: I go over to meet Judge Maxwell in his office
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  Speaker 6: at the Federal Building and he's a distinguished, dignified person.
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  Speaker 6: And we spoke and how do you know, judge, how
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  Speaker 6: do you know Dean Fishers? While heading for class anason,
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  Speaker 6: I know his family because they're from more Field and
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  Speaker 6: they're friends of mine. Well, yeah, well we'll let you know.
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  Speaker 6: Said okay, so I leave. Well it's probably four or
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  Speaker 6: five days later. I hadn't heard anything. So actually I
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  Speaker 6: was in more Fields and I said, I'm gonna I
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  Speaker 6: can't take the suspense. I went to this when you
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  Speaker 6: still have a payphone booth. Oh yeah, payphone booth called
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  Speaker 6: the courthouse of all the judge boxes. And he said, well,
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  Speaker 6: why are you calling me? I mean you ought to
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  Speaker 6: be looking for place. I said, well, Johnny Fisher sent
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  Speaker 6: you over here, right, I mean you understand that interview
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  Speaker 6: was an interview, but you've got the job.
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  Speaker 2: I didn't know that was the way it worked.
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  Speaker 6: But one thing we did at that time, Uh, there
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  Speaker 6: was a real rash of state prisoner filed petitions for
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  Speaker 6: ritz of habeas corpus.
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  Speaker 2: Where we heard that recently, well we've.
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  Speaker 6: Heard a lot about that recently, and it's something that
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  Speaker 6: I dealt with, you know, almost two years A fair
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  Speaker 6: part of what occupied the district court in the Northern
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  Speaker 6: District were petitions for ritz of habeas corpus because what's
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  Speaker 6: in the Northern District at that time Moundsville and Huttonsville,
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  Speaker 6: the two large men's prison, the maximum security institution at
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  Speaker 6: Moundsville right down the road from Elkins. You've got the
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  Speaker 6: medium security prison at Huttonsville. So these petitions are filed
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  Speaker 6: by prisoners. They file Arita habeous corpus basically is called
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  Speaker 6: the Great Writ. It finds its source in the Magna Carta,
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  Speaker 6: King John's submission to the Law in twelve fourteen in England,
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  Speaker 6: which says that you know, people are essentially free and
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  Speaker 6: cannot be arbitrarily or capriciously detained by the authority of
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  Speaker 6: the king, or in place of the King, the state.
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  Speaker 6: So the matter to challenge is if someone's taken into constody.
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  Speaker 6: If you're in constody, saying the penitentiary, and you say, well,
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  Speaker 6: I'm not lawfully here because my guilty plea was obtained unlawfully,
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  Speaker 6: or I'm not lawfully here because evidence used to convict
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  Speaker 6: me it was obtained in violation of the Fourth and
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  Speaker 6: Fifth Amendments, or I'm not lawfully here because I had
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  Speaker 6: infected assistance of counsel. That's a basic constitutional You have
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  Speaker 6: a right to petition the court what's called for habeas corpus.
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  Speaker 6: That is, you are writ or a court order directed
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  Speaker 6: to whoever has custody of you. In this case, it
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  Speaker 6: was the wardens saying bring that person forward to court
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  Speaker 6: and demonstrate a legal basis for their detention, or turn
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  Speaker 6: them loose. Well, be honest. It was largely a matter
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  Speaker 6: of route because these were almost exclusively prisoner originated petitions.
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  Speaker 2: They just copied.
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  Speaker 6: That's before Congress stepped in and somewhat limited the ability
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  Speaker 6: of state and federal prisoners to foul repetitive writs for
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  Speaker 6: habeus corpus in the district court. So there was just
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  Speaker 6: a certain sameness to a great many of them. But
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  Speaker 6: the Fourth Circuit Court of Appeal said you have to
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  Speaker 6: have a hearing and allow this person to appear in
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  Speaker 6: public in your court to tell this side of the story,
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  Speaker 6: and let the state then show cause if they have
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  Speaker 6: any while they are entitled to hold them. So we
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  Speaker 6: would have we would go to Wheeling on schedule a
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  Speaker 6: week wherein you would have maybe eight hour long hearings
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  Speaker 6: a day, and they would bring prisoners down from Moundsville,
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  Speaker 6: or we would have hearings for a week in Elkins
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  Speaker 6: where prisoners from both Moundsville and Huttonsville would come in.
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  Speaker 6: And you know, there was rarely, maybe in ten percent
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  Speaker 6: of the writs that I set in on and wrote
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  Speaker 6: opinions on, some sort of relief was granted. There might
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  Speaker 6: have been a defect in the sentencing, There might have
• 13:33
  Speaker 6: been a technical defect in the entry of a plea.
