Jay Lawrence Smith, an individualPlaintiff,

v.

Mark Plants, in his capacity asKanawha County Prosecuting Attorney, andThe Kanawha County Prosecuting Attorney'sOffice, a government agency,

Defendants

J4 /I (t~'~1Civil Action No. -t- ~~ I!Honorable J{J,/Y1' e 'Judge

COMPLAINT FOF DECLARATORY AND INJUNCTIVE RELIEF

Now comes the Plaintiff, Jay Lawrence Smith, who states as follows:

PARTIES

1. Jay Lawrence Smith ("Smith") is a resident of Hurricane, Putnam County, West

Virginia.

2. Smith is a free-lance legal researcher, and journalist whose principal place of business

is in South Charleston, Kanawha County, West Virginia.

3. Defendant Mark Plants ("Plants") is a resident of Charleston, Kanawha County, West

Virginia and is, at all times relevant hereto, the Prosecuting Attorney for Kanawha County.

4. Defendant Kanawha County Prosecuting Attorney's Office ("Prosecuting Attorney's

Office") is a government agency organized under the laws of the state of West Virginia, and has

an address of301 Virginia St., East, Charleston, West Virginia, 25301.

5. This Court has jurisdiction over this matter and over the parties.

6. As the conduct complained of, and as more particularly set forth herein, occurred in

Kanawha County, this matter is properly venued with,this Court.

FACTUAL BACKGROUND

7. Smith restates the allegations contained in Paragraphs 1-6.

8. Sometime in the late Fall of2013, Smith received a tip about suspected mis-use

and/or -appropriation of funds in the Prosecuting Attorney's Office. Specifically, the mis-use

and/or -appropriation of funds was related to two adjuncts to the Prosecuting Attorney's Office

for victims advocacy - The Starlena Pratt Foundation (the "Foundation"), and The Kanawha

County Victim Services Center ("KCVSC").

9. About a year into his first term, Plants announced his intention to create a "one-stop

shop" in the Prosecuting Attorney's Office for victims of domestic violence. The announcement

came in the course of Domestic Violence Awareness Month, and as the Prosecuting Attorney's

Office was handling the case of Starlena Pratt, a South Charleston woman who was set ablaze by

her estranged boyfriend, Farley Rhodes, in August 2008, and died a month later.

10. In the Spring of 20 10, as the Prosecuting Attorney's Office reached a plea agreement

with Rhodes, and a date for his sentencing was set, more details ofthe domestic violence "one-

stop shop" began to emerge.

11. According to media reports at the time, Plants announced the creation ofKCVSC

under the command, and control of the Prosecuting Attorney's Office, but located at office space

vacated by the Kanawha County Assessor's Office at the Kanawha County Courthouse

("Courthouse") a block away on 409 Virginia St., East.

12. Also, Plants announced Felicia Bush ("Bush"), the former executive director ofthe

Charleston YMCA's Resolve Family Abuse program, would be KCVSC's executive director.

13. Furthermore, Plants said the Foundation would be named in Pratt's honor, and used

to aid in funding KCVSC's activities.

14. Records filed with the West Virginia Secretary of State's Office ("Secretary of

State") show the Foundation was incorporated on March 9, 2010 (Attached as Exbibit "A").

15. In addition to incorporator, Plants is listed as the Foundation's President. Also, two

employees of the Prosecuting Attorney's Office at the time - Maryclaire Akers ("Akers"), an

assistant prosecutor, and co-chief of staff, and Blaire Carney-Smith ("Carney-Smith"), a victims

advocate - were listed as the Foundation's vice-president, and secretary, respectively.

16. Also, Bush was listed as one of the Foundation's directors.

17. Furthermore, on the very same day the Foundation was incorporated, Bush

incorporated a for-profit business named "Balance, LLC" located at 207 Ruffner Ave.,

Charleston, WV 25311.

18. According to its articles of incorporation, Balance, LLC' s business classification is

identical to the Foundation's specifically offering "trauma recovery and wellness counseling

services to individuals and families." (Attached as Exhibit "B.")

19. Eventually, both the Foundation, and KCVSC were unveiled to the public with much

fanfare in April 2011.

20. Shortly after receiving the tip about mis-use and/or -appropriation of funds

concerning the Foundation, and KCVSC, Smith on or about Dec. 20, 2013 presented himself to

the lobby of the W. Kent Carper Justice and Public Safety Complex (the "Carper Complex")

where the Prosecuting Attorney's Office is located with the Kanawha County She~ s

Department ("KCSD").

