Friday, July 11, 2003

Oh my God, he's got a gun ... on his T-shirt

Thanks to Steve at the Southwest Virginia Law Blog for pointing out this article about a case winding its way through the 4th Circuit in which a student has sued the school board for prohibiting him from wearing an NRA Shooting Camp T-shirt at school. The vice-principal claimed that the depiction of shooters on the shirt had the potential to disrupt classroom instruction. The civil suit is still pending, but the plaintiff appeals an order prohibiting him from wearing the shirt to school in the meantime.

Ethics Commission vetoes ads on patrol cars

I have to say I am glad to see this report in the Charleston Gazette that the State Ethics Commission has thwarted a plan by several cash-strapped W.Va. municipalities to lease for $1 police cruisers that would serve as billboards for various advertisers. The cities wanted to contract with a North Carolina-based ad agency to provide basically free police cars and other public vehicles featuring advertising.

In other words, your local police officer could have been driving around with lawyer ads and promotions for 99 cent wings at "Fat Larry's" if the Ethics Commission had ruled in favor of the plan. I know desperate times call for desperate measures, but are we that desperate?

House Backs Bush on New Overtime Rules

The AP reports that the House voted 213-210 to reject a Democratic provision that would have derailed the Department of Labor's proposed new overtime regulations that would deprive certain white collar workers of overtime pay.

The DOL estimates at least 644,000 white-collar workers now required to get overtime would lose it as a result of new definitions of jobs that would be exempt from the extra pay. Unions say that figure would actually exceed 8 million.

Federal Court Blocks Washington Video Game Sales Law

Howard Bashman (How Appealing) points out this AP report that U.S. District Judge Robert Lasnik issued an injunction blocking enforcement of a Washington state law designed to restrict the sale of violent video games to minors.

The law, which would have been effective July 27, would have imposed a $500 fine on anyone who sold a video game depicting violence against "law enforcement officers" to minors under age 17.

Thursday, July 10, 2003

W.Va.'s population continues to decline

The City of Huntington has dropped below 50,000 people, according to the U.S. Census Bureau, the Charleston Gazette reports. This leaves Charleston as the only West Virginia city with a population of greater than 50,000.

The 50,000-person threshhold is important because cities meeting that requirement can qualify for direct annual community development block grants from the Department of Housing and Urban Development.

The City of Huntington had about 86,000 people in 1950, the report notes.

W.Va. Auditor and Treasurer sue the Governor

According to this article in the Charleston Gazette, John Perdue (Treasurer) and Glenn Gainer (Auditor) announced Wednesday that they had filed suit in Kanawha Circuit Court to prevent the Wise administration from proceeding with plans to issue $3.9 billion of bonds to cover future debts in state teachers' and public employees' pension funds.

The two contend that the bond issue constitutes undertaking new state debt, which requires approval of state voters through a constitutional amendment. If the move is considered refinancing of old debt, no such amendment would be required.

Teacher's union sues W.Va. School Boards Association

The Charleston Gazette reports that the West Virginia Federation of Teachers sued the state School Boards Association, comprised of county school board members from across the state, alleging the association improperly uses public funds to lobby state lawmakers.

"The WVFT says state law only authorizes the school boards association to train county school board members in 'boardsmanship' and 'governance.' The group has no legal right to lobby, according to the lawsuit."

Teachers dismissed from National Honor Society suit

The Dominion Post reports that seven teachers sued by a girl who was not inducted into her high school's National Honor Society chapter have been dismissed from the suit. The suit will proceed against the principal and Board of Education.

Wednesday, July 09, 2003

Video lottery lawsuit has precedent to support it, plaintiffs claim

The Charleston Daily Mail reports that the anti-gambling groups looking to pull the plug on the state's video lottery terminals believe they have some precedent to support their arguments. It appears from the article that they intend to argue that a constitutional provision (Article VI-36) providing that the "Legislature may authorize lotteries which are regulated, controlled, owned and operated by the State of West Virginia in the manner provided by general law" does not authorize video lottery machines.

Fourth Circuit sorts out some more cybersquatting jurisdiction issues

A man who was stripped of his ownership of the domain name "" by Network Solutions, Inc. (NSI) could not sue Network Solutions for transferring the domain name, but he could maintain a claim against the company that caused the transfer.