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  Speaker 6: There might have been a mistake in the calculation of
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  Speaker 6: credit for time due, so the person was being held
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  Speaker 6: longer than lawful. Those writs were after the hearing, we
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  Speaker 6: just summarily grant those writs, but then stay them. Say
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  Speaker 6: all right, now, but this writ's granted, you're free. I'm
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  Speaker 6: staying the effect of this order for one hundred and
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  Speaker 6: twenty days that the state can then move to correct
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  Speaker 6: this issue. I was, well, then we had one that
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  Speaker 6: showed me. Then back in nineteen seventy five, I guess
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  Speaker 6: what this was really all about, this Habeas Corpus business.
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  Speaker 6: It wasn't just about a bunch of uh desperate people
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  Speaker 6: sitting in prison writing up papers because they wanted what
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  Speaker 6: we called windshield therapy. They knew if they filed a writ,
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  Speaker 6: they would get to ride the bus from Bountyville to
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  Speaker 6: elkins Or. And you know, all of a sudden, this
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  Speaker 6: here's this fella standing in front of Jude Maaxwell and
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  Speaker 6: he's testifying. He had an appointed council I think probably
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  Speaker 6: either blamed Michael or Harry Smith was enlisted to represent him.
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  Speaker 6: And he's telling this story about why he's in prison,
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  Speaker 6: and well, he entered a plea of guilty. And he said, well,
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  Speaker 6: his lawyers you need to read this transcript. Here's the
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  Speaker 6: transcript of this.
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  Speaker 2: Please.
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  Speaker 6: When the judge, a circuit judge in West Virginia, said
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  Speaker 6: tell me what you did that makes you guilty of
• 15:05
  Speaker 6: this it was a low level property crime, breaking and
• 15:08
  Speaker 6: entering of an outbuilding at a gas station, and he said, well,
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  Speaker 6: I didn't do anything. I mean, this is paraphrasing that transcriptness, well,
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  Speaker 6: what do you mean so, well, I didn't do anything.
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  Speaker 6: I wasn't there was well, why are you here? Why
• 15:22
  Speaker 6: are you offering to please go? Said well, as they
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  Speaker 6: picked me up, and I've been in prison twice, I
• 15:28
  Speaker 6: don't have anybody to look after me, and nobody's gonna
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  Speaker 6: believe me anyway, so I'll just plead guilty and you
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  Speaker 6: can just send me on to prison.
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  Speaker 2: Well, which is.
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  Speaker 6: Clearly improper, right, But the judge, who was a you know,
• 15:42
  Speaker 6: it's a pretty good judge down Cabal County, said okay,
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  Speaker 6: that accepts the guy's please wow, and he goes to prison.
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  Speaker 6: He's been there for two years on what was a
• 15:51
  Speaker 6: one to five sentence. They're holding him for a for parole.
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  Speaker 6: He's going to serve actually going to serve it out
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  Speaker 6: in another year because he'd had a priorate felony. Well,
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  Speaker 6: judge mixwell, let's just looked at I think Pete Hoffman
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  Speaker 6: was the Assistant Attorney General with the Red Division. I said, well,
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  Speaker 6: that's wrong. What do you have to say about this? Well,
• 16:15
  Speaker 6: you know it's I can't dispute it that that that
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  Speaker 6: that's what happened. If that's what's in the transcript. This
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  Speaker 6: please bad So you know we would we would, you know,
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  Speaker 6: not object the entry of a wrint and stay it
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  Speaker 6: for nan twenty days to give us a chance to
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  Speaker 6: and Mixwell said no, Well, he said, no, I'm not
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  Speaker 6: staying this. This band's unlawfully being held. Clearly you you
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  Speaker 6: admit it. You heard it. So I'm granting the wrint
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  Speaker 6: right now. Said okay, I said no stay period. Now,
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  Speaker 6: mister Matthew can tell your client he's free right now.
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  Speaker 6: But I'm thinking that there's really something to this. Well,
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  Speaker 6: there's a highbu because this bat had been brought down
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  Speaker 6: from Moundsville, and that was a grim side when they
• 17:01
  Speaker 6: brought those folks down from Malsville, who put about thirty
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  Speaker 6: of them on a bus. They chained them all together,
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  Speaker 6: Chain your arms together, and then they put a waist
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  Speaker 6: band on with a.
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  Speaker 2: Ring in it, so everybody's hooked to each other.
