Thursday, December 19, 2002

State Supreme Court finds teacher's threat to shoot principal not grounds for dismissal
Charleston Daily Mail
The state Supreme Court has ruled the McDowell County school board was wrong to fire a teacher who made a remark about shooting her boss.

According to the principal, during a meeting regarding a critical evaluation of the teacher, the teacher said, "I should have blown your head off with a shotgun instead of signing this observation."

The teacher claims she said, "Had I shot you, I would have been in less trouble. I would have been over in the jail and the taxpayers would have been supporting me and I wouldn't have been worried about employment."

In his dissenting opinion, Justice Maynard wrote, "I wonder just what a teacher has to do to be insubordinate in West Virginia schools today. Apparently, threatening to shoot or kill the principal is not enough."

Wednesday, December 18, 2002

Web searches take cultural pulse
"Lycos and Google have released their annual roundups of the year's most popular Internet search terms, and between them, they offer some interesting -- and sometimes surprising -- insight into popular culture."

The number 1 search term on Lycos was Dragonball, which is apparently wildly popular with children. This goes to show how many children are on the Internet these days using search engines to find content.
Haden stepping down as chief judge
Charleston Gazette
"Chief U.S. District Judge Charles H. Haden II plans to pass on his administrative duties after 20 years as the head of the Southern District Court of West Virginia." The post will be assumed by Judge David A. Faber of Bluefield.

The article notes that "Haden became chief judge in Charleston on May 13, 1982. He was already in place when Congress passed a law that limits chief judges to seven years of service. His exemption from the rule has enabled him to remain chief ever since."

Monday, December 16, 2002

ABCA reviewing regulations governing alcohol, video lottery
Clarksburg Exponent Telegram
State-regulated video lottery continues its awkward expansion in West Virginia. We now have a betting deli.

Saturday, December 14, 2002

Internet publication by Connecticut newspaper insufficient to create personal jurisdiction in Virginia

In a closely-watched decision, the Fourth Circuit held Friday in Young v. New Haven Advocate, No. 01-2340 (4th Cir. December 13, 2002) that a Virginia district court improperly exercised personal jurisdiction over a Connecticut newspaper and certain staff members based on the posting of allegedly defamatory articles on the Internet. Applying its recent decision in ALS SCAN, INC. v. DIGITAL SERV. CONSULTANTS, INC., No. 01-1812 (4th Cir. June 14, 2002) ("specific jurisdiction in the Internet context may be based only on an out-of-state person's Internet activity directed at [the forum state] and causing injury that gives rise to a potential claim cognizable in [that state]."), the court held that "a court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants because they did not manifest an intent to aim their websites or the posted articles at a Virginia audience."

Last year, a federal district judge in Virginia ruled that the plaintiff could sue the Connecticut newspaper in Virginia because the newspapers' Web sites, which displayed allegedly defamatory content about the plaintiff, were accessible there and that was where injury to the warden's reputation would have taken place. The Fourth Circuit, however, found that because the newspaper did not manifest an intent to target and focus on Virginia readers, personal jurisdiction was not proper. The plaintiff would have had to have shown something more than mere accessibility by Virginia readers.

Monday, December 09, 2002

Court Agrees with Special Commissioner's Recommondations in Welfare Case
The Court announced today in its opinion in SER K.M., et al. v. West Virginia Dept. of Health and Human Resources, et al.,No. 30494 (Dec. 9, 2002) that "[i]n the presence of other significant assistance or support, the current practice of terminating cash assistance for most recipients after five years, as provided for in West Virginia Code § 9-9-10 (2001), does not violate our State Constitution."

This case involved a constitutional challenge to the five year limit on certain welfare benefits. Retired circuit judge Daniel McCarthy was assigned to the case as special commisioner, and the Court agreed with most of the conclusions he reached in his final recommendations. Although the Court found that the constitution was not offended by the sixty-month limit, it did grant, in part, a writ of mandamus requiring the commissioner to modify the hearing process used for granting extensions to the time limit on benefits.