In Hawes v. Network Solutions, Inc., No. 02-1182, 02-1377, 02-1824, 02-1825 (4th Cir. July 09, 2003) NSI transferred to French cosmetic company L'Oreal after L'Oreal initiated trademark litigation in a French court. The plaintiff sued in the U.S. to get the domain name back, but the district court dismissed the suit for lack of subject matter jurisdiction.

The Fourth Circuit reversed in part and affirmed in part. It found that although the district court did have jurisdiction over the claim against NSI, its dismissal of the claim was nonetheless proper because the plaintiff failed to allege all of the required elements of his claim. (The Anticybersquatting amendments to the Lanham Act generally prohibit suits against registrars like NSI unless the plaintiff can show that one of three exceptions to the limitation of liability granted by 15 U.S.C. 1114(2)(D)(i) applies. The failure to meet the elements was a 12(b)(6) issue, not a jurisdictional issue, the court found).

As to the claim against L'Oreal brought under 15 U.S.C. 1114(2)(D)(v), (which authorizes a domain name registrant to sue trademark owners for "reverse domain name hijacking") the Court found again that jursidiction was present. However, as to this claim, the Court found that all of the necessary elements were alleged and that the claim should not have been dismissed.

The Court was careful not to step on the toes of the French court system, which was hearing similar claims in France. ("We should add that our conclusion that Hawes' complaint states a cause of action under s1114(2)(D)(v) over which a United States court may exercise jurisdiction does not imply any disrespect of any French court that may have taken jurisdiction of a related dispute in France.")

Monday, July 07, 2003

Addicted to data

This article in the New York Times (thanks to Slashdot for the pointer) discusses how the need for the constant stimulus gained from receiving new information can become an addiction.

"It's like a dopamine squirt to be connected," said Dr. Ratey, who compares the sensations created by constantly being wired to those of narcotics — a hit of pleasure, stimulation and escape. "It takes the same pathway as our drugs of abuse and pleasure."

I have a feeling a lot of bloggers suffer from this addiction.

Is Internet access a basic human right?

According to this article in the Christian Science Monitor, the enlighted post-communist government of Estonia believes the answer is yes. [via Slashdot]

Thursday, July 03, 2003

Court refuses to order reinstatement of suit challenging video lottery

The State Supreme Court refused a petition for appeal in the video lottery suit mentioned in these previous posts (1,2), brought by Larry Harless on behalf of anti-gambling groups bent on shutting down West Virginia's burgeoning video lottery industry. See Rory Perry's post here for links to the press release and order.

Wednesday, July 02, 2003

Court says Gator-style ads are legal reports that Gator-style ad hijacking is legal, according to a ruling by the Eastern District of Virginia. Several other suits involving this type of advertising program are still pending.

Thanks to Steve at the SW Virginia Law Blog for the pointer.

Fourth Circuit decides another Internet personal jurisdiction case

In Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., No. 02-1137 (4th Cir. 2003), Carefirst, the medical insurance behemoth, sued Carefirst Pregnancy Centers, a non-profit, evangelical, pro-life advocacy organization, for trademark infringment. The suit was brought in the U.S. District Court for the District of Maryland, despite the fact that the defendant was an Illinois corporation.

The plaintiff based its claim of specific personal jurisdiction solely on (1) the defendant's semi-interactive, Maryland-accessible Internet website, which contained defendant's allegedly infringing use of the CAREFIRST name; and (2) defendant's contract with a Maryland web hosting company, NetImpact, which enabled the defendant to launch the allegedly infringing website.

Applying the holding in ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir. 2002) (see this previous post), the District Court found that personal jurisdiction was lacking. It dismissed the case, and the Fourth Circuit affirmed the dismissal

The Fourth Circuit reiterated that by setting up a generally accessible, semi-interactive Internet website, one does not thereby direct electronic activity into another state with the manifest intent of engaging in business or other interactions within that state in particular. With regard to the contract with NetImpact, the court held that "it is unreasonable to expect that, merely by utilizing servers owned by a Maryland-based company, CPC should have foreseen that it could be haled into a Maryland court and held to account for the contents of its website."

This is the second case to apply the holding of ALS Scan. The first was Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002) (see this previous post).