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  Speaker 6: And in the courtroom, and the elkin was on the
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  Speaker 6: second floor, and he could holding area for these men
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  Speaker 6: was on the third floor. And you would hear this
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  Speaker 6: as they walked them up and up the steps, and
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  Speaker 6: there's chains rounding and they said, well, so the poor
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  Speaker 6: fellow who had been in the guard in charge of
• 17:33
  Speaker 6: him from Maunsville. You know, we're Baxwell's back in the
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  Speaker 6: office and we're right in the order so he can
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  Speaker 6: sign it. And I don't know what to do, Jays.
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  Speaker 6: He said, well, I'm telling you what to do. Well,
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  Speaker 6: I called back to Malsville and they said, I after
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  Speaker 6: bring him back up there to be processed. And he said, well,
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  Speaker 6: that's fine. You tell them. You go out and ask
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  Speaker 6: him does he want to go back to Malsville to
• 17:57
  Speaker 6: be processed. Lay said, you go ask him if he
• 18:01
  Speaker 6: wants to go back to Malsville will be processed. Well,
• 18:03
  Speaker 6: the guy says, yo, I need to go back because
• 18:06
  Speaker 6: I want to get my stuff out of my cell.
• 18:09
  Speaker 6: And so he said all right. But then the marshall
• 18:12
  Speaker 6: comes back in and said, Jude, they got him out
• 18:15
  Speaker 6: of here at the chain gang. Oh no, no, no,
• 18:17
  Speaker 6: bring him back in here. So they bring the guard
• 18:19
  Speaker 6: back and say, here's what you're going to do. You
• 18:22
  Speaker 6: can call over to Malsville and you tell them to
• 18:23
  Speaker 6: have his things ready when he gets there, so he
• 18:27
  Speaker 6: does not have to go inside if he doesn't want to.
• 18:31
  Speaker 6: And you go out there and take those chains off
• 18:33
  Speaker 6: of him, and you put him on the front seat
• 18:35
  Speaker 6: of the bus beside you and ride back to Malsville
• 18:38
  Speaker 6: that way, or you just take him out there on
• 18:40
  Speaker 6: the street and turn him loose. Now in the stern language,
• 18:43
  Speaker 6: and now there is the power majesty of the law.
• 18:46
  Speaker 6: That's why the magna cart is so, that's why the
• 18:50
  Speaker 6: only real well, the only writer privilege of the citizenry
• 18:59
  Speaker 6: adverse to their government. That's in the original Constitution, before
• 19:03
  Speaker 6: the Bill of Rights, was the clause that says the
• 19:09
  Speaker 6: privilege of habeas corpus shall not be suspended other than
• 19:16
  Speaker 6: invasion or rebellue.
• 19:17
  Speaker 5: It seems to me if you take just I'm sorry,
• 19:19
  Speaker 5: did I cut you off there? I was just It
• 19:21
  Speaker 5: seems to me that anyone who evaluates this as the
• 19:26
  Speaker 5: topic has been nationally brought up because of different deportation
• 19:33
  Speaker 5: attempts and different things along those lines. But one of
• 19:35
  Speaker 5: the things that seems like that everybody should keep in
• 19:38
  Speaker 5: mind that if we start changing what these things mean
• 19:41
  Speaker 5: commonly associated, it may not change in the law, but
• 19:44
  Speaker 5: in public perception or whatever it might be. That's what
• 19:46
  Speaker 5: the attempt is being done. Right now, Here's the thing,
• 19:49
  Speaker 5: people you like might not always be in power. And
• 19:51
  Speaker 5: that's not a great argument because that doesn't justification of
• 19:54
  Speaker 5: retribution is never a good idea. But just keep that
• 19:57
  Speaker 5: in mind. You know, if suddenly the rights suspended for
• 20:00
  Speaker 5: people in dissent or for various things for a political
• 20:04
  Speaker 5: side that you like, what happens when the shoes on
• 20:06
  Speaker 5: the other foot, do you want that seam right to
• 20:08
  Speaker 5: be suspended for you?
• 20:10
  Speaker 6: Well, that's true. And with regard to the habeas corpus,
• 20:14
  Speaker 6: the one thing that sticks in microw is the justification
• 20:20
  Speaker 6: for a suspension of the re a habeas corpus. And well,
• 20:22
  Speaker 6: Abraham Lincoln suspended the rent of havieous corpus. Well, that's true.
• 20:26
  Speaker 6: You can ask Jack Bowman, who was a professor at
• 20:29
  Speaker 6: the Western University College of Law, who probably is as
• 20:31
  Speaker 6: knowledgeable about the life and career of Abraham Lincoln as
• 20:35
  Speaker 6: anybody in the United States. Or I'm not bad at it.
