Friday, September 27, 2002

States' 11th Amendment immunity from ADA Title II suits not abrogated

WESSEL v. GLENDENING, No. 00-6634 (4th Cir. September 26, 2002)

The ADA explicitly provides that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court . . . for a violation of" the ADA. 42 U.S.C. § 12202 (1995). This provision unequivocally expresses Congress' intent to abrogate Eleventh Amendment immunity.

However, the Fourth Circuit has joined the majority of other circuits in holding that "Congress did not validly abrogate the sovereign immunity of the states when it enacted Part A of Title II of the ADA." The Court found that Congress did not validly exercise its power to abrogate because it did not have an adequate record of unconstitutional discrimination by states against the disabled to support abrogation. See Board of Trustees v. Garrett, 531 U.S. 356 (2001).

Thursday, September 26, 2002

Charleston - Legal Aid of West Virginia plans to close six satellite offices and lay off 17 employees by January because of shrinking revenue. The agency provides free legal representation in civil cases to about 24,000 low-income people annually. Legal Aid will now focus on the neediest cases. [USA Today]
ER Docs Are "Good Samaritans"
Gov. Bob Wise will soon announce his plan to endorse new legislation that brings physicians who treat trauma patients within the state's "Good Samaritan" law. The bill is intended to restore Charleston Area Medical Center's trauma center to Level I status.

A similar Good Samaritan law recently was expanded in Nevada to include trauma physicians, after the medical center in Las Vegas closed for 10 days last spring because of a lack of orthopedic surgeons. The law places a $50,000 cap on lawsuits against trauma physicians who don't willfully or recklessly injure their patients.
[Charleston Daily Mail]

Tuesday, September 24, 2002

Asbestos Trial Shrinks on Wave of Settlements
"CHARLESTON, W.Va. (Reuters) - A closely watched asbestos trial was due to get under way in West Virginia on Tuesday, but with far fewer corporate defendants than first expected, attorneys said."

Friday, September 20, 2002

Two Courts Differ on Enforceability of ‘Clickwrap’ Agreements

ABA Journal eReport

"Reading the fine print is important before signing a contract. "Clickwrap" agreements, signed with the click of a button on a computer screen, make scrolling down important, too."

I would like to see a study on how many people ever read these agreements. Are we really expected to read 20 pages worth of text in a window the size of a credit card? The courts seem to think so.
Who pays when the prosecutor is prosecuted? The Kanwaha County Commission is debating whether they have the duty, and the money, to pay for the legal defense of the county prosecutor, Mike Clifford, who has been accused of sexual harassment by two female employees. Clifford has also filed a counterclaim against one of the women, alleging that she illegally taped conversations in prosecutor's office. [Charleston Gazette]

Wednesday, September 18, 2002

The Fourth Circuit Court of Appeals issued three new decisions today.

In Corti v. StorageTek Corp., No. 01-1833 (4th Cir. September 18, 2002), the Court held that an award of punitive damages in a Title VII sex discrimination case is appropriate absent an award of compensatory damages, where back pay has been awarded.

The jury awarded the plaintiff $100,000 in punitive damages, but no compensatory damages. After the trial, in accordance with Title VII, the Court awarded the plaintiff more than $400,000 in back pay. The defendant claimed that because the back pay award was statutory and not awarded by the jury (which by the way was instructed not to award back pay), it did not constitute "compensatory damages." The defendant argued that under common law principles, no punitive damages can be awarded in the absence of compensatory damages. The district court and the Fourth Circuit disagreed.

While the majority opinion fell short of recognizing court awarded back pay as "compensatory damages," it found that an exception should be made to the common-law rule in Title VII cases. "Because back pay awards serve a similar purpose as compensatory damage awards, the 'familiar tort mantra' that punitive damages may not be assessed in the absence of compensatory damages will not aid StorageTek in this case."

In his concurrence, Judge Niemeyer disagreed with majority opinion's reasoning:

I write separately to clarify our holding that punitive damages are appropriate in this Title VII case because they accompany an award of lost wages. Such a holding is in accordance with the common-law rule, to which we continue to adhere in Title VII cases, that punitive damages are not appropriate unless they accompany compensatory damages.
Because [plaintiff] received a backpay award compensating her for her lost wages, she received "compensatory damages" and thereby became authorized to receive punitive damages in the circumstances prescribed by Title VII.