Kiss says he'd rather run for Supreme Court in 2004

House Speaker Bob Kiss told reporters that he would rather run for Supreme Court than for governor in 2004, according to this article in today's Daily Mail.

The article mentions that Kiss believes "that the things [he] would like to see accomplished in the state would be accomplished easier from the Supreme Court bench, not the governor's office."

That's a telling statement, coming from the state's Speaker of the House. The legislature is, after all, supposed to be the primary organ of public policy in the state. Kiss recognizes that lately, to have any real policy-making influence in this state, you have to be on the supreme court.

The court, as it is currently composed, has been criticized for leaning too far left. Justices Warren McGraw, Larry Starcher and Joseph Albright compose a liberal majority in many key decisions--especially ones in which politics plays a substantial role. Justice Robin Davis is regarded as a moderate, while Justice Elliott "Spike" Maynard is considered the court's lone conservative.

Speaker Kiss is a pragmatic, moderate democrat who could restore a moderate balance to the Court if he were to replace Justice McGraw. Although in the article he seems to express doubt about his ability to raise funds based on the disparity in name recognition, he would have the solid support of the State Chamber of Commerce and most businesspeople in this state, should he choose to run.

Berkeley Springs man files petition to dissolve town

The Charleston Gazette reports that "Thomas Hall delivered a letter to the Morgan County Commission Monday asking for a special election or dissolution of the Town of Bath, also known as Berkeley Springs, because only 13 out of its more than 400 registered voters showed up for the June election."

Governor Wise ready to use veto on grant committee bill

The Clarksburg Exponent-Telegram reports that the governor is prepared to veto the Economic Development Grant Committee reform bill if it gives the legislature the final say on who receives grants.

Some legislators want to retain the power to give a final approval of all committee awards.

Follow-up: According to this article in the Dominion Post, the the Legislature voted yesterday to adopt the governor's plan (without the legislative approval amendment).

Tuesday, July 01, 2003

Circuit courts increase fees

I received this new fee list from the circuit clerk's office today in Berkeley County. I assume the prices are the same for every county in West Virginia based on SB 2011.

JULY 1, 2003

CIVIL CASES - $125.00
ADOPTIONS - $125.00



BAIL PIECE - $ 10.00



OTHER SERVICE - $ 20.00 RESTRICTED, $ 10.00 CMRRR [Which I assume means certified mail, return receipt requested]


W.Va. Legislature approves technical changes to workers' comp bill

The West Virginia Legislature last night approved technical corrections to the recently passed Workers’ Compensation reform package and sent the measure to the Governor for his signature. According to this article in the Daily Mail, the vote totals in each house were: Senate 26-7, House 62-29. The main amendment that lawmakers added to the bill cleaned up technical errors, including the removal of references to an intermediate court of appeals, which lawmakers had intended to drop earlier this month.

Supreme Court to hear DuPont petitions

The Marietta Times reports here that the West Virginia Supreme Court of Appeals has agreed to review petitions filed by DuPont in the class action lawsuit regarding the presence of C8 in local water supplies.

DuPont appeals from an order requiring it to pay for blood tests of residents concerned about their exposure to C-8, a chemical used to make Teflon and other products. It also seeks review of the circuit judge's decision not to recuse himself from the case.

The article notes that the Supreme Court denied a petition seeking the recusal of Justice Albright, whom DuPont claimed had a prior affiliation with the Parkersburg water district.

Oral arguments are scheduled for September 23.

Merriam-Webster unveils new Collegiate Dictionary

"A former dot-commer working a McJob was listening to some headbangers while laying out the last of his dead presidents for longnecks and some less than heart-healthy Frankenfood.

"Confused? Consult the new edition of the Collegiate Dictionary from the folks at Merriam-Webster." [The Dominion Post]


Some new law was made yesterday in the area of spoliation of evidence. In Hannah v. Heeter, No. 30962 (June 30, 2003), the West Virginia Supreme Court of Appeals answered three certified questions regarding the viability of certain spoliation claims. The Court clarified that West Virginia recognizes two common law causes of action for spoliation: negligent spoliation and intentional spoliation. It defined the parameters of these two torts as follows:

Negligent spoliation.
Syl. Pt. 2: "West Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action."

Syl. Pt. 5: "West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence."

