Saturday, May 31, 2003

Employer's right to prohibit display of Confederate flag upheld

In Dixon v. Coburg Dairy, Inc., No. 02-1266 (4th Cir. May 30, 2003), the Fourth Circuit Court of Appeals held that an employee's First Amendment right to display the Confederate flag does not extend to bringing the flag inside his employer's privately owned workplace.

In Dixon, the Plaintiff, an employee of Coburg Dairy, Inc., was asked by his employer to remove two Confederate flag stickers from his tool box after an African-American co-worker complained. The employer even offered to buy the plaintiff a new tool box, sans stickers, so that it could be used at work and the other box could be left at the Plaintiff's home. The Plaintiff, an active member of the Sons of Confederate Veterans, refused to remove the stickers, stating that his heritage was "not for sale" He was then fired.

The Plaintiff sued Coburg Dairy alleging, inter alia wrongful discharge under a South Carolina law prohibiting discharge of employees for exercising a political right or privilege that is "guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State." S.C. Code Ann. 16-17-560.

The case was dismissed on summary judgment by the district court. Following a lengthy discussion about jurisdiction, the Fourth Circuit affirmed the district court's dismissal, opining that "Dixon's First Amendment right does not extend to bringing the Confederate flag inside his employer's privately owned workplace."

Other points of interest:
This case has a few other interesting tidbits. First, I thought it was significant that the court identified the Confederate flag as a potentially racist symbol. The Court noted that "it is easy to see how Dixon's decision to display the Confederate flag on his tool box would be viewed as a controversial and provocative act." For years, employers have been afraid to punish employees under anti-harassment policies for displaying the Confederate flag because of uncertainty of the flag's acceptance as a symbol of racial animosity. This language could prove important support for employers who wish to ban the flag from the workplace pursuant to anti-discrimination policies.

Second, I thought Judge Goodwin (sitting by designation) raised a good point in his dissent. He felt that no federal question was raised in the case because the First Amendment does not apply to the private workplace. For that reason, the body of First Amendment law was unhelpful to the application of Section 16-17-560. Clearly, the South Carolina legislature was intending to incorporate that body of law by reference, but that intent, according to Judge Goodwin, does not create a federal question.

Judge Goodwin's point provoked the majority to create some interesting dicta. The majority stated even if Coburg Dairy had been a state employer, the outcome would have been the same because "[a] state employer need not go farther than a private employer, however, and provide its employees with an unrestrained forum for political discourse in the work environment." Based on the facts of the case, the Fourth Circuit found that First Amendment violation would have occurred. Thus, we are left with a definitive holding that private employers can ban the display of the Confederate flag, and strong dicta indicated that public employers can as well.

An AG that understands technology

Wired News runs this interesting piece about New York Attorney General Eliot Spitzer, who is leading the charge against cybercrime and consumer rights violations. The article notes that his firm grasp of both technology and law allow him to use old laws to prosecute internet crimes. He also opposes UCITA, the trend toward software "licensing" instead of purchasing, and those ridiculous "click wrap" agreements that try to squelch free speech.

AGs and prosecutors across the country should take note of what Spitzer's office is doing.

Friday, May 30, 2003

U.S. Aims to Streamline Mountaintop Mining Permits

Reuters reports that the federal government has "recommended regulating Appalachian mountaintop coal mining on a case-by-case basis to minimize environmental damage in the area despite arguments by green groups that it could increase it."

The Charleston Gazette writes that the study "confirmed that mountaintop removal coal mining destroys forests and streams" and "without additional restrictions, mountaintop removal could eliminate an area of Appalachian forest twice the size of Kanawha County."

The Mountaintop Mining Environmental Impact Statement can be found here on the EPA's website.

Previews from the clerk

Supreme Court Clerk Rory Perry gives a preview of a pair of issues that will be facing the State Supreme Court in the coming months: whether the common-law doctrine of necessaries should apply equally to men as to women, and whether a writ of prohibition should be granted to Union Carbide regarding various procedural aspects of "Phase II" of the asbestos mass trial.

Whose court system is the fairest of them all?

The National Law Journal runs this piece about the relationship of "fair" court systems and business investment. The article contains some analysis by the vice-president of the State Chamber of Commerce regarding West Virginia's low ranking: Brenda Nichols Harper, vice president and general counsel of the West Virginia Chamber of Commerce, said she was not surprised at her state's 49th ranking. West Virginia's judiciary has a 'lack of stability and predictability,' she said. 'We've had several cases where the ultimate court has been a legislative body rather than a judicial body' She said representatives of companies considering West Virginia business sites often ask her about how and why a specific case that is deemed anti-business was decided."

