Friday, June 28, 2002

Gazette Online - Judge upholds state cutoff of welfare benefits

Hon. Daniel McCarthy, acting as a special hearing commissioner for the West Virginia Supreme Court of Appeals, has ruled that the families challenging the 60 month cutoff for welfare benefits have no existing right to continued benefits after their 60 month terms have expired. The ruling affects the parties' request for a preliminary injunction, and does not fully adjudicate the merits of the controversy.

Thursday, June 27, 2002

Pledge Held Unconstitutional
The pledge of allegiance has been held unconstitutional by the Ninth Circuit Court of Appeals because it contains the phrase "one nation under God." Here is a link to a .pdf copy of the full text of the decision.

According to Senator Robert C. Byrd, a fellow West Virginian and ardent defender of the Constitution: "I hope the Senate will waste no time in throwing this back in the face of this stupid judge. Stupid, that's what he is."
See Senators call Pledge decision 'stupid' []

I have to agree. This is political correctness run amok. In hearing about this decision, I was reminded of a quote from a Charles Dickens novel:

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass—a idiot." -- Charles Dickens (1812–1870), British novelist. Mr. Bumble in Oliver Twist, ch. 51, p. 399 (1838).

Court watchers and commentators across the land are predicting that this decision will be reversed by a rehearing en banc. If it is not, Congress has promised a constitutional amendment. I wonder what such an amendment would look like....

You're no "next friend" of mine
FindLaw for Legal Professionals

In HAMDI v. RUMSFELD, No. 02-6827 (4th Cir. June 26, 2002), the Fourth Circuit Court of Appeals held that neither the Federal Public Defender nor a private citizen had any significant relationship with a detainee, captured as an alleged enemy combatant during military operations in Afghanistan, to establish "next friend" standing.

Following the standards set forth by the U.S. Supreme Court in Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), the Court held that in order to sue as a "next friend," the would-be litigant (1) must "provide an adequate explanation -- such as inaccessibility, mental incompetence, or other disability - - why the real party in interest cannot appear on his own behalf to prosecute the action"; (2) must be "truly dedicated to the best interests of the person on whose behalf he seeks to litigate"; and (3) must have "some significant relationship with the real party in interest." The burden is on the "next friend" clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.

In this case, the public defender looking to sue on behalf of the detaineee had no prior relationship whatosever with him. Therefore, the Court held that he had no standing to sue.

To read the full text of this opinion, go to:

Wednesday, June 26, 2002

Gazette Online - Attorney general doesn’t want name used without authority

The Attorney General's turf war continues. Now, the battle focuses on the interpretation of Syllabus point 7 of State ex rel. McGraw v. Burton, et al., No. 30094 (June 10, 2002), which provides

In all instances when an executive branch or related State entity is represented by counsel before a tribunal, the Attorney General shall appear upon the pleadings as an attorney of record; however, this requirement does not bar other counsel from also appearing and acting in a legal capacity for the State entity. The Attorney General additionally has the right to appear as an intervenor as Attorney General on behalf of the State in all proceedings where the interest of the State or a State entity is at issue, to assert the Attorney General's view of the law on behalf of the State.

According to the Gazette's story, two state agencies dutifully included the AG's name under their own attorney's on the signature block on five recent pleadings. The AG's office had apparently not seen or approved the pleadings before they were filed, and objected to the AG's name being used in this manner.

The question is, does State ex rel. McGraw v. Burton require that the AG's office pre-approve every pleading? The AG's office obviously thinks it does, since it sent letters to all of the court clerks stating that the AG's name had been used by the state agencies' attorneys without permission. Stay tuned for more fireworks.

Thursday, June 20, 2002

Scales of Justice
State Supreme Court further erodes statute of limitations defense

In a published opinion, the Court affirmed the applicability of the "continuing tort" doctrine, as a recognized exception to the statute of limitations. In Graham v. Beverage, et al., No. 30110 (Albright, J.)(June 14, 2002), the Court reversed an order granting summary judgment in favor of the defendants (the Parkers) in an action for water runoff damage to real property. The Plaintiffs filed suit against the Parkers for allegedly causing damage to their real and personal property by the negligent construction of a storm water management system which altered the flow of surface water onto the Graham lot. The drainage system was installed in 1992. The Grahams first discovered flooding on their property in 1994 after a large rainfall, and the property flooded at various times thereafter. However, the Plaintiffs did not file their lawsuit until mid-November, 1999, despite the 2-year statute of limitations for torts.