Rory Perry had included this summary of Judge McCarthy's recommendations on the Clerk's official weblog.
Licensing Gone Mad: Silly examples of licensing terms abound's IP Memes newsletter points to this InfoWorld article discussing some of the more extreme examples of limitations contained in licensing agreements, including a hardcopy manual published by the Maryland State Bar that contains a license agreement prohibiting lending or sharing.
U.S. Supreme Court to hear arguments on cross-burning law
Dominion Post
Do states have the right to ban cross burning? The Virginia Supreme Court ruled 4-3 last year that the state's 50-year-old law against cross burning violated the right to free speech. The U.S. Supreme Court will hear arguments Wednesday on whether burning a cross is constitutionally protected expression or an overt threat that can be banned by the states.

The case is Virginia v. Black (No. 01-1107), and the briefs can be found here through's Supreme Court Center.

Friday, December 06, 2002

Supreme Court Revisits Mitchell v. Broadnax and Narrows Its Application

West Virginia insurers are breathing a sigh of relief today as the state's high court issued its decision in Findley v. State Farm. In Findley, the Court held that the holdings of Mitchell v. Broadnax, 208 W. Va. 36, 537 S.E.2d 882 (2000), which allow insureds to pursue a cause of action against insurers to enforce the requirements of W. Va. Code § 33-6-31(k), apply only to those exclusions to insurance coverage incorporated into policies of motor vehicle insurance on or after the effective date of the court's decision therein, i.e., February 18, 2000, and before the effective date of the Legislature's amendments to W. Va. Code § 33-6-30 (2002) (Supp. 2002), i.e., June 5, 2002.

In Findley, the plaintiff, challenged an underinsured motorist exclusion under the rule created in Broadnax. The definition of "underinsured motor vehicle" excluded the vehicle in which the plaintiff was traveling as a passenger. Summary judgment was granted to State Farm because, in the circuit court's view, the policy clearly excluded the UIM coverage she sought. The circuit court also held that the Broadnax amendment to W. Va. Code §§ 33-6-30(b-c) (2002) (Supp. 2002) applied retroactively, thereby barring the plaintiff's claim. See Hutchens v. Progressive Paloverde Ins. Co., 211 F. Supp. 2d 788, 794 (S.D. W. Va. 2002) (concluding that W. Va. Code § 33-6-30 has retroactive effect).

The Court affirmed the grant of summary judgment, but disagreed with the lower court's conclusion that the Broadnax reform legislation is retroactive. In sum, the Court clarified that

1. The Broadnax reform legislation (W. Va. Code §§ 33-6-30(b-c)) extinguishes any litigable rights that have accrued as a result of the holding in Broadnax, and forecloses lawsuits that have been initiated as a result thereof;

2. For the same reasons W. Va. Code §§ 33-6-30(b-c) is not applied retroactively, the holding of Broadnax will also not be applied retroactively;

3. And from footnote 21, "In spite of the plethora of recent lawsuits claiming to the contrary, we did not intend in Mitchell to declare that a quid pro quo premium adjustment is required to accompany every exclusion incorporated into a policy of motor vehicle insurance or even to suggest that such a corresponding premium necessary reflects a reduction thereof." The Court added that "it is the responsibility of this State's Insurance Commissioner to review such policy exclusions and to ensure that they are consistent with the premiums charged for such coverage." (The commissioner had approved the exclusion and premiums charged in Findley).

The Court's well-reasoned opinion in Findley will hopefully clear up a lot of misunderstandings of the Broadnax decision, and should have a profound impact on all of the litigation that has arisen since the decision was handed down nearly three years ago.
W.Va. Supreme Court: No Common Law Cause of Action Exists for Property Monitoring
In a 4-1 decision, the State Supreme Court has answered the following certified question in the negative:

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 downstream upon the land of others through flooding thus exposing such land and its owner to toxic contamination?

Justice Maynard, writing for the majority, stated in Syllabus Point 1: "There is no common law cause of action in West Virginia for property monitoring." The Court distinguished this case from its 1999 decision in Bower v. Westinghouse Electric Corporation (allowing uninjured people exposed to some toxic, disease-causing substance to sue and recover the costs of medical monitoring) by noting that in the present case, the plaintiff does not does not know if his property has been exposed to a hazardous substance. "[I]n essence," the Court noted, "[plaintiff] is asking that the burden of the expense of gathering evidence, testing and sampling [his property], be shifted to Monsanto and the landfill owners." The Court found this to be impermissible.

