Friday, May 31, 2002

Gazette Online - Supreme Court divided on merits of arming county probation officers
"The state Supreme Court voted to allow county probation officers to carry firearms without a permit, but not all of the justices think it's a good idea." [Charleston Gazette Online]
Gazette Online - Despite court order, students pray

About 2 hours before the graduation ceremony was to begin at Saint Alban's High School, U.S. District Court Judge John T. Copenhaver ruled that a proposed school-sanctioned prayer to be read at the commencement violated the Constitution’s establishment clause, which provides for the separation of government and religion.

The decision also will stop school-sanctioned prayers at other Kanawha County high school graduation ceremonies later this week.

About half of the 226 graduating seniors stood and recited the Lord's prayer during the ceremony. The plaintiff in the lawsuit opted not to participate in the graduation ceremony at all.

Thursday, May 30, 2002

YouthRules! US Dept. of Labor Info for Teens, Parents, Educators, and Employers
Looking for information concerning youth labor laws? In May, 2002, the United States Department of Labor launched a new web site called YouthRules! designed to increase public awareness of Federal and State rules concerning young workers. The site has information regarding what hours youths can work, what jobs they can perform, and it also has helpful links to state labor department web sites.

Tuesday, May 28, 2002

A Libel Suit May Establish E-Jurisdiction
The New York Times
On June 3, the Fourth Circuit will hear oral argument in a case that is sure to have a significant impact on personal jurisdiction in the digital age.

Last year, a federal district judge in Virginia ruled that a Virginia prison warden could sue a Connecticut newspaper in Virginia because the newspapers' Web sites, which displayed allegedly defamatory content about the warden, were accessible there and that was where injury to the warden's reputation would have taken place.

If the Fourth Circuit does not reverse the ruling, publishers of online content could be sued in any state (or any country) in which their content is read.

Friday, May 24, 2002

West Virginia Supreme Court Clerk Rory Perry releases opinion summaries of four new decisions.

In O'Dell v. Miller, the Court reversed a defense verdict in a medical malpractice case because the trial court refused to strike for cause a juror who was a former patient of the defendant doctor and a current client of the law firm representing the doctor.

In Syllabus Point 5, the Court provides the following guidance for trial courts: "Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair."

This curious thing about this holding is that the opinon does not state that the trial court attempted to rehabilitate the juror in question at all. Nevertheless, the opinion leaves the practitioners and the courts with an imporant question: When has a juror made a "clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias" as opposed to merely "an inconclusive or vague statement reflecting or indicating the possibility of a disqualifying bias or prejudice"? The distinction is critical because in the former instance, rehabilitation should not be attempted, while in the latter instance, rehabilitation is possible.

The O'Dell case would seem to indicate that where a juror's bias is the result of relationships, rehabilitation is less likely to work. The implication in this case is that no matter what the juror in question might have professed concerning his perception of his ability to fairly decide the case, he should have been stricken. His status as a current client of one of the law firms involved in the case alone probably sealed his fate. (And it should have.) My question is, what is wrong with a strict rule that where a juror reveals that he or she is a current client of any law firm appearing in the case, disqualification for cause is required? This factor alone appeared enough for the Virginia Supreme Court to reverse a verdict in Cantrell v. Crews, 259 Va. 47, 523 S.E.2d 502 (Va. 2000) (cited by the O'Dell Court). I believe a concrete rule like that might have been more helpful than the ultimate holding made by the court.
No Closure on Contingent-Fee Tax Issue
ABA Journal eReport
"For the third time in two years, the U.S. Supreme Court has refused to settle a circuit split over the taxability of contingent attorney fees in nonphysical injury cases."

Wednesday, May 22, 2002

W.Va. not a state? Maybe, law article opines
The Charleston Gazette
"A University of California-Berkeley Law School legal treatise suggests that last week’s primary elections here may have been a waste of time.
"'Brace yourselves for this one, Mountaineers: West Virginia might not legitimately be a State of the Union, but a mere illegal breakaway province of the Commonwealth of Virginia,' the California Law Review article declares."

Monday, May 20, 2002

Court to Rule on Sex Offense Law
The Washington Post
"The Supreme Court agreed Monday to consider a constitutional challenge to some registries of known sex offenders, the second case the court will hear involving lists meant to keep tabs on potentially dangerous sex criminals."

West Virginia is one of more than 20 states with registry laws similar to the one being challenged in Connecicut. The West Virginia Sex Offender Registry was created in 1993, and has been available on the internet for several years.

The case is Connecticut Department of Public Safety v. John Doe, 01-1231.

