Monday, January 27, 2003

Taking over judicial budget would be costly, lawmakers warned
Charleston Gazette
"For years, the Legislature has threatened to take away the Supreme Court’s ability to fashion its own budget. Chief Justice Larry Starcher had a message for senators and delegates last week: Be careful what you wish for."

Clearly there continues to be some tension between the Legislature and the Supreme Court.

Thursday, January 23, 2003

Obesity Suit Against McDonald's Dismissed

The American civil justice system maintained a little dignity yesterday when U.S. District Judge Robert Sweet dismissed a widely watched lawsuit that blamed McDonald's fatty foods for obesity in children.

“If a person knows or should know that eating copious orders of supersized McDonald’s products is unhealthy and may result in weight gain ... it is not the place of the law to protect them from their own excesses,’’ the judge said. “Nobody is forced to eat at McDonald’s.’’

Althoug common sense has prevailed today, I am sure we have not heard the last of these kinds of lawsuits.

Wednesday, January 22, 2003

Grant panel suit rejected
Charleston Gazette
On Tuesday, Kanawha County Circuit Judge Charles King rejected most aspects of a lawsuit challenging the state Economic Development Grant Committee. The committee was set up last year by the state Legislature to dole out more than $200 million in state lottery income.

Judge King did invalidate the grant for the Wheeling Victorian outlet mall project because that particular grant was made two months before the applications for other projects were due, and the same process used to approve the other projects was not used for the Wheeling project. He directed that the grant committee must reconsider its approval of the Wheeling project comparatively, against all the other projects. He did state that the committee could still approve the Wheeling project:

"The WVEDGC, in its discretion, may correct this mistake by evaluating the Wheeling Project in comparison with the other projects. If it still deems the project meritorious, it may then certify the project." Order, page 53.

He goes on to observe in a footnote that at trial, the committee members present testified under oath that having seen all the other projects, on a comparative basis as well as on an absolute basis, they would have approved the Wheeling project. Thus, there appears little doubt that the Wheeling project will ultimately be approved.

Friday, January 17, 2003

Fourth Circuit Reinstates Censorship Case Against Sheriffs' Deputies

In Rossignol v. Voorhaar, No. 02-1326 (4th Cir. January 16, 2003), several off-duty law enforcement officers organized an effort to impede the distribution of the St. Mary's Today, a newspaper critical of the officers and the department, in order to suppress political criticism. In the wee hours of the morning on election day, the officers traveled around the area buying all of the issues of the St. Mary's Today they could find. The district court dismissed the paper's Section 1983 case, finding that because the officers planned the effort on their own time, and were off duty and out of uniform during the execution of the plan, they were not acting under color of state law. The Fourth Circuit disagreed, finding a "sufficiently close nexus" with the state, and reversed:

"We have no doubt that the seizure in this case was perpetrated under color of state law. ... The defendants' scheme was ... a classic example of the kind of suppression of political criticism which the First Amendment was intended to prohibit. The fact that these law enforcement officers acted after hours and after they had taken off their badges cannot immunize their efforts to shield themselves from adverse comment and to stifle public scrutiny of their performance."
High Definition features an interesting article offering rules for lawyers on the use of dictionaries. One important rule is to use more than one.

Thursday, January 16, 2003

U.S. Supreme Court upholds UMW health benefits
Charleston Gazette
Health-care benefits for about 10,000 retired miners will be paid by coal companies, under a U.S. Supreme Court ruling issued Wednesday in Barnhart v. Peabody Coal Co., 01-705.

Wednesday, January 15, 2003

Supreme Court Backs Copyright Extension
The mouse wins. The Supreme Court ruled 7-2 today that Congress' latest 20-year copyright extension (dubbed the Mickey Mouse Protection Act, by some) does not offend the constitution. The ruling means that Walt Disney's first Mickey Mouse cartoons and other works created in the 1920s will remain protected for 20 more years.
State may eliminate second-injury fund
Charleston Gazette
The West Virginia Legislature is considering eliminating the workers' compensation second-injury fund. The theory of the fund is as follows: Say an employee has a pre-existing injury suffered while working for a previous employer. He is hired by a second employer and he has a second injury to the same part of his body. The state has said that the second employer should only be liable for paying the compensation for the second injury, and the state has agreed to pick up the tab for the rest. The fund was originally established to encourage employers to hire previously-injured people, but the ADA now achieves the same goal. Curiously, no set-aside "fund" was ever established, so the state has been picking up the tab out of its ordinary funds. Self-insured employers who did no even pay premiums still get the benefit of the second injury fund, so it is not hard to see why it has been a big money pit for the state. Eight other states have already abandoned their second-injury funds, and several others are considering it.