Today's Daily Mail

Today's Daily Mail contains a couple of law-related articles:

1. Judge refuses to step down in C8 case. Wood County Circuit Judge George W. Hill refused to recuse himself from the C8 contamination suit. DuPont filed a motion seeking the recusal because he lives in the allegedly contaminated area and has potential economic interest in the trial. Judge Hill contends he is outside of the allegedly affected area and has no personal interest in the case. He also makes the following curious statement: "I represent the people of this circuit, and I don't have the right to just step out of it and let another judge, who might not have the people's interests at heart, handle it,'' Hill said. Just because our judges are popularly elected does not mean their allegiance lies with the people. A judge's allegiance should be to the constitution, not to the people of his circuit. It seems to me that a populist statement like that in a class action lawsuit would support recusal.

2. Grant ruling may prove complicated. This article reports that the Governor's office has drafted two alternative bills for solving the problem created by the Supreme Court's invalidation of the Economic Grant Development Committee scheme. One is a direct appropriation of the various grants by the legislature, the other is a revision of the enabling legislation that eliminates the legislature's role in selecting committee members and providing more guidance to the committee as to how the money should be doled out.

Option 1 seems pretty bulletproof to me. I would lean toward passing that one during the special session, then working on option two during the next regular session.

Thursday, May 29, 2003

A court of civility and controversial conservatism

Thanks to Howard Bashman for the pointer to this article in the Christian Science Monitor which discusses the importance of the U.S. Court of Appeals for the Fourth Circuit and its judges.

Wednesday, May 28, 2003

Supremes Give State Workers an FMLA Win reports that the U.S. Supreme Court yesterday held that Congress acted properly in exposing states to lawsuits over violations of the Family and Medical Leave Act. Nevada Department of Human Resources v. Hibbs, No. 01-1368. "The ruling means that state workers may sue their employers in federal court for not obeying the provisions of the 1993 federal law, which mandates up to 12 weeks of unpaid leave for workers caring for ailing relatives."

Sex, drugs and violence: this case has it all

In De'lonta v. Angelone, No. 01-8020 (4th Cir. May 27, 2003), the Fourth Circuit decided that a transsexual Virginia prison inmate with gender identity disorder (GID) who repeatedly mutilated her genitals allegedly because she was given inadequate hormone replacement therapy stated a claim under the Eighth Amendment that she was denied adequate medical treatment.

De'lonta, whose former name was Michael Stokes, stated a claim with the following allegations: (1) Appellees know that she suffers from GID; (2) she was receiving treatment until 1995, when it was abruptly terminated for no legitimate reason; (3) the termination of the therapy has resulted in compulsive, repeated self-mutilation of her genitals; and (4) after Appellees terminated the hormone treatment, they have refused to provide any treatment to prevent her from mutilating herself, leaving her at continued risk for serious, self-inflicted injuries.

This case raises a point I had not considered before: Is hormone therapy medically necessary for people with GID such that prison officials have a duty to continue hormone therapy for transsexuals requesting it? The prison in question had a policy of gradually reducing hormone therapy until it ceases. The Court did not address this issue and expressly made "no comment on the type of treatment, if any, to which De'lonta is entitled."

Another point of interest in this case was the decision to use the pronoun "she" to refer to Ms. De'lonta. A footnote explains that "[w]e use feminine pronouns to refer to De'lonta, as did the district court." However, the Court does not elaborate on how it arrived at this decision. Some of the briefs quoted in the decision clearly were using masculine pronouns. Is there a "political correctness" rule the courts are following? If so, what is it?

Tuesday, May 27, 2003

Some West Virginia towns may get voted off the island

Via the SW Virginia Law Blog:
West Virginia is considering eliminating some towns in rural, flood-prone areas of the southern part of the state, as described here.

GOP hails high court's ruling striking down Economic Grant Committee

This piece in the Register-Herald notes that the GOP leadership is pleased with the state supreme court's ruling that the formation of the Economic Development Grant Committee is unconstitutional. House Speaker Bob Kiss seems to be toying with the idea of asking the legislature to authorize the various grants through direct legislation instead of trying to pass new enabling legislation to form a new committee. He fears any new scheme would be challenged by another lawsuit, which could tie up the grants for another two years. The GOP favors using the grant money to fund loans instead of grants.

Lynching law stirs controversy

This article in the Charleston (South Carolina) Post and Courier discusses the "strange fruit" borne by South Carolina's lynching law. The law was intended to protect blacks against vigilante justice in the form of lynch mobs, but blacks are now prosecuted under the statute 4.5 times more than whites. South Carolina law defines lynching as any act of violence by two or more people against another, regardless of race.

The article notes that South Carolina is one of only four states that still use lynching statutes routinely. West Virginia is another. (See W.Va. Code 61-6-12). West Virgnia's statute, however, appears to be more narrowly drafted: "Any collection of individuals, five or more in number, assembled for the unlawful purpose of offering violence to the person or property of anyone supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional or regulative powers over any person or persons by violence, and without lawful authority, shall be regarded and designated as a 'mob' or 'riotous assemblage.'"

