August 28, 2025 • 38 mins
Host Jeff Jenkins and Harvey or Tom from the Peyton Law Firm discuss legal issues from listeners and matters affecting local politics.
More info: www.PeytonLawFirm.com
(304) 755-5556
2801 1st Ave, Nitro, WV 25143
The Peyton Law Firm was founded more than 30 years ago by Harvey Peyton, who was joined by his son, Tom Peyton. For more than 50 years, the Peyton team has successfully represented clients in courtrooms throughout WV and southeastern Ohio. The firm is known for its active community involvement and straightforward advice.
More info: www.PeytonLawFirm.com
(304) 755-5556
2801 1st Ave, Nitro, WV 25143
The Peyton Law Firm was founded more than 30 years ago by Harvey Peyton, who was joined by his son, Tom Peyton. For more than 50 years, the Peyton team has successfully represented clients in courtrooms throughout WV and southeastern Ohio. The firm is known for its active community involvement and straightforward advice.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
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Speaker 2 (00:15):
The views and opinions expressed on this program do not
necessarily reflect the views and opinions of five eight w
c HS it's employees or w v RC media of Courts.
Speaker 3 (00:27):
Oh Created Equal, We're mass come here in a Kate.
Speaker 4 (00:37):
Can Robson.
Speaker 5 (00:50):
You don't have to fight the law this morning. You
can put the power of Paton on your side. Tom
Payton in studio with us this morning. Payton Law Firm
in Nitro, West Virginia. Payton Lawfirm dot com, p E
Y t O n P Law Firm dot com. Good morning.
I'm Dell Cooper and this is ask the Lawyer with
Tom Pathon from the Payton Law Firm. You can call
us this morning at three zero four three four five
fifty fifty eight three zero four three four five fifty
(01:10):
eight fifty eight.
Speaker 4 (01:10):
Tom, good morning, How you doing this morning?
Speaker 6 (01:12):
I'm doing great this morning well, it's great.
Speaker 3 (01:13):
Faday was good. Got a little little chill in the air,
just in time for football season to arrive. I guess
you guys have some high school games on tonight, I
think so you can watch one game on the Metro
News app.
Speaker 4 (01:25):
I think that's correct.
Speaker 5 (01:26):
Yeah, So network wise, there'll be the the Parkersburg Morgantown
game will be on the Metro News app. Here locally,
we have a double header tonight and another game tomorrow night.
So tonight we're going to have one chs. We're going
to have George Washington in the Spring Valley and we
will have the it should be and then we'll have
Hoover in Independence over on our sister station ninety six
to one KWS. So that's a big night tonight, man
doing all kinds of high school football.
Speaker 6 (01:48):
Yeah, looking forward to it.
Speaker 3 (01:49):
And yeah we're going Dad and I are going up
for the game in Morgantown Saturday. Just hopefully it will
be a blowout, and hopefully it will be one we
can leave early. Perhaps it is, but it'd be good
to see rich Rodriguez back on the field for first
time in what seventeen years.
Speaker 5 (02:05):
Yeah, it's such a crazy time to be a Mountaineer
fan because if you would objectively describe the situation, the
West Virginia's football program is in hasn't been ranked in
how many every year, twelve years or whatever.
Speaker 4 (02:18):
It is.
Speaker 5 (02:20):
A new coach coming in, that's an old coach that
was at a smaller school last year. Like, if you
described that in an abstract to someone, they would probably
tell you, man, I'm not so sure you're gonna have
that great of a year. But the particular situation that
follows West Virginia and rich Rod, there's a little bounce
to people steps.
Speaker 3 (02:35):
It feels on Yeah, And you know, the X factor
factor to me is that you have the transfer portal
now that he didn't have when he was here before.
And I don't know whether that, I mean, starting off
from scratch probably helps a bit. We'll see in the
long run whether it helps rich Rod or not because
the days of kind of building up players in your
(02:57):
program or it happens, but it's rare now because they
moved so often. But yeah, I'm looking forward to going
up there and getting and it's gonna be great weather,
mid mid to low seventies, so perfect football day. Hopefully
the Mountaineers play well, and then so I'm driving back
and watch the LSU game because this is my son's
(03:18):
last semester at LSU and they played Clemson at eight
o'clock that night at Clemson, so they're underdogs, but we'll see.
Speaker 5 (03:24):
This should be a pretty good game. LS you's supposed
to play a little defense this year.
Speaker 3 (03:27):
Ryan Kelly coaches at LSU and this is his I
think fourth or fifth season, maybe fourth And do you
remember he coached at Cincinnati and then Notre Dame. I
really didn't like Brian Kelly. Have to root for him
just a little bit now since he's at LSU, but
I'd say he's on a short least. He has lost
every opening game since he's been there.
Speaker 5 (03:47):
The most funny thing about him I found, anyway, is
when he went from Notre Dame to LSU and he
did his first press conference at LSU. Suddenly, yes Southern accent. Yeah,
It's like, where did that come from?
Speaker 4 (03:56):
Man? You've been living forever the Indiana?
Speaker 2 (03:59):
Man?
Speaker 4 (03:59):
Are you very well? Quick?
Speaker 5 (04:01):
Last question question about football, because I'm just curious what
people think they've weekly. I bounced this aroun a little
bit yesterday under Neil Brown Westernet Mountainearst football team the
most points they scored under Neil Brown at any point
with thirty eight thirty eight. So thirty eight over or
under for Saturday for the Mountaineers. Well, I've got to
pick over. Okay, we better hope, so right, that's what
we're looking.
Speaker 3 (04:19):
I got to pick Over for a couple of reasons. One,
I think they're going to be really pumped for this game.
Rich's first game back. You got a lot of new players.
The other thing, you know, we got a you know,
multiple quarterbacks that could play three, maybe four, and those
guys are going to be looking to prove themselves. So
(04:41):
I think that, you know, even when if we get yeah,
it's say we get twenty eight points in the first half,
I just see it's getting at least a couple more
touchdowns in the second.
Speaker 4 (04:52):
There's no real soft edges to Rich either.
Speaker 5 (04:54):
He may not win every game for you, but if
he has the opportunity to hang seventy, he's won to
hang seventy.
Speaker 3 (04:59):
You know, I mean, I don't think there's much probably
so and and and I don't know thing about Robert Morris.
I mean, I think they're what we used to call
one double a still and I did. I was listening
to the show today. I guess they've had how many
players have they had drafted in the NFL?
Speaker 4 (05:13):
Yeah, yah, yah, Zerra was one. Yeah, it was one.
That's right. I got it right and I got it
wrong that but yeah, one, and that's something else. But
you never know. You gotta you gotta play the games.
Speaker 3 (05:21):
You gotta play the games. You get a turn over
here there, and uh, special teams play for Robert Morris.
Speaker 6 (05:25):
You just you never know.
Speaker 3 (05:26):
We've had a few close ones. I don't think WVU
has ever lost a home opener against a non power five.
Speaker 5 (05:35):
And this isn't even a this isn't even like an
Appy State situation where you have like sort of a
venerable program that was in one double at the time.
Speaker 3 (05:41):
You know, yeah, ought to be an overwhelming victory, and
it probably will be. I just want to go opening
game and see rich Rod come by and see see
the style of play, just kind of watch the players,
see what kind of attitude they have. It was a
little totally faster than ever, yeah, pace, play, faster than ever, aggressive,
hopefully some excite. I think that's what we've been missing
the last few years with with Neil Brown, so and
(06:05):
I have made the bold prediction of nine and three years.
Speaker 5 (06:07):
That's a good prediction, man, every I think every single
Mountaineer fan in within the sound of our voice would
take that and lock it in right now if they could.
Speaker 3 (06:14):
Yeah, it's probably more with my heart than my hand.
But you never know, that's the way it might look
like a genius, right. That's it's it's college sports still,
so we'll have fun with it.
Speaker 4 (06:23):
But so what else will you talk about this? There's
a lot of stuff, uh.
Speaker 6 (06:26):
You know, in the legal community.
Speaker 3 (06:29):
Unfortunately, we have some kind of really upsetting news this
this week, Supreme Court Justice Tim Armstead passed away, and uh,
you know he was on the He was obviously a lawyer, right,
I don't know they did trial court work or anything.
I never had any real dealings with him as in
(06:50):
my role as a lawyer representing clients, but uh, he
certainly was a public servant. You know, he's in the legislature.