Monday, January 13, 2003

Maynard tells doctors to focus on Supreme Court
Dominion Post
"West Virginia doctors should focus their efforts on the state Supreme Court rather than try to make changes through the Legislature, Supreme Court Justice Elliott 'Spike' Maynard told doctors Sunday."

Scalia Defends Public Expression of Faith
Washington Post
"A historic Virginia law and the constitutional amendment guaranteeing freedom of religion did not intend to "exclude God from the public forums and from political life," Supreme Court Justice Antonin Scalia said yesterday."

* * *

"'Government will not favor Catholics, Protestants, Muslims, Jews,' Scalia told the crowd. 'But the tradition was never that the government had to be neutral between religiousness and nonreligiousness.'"

Thursday, January 09, 2003

4th Circuit: U.S. Can Hold Citizens as Combatants
"U.S. citizens overseas who take up arms against their country -- as the government alleges Yaser Esam Hamdi did -- can be held as enemy combatants without the constitutional rights afforded other Americans, the 4th U.S. Circuit Court of Appeals ruled Wednesday. But the ruling stopped short of approving those same powers over Americans arrested on U.S. soil, which legal experts said leaves a major question for courts to settle." (Associated Press)

Wednesday, January 08, 2003

Fourth Circuit Explains Distinction Between "Formal" and "Actual" Decisionmakers

In Hill v. Lockheed Martin Mgmt., Inc., No. 01-1359 (4th Cir. January 07, 2003), a former employee proferred (1) direct evidence of sex and age discrimination in statements of her safety inspector, who substantially influenced a company decision to fire her, and (2) sufficient evidence that certain reports by her inspector were in retaliation for her complaints. The Fourth Circuit reversed summary judgment for the employer.

This opinion helps clarify the distinction between "formal" decisionmakers and "actual" decisionmakers. The distinction plays a key role in cases in both pretext and mixed-motive cases in which decisions to fire an employee involve numerous decisionmakers. The lower court had held that a supervisor who had made several derogatory sex- and age-related comments about the plaintiff did not matter because the supervisor did not make the final decision to fire the plaintiff. The Fourth Circuit disagreed, explaining that

in evaluating whether a person is a decisionmaker, what matters is his actual role rather than his formal role in the adverse employment decision. Second, an employer should not be able to insulate itself from liability by hiding behind a formal decisionmaker. These points lead us to conclude that a biased subordinate who does not make the final or formal employment decision may still count as a decisionmaker in a Price Waterhouse mixed-motive case. In short, we hold that a subordinate is a decisionmaker for Price Waterhouse purposes if he has a substantial influence on the employment decision. Consequently, evidence of the subordinate's discriminatory animus may constitute direct evidence in a mixed-motive case.

In Hill, the Fourth Circuit found the plaintiff's proffered evidence of discrimination to be sufficiently "direct" to activate the more employee-friendly mixed-motive standard. Staying true to the commonly held observation that mixed motive cases "are ordinarily not grist for the summary judgment mill," Alder v. Madigan, 939 F.2d 476, 479 (7th Cir. 1991), it reversed a summary judgment in Lockheed's favor.

Tuesday, January 07, 2003

Judge ends court oversight of W. Va. schools
After twenty years, judge Arthur Recht has ended court oversight of West Virginia's schools, saying the state is making an honest effort to narrow the funding gap between rich and poor districts.
Surgeons await proposals
Hope Wise's legislation includes malpractice lawsuit limits

Dominion Post
Surgeons involved in a recent walk-out to protest the cost of malpractice insurance are hoping Gov. Bob Wise will tell them what they want to hear when he unveils his legislative package.

Speculation about the Governors proposal includes the following elements:
- A cap on damages in claims arising from trauma care;
- A further cap on "non-economic" damages (A compromise might be $500,000.)
- A change to the rules of joint and several liability; and
- A change to the collateral source rule to allow an offset for medical bills paid by the victim's medical insurer.

Wednesday, January 01, 2003

And like a good neighbor that just could not afford the mortgage payments anymore, State Farm, West Virginia's largest auto insurer, has stopped writing new auto policies as of December 16, 2002. According to the Charleston Gazette article, State Farm representatives claim that “[t]he legal environment in West Virginia is among the most difficult in the United States."