• 20:39
  Speaker 6: I've read a lot of it. Abraham Lincoln was confronted
• 20:42
  Speaker 6: in the summer of eighteen sixty one with a rebel
• 20:46
  Speaker 6: army forming to the Southwest. Down there the people that
• 20:49
  Speaker 6: were going to fight at bull Run or Monassas, and
• 20:53
  Speaker 6: a riotous crowd of rebel sympathizers between Philadelphia and Baltimore
• 20:58
  Speaker 6: who weren't allowing Troup trains to supply the capitol. And
• 21:02
  Speaker 6: under those circumstances and the active aggressive rebellion on the South,
• 21:10
  Speaker 6: brewing active rebellion on the North that's threatening the capital
• 21:13
  Speaker 6: of the Republic, he instructed his military commanders to take
• 21:16
  Speaker 6: people into custody and hold them without warrant to break
• 21:20
  Speaker 6: up the riotous behavior there in Maryland, including at one
• 21:23
  Speaker 6: time a newspaper editor who was the nephew of Francis
• 21:28
  Speaker 6: Scott Key and Roger Tainey, the odious Supreme Court justice.
• 21:34
  Speaker 6: But he then went to Congress to ratify that action,
• 21:40
  Speaker 6: the suspension of the Rent. Well, there was a tortuous
• 21:45
  Speaker 6: legislative history because the Republicans that he of Stevens and
• 21:48
  Speaker 6: the abolitionist wanted the suspension of the rent. They wanted
• 21:53
  Speaker 6: to authorize it to tap down the rebellion. Some of
• 21:55
  Speaker 6: the Copperheads, the Republicans who favored the South, and then
• 22:00
  Speaker 6: the Democrats, many of whom favored the South. There was
• 22:03
  Speaker 6: a split in Congress. It was nuttil eighteen sixty three,
• 22:05
  Speaker 6: but Congress passed a law actually called the suspension of
• 22:09
  Speaker 6: Habeas Corpus Act of eighteen sixty three suspended the right
• 22:12
  Speaker 6: the privilege of habeas corpus nationwide during the course of
• 22:17
  Speaker 6: the rebellion Civil War ended. Mary Sir Rightt was hanged
• 22:23
  Speaker 6: for her participation in the Lincoln assassination after being tried
• 22:28
  Speaker 6: by a military tribunal after seeking and having been granted
• 22:32
  Speaker 6: to red a habeas corpus by a Virginia court. Winfield's
• 22:38
  Speaker 6: got a Hancock, who was in charge of her at
• 22:41
  Speaker 6: the Old Capitol Prison, was instructed by the Johnson administration,
• 22:45
  Speaker 6: you take a copy of the Act and here's the
• 22:48
  Speaker 6: order suspending the red over to the judge and tell
• 22:50
  Speaker 6: him we're not bringing her.
• 22:52
  Speaker 2: And they didn't.
• 22:53
  Speaker 6: They hung her, but that ended the In eighteen seventy
• 22:58
  Speaker 6: one went to Congress and said I'd like permission to
• 23:02
  Speaker 6: suspend the writ in certain counties in South Carolina where
• 23:05
  Speaker 6: the klu Klux Klan is an open rebellion against the
• 23:08
  Speaker 6: troops of the United States. And it was granted. And
• 23:12
  Speaker 6: after the Japanese bomb Pearl Harbor and we feared an invasion,
• 23:15
  Speaker 6: Congress enacted some ability to suppend the wrist and what
• 23:20
  Speaker 6: was in a territory not a state, and that's been it.
• 23:24
  Speaker 6: So the idea that somehow Abraham Lincoln acted just unlawfully
• 23:27
  Speaker 6: and on his own and perpetually throughout the Civil War
• 23:30
  Speaker 6: to imprison and detain people's it's not true, and it's
• 23:33
  Speaker 6: not a valid justification for the position that the executive
• 23:36
  Speaker 6: branch is empowered to suspend the writ unilaterally period paragraph. Now,
• 23:41
  Speaker 6: we just need to get past that. It's a divisive issue.