I don't know how many years. I think he started
back in the I's like two thousand or maybe even
before that, in the legislature, and he's just always viewed
him as didn't really see how to iye on his
political views and of course in his opinions on the
(07:11):
Supreme Court that they were well thought out and don't
agree with. I thought he was a little result oriented
sometimes on some cases. Of course, you wouldn't agree with
everything any judge does, or you'd be the judge. But
one of those kind of old school Republicans that I
wish we had more of around to day. And he
(07:31):
would not participate, I'm sure, and did not in name
calling on social media or belittling other people based on
appearances or labels. He was just kind of an old
school conservative the way I saw am. I I actually
last time I talked to Justice Arms, so we kind
of sat next to each other, he and I, who's
(07:53):
now manaster judge reader at the State Bar annual meeting
in April that was twenty twenty four.
Speaker 6 (08:00):
He was fine. He was jovial, you know, told jokes,
had good conversation.
Speaker 7 (08:05):
And then.
Speaker 3 (08:07):
This past winner I noticed during an oral argument he
had lost his hair. But I don't think he kept
that pretty discreet. I don't remember an announcement that he
was ill. I don't remember any large periods where he
was absent from the bench. He was he was hearing
cases and obviously undergoing some some treatment there, and then
(08:30):
I hadn't heard anything recently until we just saw the
news the other day. So it's just a tragic loss.
Speaker 6 (08:38):
I hate it.
Speaker 3 (08:39):
Uh. The process now, of course, will be you know,
candidates will throw their names in the hat and there's
a commission that will whittle them down to I think
three or it's three to five, and then the governor
will will appoint somebody.
Speaker 6 (08:52):
I don't, I don't.
Speaker 3 (08:52):
I'm not sure when Justice Armstead's term was to end,
but they'll serve out the remainder of the term and
then uh, there'll be a non assuming it stays non partisan,
non partisan election for a twelve year term on the
Western Supreme Court. I mean, we do twelve year terms
to kind of help make it a political so they're
(09:13):
not running for office every four years like or two
years sometimes like you do on the legislatures.
Speaker 6 (09:18):
So you know, uh, I know, he had he had a.
Speaker 3 (09:23):
Family, and he was a family man, and so our
our our thoughts and condolences at the Peyton Law Firm
certainly go out go out to them. And I thought
Justice arms said was a good one. So, uh, that's
too bad. It's a loss for the for the legal
community for sure. Beyond that be on the national level.
(09:44):
But one good thing about whether you like the Trump
administration or you don't, one thing that I guess has
made life more interesting is that every time I opened
my newsfeed, there's newsfeed. You're you're waiting to see what's
happened now, and you know, legally speaking, I guess in
the last I think it was last week or the
(10:07):
beginning of this week. You know, now he's put out
an executive order. He's very good at hitting the you know,
ignoring kind of principled aspects of the law that have
been around for a long time, like due process, but
kind of hitting at the heart like well, if you
(10:28):
don't understand that or you don't accept it, then you
can get to these kind of issues that strike at
the heart of everyday Americans. Like this week or last
week it was flag burning.
Speaker 6 (10:40):
Well, I wouldn't burn a flag.
Speaker 3 (10:45):
I mean, I can't imagine a scenario where I would
burn the American flag in protest or as an expression
of my views. And I think probably most most listeners
have the same field feeling. But I also understand the
(11:05):
right to do that. Under the Constitution, even though I
wouldn't do it. So it's it's tolerate under most certain sections.
Reading comments on social media, which is always dangerous to
do because you have no idea whether unless you know
who's posting it, you don't know whether it's a real human,
a bot, or some foreign national. But so this, you know,
(11:29):
they were they were promoting Trump's position and you shouldn't
be able to burn the flag. And it's like, well
if just imagine if somebody did that in Russia, what
would happen to them? And they were saying that to
advocate their position that that we should adopt that that's
a better.
Speaker 6 (11:47):
Do you realize what you've just said?
Speaker 4 (11:48):
I mean, are we in the twilight for people out
of buildings? You know whatever, It's all good.
Speaker 3 (11:51):
But it is interesting. You know, it gave me an opportunity.
I thought, well, you know, let me let's look back
at that. It was only nineteen eighty nine when the
US Supreme Court, in the case of Texas v. Johnson,
ruled that laws that prevent the burning of a criminalized
(12:13):
the burning of the American flag when it's an expression
of protest is unconstitutional under the First Amendment. And actually
I didn't know it was a five to four decision,
so it wasn't you know, it wasn't unanimous. I forget
what one of the justices dissented and said, well, it's
just such a symbol that we should make an exception
to the First Amendment and this criminal law should be upheld.
(12:36):
But so Trumpet administration entered an executive order and.
Speaker 6 (12:40):
It's it's.
Speaker 3 (12:43):
It's a couple pages, and it's mostly political pandering to
that feeling most of us have that no one should
everyone should respect our flag and not burn our flag.
And that's what his administration is really good at and
getting the message out. And it's it's a it's not
(13:04):
saying they're going to violate the Supreme Court's precedent and
in forcing criminal laws, but it's it's close, and it's
it's certainly.
Speaker 6 (13:15):
And then of course he has a.
Speaker 3 (13:16):
Paragraph in there about deportation if if somebody exercises a
First Amendment right. But that the ruling from the Supreme
Court was interesting when you go back and re read it,
because it's really, you know, there there can be laws,
I mean, you're allowed. It did not criminalize the respectful
(13:40):
burning of the flag. I guess you would say, I mean,
I don't probably should, but I mean there are scenarios
where a flag should be burned as a way too.
Oh yeah, I like to retire it. That's right, that's right,
and so that's not illegal. On the problem with the
with the law that was passed in the Texas law,
and in that situation, a fall name Johnson had been
(14:00):
a a I don't know if it's Republican National Convention
or something. It was a protest to Ronald Reagan's policies
in at the conclusion of the demonstration, he burned the
American flag. He was clearly burning the American flag as
an expression of protest, and that's really what the Supreme
Court found was unconstitutional.
Speaker 6 (14:23):
So if.
Speaker 3 (14:26):
I don't think there's been any laws that have been
crafted very well around that decision, we'll see if the
and a lot of its local enforcement, so the Trump
administration won't really have any other than leveraging local officials,
which they're also.
Speaker 6 (14:42):
Very good at, like you do this or you won't
get funded. That's right, you know, we won't help you
with this or that.
Speaker 2 (14:49):
And so.
Speaker 6 (14:51):
We'll see how it plays out.
Speaker 3 (14:52):
I mean, it got some news I'm just gonna sure
it's really gonna get anywhere. It does say he authorizes
the Attorney General to uh, you know, essentially aggressively appeal.
It's almost like they want to charge somebody again under
a similar factual scenario and then they want to run
it up to the Supreme Court. Change. It was a
(15:15):
five four decision, and as we've seen over the last
few years, the Supreme Court can not follow previous precedent
at times, even though that's the custom. So we'll see
how that that plays out. But you know what the
the Court and Johnson pointed out with if there's a
law that if somebody is burning a flag and it
(15:38):
incites violence and it is a breach of the peace,
then the first of all, there are separate criminal sections
of the code that address that type behavior, So it
doesn't need to be a you can prosecute him over
something else that doesn't have language in the statute that says,
(15:58):
you know, it's legal to burn the flag in.
Speaker 5 (16:02):
Essence, So is there any and this isn't what the
executive order was over, But personally, I was grown I
was brought up under the same you know, you don't
you respect the flag, you would never burn anything along
those lines. But also there was a very strong vein
of you don't modify the flag either, like like it
was like it was like if somebody took a flag
and did something with it to create like a shirt
(16:22):
out of an actual flag, or you know, did something
like that, that was considered extraordinarily disrespectful, something you shouldn't do.
And although it's not taking a flag and doing I
find it's really strange that there's so many of these
alternate versions of the American flag around that people selling stores,
they wear around and all these things. To me, I
look at that, and I mean not that I think
that they shouldn't be able to do it. I would
never think that, but me personally, I find that a
(16:44):
little distasteful. To be honest with you, Yes I do too,
and I don't. I don't know if that's you only
been on this earth with a memory for so many years.
I don't know if that was when that became prevalent
right now especially acceptable, But yeah, that's and then modifying the.
Speaker 6 (17:02):
I mean, burning is one thing. What about tearing up?
Speaker 3 (17:07):
What about putting a peace sign sticker over the middle
of the US flag and flying it, which was subject
of one of the prior cases to the US Supreme Court,
So well, it'll be really interesting to see how it
plays out. But you know, that decision by the Uspreme
Court was very careful to say that it's this context.
I mean, there's a this in this situation. This person
(17:30):
was expressing their protest views by an act, and that's
the context in which we decide this case. So it's
it's kind of hard to think of other scenarios where
it could apply. But we'll see if we don't see
(17:51):
in the next six months or so, because you know,
protesters will now take this and push Sure, they're going
to push it. And I think what we what we
will see probably is more attempts by the executive branch
(18:12):
to enforce criminal laws that don't expressly prohibit flag burning.