In finding that the Plaintiffs' suit was timely filed, the Court held that

A fair reading of the complaint and the other documents in this case reveals that the Grahams are not complaining solely about the “traumatic event” of the construction of the infiltration system. Rather, the thrust of the Grahams' complaint is that the construction of the infiltration system as well as the continuing wrongful conduct of the Parkers in negligently failing to take action with regard to correcting the alleged inadequacies of that system is causing continuing injuries to their real and personal property. As such, we find that the present case presents a much more comparable situation to that found in the [Handley v.] Town of Shinnston[, 169 W.Va. 617, 289 S.E.2d 201 (1982)] case. We recognize that Town of Shinnston was a per curiam opinion which may raise doubt in some minds as to the validity in this jurisdiction of the continuing tort exception to the statute of limitations. To dispel any such doubts, we hereby hold that where a tort involves a continuing or repeated injury, the cause of action accrues at and the statute of limitations begins to run from the date of the last injury or when the tortious overt acts or omissions cease.

Although there was little doubt among practitioners of the viability of the continuing tort doctrine, it is surprising that the doctrine was applied in this case. The holding appears to be at odds with the generally-accepted notion that "'[a] continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation, and for there to be a continuing tort there must be a continuing duty.'" State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W.Va. 221, 245 n.29, 488 S.E.2d 901, 925 n.29 (1997) (quoting 54 C.J.S. Limitations of Actions § 177 (1987) (emphasis added and footnotes omitted)). In this case, the periodic flooding of the Plaintiffs' property would clearly seem to be the "continuing ill effects from an original violation"--the negligent installation of the stormwater drainage system. There is no dispute that the Plaintiffs knew what was causing the flooding in 1994, yet they waited until 1999 to file their suit.

In Humble Oil v. Lane, 152 W. Va. 578, 583, 165 S.E.2d 379, 383 (1969) the West Virginia Supreme Court explained:

... Statutes of limitations are favored in the law and cannot be avoided unless the party seeking to do so brings himself strictly within some exception. It has been widely held that such exceptions "are strictly construed and are not enlarged by the courts upon considerations of apparent hardship."

(citations omitted). What ever happened to reasoning like that?

Rory Perry, the Clerk of the Supreme Court, has released opinion summaries of this and 16 other opinions released June 14 and 17, 2002.

Wednesday, June 19, 2002

Appeals court upholds lottery lawsuit dismissal
"A federal appeals court has upheld the dismissal of a lawsuit challenging the constitutionality of West Virginia's video lottery law." [Charleston Daily Mail]

The Fourth Circuit confirmed Judge Haden's August 2001 ruling that the case, which challenged the Video Lottery Act, belonged in state court.

The association filing the lawsuit was unhappy with the licensing requirements for the new video lottery system, including a 4-year residency requirement, and the provision allowing the State Police to decide whether applicants are suitable.
Rory Perry, the Clerk of the West Virginia Supreme Court of Appeals, relates the successes of the Court's weblogs, which he authors. Legal practitioners are certainly taking notice of his efforts in providing timely summaries of new case opinions, which are provided free of charge. [Rory Perry's Radio Weblog]

Monday, June 17, 2002

Georgia ISP not amendable to Maryland jurisdiction by hosting web site
ALS SCAN, INC. v. DIGITAL SERV. CONSULTANTS, INC., No. 01-1812 (4th Cir. June 14, 2002)
In ALS Scan, a Georgia-based Internet Service Provider (ISP) was sued by ALS Scan, a Maryland Corporation, for copyright infringement for enabling a website owner to publish photographs on the Internet, which allegedly violated the Maryland corporation's copyrights.

In holding that the hosting of a website did not, by itself, establish minumum contacts with the forum state, the Court formally adopted the model developed in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).

In Zippo, the court concluded that "the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate
to the nature and quality of commercial activity that an entity conducts over the Internet." 952 F. Supp. at 1124.