• 23:44
  Speaker 6: People who adhere to the idea that any president has
• 23:48
  Speaker 6: a unilateral authority to suspend the writ of habeas corpus
• 23:51
  Speaker 6: relying on this fictitious president of Abraham Lincoln is wrong,
• 23:57
  Speaker 6: and they're doing this country a disservice by saying that,
• 23:59
  Speaker 6: heybea's corpus doesn't require a whole lot. I mean, it
• 24:02
  Speaker 6: requires a petition to be fouled, a person to be
• 24:04
  Speaker 6: brought to a public tribunal, evidence to be presented to
• 24:08
  Speaker 6: justify their detention period, and they can be I mean
• 24:13
  Speaker 6: I oversaw hundreds of those in a two year period
• 24:16
  Speaker 6: in Elkins. And as my friend Ansel Raimi pointed out
• 24:20
  Speaker 6: yesterday in a commentary to the commentary that mister Kennedy
• 24:24
  Speaker 6: posted on Your Owl's website, There were over ten thousand
• 24:29
  Speaker 6: rits of habeas corpus filed in federal courts in the
• 24:32
  Speaker 6: United States last year, and far more of those in
• 24:35
  Speaker 6: state courts. I suspect, and with regard to immigration, Congress
• 24:43
  Speaker 6: has already limited and the Supreme Court of the United
• 24:46
  Speaker 6: States has ruled in a case involving the Department of
• 24:49
  Speaker 6: Homeland Security about who is entitled to foul and pursue
• 24:53
  Speaker 6: habeas relief in the federal courts. It's an extremely limited
• 24:58
  Speaker 6: number of people, an extreme limited number of issues. You
• 25:02
  Speaker 6: have to actually be in detention. You can't use habeas
• 25:04
  Speaker 6: corpus to relitigate whether you're entitled to asylum or whether
• 25:09
  Speaker 6: you have a reasonable fear of persecution. If that's determined
• 25:12
  Speaker 6: adversely to you by an immigration judge, then you're lawfully held.
• 25:17
  Speaker 6: You cannot go back and reltigate those facts under a
• 25:21
  Speaker 6: haist because Congress dealt with that in nineteen ninety six.
• 25:25
  Speaker 6: Remember those golden years when you could actually pass I
• 25:29
  Speaker 6: don't think Congress today could pass any logical, meaningful, fundamental
• 25:37
  Speaker 6: legislation dealing with due process for people who are in
• 25:42
  Speaker 6: the country as quote persons as opposed to citizens. I
• 25:45
  Speaker 6: just don't think it could be done because these absolute
• 25:48
  Speaker 6: goofy radical positions on both sides, more on the right,
• 25:52
  Speaker 6: more on the right, I will say them the left too.
• 25:55
  Speaker 6: Many people listen to foundations or think tanks who are
• 26:01
  Speaker 6: primarily populated by intellectuals, high income folks who may coincidentally
• 26:08
  Speaker 6: be members of a suspect class, Immigrants, people of collar.
• 26:12
  Speaker 2: Often hired to support extreme positions.
• 26:15
  Speaker 6: Yes, and they are hired, and they maintain their levels
• 26:19
  Speaker 6: of income by supporting extreme positions, because that's how you
• 26:22
  Speaker 6: raise money. You know, you think the lady the congresswoman
• 26:25
  Speaker 6: who was arrested in New Jersey or indicted in New
• 26:29
  Speaker 6: Jersey not arrest well, she was arrested, she appeared for
• 26:34
  Speaker 6: it was a scrub. Oh, let's take a break.
• 26:35
  Speaker 5: When do that first? Okay, let's go and take a break.
• 26:37
  Speaker 5: We'll come take this conversation when we come back. Or
• 26:39
  Speaker 5: you can weigh in if you want to ask Harvey
• 26:42
  Speaker 5: a question about anything we've talked about, or if you
• 26:43
  Speaker 5: want to put the power of Peyton on your side
• 26:45
  Speaker 5: and give us a call this morning. Three zero four
• 26:46
  Speaker 5: three four five fifty eight fifty eight three four five
• 26:48
  Speaker 5: fifty eight fifty eight more information online Peyton Law Firm
• 26:50
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• 26:52
  Speaker 5: Firm dot com. We'll take a break the back after this.
• 26:54
  Speaker 5: You're listening to ask the lawyer with Harvey Payton from
• 26:56
  Speaker 5: the Payton Law Firm. I'm Dale Cooper and this is
• 26:58
  Speaker 5: five ADWCHS the voice of Carlston.
• 27:00
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• 27:03
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• 27:07
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• 27:15
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• 27:24
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• 28:01
  Speaker 4: Put the power of payping on the side.
• 28:05
  Speaker 2: We have the court room experience that you need. We
• 28:10
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• 28:15
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• 28:17
  Speaker 2: Towne on Us puts the power of paton on your side.