Friday, May 23, 2003

Whether newspaper carrier was an employee or an independent contractor is a jury question

The W.Va. Supreme Court yesterday reversed a grant of summary judgment in favor of the Clarksburg Publishing Company, which was sued under a respondeat superior theory for the negligence of one of its newspaper carriers. Zirkle v. Winkler, No. 30787 (May 22, 2003) (per curiam). The carrier injured the plaintiff in an automobile accident as he was delivering newspapers on his route.

In finding that the independent contractor issue presented a jury question, the Court relied heavily upon Cooper v. Asheville Citizen-Times Publishing Co., Inc., 258 N.C. 578, 129 S.E.2d 107 (1963). The Court found the following facts persuasive:
(1) the driver was performing ". . . a part of the regular business of the employer" and "[t]he delivery of newspapers within a reasonable time is essential to the success of the newspaper business";
(2) the driver had an independent business or occupation;
(3) the independent contractor agreement fixed "in large measure" when and how the carrier was to perform his obligations;
(4) the services he was required to render were "routine in nature, requiring diligence and responsibility, rather than discretion and skill"; and
(5) the carrier was delivering newspapers under "a cancellable agreement of indefinite duration."

In summary, the Court held that
In these circumstances, when an entity engaged in a commercial activity on its own initiative places a fleet of drivers and automobiles on the public roads to accomplish a part of its core business activity, it is at the least a reasonable inference that accountability and responsibility for the injurious results of negligence in the operation of those automobiles should be borne by the entity engaging in the commercial activity. This is but another way of stating, under modern conditions, the ancient rule of respondeat superior -- a rule that Justice Hatcher said ". . . combines in its support both principles of natural justice and public policy . . .[.]" Cochran v. Michaels, supra, 110 W.Va. [127] at 131, 157 S.E. 173 at 174.
This is yet another reason for newspapers to find an alternative method of delivery.

Thursday, May 22, 2003

Supreme Court refuses to undo infant settlement to allow claim against released insurer

In Mills v. Watkins, No. 30694 (May 22, 2003), the Supreme Court held today that a release negotiated in an infant settlement proceeding which released the tortfesor's insurer barred a subsequent claim by the victim that the insurer violated the West Virginia Unfair Trade Practices Act. Justice Maynard, writing for the majority, wrote
When an infant is injured in an automobile accident and the infant's legal guardian enters into a settlement agreement with an insurer by complying with the dictates set forth in W.Va. Code 44-10-14 (1929), the settlement is final as to that insurance company at the time the circuit court approves the legal guardian's petition for permission to settle the claim if the insurer is released in the settlement agreement and the insurer is unaware of any misconduct which would constitute substantive grounds for a bad faith action at the time the insurer agrees to the settlement.
Before section 44-10-14 was revised in 2002, there was sometimes a question as to whether the insurer should be a released party. The revision of the minor settlement proceedings statute clarifies that it is indeed okay to release the insurer, and this case is a perfect example of why it is important to do so. See W.Va. Code 44-10-14(f) (2001) ("(f) Release form. -- If the court grants the requested relief, a release of the claim of the minor against the persons or entities alleged to be responsible for the injuries or losses and who are identified in the petition or motion to be released from liability, any other persons or entities making payment on behalf of those persons or entities and any subsidiaries or successor persons or entities shall be executed by a party authorized by the court to execute the release.") (emphasis added).

Court sends encouraging sign to state

As the Daily Mail reports, "[i]n a 6-3 ruling, the justices refused to block Maine's effort to negotiate breaks on drug prices for otherwise uninsured residents." This decision is certainly encouraging to state officials who have launched several efforts to lower prescription drug prices, such as "preferred" drug lists for Medicaid, a "Golden Mountaineer Discount Card" for seniors, and a multistate negotiating pool for public employees.

The case is Pharmaceutical Researchers and Mfrs. of Am. v. Concannon, No. 01-188 (May 19, 2003).

Does West Virginia recognize gay civil unions?

A pointer in How Appealing led me to this article in discussing recognition of civil unions by states other than Vermont. The article mentions the same NY Times article I posted about a few weeks ago (and no, the article was not written by Jayson Blair), announcing that a Marion County judge had dissolved a civil union in West Virginia. Of course, if a court dissolves a civil union, it stands to reason that it must also recognize it as legally binding--at least on some level. Yet, I have not seen any press coverage about what is certainly a controversial subject of gay civil unions in any West Virginia newspapers. What gives?

Wednesday, May 21, 2003

Fourth Circuit rules dogs are "effects" subject to Fourth Amendment protection

Privately owned dogs are "effects" subject to the protections of the Fourth Amendment, the Fourth Circuit has ruled in a case of first impression. In Altman v. City of High Point, No. 02-1778 (4th Cir. May 20, 2003), animal control officers for the City of High Point, North Carolina, shoot and killed one or more privately owned dogs that were running at large. The owners sued the City and the officers under 42 U.S.C. 1983 for violation of their Fourth Amendment rights to be free from unreasonable seizures.