The Court concluded that a

"State may, consistent with due process, exercise judicial power over
a person outside of the State when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State's courts. Under this standard, a person who simply places information on the Internet does not subject himself to jurisdiction in each State into which the electronic signal is transmitted and received."

The Court also held that website hosting also does not create general jurisdiction. "We are not prepared at this time to recognize that a state may obtain general jurisdiction over out-of-state persons who regularly and systematically transmit electronic signals into the State via the Internet based solely on those transmissions. Something more would have to be demonstrated." The Court refused to speculate on what it meant by "something more."

The Zippo test has als been adopted by the 5th, 9th and 10th Circuits.

Friday, June 14, 2002

District courts still not in agreement on internet jurisdiction in defamation cases
All Bets off in Libel Suit Against Web Site Operator
"Adding to the growing body of case law on Internet jurisdiction, a federal judge in Philadelphia has held that a Web site operator cannot be sued in Pennsylvania for publishing allegedly defamatory news articles solely because the articles contained references to the Pennsylvania activities of a Pennsylvania resident. See English Sports Betting Inc. and Atiyeh v. Tostigan, et al." []

This case appears somewhat at odds with a decision reported earlier this month in Virginia which found jurisdiction under similar circumstances.

Thursday, June 13, 2002

"Medical monitoring" for real property?
Gazette Online - Supreme Court agrees to hear Monsanto case
The State's high court voted 3-2 to hear a certified question as to whether a group of Putnam County residents have a cause of action against Monsanto Corporation to force it to pay for tests to determine how polluted the Plaintiffs' properties are. The Plaintiffs contend that Monsanto failed to clean up dioxin wastes from the production of Agent Orange, and those dioxins are now polluting the Kanawha River.

For those interested, the certified question reads:
Does a common law cause of action exist in West Virginia for the recovery of the cost of future inspection and monitoring of real estate for the presence of toxic substances where it can be proven that such expenses are necessary and reasonably certain to be incurred as a proximate result of a defendant's tortious conduct in creating and maintaining a chemical dump and permitting toxic substances placed in said chemical dump to enter the waterways of this State to be deposited down stream upon the land of others through flooding thus exposing such land and its owner to toxic contamination?

The circuit court answered the question in the negative.

Justices Davis and Maynard would have refused the appeal.

This case would seem to be a logical extension of the Court's 1999 decision in Bowers v. Westinghouse Electric Corporation, which allowed uninjured people exposed to some toxic, disease-causing substance to sue and recover the costs of medical monitoring. Instead of medical tests on humans exposed to toxins, this case seeks recovery of the costs of soil tests on real property exposed to toxins. As Justice Maynard's dissenting opinion in Bowers pointed out, allowing people with no present injury to sue for damages flies in the face of 200 years of established tort principles.

Wednesday, June 12, 2002

Attorney General "Turf War" Case Decided
On June 10, the West Virginia Supreme Court of Appeals released its decision in State ex rel. McGraw v. Burton, et al., No. 30094, a suit in which Attorney General Darrell V. McGraw, Jr. sought a declaration from the Court that executive branch agencies and officials are violating the State's Constitution by using lawyers who are not employed or approved by the Attorney General.

The Court refused to find that executive agencies cannot hire their own counsel.

"In light of long-established statutes, practice, and precedent recognizing that State executive branch and related entities may in some circumstances employ and use lawyers who are not employees of the Attorney General, such employment and use -- and statutes, rules, and policies authorizing such employment and use -- are not per se or facially unconstitutional."

In the Attorney General's defense, however, the Court also held that the legislature cannot hobble the AG's office by refusing to allocate necessary funds for his office. Furthermore, the Court preserved the AG's right to appear as counsel in all cases in which an executive branch entity is involved, and also his right to appear as an intervenor on behalf of the State in all proceedings "where the interest of the State or a State entity is at issue" so that the AG's view of the law may be asserted.

180 attorneys employed by various executive agencies are no doubt breathing a collective sigh of relief. That Labor Lawsuit ...
Wired News
"A lawyer who's tangling with America Online over back pay for volunteers is taking aim at, accusing the giant Internet company of fudging page-view records and violating labor laws in order to rip off its omnipresent 'guides.'"