• 28:25
  Speaker 5: The power of that, you can put the power of
• 28:26
  Speaker 5: patent on your side. Every Thursday morning right here on
• 28:29
  Speaker 5: five ed w c HS, the Voice of Charleston. Janis
• 28:31
  Speaker 5: has chosen to do that. This morning, she's on the
• 28:33
  Speaker 5: line with Harvey Peyton for the Peytonlaw. From Janas, good morning,
• 28:35
  Speaker 5: how you doing this morning.
• 28:37
  Speaker 7: I'm doing just fine. Thank you for taking the call.
• 28:39
  Speaker 2: Absolutely. What's your question for Harvey?
• 28:42
  Speaker 7: Well, I have a piece of property across my home
• 28:46
  Speaker 7: residence and it's got a large like barn building on it.
• 28:51
  Speaker 7: And then if there's a steep like heill and my
• 28:55
  Speaker 7: neighbor has been weed eating it, well, I've been told
• 28:59
  Speaker 7: if he weed that enough and he can claim that property.
• 29:04
  Speaker 7: I had never heard of that.
• 29:06
  Speaker 6: When you own the property it's a part of the
• 29:08
  Speaker 6: land that you have a deed for. Yes, yeah, well
• 29:12
  Speaker 6: that's there's a grain of truth in that statement, but
• 29:17
  Speaker 6: it's a very fine grain. There's a concept in West
• 29:22
  Speaker 6: Virginia and in every southern state that I'm aware of,
• 29:25
  Speaker 6: called adverse possession, which can lead to someone obtaining title
• 29:30
  Speaker 6: to a piece of real estate that they would not
• 29:32
  Speaker 6: otherwise own just by operation of law. In West Virginia,
• 29:37
  Speaker 6: we have a statute that says if someone trespasses on
• 29:41
  Speaker 6: your property in a manner that indicates they claim it
• 29:47
  Speaker 6: as their own, for instance, that he put up a fence,
• 29:51
  Speaker 6: or started a building, or put up no trespassing signs,
• 29:55
  Speaker 6: or physically block people from passing across the property as
• 29:59
  Speaker 6: if they owned it, in such a manner that any
• 30:02
  Speaker 6: reasonable person seeing that conduct would know that they are
• 30:06
  Speaker 6: claiming it despite the fact they don't have a deed.
• 30:09
  Speaker 6: That's called adverse possession.
• 30:11
  Speaker 7: And if that, well, the building is huge on it
• 30:15
  Speaker 7: and it's level, and I can take care of that.
• 30:18
  Speaker 7: I may be one years old and I can take
• 30:21
  Speaker 7: care of that part. But the real steep part I
• 30:24
  Speaker 7: used to weed eat it. Now I would fall off
• 30:27
  Speaker 7: the hill and where he lives the side of that property.
• 30:31
  Speaker 7: There's a right of way going through there, and he says, well,
• 30:34
  Speaker 7: I'm just going to go ahead and take care of
• 30:36
  Speaker 7: it for you.
• 30:37
  Speaker 6: Sure, under those circumstances, he does not acquire any rights
• 30:41
  Speaker 6: to that property, no matter how long he.
• 30:43
  Speaker 2: Weed eats it.
• 30:43
  Speaker 6: That's one of the commonest questions. We get to be
• 30:46
  Speaker 6: honest with you. Even if you're like in a subdivision
• 30:50
  Speaker 6: or an area that's previously been laid off in lots
• 30:53
  Speaker 6: and homes have been built area, yell and nobody fences
• 31:00
  Speaker 6: anything in particular. One neighbor might mow a strip of
• 31:03
  Speaker 6: grass that's on his neighbor's property, but he does it
• 31:06
  Speaker 6: for the benefit of his property because you didn't want weeds. Well,
• 31:10
  Speaker 6: that's not adverse. That's not telling anybody that you claim
• 31:14
  Speaker 6: it that that that's ambiguous conduct. It can be just
• 31:18
  Speaker 6: as likely an act of neighborly kindness, which is what
• 31:21
  Speaker 6: you're confronted with, as an attempt by someone. Land said, so, yeah,
• 31:27
  Speaker 6: and while there's a grain of truth in what was said,
• 31:30
  Speaker 6: it doesn't apply to your situation because all of the
• 31:34
  Speaker 6: elements of adverse possession are not there. You've got one
• 31:39
  Speaker 6: entry on the property. It's essentially with your permission. If
• 31:41
  Speaker 6: you told the man don't don't cut the weeds, he
• 31:43
  Speaker 6: wouldn't cut him. Right, He's just doing it. He's just
• 31:46
  Speaker 6: doing it to be a good neighbor and because it
• 31:48
  Speaker 6: helps his land out as well. So that's not that's
• 31:51
  Speaker 6: not adverse, and he's not acquiring any rights to your
• 31:54
  Speaker 6: land by engaging in that conduct.