21. When asked by a receptionist in the Carper Complex ifhe needed to see someone

with the Prosecuting Attorney's Office or KCSD, Smith said he needed to speak with someone in

the Foundation.

22. After making a few telephone calls, the receptionist asked a woman named "Monica"

walking by to whom she should refer Smith. Before entering the controlled-access door that

leads to the Prosecuting Attorney's Office, "Monica" said '''Call the prosecutor on duty

[Emphasis added].'''

23. When attempts to reach the on-duty prosecutor were unsuccessful, Smith was told to

have a seat, and someone would speak:with him shortly.

24. Less than five minutes later, two women, who were later identified as Caroline Carte

("Carte) and Rachael Epling ("Epling") came into the Carper Complex lobby to speak: with

Smith. At the time, Carte and Epling were employed by the Prosecuting Attorney's Office as

victims' advocates.

25. When asked how they could be of assistance, Smith requested from Carte and Epling,

among other things, the Foundation's 990 filings, and audit reports for the last three years, all

documents it submitted to the Internal Revenue Service ("IRS") seeking tax-exempt status and

the letter it received from the IRS granting it tax-exempt status.

26. With a quizzical look on her face, Carte replied "Oh, wow! We don't have that. I

mean on request right now. I don't know who you'd get that from. "

27. When Smith informed them, by law, they were required to produce the requested

information, Carte said, "Well, we're just victims advocates. We just work here." Also, Epling

said "You'll have to speak with someone that's got a much larger pay grade than we do."

28. Eventually, Carte said she recalled the Foundation's board meeting not too long ago,

and voting to dissolve it. Also, she suggested any further inquires be made to Plants.

29. Afterwards, Smith thanked Carte and Epling for their time, and promptly left the

Carper Complex.

30. Upon conducting additional research, Smith discovered the Foundation was

dissolved. However, it was dissolved administratively by the Secretary of State on Nov. 1,2013

for failure to file its 2014 annual report (Attached as Exhibit "C").

31. About a month prior to the administrative dissolution, the Foundation filed an

"Application to Appoint Or Change Process, Officers, and/or Address." Specifically, Akers

asked that she be removed as its vice-president (Attached as Exhibit "D").

32. The request came eight months after Plants fired Akers for unspecified reasons, and

two months after she took a job with the state Attorney General's Office. Also, the request came

the same month Kallie Cart with WCHS- TV 8/FOX 11 reported the Kanawha County

Commission ("the Commission") demanded KCVSC vacate the space it was using the

Courthouse due to a lack of demand for its services.

33. Also, Smith discovered two years prior, the Foundation's board filed an amendment

to its articles of incorporation (Attached as Exhibit "E"). On Oct. 8, 2010, the Secretary of

State approved the following:

A. Correcting the spelling of the Foundation's namesake from "Starlina" to

"Starlena.

B. Amending its "Business Legal Purpose" to that of "A charitable foundation

organized to support the work ofthe KCVSC through grant writing and fundraising activities."

C. Replacing Carney-Smith as the Foundation's secretary with Sarah Foster

("Foster").

34. At the time of the amendment was approved, Foster was employed as Plants'

personal secretary in the Prosecuting Attorney's Office.

35. On or about April 5, 2011, the Foundation filed an amendment to its Articles of

Incorporation specifying how any money in its name was to be distributed should it be dissolved.

The amendment, which was signed by Plants, stated that upon dissolution, the Foundation's

"assets shall be distributed for one or more exempt purposes within the meaning of section

501(c)(3) ofthe Internal Revenue code, or corresponding section of any future federal tax code,

or shall be distributed to the federal government, or to a state or local government, for a public

purpose. Any such assets not disposed of shall be disposed of by a Court of Competent

Jurisdiction of the county in which the principal organization is then located, exclusively for such

purposes or to such organizations, as said Court shall determine, which are organized and

operated exclusively for such purposes (Attached as Exhibit "F").

36. On or about February 24,2014, Smith sent Plants a FOIA request seeking much of

the same information he sought during his Dec. 20,2013 visit to the Carper Complex. Because

the verbal request he made of Carte and Epling is considered in the opinion of the state Attorney

General to be a valid request under W. Va. Code 29B-l-1, et. seq. (the "FOIA law), Smith noted

it was his second request for information (Attached as Exhibit "G").

37. Under the FOIA law, a records custodian is required to at least respond in writing

within five business days. The deadline for Plants to respond would've been in a letter dated

March 3,2014.