The Court analyzed the evolution of personal property rights in dogs, and concluded that dogs have indeed reached the status of "effects" subject to Fourth Amendment protection. The Court also held, however, that the seizures were reasonable, and that no constitutional violation occurred.

The Court was unable to resist throwing a few puns into both the majority opinion ("North Carolina is no stray when it comes to the trend in favor of treating dogs as personal property ...) and Judge Gregory's dissent ("In particular, I am disturbed by the majority's finding that the officers' actions in each instance were reasonable, based as it is on the majority's dogged refusal to consider the facts in the light most favorable to the nonmovants").

Another heated discussion about the Robles case and qualified immunity is ignited in the dissent, and the majority opinion spends a great deal of effort correcting the "errors" in the dissent's analysis. Robles is proving to be quite a controversial decision. Any law students out there looking for a law review topic?

Tuesday, May 20, 2003

Right of removal in FLSA cases affirmed

Michael Fox points out in his weblog, Jottings By An Employer's Lawyer, that yesterday, the United States Supreme Court ruled unanimously in Breuer v. Jim's Concrete of Brevard, Inc. (PDF link) that wage and hour cases brought under the Fair Labor Standards Act (FLSA) are removable to federal court.

State considers malpractice victims' fund

The Hagerstown Herald reports that a 3-member Patient Compensation Fund study group met Monday to discuss ways to finance a fund to help medical malpractice victims "shortchanged" by malpractice reform legislation taking effect this year. The legislation calls for such a fund to offset its $500,000 cap on verdicts in trauma care cases. "Fees paid by lawyers or assessed against booze, bullets and guns all are on the suggestion board," the article notes. The article does not elaborate on what is meant by "fees paid by lawyers." I am curious.

Fourth Circuit extends Lanham Act protection to foreign mark used solely to sell services in Monaco

The Fourth Circuit released an opinion yesterday in Int'l Bancorp. v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, No. 02-1364 (4th Cir. May 19, 2003), a "cybersquatting" trademark infringement suit brought under the Lanham Act.

The Defendant, SBM, owns and operates historic properties in Monte Carlo, Monaco, including resort and casino facilities. Among its properties is a casino called "Casino de Monte Carlo." That mark is registered in Monaco, but not in the United States. SBM did promote the casino, along with its other properties, from a New York office staffed with four employees.

The plaintiff companies operate 53 web sites whose domain addresses incorporate some portion of the term "Casino de Monte Carlo." When SBM learned of the Plaintiffs' web sites and their uses of the "Casino de Monte Carlo" mark, it challenged them in the World Intellectual Property Organization (WIPO). A WIPO panel ruled against the plaintiff companies and ordered the transfer of the 53 domain addresses to SBM.

To escape this judgment, the Plaintiffs brought suit in federal court against SBM seeking declaratory judgment that they are entitled to the disputed domain names. SBM counterclaimed under the Lanham Act for trademark infringement.

The district court ruled in favor of SBM on its counterclaim and awarded $51,000 in statutory damages and transfer of 43 of the 53 contested domain addresses. The Plaintifs appealed, and the Fourth Circuit affirmed, although on different reasoning.

This opinion is significant in that it clarified the term "commerce" as used by the Lanham Act. In order to receive protection under Section 1125(a) the Lanham Act, a trademark must be "in use in commerce, and it must be distinctive." The Fourth Circuit had never directly addressed the scope of the term "commerce" within the Lanham Act. The Court held here that because of the clarity of the Act's own definition of the term, see 15 U.S.C. 1127 (defining "commerce" as "all commerce which may lawfully be regulated by Congress"), "'commerce' under the Act is coterminous with that commerce that Congress may regulate under the Commerce Clause of the United States Constitution." This "necessarily includes all the explicitly identified variants of interstate commerce, foreign trade, and Indian commerce."

Based on that definition, the Court held that because the casino services at issue were rendered in foreign trade (United States citizens went to and gambled at the casino), "foreign trade" was present, and the Lanham Act's "use in commerce" requirement was satisfied. The Court went on to hold that the mark was also distinctive.

As Howard Bashman noted here, "[a]lmost half of the ruling consists of a dissenting opinion, and the majority opinion also uses up a good deal of ink responding to that dissent." In her dissent, Judge Motz notes that "[t]he majority reaches the unprecedented conclusion that an entity's use of its foreign trademark solely to sell services in a foreign country entitles it to trademark protection under United States law, even though the foreign mark holder has never used or registered its mark in the United States." She agreed that SBM, through its New York office, has used its mark for advertising in the U.S., but because it has not "rendered its casino services in the United States, it has not satisfied the statutory use in commerce requirement in a manner sufficient to merit protection under the Lanham Act."

Saturday, May 17, 2003

Lawsuit filed after girl is rejected by honor society

The Hagerstown Herald reports that a Martinsburg High School student is suing the Berkeley County Board of Education and others because she was denied admission to National Honor Society. The girl's parents, Mike and Cinda Scales, are both lawyers.