Thursday, May 16, 2002

Suits Against Opposing Experts Found Not Frivolous
The West Virginia Supreme Court has ruled in Davis v. Wallace that a convicted criminal defendant can bring a civil lawsuit against experts testifying for the prosecutor without fear of Rule 11 sanctions. Essentially, the Court has given the green light to future convicted criminals to sue the state's experts.

In a scathing dissent, Justice Davis wrote

Although the Court attempts to conceal the impact of its decision by rendering it as a per curiam opinion, the majority's decision nevertheless will have future consequences so far-reaching as to virtually eradicate the term “frivolous lawsuit” from this State's legal vocabulary while effectively precluding the pursuit of lawsuits designed to redress real and compensable injuries. The immediate impact of the majority's decision, though, is just as grave. By rendering its ruling, the majority has not only missed the boat by failing to appreciate the frivolity of the appellant's lawsuit; it simultaneously has stirred up a frightful storm at sea by allowing a criminal defendant to sue the State's expert witnesses. For the reasons set forth below, I dissent.
* * *
By giving criminal defendants carte blanche authority to sue the State's experts with[] impunity, the Court precariously navigates in heretofore uncharted waters, leaving countless expert witnesses to be tossed in the rough waters of their wake. I only hope that the Court has an opportunity to revisit this issue so that testifying experts can be spared from further peril. Realistically, however, I fear it will be some time before this State's litigants can once again enjoy smooth sailing.

Justice Maynard joined in the dissent. The case has attracted some national attention in the legal community, and will certainly make expert witnesses think twice before testifying for the state.

Sunday, May 12, 2002

A New Direction for Intellectual Property
New York Times (free registration required)
"Perceiving an overly zealous culture of copyright protection, a group of law and technology scholars are setting up Creative Commons, a nonprofit company that will develop ways for artists, writers and others to easily designate their work as freely shareable."

Saturday, May 11, 2002

Fourth Circuit Deems Arbitration Agreement "Unconscionable"
"An arbitration agreement is unenforceable for unconscionability where it places control over the selection of the arbitrator of employment disputes in the hands of appellant's employer, and court erred in compelling to arbitration a Title VII claim for alleged termination on the basis of race."
MURRAY v. UNITED FOOD & COMM. WORKERS INT'L UNION, Case No. 01-1602 (4th Cir. decided May 10, 2002)
[Full text opinion]

Friday, May 10, 2002

County wants extra cash for Philips suit
"The nearly 1,200 former Philips Lighting workers suing their former employers for alleged exposure to hazardous chemicals may have to pay a $102,000 bill just to file their civil suit in Marion County Circuit Court."
[Times West Virginian]

Here's a news flash:
W.Va. ranked 49th in liability systems
State may not be perceived as ‘business-friendly'
[Charleston Daily Mail]

Wednesday, May 08, 2002

Judge Haden Rules Against Mountaintop Removal Mining
The U.S. District Court for the Southern District of West Virginia has ordered the U.S. Army Corps of Engineers to stop issuing permits for mountaintop coal mining.
[Full text opinion (pdf)]
Fourth Circuit Rules Against W.Va. Attorney General on Controversial Medicaid Estate Recovery Law
The Fourth Circuit Court of Appeals has ruled that the 10th Amendment is not violated by the federal Medicaid Estate Recovery program, which requires states to recapture medicaid expenses by seizing assets of recipients who have used medicaid funds for long-term care.
STATE OF WEST VIRGINIA v. U.S. DEP'T OF HEALTH & HUMAN SERV., No. 01-1443 (4th Cir. May 07, 2002)
[Full text opinion]
Charleston Gazette Article
'Cussing Canoeist' Has the Last Word
The National Law Journal
In 1999, a 28-year old canoeist was issued a ticket for cursing in front of two children, and (unfortunately for him) a sheriff, pursuant to an 1897 Michigan law prohibiting swearing in public. Arguing the law violated his First Amendment rights, the canoeist has convinced the Michigan Court of Appeals to strike down the law.
Full Text

Tuesday, May 07, 2002

Lawyers Defend Tobacco Suit Fees
West Virginia would be aiding the tobacco companies it successfully sued if it tampered with the $33.5 million in fees awarded the private lawyers who handled its case, the lawyers have told the Legislature. [Charleston Gazette]

Friday, May 03, 2002

Welfare Benefits Case Referred to Special Commissioner
On May 2, the West Virginia Supreme Court of Appeals issued an order in SER K.M., et al. v. WV DHHR, et al., No. 30494, appointing retired judge Daniel McCarthy as special commissioner to oversee various parts of the litigation. In SER K.M., the petitioners seek to prohibit the state department from terminating welfare assistance benefits for those families and children who have reached a five-year limit on benefits imposed by the federal government.
[Rory Perry's Radio Weblog]