• 31:56
  Speaker 7: Okay, okay, thank you very much.
• 31:59
  Speaker 2: No problem. I hope you feel better about that. Jannis
• 32:01
  Speaker 2: appreciate the phone call. Thanks a bunch for that.
• 32:03
  Speaker 5: If you want to get in now, we only have
• 32:04
  Speaker 5: a couple minutes left, but you can get in with
• 32:05
  Speaker 5: Harvey if you'd like two three or four three four
• 32:07
  Speaker 5: five fifty three four five Pretty good question.
• 32:10
  Speaker 2: Yeah.
• 32:10
  Speaker 6: I've tried some pretty well. I mean I've tried a
• 32:14
  Speaker 6: big lawsuit down in Putnam County decades ago where I
• 32:18
  Speaker 6: represented a family. What was a public record of Giveden family,
• 32:22
  Speaker 6: A lot of gifvidends They had a farm up behind
• 32:25
  Speaker 6: what's now the park in Eleanor, and the county wanted
• 32:29
  Speaker 6: to operate a shooting range and they did on the
• 32:32
  Speaker 6: park property, but it also they wanted to block off
• 32:36
  Speaker 6: the Jivedens road. They got to their farm because of
• 32:39
  Speaker 6: the safety factor. Well, have no question about that. But
• 32:42
  Speaker 6: our position was, well you should have thought of that.
• 32:45
  Speaker 6: I mean, these people have owned this farm and used
• 32:47
  Speaker 6: this road for eons. We should have thought of that
• 32:50
  Speaker 6: before we put the shooting gallery down there. Well, I
• 32:53
  Speaker 6: don't remember who was on the county commission or the party.
• 32:56
  Speaker 6: Know Sally Holliday was on the park commission and she
• 32:58
  Speaker 6: was a dear friend of mine, Hoay's wife, But we
• 33:00
  Speaker 6: disagreed and she was one of the defendants.
• 33:04
  Speaker 2: Suit her and we won.
• 33:07
  Speaker 6: I had a county Commission of park commitsis sire to
• 33:09
  Speaker 6: hip Hier Charleston Law Firm, and they came down and this,
• 33:13
  Speaker 6: you know, thumped the tub and I actually kind of condescended,
• 33:18
  Speaker 6: I think to the jury in Putnam County. And there
• 33:21
  Speaker 6: were some sick puppies when they read that verdict. Do
• 33:23
  Speaker 6: I mean it wasn't a verdict for money damage? Is
• 33:25
  Speaker 6: essentially we settled it for money because once the jury
• 33:29
  Speaker 6: agreed that by virtue of adverse possession as well as
• 33:33
  Speaker 6: I'd implied ease. But my clients had a right to
• 33:35
  Speaker 6: use the road with the county did what they should
• 33:37
  Speaker 6: have done to start with and said, well, okay, is
• 33:41
  Speaker 6: there some money. Is there an amount of money that
• 33:43
  Speaker 6: we can do use to solve this, which was to
• 33:46
  Speaker 6: put a road in on the other side, which we
• 33:51
  Speaker 6: could do. And so they ended up paying our clients
• 33:55
  Speaker 6: as much or more to build the road than they
• 33:57
  Speaker 6: paid for the property to start with. While those based
• 34:00
  Speaker 6: on kind of mundane, they're litigatable matters and they mean
• 34:03
  Speaker 6: a lot to people. You know, it's dangerous work people.
• 34:06
  Speaker 6: You start fooling with black acre and white acre people's
• 34:09
  Speaker 6: real estate, it's almost like fooling with a pet. You know,
• 34:13
  Speaker 6: you're about as likely to get shot if you kill
• 34:16
  Speaker 6: somebody's dog or block off their driveway as are are
• 34:21
  Speaker 6: there any other circumstances. Those are just those frictions between
• 34:24
  Speaker 6: neighbors that can We had a horrible case years ago
• 34:29
  Speaker 6: down on Coole River area, Saint Albans. Two men had
• 34:31
  Speaker 6: been arguing about it right away, right away, the driveway, yeah,
• 34:34
  Speaker 6: right now, for years. They got into it hot and heavy.
• 34:38
  Speaker 6: One I've had a pistol and shot the other man
• 34:39
  Speaker 6: and killed him. So then he goes and spends the
• 34:41
  Speaker 6: rest of his life in prison. One man's dead, one
• 34:43
  Speaker 6: man's just to over affect roadway. Again, that's why the
• 34:48
  Speaker 6: rule of law so important. Cut you off.