The article reports that the girl met the minimum grade point average requirement; however, other factors are considered important as well, such as leadership experience, volunteer service and the student's character.

Her father claims she was not made aware of the other criteria until she received the application, therefore, she did not perform the required service work. "How could you go out and do community service if you don't have the application?" he asked.

My response to that would be that hundreds of thousands of high school students serve their homes, schools and communities through organizations such as Key Club International (one of my favorites), without any desire to gain admission into any honor society.

Secondly, did this girl ever try to find the criteria? The national minimum standards are posted right here on the Internet. They are no secret. The web site says "All chapters are required to write down the criteria and procedures used in their local selection processes. The Honor Society adviser maintains copies of the local procedures and has them available upon request." Did she ever ask to see these criteria?

Besides, maybe National Honor Society doesn't want to admit kids that do community service just to get admitted to their ranks. What's wrong with that?

Friday, May 16, 2003

State Supreme Court strikes down West Virginia Economic Development Committee as unconstitutional

Supreme Court Clerk Rory Perry announces that a highly anticipated decision was released today in State ex rel. West Virginia Citizens Action Group v. West Virginia Economic Development Grant Committee, No. 31125 (May 16, 2003). Here are the highlights:

1. The selection process for committee members violates the separation of powers doctrine. Syl. Pt. 2: "Due to the resulting encroachment on the executive power of appointment, the provisions of West Virginia Code 29-22-18a(d)(3) (Supp. 2002) that direct the presiding officers of each house of the Legislature to submit a list of prospective candidates to the Governor for the chief executive's selection of certain members of the West Virginia Economic Grant Committee are in violation of the separation of powers provision found in article five, section one of the West Virginia Constitution."

2. The selection process also violates the appointments provision of the state constitution. Syl. Pt. 3: "The provisions of West Virginia Code 29-22-18a(d)(3) (Supp. 2002) that direct the Legislature's involvement in the appointment process of the members of the West Virginia Economic Grant Committee are in violation of the appointments provision found in article seven, section eight of the West Virginia Constitution."

3. The legislature gave the governor too much discretion. Syl. Pt. 5: "When an enabling statute such as West Virginia Code 29-22-18a(d)(3) (Supp. 2002) extends discretion to the executive branch in contemplation of an expenditure of public funds with only a broad statement of legislative intent and insufficient legislative guidance for the execution of that legislative intent, the Legislature has wrongfully delegated its powers to legislate in violation of article six, section one of the West Virginia Constitution."

4. All previous grants are invalidated. "Due to these constitutional infirmities, the actions previously taken by the Committee with regard to approving various grant applications are of no force and effect."

5. Enabling legislation must be amended. "Assuming that the Legislature desires to proceed with this statutory approach of encouraging economic development, it is incumbent upon the Legislature to amend the subject legislation to provide for the executive appointment of the members of the Grant Committee without use of a submitted list of nominees from the presiding officers of the two houses of the Legislature and to further provide the necessary guidance in the form of legislative standards that will enable the Committee to perform its statutory task of reviewing and selecting among the submitted project applications in accord with the announced legislative objective of economic development."

This is clearly a ruling that has divided the court. Justice Albright wrote the majority opinion. Justice Starcher wrote a concurring opinion. Justice Maynard wrote a dissenting opinion, and Justice McGraw wrote an opinion concurring in part and dissenting in part.

In his dissent, Justice Maynard criticizes the majority for failing to resort to "every reasonable construction ... in order to sustain constitutionality," and resolving any reasonable doubt in favor of constitutionality, as the law requires. "I read the statute to indicate that the Governor is not obligated or bound to choose from the names submitted by the legislative leaders. For example, the Governor could request new lists from which to choose grant committee members."

The decision will upset a lot of folks in this state, which is probably why it was released on a Friday. Hopefully, the legislature will be able to take up the reform legislation in its special session.

Roundtable seeks asbestos suit reform

The Dominion Post reports that the West Virginia Roundtable, led by its president and CEO Dana E. Waldo, is throwing its weight behind a campaign to have Congress "do something about asbestos litigation." The Roundtable claims asbestos litigation is creating a drag on the economy.

The litigation has grown from 300 companies and 21,000 claimants in 1982 to 8,400 companies and 600,000 claimants. More than 200,000 claims are currently pending.

New local rules for the Northern District of West Virginia

There was some confusion about when the new local rules for the Northern District of West Virginia would become effective. The original version stated on the cover page that the rules were effective January 1, 2003. The Court's official web site announces that the new rules are effective as of May 1, 2003. The new rules, along with a summary of the changes, can be found here.

Search results clogged by blogs

Wired News reports that weblog authors are unintentionally ranking high on search engines. The reason, lots of linking and fresh content. Google's move to create a new search index for weblogs may help remedy the situation.