38. When Smith did not receive a reply by the deadline, he sent Plants a third FOIA

requested dated March 3. The third FOIA request was identical to the second one dated February

24 except it gave Plants a deadline of March 10 to comply, and warned him of the consequences

of non-compliance (Attached as Exhibit "H").

39. Despite missing the March 10 deadline, Plants via his agent, Daniel HolsteinG

("Holstein"), an assistant prosecutor, and chief of staff of the Prosecuting Attorney's Office, sent

Smith some of the information he requested in a white, letter-sized envelope dated March 17,

2014.

40. In his cover letter dated three days earlier, Holstein said only item number 10 of

Smith's February 24,2013 FOIA request - the partnership agreements between the Prosecuting

Attorney's Office, and any organization or entity in North America - was available (Attached as

Exhibit "I"). They included:

A. The Kanawha Institute on Social Action and Research ("KISRA").

B. The Charleston Police Department ("CPD").

C. Christ Church United Methodist ("CCUM").

D. KCSD.

E. Marshall University Graduate College ("MUGC").

F. Legal Aid of West Virginia ("LA WV").

G. Mothers Against Drunk Driving ("MADD").

H. Family Counseling ConnectionlREACH

I. West Virginia State University ("WVSU").

41. In his letter, Holstein said the Prosecuting Attorney's Office "has no responsive

documents" regarding the remaining information Smith requested.

42. On or about April 17, 2014, Smith responded to Holstein's letter challenging his

assertion neither Plants nor the Prosecuting Attorney's Office had documents responsive to his

February 24, 2014 FOIA request. This included financial documents for both the Foundation,

and KCVSC, and statistical data of people who sought assistance from KCVSC since it opened

to the public (Attached as Exhibit "J").

43. Both the Foundation, and KCVSC have pages on the social networking site

Facebook. The respective URLs are facebook.com/pages/The-Starlena-Pratt-

Foundation/13563 8343151967 and facebook.com/pageslKanawha-County- Victim-Services-

Center1l28843447185609.

44. On or about April 6, 2014 Smith discovered on one or both of the Facebook pages

that the Foundation was the beneficiary of ticket sales for the 2011, 2012 and 2013 showing of

"The Vagina Monologues" in Charleston (Attached as Exhibits "K," "L" & "M").

45. An entry on KCVSC's Facebook page on February 21,2011 announced that year's

production of "The Vagina Monologues" raised "$4,000 for the Kanawha County Victim

Services Center through the Starlena Pratt Foundation" and the play was '"to be one of two annual

signature events for the FoundationIVSC" (Exhibit "K").

46. Also, an entry dated February 28, 2011 announced Carney-Smith was successful in

raising $368 for the Foundation during a Cardio Rhythm class held four days earlier at the South

Charleston Community Center (Exhibit "K").

47. About two months later, an entry was made on KCVSC's Facebook page

encouraging people either to attend or place an ad in the program guide for the May 11, 2011

production of Chocolate Jazz featuring David Wells and Hook. The proceeds of the event were

to benefit the Foundation (Attached as Exhibit "N").

48. On or about April 25, 2012, KCVSC held an open house outside the Courthouse in

observance of both Crime Victims' Rights Week, and its one-year anniversary. Various pictures

of this event are posted its Facebook page.

49. One picture shows a small poster on the wall ofKCVSC's office that reads "604

Partner Agency Referralsll51 Non-Partner Agency Referrals (Attached as Exhibit "0").

50. Another picture shows another small poster with the writing "59 Return

Clientsll ,225 Direct Services" (Attached as Exhibit "P").

51. The open house was attended by Holstein who is shown releasing a balloon at an

unspecified time (Attached as Exhibit "Q"). This is same Holstein who claimed both Plants,

and the Prosecuting Attorney's Office had "no responsive documents" to the information Smith

specified in his February 24,2014 FOIA request.

52. The failure of the Defendants to provide Smith the information he first requested on

December 20, 2013 has prompted the instant suit.

ARGUMENTS

53. Smith restates the allegations in paragraphs 1-53.

54. 29B-I-3(1) of the FOIA law specifically states: "Every person has a right to inspect

or copy any public record of a public body in this State, except as otherwise expressly provided

by section four [29B-1-4] of this article."

55. Defendants have failed to provide a reason under 29B-1-4(1) as to why Smith cannot

see the information he first requested on December 20,2013 ..

56. Instead, Defendants have deliberately, wantonly, vexatiously and maliciously

withheld the documents from public disclosure.