The Court also rejected the argument that plaintiff's "well-founded fear" was sufficient interference with his property rights to support a private nuisance cause of action that might shift the costs of monitoring to the defendant. The Court found that "[i]t is well-settled, however, that under private nuisance, fear alone is not a sufficient basis for recovery."

The Court also sought to preserve the ordinary burdens of proof in nuisance claims. "Usually, the burden is on the plaintiff to prove the elements [of duty, breach, causation and damages] and to first suffer the expenditure of costs incurred to gather and put on the proof. However, if Carter brings a private nuisance action and prevails, he will recover any damages he has suffered, as well as costs." The Court also noted the existence of numerous governmental agencies which might peform the monitoring if a complaint is made.

The case is Carter v. Monsanto Company, et al., No 30651 (Dec. 6, 2002).
Ninth Circuit Rules that Gun Ownership is Not a Personal Right
The opinion, Siveira v. Lockyear, No. 01-15098 (Dec. 5, 2002) [PDF], puts the Ninth Circuit in conflict with the Fifth Circuit's decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) (holding that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms ... that are suitable as personal, individual weapons and are not of the general kind or type excluded by [United States v.] Miller[, 59 S.Ct. 816 (1939)].")

This article in provides a good overview of the decision.

Wednesday, December 04, 2002

Fourth Circuit hears oral arguments on mountaintop removal case
Oral arguments were held today on whether Judge Haden went too far in barring permits that allow coal companies to bury streams under rock and dirt removed from mountaintop mines. An AP report appears here in the Miami Herald.

The Charleston Daily Mail reports that the ruling was criticized by the three-judge panel as "bizarre" for failing to rule on whether the fills violated the corps' regulations, and instead jumping to the larger issue of whether all valley fills are invalid under the Clean Water Act.

The full text of Judge Haden's opinion can be found here. [PDF]
The Charleston Daily Mail reports that Supreme Court administrator Barbara Allen resigned her position as the top administrator in the state judicial branch after two years on the job.

The report indicates that Justice Albright harshly criticized her work on a proposal for budget cuts, causing her to resign. The report also notes that "[m]ore than 53 employees have quit their jobs at the Supreme Court since 1997," and that "[s]everal former and current employees said that much of the turnover at the court — which only has about 100 employees at its main office — is due to an unpleasant work atmosphere."

Tuesday, December 03, 2002

Who Owns the Law?
Ernie the Attorney points out an interesting case from the Fifth Circuit. The court ultimately ruled that "as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status." Thus, it was okay for a retired guy to post building codes for rural counties in Texas and Oklahoma on his website.

Rory would heartily agree with such a ruling, I would imagine.
Moore bid to regain law license attracts friends, critics
Charleston Gazette
"Former Gov. Arch A. Moore Jr.’s bid to regain his law license has generated more than a dozen letters to the state Supreme Court and State Bar, most from critics who say reinstating him would taint the legal profession."-- The Associated Press

I would venture to say that the debate surrounding the reinstatement of the former governor's law license is as much about political party pride as it is about lawyer ethics.
W.Va. joins Mass. in Microsoft appeal
Charleston Gazette
"WASHINGTON — West Virginia on Monday decided to continue the courtroom antitrust battle against Microsoft Corp., joining Massachusetts to ask a U.S. appeals court to reconsider tougher sanctions against the world’s largest software company."-- The Associated Press

Monday, December 02, 2002

A new state tax plan proposed today by Robin Capehart would hit law firms hard. This Charleston Daily Mail article, provides the following example:

"A restaurant making $2.4 million a year, for example, pays a total of $53,540 in taxes, while a law firm making the same amount pays $6,075, according to figures from the state Tax Department and the Marshall University Center for Business and Economic Research.

"Under the new system, the restaurant would pay $39,924 a year and the law firm would pay $44,060. That's a savings of about $13,000 for the restaurant and a loss of nearly $39,000 for the law firm."