I mean, if you burn, I mean it could it
be arson right or public danger or disorderly conduct. In fact,
the Executive Order says, we, you know, are going to
try and prosecute crimes that involve flag burning under open
(18:36):
burning restrictions, disorderly conduct, destruction of property laws, things like that,
and so that that will really push the envelope and
the limits of that Johnson case and see see where
we get. And you know, that'll be interesting that if
you charge somebody with uh, of course, with arson or
(18:56):
you know, they burn a flag during your close season
for public burning, can you then prosecute that person under
an open burning criminal statue even though they were burning
the flag and protest as a demonstration. And that's a
(19:18):
balancing act there. Obviously, we kind of have a synonymous
scenario going on with the vaccine issue right now, where
you know, they argument of whether there's a religious exemption
in West Virginia for mandatory vaccinations for kids to go
to public school. I mean, there has to be some
limit on your freedom of religion. And where does that
(19:41):
line fall? I mean, if you I mean, if your
religion is Satanism and it involves human sacrifice or something
like that, obviously society is never going to tolerate that,
and so where do you draw those lines? And so
that'll be you know, from a legal standpoint and a
all you're'll be interesting to see how this filters up
(20:01):
and if it gets to the US Supreme Court, if
they'll take it up, and if they'll then refine that
decision in Johnson from nineteen eighty nine or just that
you know, there's a descent they could adopt that just says,
you know, we're going to make an exception to the
First Amendment for the American flag. Now, I don't know
how you because of what we talked about wearing a
(20:24):
flag as clothing or putting symbols on the flag, and
you know, I don't where does that fall. I think
that's a real it's a real slippery slope to go down.
But they, you know, the Supreme Court could essentially adopt
that dissenting view from the nineteen eighty nine case and
just say laws that criminalize the burning of the flag,
(20:45):
whether it's done as an expression of protest or not,
are valid. And there's not going to be very many
exceptions like this. This might be the only one, but
we're we're making an exception for this particular situation.
Speaker 6 (20:59):
So we'll we'll see how that plays out.
Speaker 3 (21:01):
I mean, it's a it's a to me, it's an
obvious just political maneuver by the Trump administration that they're
very very good at, just kind of like, you know,
not you have a murder or a gang member or
a deplorable person, and and you know, well, why should
they get due process right. So we've talked about that before,
and it's it's an easy grab for a politician because
(21:24):
it's initially you think, well, yes, I.
Speaker 4 (21:26):
Mean, it's easy to vilify the person a child molester.
Speaker 6 (21:32):
Why do they get all these rights?
Speaker 3 (21:35):
I mean, as we've talked about with the what they
call the exclusionary rule, mean, if if key evidence is
gathered by the government and violation of the constitutional and
for example search and seizure, then the government can't use
that information at trial. And and sometimes not very often,
sometimes that results in a person who's committed a heinous
(21:57):
act having their case dismissed.
Speaker 6 (21:59):
But that that's what.
Speaker 3 (22:03):
We accept as a society to maintain a free society
and under the orderly rule of all.
Speaker 6 (22:10):
That's the constitution.
Speaker 3 (22:11):
So you don't get to just bend it to what
you agree with, which is what the Trump administration seems
to be seems to like to do. And of course
they hit at the heart of those type issues like
I just went through that are just easy, easy pickings
because they're everybody, if you ask them, will agree it.
(22:32):
Probably you know, a child molester of the worst kind
should be incarcerated for the maxim amount of time. And
most people will probably say it really shouldn't matter how
the evidence was gathered.
Speaker 6 (22:45):
If they're guilty, they need.
Speaker 4 (22:46):
To until somebody is accused that isn't guilty. And then
if you don't give them to do process, how you
want to find out that they're not guilty.
Speaker 6 (22:52):
So that's right.
Speaker 3 (22:53):
And the rule there is it's a really it's it's
called the exclusion rule, and it's just it's to make
sure that there's broad or it's a motivation for broad
compliance with constitutional provisions. So the executive branch, mostly law enforcement,
(23:13):
can't just blatantly violate the Constitution based on the gravity
of the conduct involved in essence, and so but that
was this week from the Trump administration.
Speaker 6 (23:24):
So we'll see. It may die down and just nothing
come of it.
Speaker 3 (23:26):
It might be something that gets in the in the news.
It's it's difficult because I think for the federal government
to really push this to its limit and get it
to the US Supreme Court, because you know, criminal cases
involving federal laws generally have to have some relation to
interstate commerce. So crime basic crimes like open burning laws
(23:48):
sort of the conduct destruction of property, those are all
local state. You'd have to get a local prosecutor to
to prosecute one of those. We're a I'm not sure,
but I question has a I'll just say to probably
still have a prohibitional flag burning statue in the code.
(24:09):
It's just unconstant because you prosecutors can't enforce it.
Speaker 4 (24:13):
So we'll see if they might find a way. Now,
well they can.
Speaker 6 (24:17):
They can always charge somebody with it, and then it's on.
You know.
Speaker 3 (24:21):
The defendant would follow motion dismiss saying this is this
law is invalid because it's unconstitutional, and then uh, it
runs up the ladder from there. If a judge dismisses it,
or a judge says, no, I think it's it's valid,
then that's how I mean, that's how the Johnson case
got to the US Supreme Court. It would The problem
(24:42):
is that it's kind of a hot button issue. We're
talking about it today, But to get that scenario to
the US Supreme Court would be years. I mean, there's
nothing emergent about it, like you're seeing some of the
things get to the Supreme Court rather quickly on these
deportation issues and things like that. Uh, this would probably
take a number of years. To get to the US
(25:03):
Supreme Court, and yeah, everybody will forget about the publicity
of this executive order by then, and you know, Trump
administration may not be in place at that time, and
I would most likely the next administration, no matter who
it is, will cool off on this issue a bit.
Speaker 5 (25:23):
Do you think that there's a it seems like over
the last few years. And I want to tie this
back to the Peyton Law Firm, because what we talk
about so much with the Payton Law Froom, with you
being on the ground here in West Virginia, knowing so
well these counties that we're in, that the things that
we do in the state, you're closer to what's going
on here. You're closer to the law here. You know
the judges, you know the prosecutors in some case or
whatever it might be. I mean, it's it's there's a
(25:44):
relationship there, and there's a even on quote unquote opposing sides,
there's a there's a general cordiality. You know, you get along,
you follow the laws, whether their laws are kind of
unspoken agreements, whatever it might be. There's a process is
in place that we that we that we followed forever.
I feel like that we have some freeing at that
at the national.
Speaker 4 (26:04):
Levels between lawyers and.
Speaker 3 (26:08):
Yeah, I think most prosecutors do a good job, but
there's you know, they are elected, at least in West Virginia,
and and you know they their duty is not I
mean when you defend a criminal defender, I mean, your
loyalty is to your client pretty much period. I mean,
if they tell you they're going to commit a crime,
then you have to report it. But you know, they
(26:31):
have a right to remain silent. You you cannot misrepresent
facts to a court or to a jury. But on
the prosecutors side, they have a lot of power, and
so there are some ethical considerations they have that they're
really not supposed to just zealously advocate for a conviction
(26:55):
all the time. There should be some judgment for example,
whether you know, let's say a somebody mouse off to
an officer. You know, the sandwich story, the DC sandwich
story already.
Speaker 6 (27:06):
Through the sand.
Speaker 5 (27:06):
Yeah, So yesterday, I guess two grand juries were impaneled
and both of them were like, there's no there's no
here here and and the judge I think came down
on the on the that's attorney. I think it was
the former Fox News, Lady pierro King kind of came
down on her as like, this isn't a thing. Why
are we pushing this type of thing?
Speaker 2 (27:22):
Right?
Speaker 3 (27:22):
Well, I mean, I think if it was a local charge,
I mean, that could be a salt you throw a
sandwich at somebody's chest, But that's not a I'm not
aware of any state, even if it's a law enforcement
officers where that would be a felony. And that's where
you have to go through the grand jury to get
a charge. But yeah, obviously the grand jurys didn't see anything.
And it's usually grand jury's are one sided, meaning it's
(27:45):
the prosecutor and the witnesses they choose to present the matter.
The defendant's not there. There's no cross examination. So if
a prosecutor wants to get an indictment on a charge,
it's jerally.
Speaker 6 (28:02):
Not that big of a hurdle.
Speaker 2 (28:06):
To do this.
Speaker 3 (28:08):
And they and they and when they present their case
to the grand jury, they can't again, they can't misrepresent facts,
and they but they also don't have to necessarily but
all the facts out there, you know, they can put
the facts that they think is enough for and the
grand jury is just finding probable cause, which is a
pretty low standard. It's not beyond a reasonable doubt or
anything like that. So you know, they did away with
(28:29):
that one. But but prosecutors, you know that they they
have to use some judgment on what you know, a prosecutor.