Syl. Pt. 7: "A duty to preserve evidence for a pending or potential civil action may arise in a third party to the civil action through a contract, agreement, statute, administrative rule, voluntary assumption of duty by the third party, or other special circumstances."

Syl. Pt. 8: "The tort of negligent spoliation of evidence by a third party consists of the following elements: (1) the existence of a pending or potential civil action; (2) the alleged spoliator had actual knowledge of the pending or potential civil action; (3) a duty to preserve evidence arising from a contract, agreement, statute, administrative rule, voluntary assumption of duty, or other special circumstances; (4) spoliation of the evidence; (5) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; and (6) damages. Once the first five elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The third-party spoliator must overcome the rebuttable presumption or else be liable for damages."

Intentional spoliation.
Syl. Pt. 9: "West Virginia recognizes intentional spoliation of evidence as a stand- alone tort when done by either a party to a civil action or a third party."

Syl. Pt. 10: "Intentional spoliation of evidence is defined as the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action."

Syl. Pt. 11: "The tort of intentional spoliation of evidence consists of the following elements: (1) a pending or potential civil action; (2) knowledge of the spoliator of the pending or potential civil action; (3) willful destruction of evidence; (4) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; (5) the intent of the spoliator to defeat a party's ability to prevail in the pending or potential civil action; (6) the party's inability to prevail in the civil action; and (7) damages. Once the first six elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The spoliator must overcome the rebuttable presumption or else be liable for damages."

Another challenge to mountaintop mining in the works

Steven Minor of the Southwest Virginia Law Blog points out this AP report about a new challenge by environmentalists to a mountaintop mining permit for a proposed Mingo county mine. The interesting twist is that the environmentalists intend to take their appeal through state courts instead of federal courts, hoping the West Virginia Supreme Court of Appeals is a friendlier forum than the Fourth Circuit has been.

Apparently, these environmentalists think that popularly elected judges will favor the environment over jobs. The last time I checked, fish weren't voting, but unemployed coal miners were.

Monday, June 30, 2003

Bloggers Gain Libel Protection

An appeals court decides small-time online publishers can't be held responsible for libel if they just republish information. The ruling is a victory for free speech advocates and bloggers. [via Wired News]

The $2.6 million filibuster

The Dominion Post points out that Senate Minority Leader Vic Sprouse's filibuster of the workers' compensation bill during the last 10 minutes of the regular legislative session prevented the body from lowering the blood alcohol limit from 0.1 to 0.08, resulting in a loss of $2.6 million dollars of highway funds.

McGraw Staffer: Firms 'Outrageous, Deliberate, Self-Serving'

The Wheeling Intelligencer runs this article about the attorney general's suit against 10 Wall Street brokerage firms. As mentioned in this previous post, the suit seeks penalties for violations of the West Virginia Consumer Credit and Protection Act. The chosen forum is the Circuit Court of Marshall County.

The article notes that the suit comes despite an opportunity to recover a $4 million share of a $1.4 billion settlement with the brokerages. The new suit could result in penalties of $350 million to $1.9 billion. "This action, however, does not necessarily preclude the state's right to still claim its share of the settlement reached in New York," the article notes.

The new suit does not seek victim-specific relief. The state is leaving it up to investors to file their own suits to recover any lost investments. However, I am curious as to why the state believes it can both settle with these companies and sue them.

Economic development grants remain in limbo as session begins

The Herald-Mail reports that "Gov. Bob Wise already is at odds with House leaders over his bill (SB2007) that aims to adopt May's ruling by the state Supreme Court in a lawsuit against the [Economic Development Grant] committee."

Wise fears that a lawsuit brought on behalf of anti-gambling groups seeking to shut down video lottery terminals statewide hangs a cloud over $19 million in proposed funding for the economic development grants.

Sunday, June 29, 2003

Attorneys may recover fees for time spent recovering fees

In Hollen v. Hathaway Electric, No. 30681 (June 26, 2003), the State Supreme Court held that under fee-shifting statutes, an attorney is entitled to recover fees for time spent litigating the fee issue.

In Hollen, the parties settled a Wage Payment and Collection Act claim before trial and left the issue of attorney fees to be decided by the circuit judge. The plaintiff's counsel submitted a bill for 104 hours at $200 per hour. About 30 of the hours were for time spent drafting the fee petition and supporting memorandum of law. The circuit court awarded her 67 hours at $100 per hour, finding the reduced rate more closely approximated the prevailing hourly rate for attorneys in Upshur County. The plaintiff appealed.