57. Smith's interest in this action outweighs any arguments for non-disclosure.

Moreover, the information requested is public.

WHEREFORE, the Plaintiff prays that this Court:

1. declare that the Defendant's refusal to disclose the records requested by Smith as

unlawful;

2. grant injunctive relief, enjoining Defendants from withholding records without

justification, and order production to Smith of records improperly withheld;

3. grant a permanent injunction requiring the Defendants to undergo training for better

understanding ofW. Va. Code 29B, and implement a plan for more timely, and accurate

responses to FOIA requests;

4. award Smith his costs, and reasonable attorney fees, if applicable, incurred in this

action, as required by W. Va. Code 29B-1-7; and

5. grant Smith such other relief as the Court may deem just and proper.

5312 MaeCorkle Ave., S.W.

#238

South Charleston, WV 25309

(304) 397-6075

mslmediaine@yahoo.eom

Pro se

====== Q[erlfffcale======

I, Natalie E. Tennant, Secretary of State,of the State of West Virginia, hereby certify that

Starlina Pratt Foundation

has filed the appropriate registration documents in my office according to the provisions of the

West Virginia Code and hereby declare the organization listed above as duly registered with the

Secretary of State's Office.

Given under my hand andthe Great Seal of West Virginia

on this day ofMarch 09, 2010

Secretary of State

304-558-575809:35: 13 a,m, 03-09-2010 112

West Virginia Articles of Incorporation

For filling with the West Virginia Secretary of Statea Business for West Virginia Partner

tel: (304) 558-8000

Business Legal Name

Submitted Dale

Registration Type

Registrant Type

Charter Type

Class

Organization Type

County

'IN Effective Date

Business Legal Purpose

Has Members?

Include IRS Non-Profit Sialement?

Primary Business Location

Tax Return Mailing Address

Agent of Process

Principal Office

Officer Information

Officer Information

Officer Information

Incorporator Information

Source of Business

Primary Business Class

Business Activity Public?

Offer credit servIces?

Purchase future payments?

Starllna Pratt Foundation

03/08/2010

New Business 2

A business formed in West Virginia.

Domestic

Non-Profit

Corporation

Kanawha

03/09/2010

Ills the co-location of a multi-disclplinary team of professionals who worklogether, under one roof, to provide coordinated services to victims offamily violence.

No

Yes

301 Virginia Sireet East Charleslon , 'IN 25301

Phone #: (304)357-0300

County: Kanawha

301 VIrginia Street East Charleston, WV 25301

Blaire Carney

301 Virginia Street East Charleston, WV 25301

301 Virginia Street East Charleston, WV 25301

Blaire Carney

Tille: Secretary

700 Washington Street East Charleston, WV 25301Mark Plants

Titre: President

301 VirgInia Street East Charleston. WV 25301

Maryclaire Akers

TrtIe: Vice President

301 Virginia Street East CHarleslon , WV 25301Mark Plants

700 Washington Street East Charleston I WV 25301

ALL NEW

6241 Individual and Family Service

624190 - Other individual and Family ServicesYes

No

No

Page 1

304-558-5758

Mar. 8. 2010 1:55PM Kanawha Prosecutor

09:35:25a.m, 03-09-2010

No.6472 P. 3

212

W~st Virginia Articles of Incorporation

For filling with the West Virginia' Secretary of Statea Business for West Virginia Partner

lei: (304) 558-8000

INSTRUCTIONS FOR FILING SIGNATURE PAGE

Signatures Required: The Articles of IncorporaUon of a West Virginia Corporation must be signed by a\ least one person actlllg as

incorpo"llor.

&.Qfit.kyJ~3:-8- ZDI1JDate

PlEASE FAX ALL PRINTED PAGES TO 30400558-8090 - RETAIN A COpy FOR YOUR RECORDSPage 2

304-558-5758 12:07:40 p.m. 03-09-2010

Articles of Organization of Limited Liability Company

For filling with the West Virginia Secretary of Statea Business for West Virginia Partner

tel: (304) 558-8000

INSTRUCTIONS FOR FILING SIGNATURE PAGE

Signature Required: The Articles of Organization of a Limited Liability Company must be signed by at least one person, Who may be

(a) the manager of a manager-managed LLC; (b) a member of a member-managed llC; (c) an organizer, or (d) the attorney-in-fact for

any of the above. If signed by an attorney-in-fact, the power of attorney need not be atlached, but must be kept on file by the

company. fWV Code 318-2-205]

Please sign below and print your name and title beside your signature.