That's what we're seeing with Pam Bondy. And what you're
talking about is like you're you're you're following these charges
that don't have much evidentiary basis and taking positions that
seem to be based on politics and not on seeking justice.
(28:54):
And and so a prosecutor that sees a reasonable prosecutor
in my opinion, that sees a flag desecration criminal law
get charged maybe by a young officer or something like that,
really should counsel that officer. And then the case I
ought to just be dismissed. But we'll see. I mean,
there will be some out there willing to prosecute these
(29:15):
based on the request. Sure Trump administration, for sure, Let's.
Speaker 5 (29:18):
Go ahead and let's take a break. If you want
to put the powerpen on your side. This morning, we've
been talking about a lot of different things. But if
you want to dial it back down locally, you have
something you want to talk about an issue that you have.
You're more than looking gives to call this morning in
fivet we encourage it. Three zero four, three four five
fifty eight fifty eight threes are four three four five
fifty to fifty eight. You can text three zero four
non three five five zero zero eight three zero four
non three five five zero zero eight. Tom Payton is
here with me this morning from the Pathon Law Firm
(29:40):
in Nitro, West Virginia. You can find out more information online.
It's Payton Lawfirm dot com. Payton Law Firm dot com,
p E Y t O N. Payton Law Firm dot com.
We'll take a break, be back after this. You're listening
to ask the lawyer with Tom Payton from the Payton
Law Firm on five eight w s HS the Voice
of Charleston.
Speaker 7 (29:53):
Why do people trust Peyton Law Firm for personal injury
claims in West Virginia? Simple, Harvey are from here, they
live here, and they're proud of it. If you've been
hurt and you want no nonsense representation that gets results,
you want the Peytent Law Firm. Don't let insurance companies
take advantage of you. Call three zero four seven five
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Discover more at Paytentlawfirm dot com.
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Speaker 5 (31:04):
Of course, this is our regular reach win using. Now
we'll get you in the spirit a little bit for
this upcoming weekend. West Virginia kicking off against Robert Morris
on Saturday with a return of Rich Rodriguez a little
uh make you.
Speaker 4 (31:15):
Feel a little better.
Speaker 3 (31:15):
Yeah, we'll hear a lot of country roads this uh,
this Saturday, I'm sure, and hopefully we won't see any
flag burning. That's my other disclaimer, because we said, you know,
I'm not an advocate of flag burning. I can't imagine
that I would ever burn a flag in protest. This
is not the way I would I would choose UH
to protest, but I do value the constitutional right we
(31:37):
have in this country to do so in protest with
what should be without fear of being targeted and UH
illegally prosecuted.
Speaker 5 (31:49):
It seems like the lay understanding of the First Amendment
has been sort of taking a bruising the last the
last several years. I mean not that anybody has ever
had a perfect understanding when you're not in the profession
or whatever it might be. But in suddenly kids protesting,
people giving speeches at college, like that's suddenly a free
speech violation, which is not.
Speaker 4 (32:08):
It's not that you know, I mean, you got these defaitements.
Speaker 3 (32:11):
Everybody's suing everybody in the national level for defamation and slander,
and those are I've generally been difficult cases, and when
it involves public figures and the media because there's a
lot of discretion there.
Speaker 4 (32:24):
So until there's a chink, and then the chink will grow.
That's what we have to be concerned about all that.
But Peyton mafferm there's.
Speaker 3 (32:29):
A lot of stuff going on, and we do other
than talk about white politics and the law on the radio,
we do a lot of claims for people that are
injured and or denied insurance claims. And I know we've
talked about it a bit, but we had that really
bad hailstorm back in April of this year, and you know,
(32:52):
almost if you have homeowners insurance or comprehensive insurance on
your vehicle, you know, you you make your claim.
Speaker 2 (32:58):
And and.
Speaker 3 (33:01):
I think I didn't get a lot of calls shortly
after that hailstorm, but the last month or so they're
starting to filter in. We've actually are taking we've probably
taken three or four cases in the last month on
that same subject where folks maybe they got a little
payment from their insurance company at the beginning based on
some insurance company standardized prices, but then they have a
(33:24):
rougher com or a siding or a gutter company, and
oh gosh, it's actually going to cost five grand, ten
grand more than that to get it fixed. Then I'm
having clients that are really having trouble getting communication or
supplemental payments from their own insurance carriers. And certainly give
(33:44):
it a try yourself, and you need to be real
straightforward with your own insurance.
Speaker 6 (33:50):
Career, like here's what it costs to get it fixed period.
Speaker 3 (33:53):
I've had two or three estimates for example, and this
is the one I want to use for whatever reason,
and Chris minus my deductible. On most policies, you're entailed
to get what it actually costs to get your damage
repaired or replaced. So I've had a couple where, you know, oddly,
an insurance companies claiming there wasn't really hell damage on
(34:14):
the roof, even though every neighbor around I mean, you know,
as if a hall stopped there was a bubble over
their house or something, and the insurance company's claiming, well,
that's pre existing wear and tear, it's not. We have
we have a couple of those, and then we have
more frequently we have insurance companies that are just not
responding or not willing to pay what it will actually
(34:37):
cost to get the home repaired. And those are viable
cases because the way the law works in West Virginia,
when you have to you don't buy insurance to have
to fight and call and scratch to get what you
paid for from your own insurance company. So if they
deny your claim and you have to go get a
lawyer to uh help make them do what they should
(35:01):
have done in the first place, and you prevail in
that claim, then your insurance company has to pay an
additional amount for lawyer's fees and an additional amount sometimes
for the aggravation they put you through and having to
go through that process. So that makes those type claims
viable for us to take on contingency fee like you
see on like we do all injury cases that way,
(35:22):
when lawyers advertise that you know, you don't pay us
unless we win, well, that's that's great, but that's that's
nothing new. That's more different. That's what every law firm
does that handles those type cases. But it's difficult when
you're talking about property damage because of course we to
satisfy our clients, we have to recover enough so that
we get paid and they get enough to actually get
(35:45):
their repairs done. And so when it's your own insurance
company you're fighting with it, it makes it viable for
us to handle them on a contingency fee. So you
can come and you know, we if you meet the parameters,
then we'll take the case, and then we only get
paid if we recover money for the client. And and
we've been real successful in those and getting sufficient funds
(36:08):
to get us paid, get the client enough money to
get their repairs done, and oftentimes get something extra for
the client for their aggravation inconvenience. So if you have
that situation out there, feel free to give us a
call or send us an email at the office and
we'll kind of screen your situation. And you know, sometimes
folks got to take another step on their own and
coach them up in that regard. You try this, or
(36:31):
you need to get a different estimate or some clarification.
But then we're we're taking we're taking those cases right
now and and we get them filed pretty quickly. And
you never know in litigation, sometimes they resolve rather quickly.
Sometimes you're a.
Speaker 6 (36:47):
Year later waiting.
Speaker 3 (36:48):
But most of the damage was in Putnam County area,
and then you know, seeing Albans Cross Lanes area of
Knack County. That's what I'm seeing anyway. So if you
have those situations, you don't have to just concede to
move on and intentional or just disorganized. I mean, it's
a hassle to keep calling an insurance company or emailing
(37:11):
them and having them not respond at all, or then
they respond in some way that's not even responsive to
what you were asking about, and oftentimes that makes people
just give up. Ye know, if it's if it's a
few thousand dollars, well I'll just get.
Speaker 4 (37:23):
A cheaper suit.
Speaker 5 (37:24):
My suspicion is that they have the numbers that know
that a certain percentage of people will give up on
the claim if they get non response for long enough.
Speaker 4 (37:30):
Hence the reasons have you.
Speaker 3 (37:32):
On a joy You understand that this might not be
just disorganization, It might be an organized policy unwritten because
they know that a certain percentage of people will simply
go away if you just ignore them for a while.
Speaker 5 (37:48):
In my opinion, it's sort of like needing the foul
paper for a tax rebatea when you're when you're when
your vehicle, right, we're trying to get it's a barrier
that keeps people from doing it.
Speaker 3 (37:55):
We're trying to cancel a subscription service like cable or
something like that.
Speaker 4 (37:59):
Oh yeah, yeah, yeah, that's terrible. I just live with it.
Yeah yeah, right, you just keep it. You don't have
to live with it.
Speaker 3 (38:04):
You can call us or email us and we'll take
them on and you just have to communicate with us,
which we try and make as easy and comfortable as
possible for our clients.