W.Va. Attorney General takes on porn pop-up advertiser (along with many other news outlets) reports that West Virginia is one of 13 states joining in a lawsuit against New Jersey-based Aylon technologies, an Internet firm that allegedly billed people who tried to close pop-up windows for pornographic Web sites.

Alyon is accused of connecting Internet users to the company's toll phone number when they tried to close Alyon's pop-up windows advertising porn sites. The toll number charges $5 a minute, resulting in bills ranging from $14 to more than $1,000, according to the article.

Thursday, May 15, 2003

Nick Rahall -- Guerilla fighter

The Dominion Post reports that West Virginia Congressman Nick Rahall "pledged Wednesday to do his best to derail new coal mine dust control rules proposed by the Bush administration." The rules can be found here.

Rahall contends that the new rule, which would require the agency to conduct sampling instead of the mine operators, "would allow mine operators to increase the levels of breathable dust by a factor of four while cutting sampling for compliance from more than 30 times per year to as few as six."

Like any good guerilla fighter, the congressman did not reveal which tactics he would be using.

Supreme Court removes Bedell from McCammon case

The Clarksburg Exponent-Telegram reports that the W.Va. Supreme Court has removed Judge Thomas Bedell from a case in which Julie McCammon, a local doctor, claims state trial lawyers have conspired against her and her profession. (For background, see previous post here.) Bedell has some connection to both parties involved: McCammon, an obstetrician, delivered Bedell's daughter in 1993, and Bedell was a member of the Trial Lawyers Association 15 years ago. McDowell County Circuit Judge Booker T. Stephens has been called upon to replace Bedell.

OREO lawsuit crumbles

The San Francisco Chronicle posts an article here reporting that the San Francisco lawyer who filed the Oreo suit plans to drop it. The reason: "He's drawn so much media attention that he says he's accomplished what he set out to do -- raise awareness about trans fat, a hidden but dangerous substance in processed food."

That's exactly what I was complaining about here. Should we allow the civil justice system to be used purely as a platform for political speech?

Cost shifting in E-Discovery picked up on an interesting ruling from the Southern District of New York which sets forth a new seven-part test to determine whether the cost of electronic discovery requests should be shifted to the plaintiff:

(1) the extent to which the request is specifically tailored to discover relevant information;
(2) the availability of such information from other sources;
(3) the total cost of production compared to the amount in controversy;
(4) the total cost of production compared to the resources available to each party;
(5) the relative ability of each party to control costs and its incentive to do so;
(6) the importance of the issue at stake in the litigation and,
(7) the relative benefits to the parties of obtaining the information.

Application of this test would tend to benefit more plaintiffs than the test devised by Southern District of New York Magistrate James C. Francis IV in Rowe Entertainment Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002), which is sometimes referred to as the "gold standard" in e-discovery disputes.

Wednesday, May 14, 2003

Some thoughts about newspapers

The State Journal published an article on May 8 entitled, "Pressed for Numbers: Newspapers Are Reporting Lower Circulation; Population Drop, Internet Use Cited." The article made me think a bit about the newspaper business.

I don't like newspapers. I don't mean newspaper businesses, I mean their products. Newspapers smell bad, they soil your hands, they're environmentally unfriendly, they're too large, take too long to read, get delivered too late, and 95% of the information they contain is irrelevant to me. It is not surprising that newspaper sales are down. Does that mean that newspaper businesses are doomed? No. They are information producers in an Information Age. They should be flourishing. So why aren't they?

Newspapers should stop thinking of themselves primarily as single-product producers and start thinking of themselves as a multi-faceted information services. Your local newspapers can do what no one else can (or will): send intelligent human beings to gather reports of local happenings and write well-polished and timely articles about them. That is a great and valuable service that I and many others are willing to pay for, but the mode of delivering the content is all wrong.

What I would like to see are alternative products and methods of delivery to choose from. One size does not fit all. Everyone does not want everything. People want to buy information, not a "product." So here are my suggestions:

1. Produce customized newspapers electronically. Newspapers are already organized into sections. I am sure that most (if not all) of the content is already digital. Why can't newspapers let me select and purchase only the sections I want to see, and deliver them by e-mail in a format such as PDF?

2. Act as a "clipping service" Allow subscribers to enter names or keywords, and have content delivered to their inboxes that contain articles with those words. One of the major frustrations I have with newspapers is the inability to find relevant information. There is so much content, the reader cannot possibly sort through it every day. I would love to know what news stories mention my clients, but searching the newspapers every day for their names is hopelessly time-consuming. The local newspapers could do the searching for its readers electronically--quickly, inexpensively, and without missing any articles.

For the most part, newspapers are being published the same way today as they were a hundred years ago. It is certain that they will not last another 100 years. Newspaper businesses need to stop acting like one-trick ponies. It is their services, not their one-size-fits all products, that people want. It is up to them to evolve and deliver their unique content in a manner that is more useful to today's average reader.