On appeal, the Supreme Court reversed and awarded the plaintiff 104 hours at $130 per hour, plus however many hours she spent pursuing the appeal. The Court reasoned that "[i]f an attorney is put to the burden of proving the reasonableness of his or her fee, he or she obviously must expend time and effort making that proof. Were the attorney not to receive compensation for those hours, the net effect would be to reduce the attorney's hourly rate for all the hours worked on the case."

Sidenote: The per curiam opinion writer wrote that "[i]t is clear that the $130 rate charged by Ms. Hollen's counsel, based in Morgantown, is almost thirty percent greater than the $100 rate that the circuit court believes a lawyer in Buckhannon or Weston might charge." (emphasis added). The way I calculate it, $100 plus 30 percent is exactly $130. Am I missing something?

Lawyer jailed for ignoring civil suit is vindicated by writ of prohibition

In State ex rel. Farber v. Mazzone, No. 31277 (June 26, 2003), the W.Va. Supreme Court of Appeals granted a writ of prohibition which declared a malpractice suit against attorney Michael Farber void for lack of jurisdiction (insufficient service of process). The plaintiff in the underlying suit sued Farber for legal malpractice. He had the suit papers served by certified mail with delivery restricted to the addressee. However, Farber's temporary secretary signed for the letter without Farber's permission.

Farber filed a response to the plaintiff's motion for default judgment, contending that the court was without jurisdiction because of the improper service. The judge disagreed and entered default judgment against him. Farber then ignored discovery requests and subpoenas duces tecum regarding damages. Judge Risovich eventually issued a bench warrant and had Farber incarcerated. Still, Farber maintained the court was without jurisdiction. After an award of compensatory damages against him, he filed a writ of prohibition with the supreme court.

The Court granted the writ, finding the circuit court was without jurisdiction. W.Va. R. Civ. P., Rule 4(d)(1)(B) (now (d)(1)(E)) stated that service could be accomplished "by the clerk sending a copy of the summons and of the complaint by registered or certified mail, return receipt requested and delivery restricted to the addressee. . . ." Rule 4 also specified that "[s]ervice pursuant to subsection (B) shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a return envelope showing refusal of the process by the defendant." (emphasis added). Farber did not authorize his secretary to receive certified mail with delivery restricted to him, so Rule 4 had not been complied with. Farber properly preserved his objection to service of process by raising the point in his response to the motion for default judgment, and "the passage of time does not confer jurisdiction upon the court."

A case like this seems like a terrible waste of time, money, and judicial resources. Why didn't the plaintiff just have Farber served properly after he objected to the service by mail? The sheriff's department obviously knew how to find him. Now, the plaintiff is left with nothing. And the other unbelievable aspect was Farber's willingness to spend time in jail rather than take an appeal or bring a writ of prohibition earlier. I think both parties showed great deal of stubbornness here.

Saturday, June 28, 2003

Supreme Court wrap-up: 2002-2003 Term

In case you missed any of them, the following is a summary of the major decisions of the U.S. Supreme Court for the 2002-2003 term:

Minority rights
Lawrence vs. Texas
Probably the most important decision of the term, the Court held that state laws banning intimate sexual relations between consenting gay adults are unconstitutional.

Grutter vs. Bollinger/Gratz vs. Bollinger
Diversity in college campuses is a "compelling interest." Schools may favor students who are members of racial minorities in admissions as long as administrators take the time to assess each applicant's background and potential.

Point systems ascribing certain numbers of points for membership in a racial minority are illegal. Colleges cannot blindly ascribe extra points to minority applicants.

First amendment
Virginia vs. Black
A state may, consistent with the First Amendment, ban cross burning carried out with the intent to intimidate. States may not, however, ban the burning of crosses without intent to intimidate. Thus, the burning of crosses at rallies or marches as acts of political expression not aimed at particular individuals cannot be banned.

US vs. American Library Association
Public libraries that receive federal money can be compelled to use porn-blocking filters that block access to adult content.