Speaker 5 (38:12):
That's the Paton Law Firm. You can find more information
every Thursday right here with Harvey or Tom from the
Paton Law Firm. And you can find information online Payton
Lawfirm dot com and Nitro West Virginia. Threes are A
four seven five five fifty five fifty six threes are
A four seven five to five fifty five fifty six
three zero four seven five five fifty five fifty six.
Have a great day everyone, Tom. We'll see you back
here next week.
Speaker 4 (38:30):
Sounds good, look forward to it.
Speaker 5 (38:31):
Have a great day. On five ADWHS. We are the
voice of Charleston.
Speaker 2 (38:37):
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Media station, we are proud to live here too,
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Speaker 2 (00:15):
The views and opinions expressed on this program do not
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Speaker 3 (00:27):
Oh Created Equal, We're mass come here in a Kate.
Speaker 4 (00:37):
Can Robson.
Speaker 5 (00:50):
You don't have to fight the law this morning. You
can put the power of Paton on your side. Tom
Payton in studio with us this morning. Payton Law Firm
in Nitro, West Virginia. Payton Lawfirm dot com, p E
Y t O n P Law Firm dot com. Good morning.
I'm Dell Cooper and this is ask the Lawyer with
Tom Pathon from the Payton Law Firm. You can call
us this morning at three zero four three four five
fifty fifty eight three zero four three four five fifty
(01:10):
eight fifty eight.
Speaker 4 (01:10):
Tom, good morning, How you doing this morning?
Speaker 6 (01:12):
I'm doing great this morning well, it's great.
Speaker 3 (01:13):
Faday was good. Got a little little chill in the air,
just in time for football season to arrive. I guess
you guys have some high school games on tonight, I
think so you can watch one game on the Metro
News app.
Speaker 4 (01:25):
I think that's correct.
Speaker 5 (01:26):
Yeah, So network wise, there'll be the the Parkersburg Morgantown
game will be on the Metro News app. Here locally,
we have a double header tonight and another game tomorrow night.
So tonight we're going to have one chs. We're going
to have George Washington in the Spring Valley and we
will have the it should be and then we'll have
Hoover in Independence over on our sister station ninety six
to one KWS. So that's a big night tonight, man
doing all kinds of high school football.
Speaker 6 (01:48):
Yeah, looking forward to it.
Speaker 3 (01:49):
And yeah we're going Dad and I are going up
for the game in Morgantown Saturday. Just hopefully it will
be a blowout, and hopefully it will be one we
can leave early. Perhaps it is, but it'd be good
to see rich Rodriguez back on the field for first
time in what seventeen years.
Speaker 5 (02:05):
Yeah, it's such a crazy time to be a Mountaineer
fan because if you would objectively describe the situation, the
West Virginia's football program is in hasn't been ranked in
how many every year, twelve years or whatever.
Speaker 4 (02:18):
It is.
Speaker 5 (02:20):
A new coach coming in, that's an old coach that
was at a smaller school last year. Like, if you
described that in an abstract to someone, they would probably
tell you, man, I'm not so sure you're gonna have
that great of a year. But the particular situation that
follows West Virginia and rich Rod, there's a little bounce
to people steps.
Speaker 3 (02:35):
It feels on Yeah, And you know, the X factor
factor to me is that you have the transfer portal
now that he didn't have when he was here before.
And I don't know whether that, I mean, starting off
from scratch probably helps a bit. We'll see in the
long run whether it helps rich Rod or not because
the days of kind of building up players in your
(02:57):
program or it happens, but it's rare now because they
moved so often. But yeah, I'm looking forward to going
up there and getting and it's gonna be great weather,
mid mid to low seventies, so perfect football day. Hopefully
the Mountaineers play well, and then so I'm driving back
and watch the LSU game because this is my son's
(03:18):
last semester at LSU and they played Clemson at eight
o'clock that night at Clemson, so they're underdogs, but we'll see.
Speaker 5 (03:24):
This should be a pretty good game. LS you's supposed
to play a little defense this year.
Speaker 3 (03:27):
Ryan Kelly coaches at LSU and this is his I
think fourth or fifth season, maybe fourth And do you
remember he coached at Cincinnati and then Notre Dame. I
really didn't like Brian Kelly. Have to root for him
just a little bit now since he's at LSU, but
I'd say he's on a short least. He has lost
every opening game since he's been there.
Speaker 5 (03:47):
The most funny thing about him I found, anyway, is
when he went from Notre Dame to LSU and he
did his first press conference at LSU. Suddenly, yes Southern accent. Yeah,
It's like, where did that come from?
Speaker 4 (03:56):
Man? You've been living forever the Indiana?
Speaker 2 (03:59):
Man?
Speaker 4 (03:59):
Are you very well? Quick?
Speaker 5 (04:01):
Last question question about football, because I'm just curious what
people think they've weekly. I bounced this aroun a little
bit yesterday under Neil Brown Westernet Mountainearst football team the
most points they scored under Neil Brown at any point
with thirty eight thirty eight. So thirty eight over or
under for Saturday for the Mountaineers. Well, I've got to
pick over. Okay, we better hope, so right, that's what
we're looking.
Speaker 3 (04:19):
I got to pick Over for a couple of reasons. One,
I think they're going to be really pumped for this game.
Rich's first game back. You got a lot of new players.
The other thing, you know, we got a you know,
multiple quarterbacks that could play three, maybe four, and those
guys are going to be looking to prove themselves. So
(04:41):
I think that, you know, even when if we get yeah,
it's say we get twenty eight points in the first half,
I just see it's getting at least a couple more
touchdowns in the second.
Speaker 4 (04:52):
There's no real soft edges to Rich either.
Speaker 5 (04:54):
He may not win every game for you, but if
he has the opportunity to hang seventy, he's won to
hang seventy.
Speaker 3 (04:59):
You know, I mean, I don't think there's much probably
so and and and I don't know thing about Robert Morris.
I mean, I think they're what we used to call
one double a still and I did. I was listening
to the show today. I guess they've had how many
players have they had drafted in the NFL?
Speaker 4 (05:13):
Yeah, yah, yah, Zerra was one. Yeah, it was one.
That's right. I got it right and I got it
wrong that but yeah, one, and that's something else. But
you never know. You gotta you gotta play the games.
Speaker 3 (05:21):
You gotta play the games. You get a turn over
here there, and uh, special teams play for Robert Morris.
Speaker 6 (05:25):
You just you never know.
Speaker 3 (05:26):
We've had a few close ones. I don't think WVU
has ever lost a home opener against a non power five.
Speaker 5 (05:35):
And this isn't even a this isn't even like an
Appy State situation where you have like sort of a
venerable program that was in one double at the time.
Speaker 3 (05:41):
You know, yeah, ought to be an overwhelming victory, and
it probably will be. I just want to go opening
game and see rich Rod come by and see see
the style of play, just kind of watch the players,
see what kind of attitude they have. It was a
little totally faster than ever, yeah, pace, play, faster than ever, aggressive,
hopefully some excite. I think that's what we've been missing
the last few years with with Neil Brown, so and
(06:05):
I have made the bold prediction of nine and three years.
Speaker 5 (06:07):
That's a good prediction, man, every I think every single
Mountaineer fan in within the sound of our voice would
take that and lock it in right now if they could.
Speaker 3 (06:14):
Yeah, it's probably more with my heart than my hand.
But you never know, that's the way it might look
like a genius, right. That's it's it's college sports still,
so we'll have fun with it.
Speaker 4 (06:23):
But so what else will you talk about this? There's
a lot of stuff, uh.
Speaker 6 (06:26):
You know, in the legal community.
Speaker 3 (06:29):
Unfortunately, we have some kind of really upsetting news this
this week, Supreme Court Justice Tim Armstead passed away, and uh,
you know he was on the He was obviously a lawyer, right,
I don't know they did trial court work or anything.
I never had any real dealings with him as in
(06:50):
my role as a lawyer representing clients, but uh, he
certainly was a public servant. You know, he's in the legislature.
I don't know how many years. I think he started
back in the I's like two thousand or maybe even
before that, in the legislature, and he's just always viewed
him as didn't really see how to iye on his
political views and of course in his opinions on the
(07:11):
Supreme Court that they were well thought out and don't
agree with. I thought he was a little result oriented
sometimes on some cases. Of course, you wouldn't agree with
everything any judge does, or you'd be the judge. But
one of those kind of old school Republicans that I
wish we had more of around to day. And he
(07:31):
would not participate, I'm sure, and did not in name
calling on social media or belittling other people based on
appearances or labels. He was just kind of an old
school conservative the way I saw am. I I actually
last time I talked to Justice Arms, so we kind
of sat next to each other, he and I, who's
(07:53):
now manaster judge reader at the State Bar annual meeting
in April that was twenty twenty four.
Speaker 6 (08:00):
He was fine. He was jovial, you know, told jokes,
had good conversation.