Fourth Circuit to hold part of Moussaoui oral argument in public, and the rest behind closed doors

Howard Bashman notes in How Appealing:
A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit today issued a 19-page decision in which the court ruled, among other things, that part of the upcoming appellate oral argument will be held in public and part in private, with the private segment to be followed by the issuance of a public transcript from which all classified information has been redacted.

Howard's post was picked up in's "Today's News" section here.

Tuesday, May 13, 2003

Suit seeks ban on OREO cookies

OREO cookies are among the most popular snack foods in America, and for good reason: they taste good. They have inspired everything from clothing to games and even songs. Now, they have inspired a civil suit. Everyone knows that eating OREOS in large quantities is not healthy, right? Apparently not. reports that "A lawyer who has spent much of his life enjoying Oreo cookies has sued Kraft Foods Inc. seeking to ban the much-loved cookies in California because they contain trans fat, an ingredient he calls inedible." The lawyer who filed the suit claims "I am probably full of hydrogenated fat because until two years ago I didn't know about it. I resent the fact that I have been eating that stuff all my life."

How many of these "junk food" suits must be filed and dismissed before courts find them frivilous and sanctionable? Filing a lawsuit is serious business. The civil justice system should not be used as a platform for political speech. Clearly, that's what is happening here. As this plaintiff states, "I hope if nothing else comes of this lawsuit that more people know about trans fat than before." Running a public service ad campaign to get your political speech heard by a nationwide audience costs tens of thousands of dollars. The cost of filing an outrageous civil suit? Less than a hundred dollars. Unless sanctions are imposed, people will continue to use the cheaper avenue.

Chief justice- Mental hygiene system in W.Va. wastes time

Chief Justice Starcher is upset at the length of time it takes to get a mentally ill person committed, according to this report in the Hagerstown Herald-Mail. "West Virginia is the only state in the Union where we convene a full-blown hearing just to get a person in crisis due to mental illness into short-term stabilization and treatment," Starcher said Friday at the state's annual judicial conference. In most other states, qualified doctors can compel mentally ill persons for immediate crisis treatment without a hearing, the Chief Justice explained. Then, if necessary, a hearing is held within 72 hours.

The article notes that 7,000 mental hygiene petitions were filed in 2001, up nearly 15 percent from 2000.

New Cabell County magistrate could be the youngest in W.Va.

The Hutington Herald-Dispatch reports that 23 year-old Michael J. Woelfel, a Marshall University student appointed to fill a vacant magistrate post in Cabell County, may be the youngest magistrate judge in the state's history.

Monday, May 12, 2003

Governor Issues Surprise Apology

WTAP News reports that "West Virginia Governor Bob Wise released a statement Monday saying he was not faithful to his family and hopes one day for forgiveness." The Governor apparently already appologized to his family several weeks ago. According to the article, "Press Secretary Amy Shuler Goodwin says ... that his statement does not affect his re-election plans."

Google to launch separate index for weblogs

Slashdot report:
Skyshadow writes "Google, search engine of choice for pretty much everyone, has announced that it will begin a seperate index for blogs and remove them from the normal index, handling them instead in much the same way as their usenet archives. This will hopefully put an end to the recent difficulties locating primary source material among the mountains of blogs which are clogging the ratings system."

Plaintiffs' lawyers to step up lobbying efforts

Lobbyists for West Virginia trial lawyers are now outnumbering civil litigation reform lobbyists in Charleston, according to a report in today's Daily Mail. "The state's plaintiffs' bar doesn't want a repeat of this year's session, when a bill limiting medical malpractice lawsuits and damage awards sailed through both chambers by wide margins and was readily signed into law by Gov. Bob Wise."

Friday, May 09, 2003

W.Va. students better linked

Some good news on the education technology front: the Daily Mail reports that West Virginia students have better access to computers and the Internet than students in most other states. Ninety-seven percent of our schools are wired for the Internet, making access somewhere in the school available to nearly every West Virginia student.

New "blawg" search engine

A new search tool for law related weblogs ("Blawgs") is being developed here. I checked it out, and it appears to be pretty fast at yielding relevant results. Thanks to Ernie and Rory for the pointers.

WV examinees unaffected by national bar exam error

The pass/fail status of West Virginia examinees was unaffected by scoring error on the MBE, according to Supreme Court Clerk Rory Perry. So all of those new lawyers who thought they would be sworn in on Wednesday will be.

Thursday, May 08, 2003

Error affects results of national bar exam

Those aspiring lawyers "on the bubble" for passing or failing the February bar exam may be in for a shock. The Boston Globe reports that a scoring error on the MBE "has changed results for thousands of aspiring lawyers and could affect whether some pass or fail the bar, according to the National Conference of Bar Examiners."

As if taking the exam and waiting for the results were not nerve-wracking enough.

DuPont to fight ruling that C-8 is toxic

The Hagerstown Herald-Mail reports that DuPont yesterday announced intentions to appeal a Wood County Circuit Court judge's ruling that found C-8, a chemical used to make Teflon and other products, is toxic and hazardous to humans.