• 34:50
  Speaker 5: No, No, I was just going to say, that's why
• 34:52
  Speaker 5: it's important to like just what you just said. That's
• 34:54
  Speaker 5: why the rule of law so important. You know, there's
• 34:55
  Speaker 5: ways that you can negotiate these things, and that's why
• 34:58
  Speaker 5: we have laws. You know, people can have relief, you
• 35:00
  Speaker 5: just have to know how to seek it.
• 35:02
  Speaker 6: And once again, that's why it's I think important that
• 35:04
  Speaker 6: if you if you need a lawyer, like Janis thought
• 35:07
  Speaker 6: you had a question for a lawyer, if you've got
• 35:09
  Speaker 6: to if you've suffered an injury, you really ought to
• 35:12
  Speaker 6: talk to lawyers, in my opinion, who have been here
• 35:16
  Speaker 6: long enough to have a sense of what the community
• 35:20
  Speaker 6: is about what people value. You know, people hear value
• 35:25
  Speaker 6: work absence some catastrophic disfigurement. Damages for pain and suffering
• 35:32
  Speaker 6: tend to be relatively modest in West Virginia, but damages
• 35:35
  Speaker 6: for loss of income and disability tend to be reasonable
• 35:38
  Speaker 6: and even high, because we know here how valuable the
• 35:43
  Speaker 6: ability to work and make money and sustain your family
• 35:46
  Speaker 6: is not just financially but emotionally. People who suffer injury
• 35:51
  Speaker 6: tend to lose confidence in themselves. They tend to think
• 35:53
  Speaker 6: I can't do anything now because I can't work full bore.
• 35:56
  Speaker 6: All I can do is quote piddle and they develop
• 35:59
  Speaker 6: real severe case a post traumatic stress disorder. You need
• 36:02
  Speaker 6: to understand that in order to be able to accurately
• 36:05
  Speaker 6: represent clients who suffer those injuries. And you if you
• 36:08
  Speaker 6: plan on as you got to in every case, appearing
• 36:11
  Speaker 6: in front of a jury, if you don't get the
• 36:12
  Speaker 6: matter resolved, land listen one of the big claim cases.
• 36:20
  Speaker 6: You get a condemnation case against one of these pipeline
• 36:23
  Speaker 6: companies and you're likely to do well or somebody takes
• 36:28
  Speaker 6: your timber that And if you have a case and
• 36:31
  Speaker 6: you want to talk about that, you can send an
• 36:33
  Speaker 6: email to Peytonlawfirm dot com through our website at only
• 36:36
  Speaker 6: time and I see it. You can call our office
• 36:39
  Speaker 6: at three oh four seven five five fifty five fifty
• 36:42
  Speaker 6: six or stop by. They have a beautiful office before there.
• 36:46
  Speaker 2: We'll see. If not, we'll make an appointment.
• 36:47
  Speaker 5: Yeah, that's great information as always with the Peyton Law
• 36:50
  Speaker 5: Firm RVY Payton in here today More information online Peyton
• 36:53
  Speaker 5: Lawfirm dot com. P y T you inn Peyton Lawfirm
• 36:55
  Speaker 5: dot com find information. They're also located in Niro, West Virginia.
• 36:58
  Speaker 5: Twenty eight oh one First Avenue South in Nitro, West Virginia.
• 37:01
  Speaker 5: I don't know where I got that south from. Twenty
• 37:02
  Speaker 5: eight oh one First Avenue in Nitro seven five five
• 37:04
  Speaker 5: fifty five fifty six three zero four seven five five
• 37:07
  Speaker 5: fifty five fifty six three zero four seven five five
• 37:09
  Speaker 5: fifty five fifty six.
• 37:10
  Speaker 2: Every Thursday at eight.
• 37:11
  Speaker 5: Twenty right here on five ad wchs on ask the
• 37:14
  Speaker 5: lawyer Harvey, thank you so much for your toime today.
• 37:15
  Speaker 2: Really appreciate d I really appreciate by.
• 37:17
  Speaker 5: We'll see you here, you here next time. That's Harvey
• 37:19
  Speaker 5: Payton from the Payton Law Firm. And coming up next
• 37:21
  Speaker 5: is gonna be Dave Allen or the Dave Allen Show.
• 37:24
  Speaker 5: And after that we'll be talk lined with Dave Wilson
• 37:26
  Speaker 5: and TJ. I'll be back this afternoon at three oh
• 37:28
  Speaker 5: six on Hotline with Dave Weekly. Have a great day everyone.
• 37:31
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• 37:43
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• 37:49
  Speaker 2: We're proud to live here too.