Speaker 7 (08:05):
And then.
Speaker 3 (08:07):
This past winner I noticed during an oral argument he
had lost his hair. But I don't think he kept
that pretty discreet. I don't remember an announcement that he
was ill. I don't remember any large periods where he
was absent from the bench. He was he was hearing
cases and obviously undergoing some some treatment there, and then
(08:30):
I hadn't heard anything recently until we just saw the
news the other day. So it's just a tragic loss.
Speaker 6 (08:38):
I hate it.
Speaker 3 (08:39):
Uh. The process now, of course, will be you know,
candidates will throw their names in the hat and there's
a commission that will whittle them down to I think
three or it's three to five, and then the governor
will will appoint somebody.
Speaker 6 (08:52):
I don't, I don't.
Speaker 3 (08:52):
I'm not sure when Justice Armstead's term was to end,
but they'll serve out the remainder of the term and
then uh, there'll be a non assuming it stays non partisan,
non partisan election for a twelve year term on the
Western Supreme Court. I mean, we do twelve year terms
to kind of help make it a political so they're
(09:13):
not running for office every four years like or two
years sometimes like you do on the legislatures.
Speaker 6 (09:18):
So you know, uh, I know, he had he had a.
Speaker 3 (09:23):
Family, and he was a family man, and so our
our our thoughts and condolences at the Peyton Law Firm
certainly go out go out to them. And I thought
Justice arms said was a good one. So, uh, that's
too bad. It's a loss for the for the legal
community for sure. Beyond that be on the national level.
(09:44):
But one good thing about whether you like the Trump
administration or you don't, one thing that I guess has
made life more interesting is that every time I opened
my newsfeed, there's newsfeed. You're you're waiting to see what's
happened now, and you know, legally speaking, I guess in
the last I think it was last week or the
(10:07):
beginning of this week. You know, now he's put out
an executive order. He's very good at hitting the you know,
ignoring kind of principled aspects of the law that have
been around for a long time, like due process, but
kind of hitting at the heart like well, if you
(10:28):
don't understand that or you don't accept it, then you
can get to these kind of issues that strike at
the heart of everyday Americans. Like this week or last
week it was flag burning.
Speaker 6 (10:40):
Well, I wouldn't burn a flag.
Speaker 3 (10:45):
I mean, I can't imagine a scenario where I would
burn the American flag in protest or as an expression
of my views. And I think probably most most listeners
have the same field feeling. But I also understand the
(11:05):
right to do that. Under the Constitution, even though I
wouldn't do it. So it's it's tolerate under most certain sections.
Reading comments on social media, which is always dangerous to
do because you have no idea whether unless you know
who's posting it, you don't know whether it's a real human,
a bot, or some foreign national. But so this, you know,
(11:29):
they were they were promoting Trump's position and you shouldn't
be able to burn the flag. And it's like, well
if just imagine if somebody did that in Russia, what
would happen to them? And they were saying that to
advocate their position that that we should adopt that that's
a better.
Speaker 6 (11:47):
Do you realize what you've just said?
Speaker 4 (11:48):
I mean, are we in the twilight for people out
of buildings? You know whatever, It's all good.
Speaker 3 (11:51):
But it is interesting. You know, it gave me an opportunity.
I thought, well, you know, let me let's look back
at that. It was only nineteen eighty nine when the
US Supreme Court, in the case of Texas v. Johnson,
ruled that laws that prevent the burning of a criminalized
(12:13):
the burning of the American flag when it's an expression
of protest is unconstitutional under the First Amendment. And actually
I didn't know it was a five to four decision,
so it wasn't you know, it wasn't unanimous. I forget
what one of the justices dissented and said, well, it's
just such a symbol that we should make an exception
to the First Amendment and this criminal law should be upheld.
(12:36):
But so Trumpet administration entered an executive order and.
Speaker 6 (12:40):
It's it's.
Speaker 3 (12:43):
It's a couple pages, and it's mostly political pandering to
that feeling most of us have that no one should
everyone should respect our flag and not burn our flag.
And that's what his administration is really good at and
getting the message out. And it's it's a it's not
(13:04):
saying they're going to violate the Supreme Court's precedent and
in forcing criminal laws, but it's it's close, and it's
it's certainly.
Speaker 6 (13:15):
And then of course he has a.
Speaker 3 (13:16):
Paragraph in there about deportation if if somebody exercises a
First Amendment right. But that the ruling from the Supreme
Court was interesting when you go back and re read it,
because it's really, you know, there there can be laws,
I mean, you're allowed. It did not criminalize the respectful
(13:40):
burning of the flag. I guess you would say, I mean,
I don't probably should, but I mean there are scenarios
where a flag should be burned as a way too.
Oh yeah, I like to retire it. That's right, that's right,
and so that's not illegal. On the problem with the
with the law that was passed in the Texas law,
and in that situation, a fall name Johnson had been
(14:00):
a a I don't know if it's Republican National Convention
or something. It was a protest to Ronald Reagan's policies
in at the conclusion of the demonstration, he burned the
American flag. He was clearly burning the American flag as
an expression of protest, and that's really what the Supreme
Court found was unconstitutional.
Speaker 6 (14:23):
So if.
Speaker 3 (14:26):
I don't think there's been any laws that have been
crafted very well around that decision, we'll see if the
and a lot of its local enforcement, so the Trump
administration won't really have any other than leveraging local officials,
which they're also.
Speaker 6 (14:42):
Very good at, like you do this or you won't
get funded. That's right, you know, we won't help you
with this or that.
Speaker 2 (14:49):
And so.
Speaker 6 (14:51):
We'll see how it plays out.
Speaker 3 (14:52):
I mean, it got some news I'm just gonna sure
it's really gonna get anywhere. It does say he authorizes
the Attorney General to uh, you know, essentially aggressively appeal.
It's almost like they want to charge somebody again under
a similar factual scenario and then they want to run
it up to the Supreme Court. Change. It was a
(15:15):
five four decision, and as we've seen over the last
few years, the Supreme Court can not follow previous precedent
at times, even though that's the custom. So we'll see
how that that plays out. But you know what the
the Court and Johnson pointed out with if there's a
law that if somebody is burning a flag and it
(15:38):
incites violence and it is a breach of the peace,
then the first of all, there are separate criminal sections
of the code that address that type behavior, So it
doesn't need to be a you can prosecute him over
something else that doesn't have language in the statute that says,
(15:58):
you know, it's legal to burn the flag in.
Speaker 5 (16:02):
Essence, So is there any and this isn't what the
executive order was over, But personally, I was grown I
was brought up under the same you know, you don't
you respect the flag, you would never burn anything along
those lines. But also there was a very strong vein
of you don't modify the flag either, like like it
was like it was like if somebody took a flag
and did something with it to create like a shirt
(16:22):
out of an actual flag, or you know, did something
like that, that was considered extraordinarily disrespectful, something you shouldn't do.
And although it's not taking a flag and doing I
find it's really strange that there's so many of these
alternate versions of the American flag around that people selling stores,
they wear around and all these things. To me, I
look at that, and I mean not that I think
that they shouldn't be able to do it. I would
never think that, but me personally, I find that a
(16:44):
little distasteful. To be honest with you, Yes I do too,
and I don't. I don't know if that's you only
been on this earth with a memory for so many years.
I don't know if that was when that became prevalent
right now especially acceptable, But yeah, that's and then modifying the.
Speaker 6 (17:02):
I mean, burning is one thing. What about tearing up?
Speaker 3 (17:07):
What about putting a peace sign sticker over the middle
of the US flag and flying it, which was subject
of one of the prior cases to the US Supreme Court,
So well, it'll be really interesting to see how it
plays out. But you know, that decision by the Uspreme
Court was very careful to say that it's this context.
I mean, there's a this in this situation. This person
(17:30):
was expressing their protest views by an act, and that's
the context in which we decide this case. So it's
it's kind of hard to think of other scenarios where
it could apply. But we'll see if we don't see
(17:51):
in the next six months or so, because you know,
protesters will now take this and push Sure, they're going
to push it. And I think what we what we
will see probably is more attempts by the executive branch
(18:12):
to enforce criminal laws that don't expressly prohibit flag burning.