Crime and punishment
Lockyer vs. Andrade/Ewing vs. California
California's infamous "three strikes" law does not violate the constitutional ban on grossly disproportionate sentences even though application of the law resulted in a 50-year sentence for a person shoplifting videotapes and a 25-year sentence for a man who stole three golf clubs.

Smith vs. Doe
So-called "Megan's Laws" that require sex offenders to register even though their crimes were committed before a "Megan's Law" was passed are constitutional. (These laws generally require freed sex offenders to give police their addresses and places of employment so that the public can learn about convicts living nearby.)

Connecticut Department of Public Services vs. Doe
"Megan's laws" that require public disclosure of sex offenders' names without determining whether they are still dangerous does not violate due process.

Scheidler vs. National Organization for Women
RICO statute could not be used against anti-abortion activists who planned to disrput and shut down medical clinics nationwide.

Miller-El vs. Cockrell
The Court gave a Texas death row inmate a chance to claim that prosecutors systematically excluded blacks from his jury.

Sell vs. US
Non-violent, mentally ill defendants can be forced to take anti-psychotic drugs so they can become competent to stand trial.

Delmore vs. Kim
Legal immigrants who face deportation because of a past conviction can be jailed automatically without bail.

Nevada Department of Human Resources vs. Hibbs
Public employees have the right to sue for money damages under the Family and Medical Leave Act (FMLA).

Desert Palace vs. Costa
Clarifying that circumstantial evidence can be used to prove job discrimination in "mixed motive" cases (those in which the employer has both legitimate and illegitimate reasons for taking adverse action against an employee). The decision will likely lead more courts to grant mixed motive jury instructions in workplace discrimination cases.

Kentucky Association of Health Plans vs. Miller
States have the power to force managed health care plans to admit qualified physicians into their networks. "Any willing provider" laws, which forbid health insurers from refusing to admit any physician who agrees to meet the rules of the insurer's plan, are permissible.

Pharmaceutical Research and Manufacturers of America vs. Walsh
A preliminary injunction blocking Maine from using its power over Medicaid to force drug manufacturers to cut the costs of prescription drugs for uninsured residents, regardless of their income was improvidently granted.

Intellectual property
Eldred vs. Ashcroft
Congress has wide latitude under the Consitution to establish how long artists or their heirs can keep exclusive control of their works. A 1998 law that added 20 years to copyrights was upheld.

Illinois ex rel. Madigan vs. Telemarketing Associates, Inc.
States may maintain fraud actions when fundraisers make false or misleading representations designed to deceive donors about how much of their donations will be turned over to charity.

State Farm Mutual Auto vs. Campbell
A punitive damages award more than 10 times the actual damages is excessive and violates the 14th Amendment's guarantee of due process. Juries may consider out-of-state misdeeds when weighing a company's actions, where those misdeeds bear some connection to the plaintiff.

W.Va. Supreme Court rejects lawyer's challenge of medical malpractice law

The Sunday Gazette-Mail reports that the W.Va. Supreme Court has voted 4-1 not to hear the Charleston Attorney Bill Druckman's challenge to the new medical malpractice law.

Druckman's petition requested the court to interpret the law to apply only to malpractice that occurs on or after July 1, the law's effective date.

As I mentioned in a previous post, the clear text of the new law weighs against Mr. Druckman's interpretation. HB 2122 states at section 55-7B-10(b) "[t]he amendments to this article provided in Enrolled Committee Substitute for House bill No. 2122 during the regular session of the Legislature, two thousand three, apply to all causes of action alleging medical professional liability which are filed on or after the first day of July, two thousand three."

Six W.Va. law changes effective July 1

The Charleston Daily Mail notes six new laws that will take effect on July 1.

Fourth Circuit reverses jury award of punitive damages in race discrimination case

In Bryant v. Aiken Reg'l Med. Ctrs., No. 02-2147, 02-2192 (4th Cir. June 27, 2003), a jury's award of punitive damages in a failure to promote action was reversed because of actions the employer took to promote equal employment opportunities in the workplace.

The Fourth Circuit based the reversal on the following facts (employers should take note):

(1) Defendant had an extensively implemented organization-wide Equal Employment Opportunity Policy, which was clearly stated in the employee handbook;
(2) Defendant had a grievance policy encouraging employees to bring forward claims of harassment, discrimination, or general dissatisfaction,
(3) Employees were explicitly informed that they would not be retaliated against for making a complaint;
(4) Defendant had a carefully developed diversity training program that included formal training classes and group exercises for employees; and
(5) Defendant voluntarily monitored departmental demographics as part of an ongoing effort to keep the employee base reflective of the pool of potential employees in the area.