Tuesday, June 11, 2002

Supreme Court Limits Disabilities Act on Safety Issue
"The Supreme Court ruled yesterday that employers may refuse to hire a disabled worker when the company determines the job would threaten the worker's life or health, the latest in a series of recent decisions by the court limiting the impact of the Americans With Disabilities Act in the workplace."
Late Job Harrassment Suits Allowed Legal News
"An unusual lineup of justices voted 5-4 to allow more leeway for workers who claim a pattern of unfair treatment under the 1964 Civil Rights Act."
E-Legal: Internet Transactions Don't Confer Jurisdiction, Federal Court Rules
"Perhaps representing a new backlash against the trend of cases finding in favor of jurisdiction based on Internet transactions, the U.S. District Court for the District of Maryland has just ruled, in the case Robbins v. Yutopian Enterprises, that it does not have jurisdiction over the case, even though there were numerous Internet transactions by Maryland residents."

Monday, June 10, 2002

West Virginia Supreme Court Clerk Rory Perry has released opinion summaries of eight opinions released June 7, 2002 and 4 other recent decisions.

Of particular interest to those litigating before the West Virginia Human Rights Commission, the Court ruled in Frye v. Future Inns of America-Huntington, Inc., No. 30091 (May 30, 2002), that "[w]hen the West Virginia Human Rights Commission awards incidental damages to a complainant, the limit of damages provided in Bishop Coal Co. v. Salyers, 181 W.Va. 71, 380 S.E.2d 238 (1989), applies per case rather than per respondent."

Thus, regardless of the number of respondents involved, the complainant can only recover $3,277.45 (adjusted each year for inflation) for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity.

Friday, June 07, 2002

Group sues to end speech zones.
"The Rutherford Institute, of Charlottesville, Va., filed the lawsuit in U.S. District Court in Elkins on behalf of the WVU Free Speech Coalition, Students for Economic Justice, the W.Va. Animal Rights Coalition and students Mike Bomford, Matthew Poe and Brooke Thomas.

The lawsuit names WVU President David C. Hardesty Jr., the WVU Board of Governors and J. Michael Mullen, state chancellor of higher education, as the defendants." [The Dominion Post]
Back to School Shopping? You may want to take along your attorney

Charleston Daily Mail--Sales tax holiday rules may confuse shoppers
Here's an interesting piece discussing the intricacies of the the upcoming "sales tax holiday" for back to school shoppers.

The State Tax Department has created a Sales Tax Holiday Home page to aid the public in understanding all of the details.

Here's a taste of some of the controversies awaiting back to school shoppers: According to the the CSR, "sales of certain clothing and footwear designed to be worn on or about the human body are per se exempt from consumers sales and use taxes if the sales price for the article is less than $100.00" HOWEVER, "The sale of special clothing or footwear that is designed primarily for wear in athletic activity and that is not generally worn except when used for the athletic activity for which it is designed." W. Va. Code State R. Sec. 110-15E-4.

What about those nifty football jerseys kids wear to school every day? What about high-top basketball shoes and tennis shoes? What about baseball hats? Application of these rules could get interesting.

I understand that taking your lawyer with you may eat up the sales tax cost-savings. So, here is a direct link to the WV Sales Tax Holiday/Interpretive Rule. You might want to have a copy of the rules with you to whip out and quote to the cashier when he or she tries to add on that 6%. Happy shopping!

Wednesday, June 05, 2002

Gazette Online - Parents of diabetic sue school boards
"As promised, the parents of a Putnam County diabetic student have sued the county and state school systems for discriminating against their 5-year-old daughter." [Charleston Gazette]

Monday, June 03, 2002

W.Va. near the bottom in pay for circuit judges
A recent report shows West Virginia is tied with Indiana for having the 5th-lowest paid circuit judges in the nation. [Clarksburg Exponent Telegram]

Meanwhile, on the federal bench...

Justices' Incomes Above Average
"The nine Supreme Court justices are richer than all but a small percentage of Americans, with at least five millionaires among them." []

Sunday, June 02, 2002

Children's Internet Protection Act Struck Down
"Striking down key provisions of the Children's Internet Protection Act as unconstitutional, a special three-judge U.S. District Court in Philadelphia has ruled that Congress went too far when it threatened to pull certain federal funds from any public library that failed to install 'filtering' software to block access to sexually explicit Web sites." []