I mean, if you burn, I mean it could it
be arson right or public danger or disorderly conduct. In fact,
the Executive Order says, we, you know, are going to
try and prosecute crimes that involve flag burning under open
(18:36):
burning restrictions, disorderly conduct, destruction of property laws, things like that,
and so that that will really push the envelope and
the limits of that Johnson case and see see where
we get. And you know, that'll be interesting that if
you charge somebody with uh, of course, with arson or
(18:56):
you know, they burn a flag during your close season
for public burning, can you then prosecute that person under
an open burning criminal statue even though they were burning
the flag and protest as a demonstration. And that's a
(19:18):
balancing act there. Obviously, we kind of have a synonymous
scenario going on with the vaccine issue right now, where
you know, they argument of whether there's a religious exemption
in West Virginia for mandatory vaccinations for kids to go
to public school. I mean, there has to be some
limit on your freedom of religion. And where does that
(19:41):
line fall? I mean, if you I mean, if your
religion is Satanism and it involves human sacrifice or something
like that, obviously society is never going to tolerate that,
and so where do you draw those lines? And so
that'll be you know, from a legal standpoint and a
all you're'll be interesting to see how this filters up
(20:01):
and if it gets to the US Supreme Court, if
they'll take it up, and if they'll then refine that
decision in Johnson from nineteen eighty nine or just that
you know, there's a descent they could adopt that just says,
you know, we're going to make an exception to the
First Amendment for the American flag. Now, I don't know
how you because of what we talked about wearing a
(20:24):
flag as clothing or putting symbols on the flag, and
you know, I don't where does that fall. I think
that's a real it's a real slippery slope to go down.
But they, you know, the Supreme Court could essentially adopt
that dissenting view from the nineteen eighty nine case and
just say laws that criminalize the burning of the flag,
(20:45):
whether it's done as an expression of protest or not,
are valid. And there's not going to be very many
exceptions like this. This might be the only one, but
we're we're making an exception for this particular situation.
Speaker 6 (20:59):
So we'll we'll see how that plays out.
Speaker 3 (21:01):
I mean, it's a it's a to me, it's an
obvious just political maneuver by the Trump administration that they're
very very good at, just kind of like, you know,
not you have a murder or a gang member or
a deplorable person, and and you know, well, why should
they get due process right. So we've talked about that before,
and it's it's an easy grab for a politician because
(21:24):
it's initially you think, well, yes, I.
Speaker 4 (21:26):
Mean, it's easy to vilify the person a child molester.
Speaker 6 (21:32):
Why do they get all these rights?
Speaker 3 (21:35):
I mean, as we've talked about with the what they
call the exclusionary rule, mean, if if key evidence is
gathered by the government and violation of the constitutional and
for example search and seizure, then the government can't use
that information at trial. And and sometimes not very often,
sometimes that results in a person who's committed a heinous
(21:57):
act having their case dismissed.
Speaker 6 (21:59):
But that that's what.
Speaker 3 (22:03):
We accept as a society to maintain a free society
and under the orderly rule of all.
Speaker 6 (22:10):
That's the constitution.
Speaker 3 (22:11):
So you don't get to just bend it to what
you agree with, which is what the Trump administration seems
to be seems to like to do. And of course
they hit at the heart of those type issues like
I just went through that are just easy, easy pickings
because they're everybody, if you ask them, will agree it.
(22:32):
Probably you know, a child molester of the worst kind
should be incarcerated for the maxim amount of time. And
most people will probably say it really shouldn't matter how
the evidence was gathered.
Speaker 6 (22:45):
If they're guilty, they need.
Speaker 4 (22:46):
To until somebody is accused that isn't guilty. And then
if you don't give them to do process, how you
want to find out that they're not guilty.
Speaker 6 (22:52):
So that's right.
Speaker 3 (22:53):
And the rule there is it's a really it's it's
called the exclusion rule, and it's just it's to make
sure that there's broad or it's a motivation for broad
compliance with constitutional provisions. So the executive branch, mostly law enforcement,
(23:13):
can't just blatantly violate the Constitution based on the gravity
of the conduct involved in essence, and so but that
was this week from the Trump administration.
Speaker 6 (23:24):
So we'll see. It may die down and just nothing
come of it.
Speaker 3 (23:26):
It might be something that gets in the in the news.
It's it's difficult because I think for the federal government
to really push this to its limit and get it
to the US Supreme Court, because you know, criminal cases
involving federal laws generally have to have some relation to
interstate commerce. So crime basic crimes like open burning laws
(23:48):
sort of the conduct destruction of property, those are all
local state. You'd have to get a local prosecutor to
to prosecute one of those. We're a I'm not sure,
but I question has a I'll just say to probably
still have a prohibitional flag burning statue in the code.
(24:09):
It's just unconstant because you prosecutors can't enforce it.
Speaker 4 (24:13):
So we'll see if they might find a way. Now,
well they can.
Speaker 6 (24:17):
They can always charge somebody with it, and then it's on.
You know.
Speaker 3 (24:21):
The defendant would follow motion dismiss saying this is this
law is invalid because it's unconstitutional, and then uh, it
runs up the ladder from there. If a judge dismisses it,
or a judge says, no, I think it's it's valid,
then that's how I mean, that's how the Johnson case
got to the US Supreme Court. It would The problem
(24:42):
is that it's kind of a hot button issue. We're
talking about it today, But to get that scenario to
the US Supreme Court would be years. I mean, there's
nothing emergent about it, like you're seeing some of the
things get to the Supreme Court rather quickly on these
deportation issues and things like that. Uh, this would probably
take a number of years. To get to the US
(25:03):
Supreme Court, and yeah, everybody will forget about the publicity
of this executive order by then, and you know, Trump
administration may not be in place at that time, and
I would most likely the next administration, no matter who
it is, will cool off on this issue a bit.
Speaker 5 (25:23):
Do you think that there's a it seems like over
the last few years. And I want to tie this
back to the Peyton Law Firm, because what we talk
about so much with the Payton Law Froom, with you
being on the ground here in West Virginia, knowing so
well these counties that we're in, that the things that
we do in the state, you're closer to what's going
on here. You're closer to the law here. You know
the judges, you know the prosecutors in some case or
whatever it might be. I mean, it's it's there's a
(25:44):
relationship there, and there's a even on quote unquote opposing sides,
there's a there's a general cordiality. You know, you get along,
you follow the laws, whether their laws are kind of
unspoken agreements, whatever it might be. There's a process is
in place that we that we that we followed forever.
I feel like that we have some freeing at that
at the national.
Speaker 4 (26:04):
Levels between lawyers and.
Speaker 3 (26:08):
Yeah, I think most prosecutors do a good job, but
there's you know, they are elected, at least in West Virginia,
and and you know they their duty is not I
mean when you defend a criminal defender, I mean, your
loyalty is to your client pretty much period. I mean,
if they tell you they're going to commit a crime,
then you have to report it. But you know, they
(26:31):
have a right to remain silent. You you cannot misrepresent
facts to a court or to a jury. But on
the prosecutors side, they have a lot of power, and
so there are some ethical considerations they have that they're
really not supposed to just zealously advocate for a conviction
(26:55):
all the time. There should be some judgment for example,
whether you know, let's say a somebody mouse off to
an officer. You know, the sandwich story, the DC sandwich
story already.
Speaker 6 (27:06):
Through the sand.
Speaker 5 (27:06):
Yeah, So yesterday, I guess two grand juries were impaneled
and both of them were like, there's no there's no
here here and and the judge I think came down
on the on the that's attorney. I think it was
the former Fox News, Lady pierro King kind of came
down on her as like, this isn't a thing. Why
are we pushing this type of thing?
Speaker 2 (27:22):
Right?
Speaker 3 (27:22):
Well, I mean, I think if it was a local charge,
I mean, that could be a salt you throw a
sandwich at somebody's chest, But that's not a I'm not
aware of any state, even if it's a law enforcement
officers where that would be a felony. And that's where
you have to go through the grand jury to get
a charge. But yeah, obviously the grand jurys didn't see anything.
And it's usually grand jury's are one sided, meaning it's
(27:45):
the prosecutor and the witnesses they choose to present the matter.
The defendant's not there. There's no cross examination. So if
a prosecutor wants to get an indictment on a charge,
it's jerally.
Speaker 6 (28:02):
Not that big of a hurdle.
Speaker 2 (28:06):
To do this.
Speaker 3 (28:08):
And they and they and when they present their case
to the grand jury, they can't again, they can't misrepresent facts,
and they but they also don't have to necessarily but
all the facts out there, you know, they can put
the facts that they think is enough for and the
grand jury is just finding probable cause, which is a
pretty low standard. It's not beyond a reasonable doubt or
anything like that. So you know, they did away with
(28:29):
that one. But but prosecutors, you know that they they
have to use some judgment on what you know, a prosecutor.
That's what we're seeing with Pam Bondy. And what you're
talking about is like you're you're you're following these charges
that don't have much evidentiary basis and taking positions that
seem to be based on politics and not on seeking justice.
(28:54):
And and so a prosecutor that sees a reasonable prosecutor
in my opinion, that sees a flag desecration criminal law
get charged maybe by a young officer or something like that,
really should counsel that officer. And then the case I
ought to just be dismissed. But we'll see. I mean,
there will be some out there willing to prosecute these
(29:15):
based on the request. Sure Trump administration, for sure, Let's.