Other decisions release today:

A.T. MASSEY COAL CO., INC. v. MASSANARI, No. 01-2155 (4th Cir. September 18, 2002)
Assignments of liability for benefits of beneficiaries under the Coal Industry Retiree Health Benefit Act of 1992, were constitutional, and did not violate the Administrative Procedure Act.

FIRST PENN-PAC. LIFE INS. CO. v. EVANS, No. 01-2218 (4th Cir. September 18, 2002)
District court did not abuse its discretion in finding that abstention under Burford v. Sun Oil Co., 319 U.S. 315 (1943), was necessary to avoid interference with receivership proceedings pending in state court.

(Opinion summaries provided by

Tuesday, September 17, 2002

West Virginia Legal Guide Available Online

If you ever need to provide a layperson or an out-of-state colleague with a good overview of the West Virginia legal system, check out the West Virginia Associated Press Legal Guide [pdf link]. The 39-page, full color guide contains sections dealing with:

• West Virginia’s state judicial system
• Federal courts located in West Virginia
• The civil and criminal process
• Web site addresses and telephone numbers for county magistrates and circuit clerks
• Glossary of legal terms

The publication is designed to explain West Virginia's legal system to news media personnel reporting on legal cases. The West Virignia State Bar collaborated on the project and welcomes your comments.
In-house lawyer statutes conflict, state officials say
Charleston Gazette

State officials say a Supreme Court opinion dealing with agencies hiring in-house and outside lawyers has created confusion and the Legislature may have to clarify existing statutes when it meets in January.

Monday, September 16, 2002

Paving the road to development
State Journal

"While the entire four-lane highway could take another 10 years to complete, portions of Corridor H are officially open for business as Gov. Bob Wise and U.S. Sen. Robert C. Byrd, D-W.Va. spent two days in August welcoming travelers to the new highway."

Here is a map of the proposed route of Corridor H.

Friday, September 06, 2002

Gazette Online - Legal bills can be cut, McGraw says

In order to help with the state's budget crunch, Attorney General McGraw proposes that the state save money by "proper management of the delivery of legal services."

“With proper management you’re able to keep your high-priced lawyers busy all the time," McGraw said. According to the article, McGraw's office contends that it learns which in-house lawyers are working along with those who aren’t, and who is acting improperly and who isn’t.

The article also points out that McGraw's own office "doesn’t have money to hire enough lawyers to do all its legal work." An inmate seeking to be released filed a case in Kanawha County Circuit Court and McGraw said he didn’t have staff to respond.

Thursday, September 05, 2002

You might call it the ‘highest court in the land'
Charleston Daily Mail

"WASHINGTON -- The Supreme Court building is home to two courts. There's the fancy place with red velvet curtains and robe-wearing justices and the one with bland concrete walls and backboards, where the attire is sweats and sneakers."

Wednesday, September 04, 2002

Are Weblogs Changing Our Culture? By Kurt Andersen and Andrew Sullivan

Andrew Sullivan expounds on why he likes the weblog format.

Blogging has unleashed hundreds of thousands of ... diarists on the world, and the variety, embarrassment, and tedium that ensue make for more compelling reading than much that is produced by people we call professional journalists. What some people view as the drawback of blogs—their personal, narcissistic potential—is, in my view, one of their greatest attractions.
Bar seeks to suspend prosecutor's license
Dominion Post

The Office of Disciplinary Counsel has recommended a four-year suspension of Harrison County Prosecutor John A. Scott's law license in a brief filed recently with the Bar's Hearing Panel. It also recommended that Scott practice law under supervision for two years after the suspension ends.

Attorneys target upset investors
Charleston Daily Mail

Where there's an injury, there's a lawsuit. Where the victims are many, there is a 1-800 number.

"So you worked hard and socked your money away so that you could enjoy retirement," James Richard Hooper says. "You selected a major Wall Street brokerage firm to invest and protect your money and now, now you're left holding the bag. Your money is gone."

He blinks. Across his chest is a white graphic listing a toll-free number.

The plaintiffs' lawyers suing these stock traders want to get your money back from these "crooked investors." But what about all of the wealth these "crooks" created investing in the Enrons and WorldComs during the stock market boom?

If you want a safe investment, don't put your money in the stock market. You're taking a risk when you invest in stocks. Everyone knows that. Ads like these encourage people not to take responsibility for their own actions. The message these lawyers are sending is, "If you're injured, it must be someone else's fault." How about letting people who feel they have been injured contact an attorney? Why are we blitzing people with ads telling them that if they lost money in the stock market, they may have a claim against their broker? Our legal culture invites people to blame everyone but themselves.