Fd,ei~ L. (jUS;"Print ~)SIgn ture

mepl~Trtle

~oDate

PLEASE FAX ALL PRJNTEq PAGES TO 304-558-8090 - RETAI"l A COpy FOR YOUR RECORDS PaQe2

West Virginia Secretary of State's Office

Business and Licensing DivisionP.O. Box 40300

Charleston, WV 25364

THE STARLENA PRATT FOUNDATION

301 VIRGINIA STREET EAST

CHARLESTON, WV 25301

Dear Business Owner:

"c IINatalie E. Tennant

West Virginia Secretary of State

November 1,2013

Our office did not receive your 2014 annual repolt and/or the annual filing fee that was due by 5pm on the last business

day of October if, filing by mail or in person, or if by filing online, by 11:59 on October 31, 2013. Therefore, as required

by West Virginia Code, we are enclosing a Celtificate of Administrative Dissolution (if domestic) or a Celtificate of

Revocation (if foreign) for your cOlporation, voluntary association, limited partnership or business trust.

Corporations, voluntary associations, limited partnerships, or business trusts that have been administr'ative1y dissolved or

revoked may not continue to do business except those actions necessar)' to close the business and give notice to creditors.

However, if your company would like to continue doing business in West Virginia, we can assist you. Please see the

instructions listed below if you want to reinstate your organization.

Should you feel that you have received this letter in en-or, or if you have any questions, please contact our office toll free

at 1-866-767-8683, and ask to speak with a member of our Business Division.

Penney Barker, Manager/Business and Licensing Division

Steps for reinstating a revoked or administratively dissolved Corporation, limited

Partnership, Voluntary Association, or Business Trust

L Complete the application for reinstating your organization which includes the annual repolt. This

form, CO-LP-RE, may be obtained from our website http://www.wvsos.com/, or can be mailed or

faxed to you.

2. Obtain a celtificate of good standing from the tax depaltment confinning that all taxes owed by the

company have been paid. The numbers for the tax department ar'e: 304-558-8618, 304-558-0678,304-558-1114 or 304-558-8695.

3. Include a payment of $75 ($25 for the reinstatement fee, $25 for the delinquent fee and $25 for the

annual repOlt fee).

4. Please make the $75 check or money order payable to the West Virginia Secretal-y of State and mail

the check and the above fonns required for reinstatement to the following address:

West Virginia Secretal"y of State's Office

BusinesslLicensing Division

1900 Kanawha Blvd., East, Suite 157-K

Char-Ieston,WV 25305

I, Natalie E. Tennant, Secretary of State, of the State of West Virginia, hereby certify that

THE STARLENA PRATT FOUNDATION

has failed to file its annual report and/or pay the annual report fee as required by West Virginia law.

Therefore, I issue this

CERTIFICATE OF ADMINISTRATIVE DISSOLUTION

Given under my hand and the Great Seal of West Virginia

on this day

(November 1, 2013)

"0-:'Natalie E. TennantSecretary of State1900 Kanawha Blvd EBldg I, Suite 157-KCharleston, WV 25305

Gel 072\1\3Penney Barker, Manager

~.'j,-_~orporations Division.~ST:;, It:Tel: (304)558-8000

Fax: (304)558-8381Website: WWW.wvsos.com

E-mail: business@wvsos.com

FILE ONE ORIGINAL(Two if you want a filedstamped copy returned to you)FEE: $15.00

APPLICATION TO APPOINT ORCHANGE PROCESS, OFFICERS,

AND/OR ADDRESSES

Office Hours: Monday- Friday8:30 a.m. - 5:00 p.m. ET

Limited Partnership Voluntary Association. Business TrustCorporation

Limited Liability Company

Limited Liability Partnership

PrincipalOfficeAddress asRegistered.

Insurance Company/Agency

COmpanYN~ee.. Starlena Pratt Foundation

1. The company filing this change

is registered as a (check one) :

2, The change is filed for:(~: Enter information as previouslyfiled. No change can be acceptedwithout this information.)

Home State: _\MI WV Formation Date: _

3. Change of Address:(.!full:: Use appropriate lines for the

type of address to be changed):

Address Txve

a. Principal Office

New Address

b, Principal Mailing

c. Designated Office

4. Change of Agent for Service of Process: New A2ent Name and Address

The agent named here has given consentto appointment as agent to accept serviceof process on behalfofthis company.

New Agent Sjgnature:

Form AAO Office of the Secretary of State Revised 4/13