Wednesday, May 07, 2003

State Supreme Court liberally construes statute of limitations

By a 3-2 vote, the State Supreme Court has reversed an order dismissing a suit against Friedman's Jewelers, finding the applicable statute of limitations under the West Virginia Consumer Credit Protection Act to be vague and ambiguous.

The action stemmed from a jewelry purchase which involved a closed-ended contract that spread the payments (with interest and other charges) over a 15-month period. The applicable statute of limitations read, in relevant part:
With respect to violations arising from consumer credit sales or consumer loans made pursuant to revolving charge accounts or revolving loan accounts, or from sales as defined in article six [s 46A-6-101 et. seq.] of this chapter, no action pursuant to this subsection may be brought more than four years after the violations occurred. With respect to violations arising from other consumer credit sales or consumer loans, no action pursuant to this subsection may be brought more than one year after the due date of the last scheduled payment of the agreement.

W.Va. Code s 46A-5-101(1). Friedman's argued that closed-ended contracts did not fall within the definition of "revolving charge accounts or revolving loan accounts" to which the four year limitations period applied. It pointed out that this interpretation is consistent with the Uniform Consumer Credit Code, upon which the provision is apparently based. However, because the statute does not explicitly mention closed-ended contracts, the Court was not satisfied with that argument. The plaintiffs, for their part, said the closed-ended contracts fell into the definition of "sales." The Court tossed up its hands and found the provision to be ambiguous. It then proceeded to interpret the Act liberally to allow the plaintiff's suit. Justices Maynard and Davis dissented.

State Supreme Court upholds school boards' right to private counsel

In what can only be described as a victory for Boards of Education and county prosecutors, the Supreme Court of Appeals ruled yesterday in Longwell, et al. v. Bd. of Ed. of Marshall County, No. 30987 (May 6, 2003) that "[w]hen a county board of education is in need of legal services, it may exercise its own discretion in determining whether to utilize the services of the county prosecuting attorney, who has a duty to represent it under W. Va. Code s 7-4-1 (1971) (Repl. Vol. 2000), or to hire its own legal counsel pursuant to West Virginia Code s 18-5- 13(l) (2002) (Supp. 2002)." Id. at Syl. Pt. 4.

The 4-1 majority (McGraw, J. dissenting) agreed with the circuit judge who appropriately summarized the matter as follows:
Clearly, by both case law and statute, boards of education in West Virginia are allowed to employ "outside" legal counsel, and for the past thirty-plus years, this practice has been followed in most, if not all, of the counties in this state. This practice is necessary, in large part, due to the ever increasing and enormous complexity of the educational law found in Chapters 18 and 18A of the West Virginia Code, along with the increasing burdens placed upon county prosecuting attorneys.

Most prosecutors simply lack the time and expertise to handle modern education law. This decision is certain to save taxpayers money by allowing school boards to hire the most qualified attorneys available to defend them against lawsuits from disgruntled employees, parents and students. A ruling for the taxpayer plaintiffs in this case would have had the perverse effect of increasing the cost to the taxpayers in the long run.

Actuary finds Supreme Court decisions hurt workers' comp

The Beckley Register-Herald reports that an actuary Tuesday suggested too many adverse Supreme Court rulings over the years have exacerbated West Virginia's sagging Workers' Compensation system. House Speaker Bob Kiss agrees.

Thursday, May 01, 2003

Fourth Circuit revives "as applied" claim challenging grooming policy

The Fourth Circuit yesterday in Booth v. State of Maryland, Dept. of Public Safety and Correctional Services, No. 02-1657 (4th Cir. Apr. 30, 2003), reversed a grant of summary judgment in favor of a state police department that disciplined an officer for wearing his hair in dreadlocks, a hairstyle that violated the department's grooming policy.

The plaintiff officer asserted a claim under 42 U.S.C. Section 1983 that the defendants' application of the grooming policy to him violated his constitutional right to practice his religion (Rastafarianism) under the First and Fourteenth Amendments, and other various state and federal constitutional claims. The district court dismissed the Section 1983 claim, holding that because the plaintiff did not also assert a Title VII claim, it could not grant the requested relief. The Fourth Circuit disagreed and reversed a summary judgment in the department's favor on the Section 1983 claim, holding that although the policy was facially neutral, the plaintiff made out a viable "as applied" challenge to the defendants' application of the policy to him.

Despite some language in footnote 6 of Hughes v. Bedsole, 48 F.3d 1376, 1383 n.6 (4th Cir. 1995) (stating, without citation, that the plaintiff could not "bring an action under Section 1983 for violation of her Fourteenth Amendment rights because [she] originally could have instituted a Title VII cause of action"), Title VII claims can coexist alongside Section 1983 claims. See Keller v. Prince George's County, 827 F.2d 952, 957 (4th Cir. 1987) and Beardsley v. Webb, 30 F.3d 524, 526-27 (4th Cir. 1994).