Speaker 5 (29:18):
Go ahead and let's take a break. If you want
to put the powerpen on your side. This morning, we've
been talking about a lot of different things. But if
you want to dial it back down locally, you have
something you want to talk about an issue that you have.
You're more than looking gives to call this morning in
fivet we encourage it. Three zero four, three four five
fifty eight fifty eight threes are four three four five
fifty to fifty eight. You can text three zero four
non three five five zero zero eight three zero four
non three five five zero zero eight. Tom Payton is
here with me this morning from the Pathon Law Firm
(29:40):
in Nitro, West Virginia. You can find out more information online.
It's Payton Lawfirm dot com. Payton Law Firm dot com,
p E Y t O N. Payton Law Firm dot com.
We'll take a break, be back after this. You're listening
to ask the lawyer with Tom Payton from the Payton
Law Firm on five eight w s HS the Voice
of Charleston.
Speaker 7 (29:53):
Why do people trust Peyton Law Firm for personal injury
claims in West Virginia? Simple, Harvey are from here, they
live here, and they're proud of it. If you've been
hurt and you want no nonsense representation that gets results,
you want the Peytent Law Firm. Don't let insurance companies
take advantage of you. Call three zero four seven five
(30:15):
five fifty five fifty six today for a free consultation.
Discover more at Paytentlawfirm dot com.
Speaker 2 (30:23):
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Speaker 5 (31:04):
Of course, this is our regular reach win using. Now
we'll get you in the spirit a little bit for
this upcoming weekend. West Virginia kicking off against Robert Morris
on Saturday with a return of Rich Rodriguez a little
uh make you.
Speaker 4 (31:15):
Feel a little better.
Speaker 3 (31:15):
Yeah, we'll hear a lot of country roads this uh,
this Saturday, I'm sure, and hopefully we won't see any
flag burning. That's my other disclaimer, because we said, you know,
I'm not an advocate of flag burning. I can't imagine
that I would ever burn a flag in protest. This
is not the way I would I would choose UH
to protest, but I do value the constitutional right we
(31:37):
have in this country to do so in protest with
what should be without fear of being targeted and UH
illegally prosecuted.
Speaker 5 (31:49):
It seems like the lay understanding of the First Amendment
has been sort of taking a bruising the last the
last several years. I mean not that anybody has ever
had a perfect understanding when you're not in the profession
or whatever it might be. But in suddenly kids protesting,
people giving speeches at college, like that's suddenly a free
speech violation, which is not.
Speaker 4 (32:08):
It's not that you know, I mean, you got these defaitements.
Speaker 3 (32:11):
Everybody's suing everybody in the national level for defamation and slander,
and those are I've generally been difficult cases, and when
it involves public figures and the media because there's a
lot of discretion there.
Speaker 4 (32:24):
So until there's a chink, and then the chink will grow.
That's what we have to be concerned about all that.
But Peyton mafferm there's.
Speaker 3 (32:29):
A lot of stuff going on, and we do other
than talk about white politics and the law on the radio,
we do a lot of claims for people that are
injured and or denied insurance claims. And I know we've
talked about it a bit, but we had that really
bad hailstorm back in April of this year, and you know,
(32:52):
almost if you have homeowners insurance or comprehensive insurance on
your vehicle, you know, you you make your claim.
Speaker 2 (32:58):
And and.
Speaker 3 (33:01):
I think I didn't get a lot of calls shortly
after that hailstorm, but the last month or so they're
starting to filter in. We've actually are taking we've probably
taken three or four cases in the last month on
that same subject where folks maybe they got a little
payment from their insurance company at the beginning based on
some insurance company standardized prices, but then they have a
(33:24):
rougher com or a siding or a gutter company, and
oh gosh, it's actually going to cost five grand, ten
grand more than that to get it fixed. Then I'm
having clients that are really having trouble getting communication or
supplemental payments from their own insurance carriers. And certainly give
(33:44):
it a try yourself, and you need to be real
straightforward with your own insurance.
Speaker 6 (33:50):
Career, like here's what it costs to get it fixed period.
Speaker 3 (33:53):
I've had two or three estimates for example, and this
is the one I want to use for whatever reason,
and Chris minus my deductible. On most policies, you're entailed
to get what it actually costs to get your damage
repaired or replaced. So I've had a couple where, you know, oddly,
an insurance companies claiming there wasn't really hell damage on
(34:14):
the roof, even though every neighbor around I mean, you know,
as if a hall stopped there was a bubble over
their house or something, and the insurance company's claiming, well,
that's pre existing wear and tear, it's not. We have
we have a couple of those, and then we have
more frequently we have insurance companies that are just not
responding or not willing to pay what it will actually
(34:37):
cost to get the home repaired. And those are viable
cases because the way the law works in West Virginia,
when you have to you don't buy insurance to have
to fight and call and scratch to get what you
paid for from your own insurance company. So if they
deny your claim and you have to go get a
lawyer to uh help make them do what they should
(35:01):
have done in the first place, and you prevail in
that claim, then your insurance company has to pay an
additional amount for lawyer's fees and an additional amount sometimes
for the aggravation they put you through and having to
go through that process. So that makes those type claims
viable for us to take on contingency fee like you
see on like we do all injury cases that way,
(35:22):
when lawyers advertise that you know, you don't pay us
unless we win, well, that's that's great, but that's that's
nothing new. That's more different. That's what every law firm
does that handles those type cases. But it's difficult when
you're talking about property damage because of course we to
satisfy our clients, we have to recover enough so that
we get paid and they get enough to actually get
(35:45):
their repairs done. And so when it's your own insurance
company you're fighting with it, it makes it viable for
us to handle them on a contingency fee. So you
can come and you know, we if you meet the parameters,
then we'll take the case, and then we only get
paid if we recover money for the client. And and
we've been real successful in those and getting sufficient funds
(36:08):
to get us paid, get the client enough money to
get their repairs done, and oftentimes get something extra for
the client for their aggravation inconvenience. So if you have
that situation out there, feel free to give us a
call or send us an email at the office and
we'll kind of screen your situation. And you know, sometimes
folks got to take another step on their own and
coach them up in that regard. You try this, or
(36:31):
you need to get a different estimate or some clarification.
But then we're we're taking we're taking those cases right
now and and we get them filed pretty quickly. And
you never know in litigation, sometimes they resolve rather quickly.
Sometimes you're a.
Speaker 6 (36:47):
Year later waiting.
Speaker 3 (36:48):
But most of the damage was in Putnam County area,
and then you know, seeing Albans Cross Lanes area of
Knack County. That's what I'm seeing anyway. So if you
have those situations, you don't have to just concede to
move on and intentional or just disorganized. I mean, it's
a hassle to keep calling an insurance company or emailing
(37:11):
them and having them not respond at all, or then
they respond in some way that's not even responsive to
what you were asking about, and oftentimes that makes people
just give up. Ye know, if it's if it's a
few thousand dollars, well I'll just get.
Speaker 4 (37:23):
A cheaper suit.
Speaker 5 (37:24):
My suspicion is that they have the numbers that know
that a certain percentage of people will give up on
the claim if they get non response for long enough.
Speaker 4 (37:30):
Hence the reasons have you.
Speaker 3 (37:32):
On a joy You understand that this might not be
just disorganization, It might be an organized policy unwritten because
they know that a certain percentage of people will simply
go away if you just ignore them for a while.
Speaker 5 (37:48):
In my opinion, it's sort of like needing the foul
paper for a tax rebatea when you're when you're when
your vehicle, right, we're trying to get it's a barrier
that keeps people from doing it.
Speaker 3 (37:55):
We're trying to cancel a subscription service like cable or
something like that.
Speaker 4 (37:59):
Oh yeah, yeah, yeah, that's terrible. I just live with it.
Yeah yeah, right, you just keep it. You don't have
to live with it.
Speaker 3 (38:04):
You can call us or email us and we'll take
them on and you just have to communicate with us,
which we try and make as easy and comfortable as
possible for our clients.
Speaker 5 (38:12):
That's the Paton Law Firm. You can find more information
every Thursday right here with Harvey or Tom from the
Paton Law Firm. And you can find information online Payton
Lawfirm dot com and Nitro West Virginia. Threes are A
four seven five five fifty five fifty six threes are
A four seven five to five fifty five fifty six
three zero four seven five five fifty five fifty six.
Have a great day everyone, Tom. We'll see you back
here next week.
Speaker 4 (38:30):
Sounds good, look forward to it.
Speaker 5 (38:31):
Have a great day. On five ADWHS. We are the
voice of Charleston.
Speaker 2 (38:37):
W hs A W two four three d r FM
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