The court found that "these widespread anti-discrimination efforts, the existence of which appellee does not dispute, preclude the award of punitive damages in this case."

The Court relied on Kolstad v. Am. Dental Assoc., 527 U.S. 526 (1999), which gave protection from punitive damages to "employers who make good-faith efforts to prevent discrimination in the workplace accomplishes Title VII's objective of motivat[ing] employers to detect and deter Title VII violations." 527 U.S. at 545-46 (internal punctuation omitted).

Fourth Circuit says Microsoft OS need not carry Java

In a decision that matters little, the Fourth Circuit ruled in In Re Microsoft Corp. Antitrust Litigation, No. 03-1116 (4th Cir. June 26, 2003) that Microsoft is not required to ship Java with its operating system.

The Register has this article about the decision.

Wednesday, June 25, 2003

Fixing the fix for workers' comp

Via the West Virginia Chamber of Commerce "Chamber Links" e-newsletter:
Legislative leaders are looking at the best approach to correct the technical problems in the newly enacted Workers’ Comp bill (S.B. 2013). The action is needed due to errors in the bill that have been discovered since its passage. Without some further legislative action, Governor Wise may veto the measure. Lawmakers are scheduled to reconvene their special session on Monday June 30.

Tuesday, June 24, 2003

State of West Virginia v. Wall Street

Attorney General Darrell McGraw has sued 10 Wall Street firms, alleging relationships between banking and research departments represented an illegal conflict of interest under state law.

According to this article at, the state is seeking more than $300 million in damages based on the West Virginia Consumer Credit and Protection Act. "The state is suing on behalf of residents who may have made investment decisions based on what it alleged could be biased research issued by the firms' analysts," the report says.

Do strippers need business licenses?

Officials in Jefferson, West Virginia say yes, and they shut down four strip clubs this week for licensing violations, according to this article in the Daily Mail.

Clubs consider the dancers to be independent contractors, and as such, they are required to register with the state if they are conducting business that is generating revenue.

If they sell alcoholic drinks, the strippers also need liquor licenses, the officials say.

Monday, June 23, 2003

Victories for porn blockers and affirmative action supporters

The Supreme Court ruled today in United States v. American Library Association, Inc. that Congress can force public libraries to install adult content filters on libraries' computers. This article has a good summary of the ruling.

It also upheld the use of race as a factor in law school admissions at the University of Michigan in Gratz v. Bollinger, et al. It struck down the undergraduate point-based admissions system, however, which ascribed a certain number of points to racial minorities. A good overview of that decision appear here.

Friday, June 20, 2003

A West Virginia Day tribute to lawyers

Bob Kelly of the Daily Mail writes an editorial entitled "In W.Va., it's all headed for court," in which he expresses dismay at how "well" the system of checks and balances is working in our state.

By order of the Governor...

Your order for a half-dozen prairie dogs has been canceled.

GIF Patent Prepares to Expire


Posted by CowboyNeal on Thursday June 19, @11:18PM
from the all-skate-everyone-skate dept.

pajamacore writes "It's worth noting that 20 June 2003 is GIF Liberation Day, the day on which US Patent 4,558,302 expires. The patent describes the LZW compression algorithm used in .gif files. That said, maybe the prices of image editing applications will drop slightly when corporations don't have to pay fees to Unisys."

Thursday, June 19, 2003

When a "bizarre" shape just isn't enough

In a political gerrymandering case, the Fourth Circuit ruled today in Duckworth v. State Administration Bd. of Election Laws, No. 02-1936 (4th Cir. June 19, 2003), that just because congressional districts are bizarrely drawn does not mean they are unconstitutional. The case presented a question of first impression.

In order to state a claim, the Plaintiff had to allege facts showing two elements: (1) that there has been intentional discrimination against an identifiable group, and (2) an actual discriminatory effect on that group.

The court concluded that dismissal of Duckworth's claim under FRCP 12(b)(6) was proper because he failed to allege any facts to support the second element.

"[N]o reasonable inference can be drawn from the fact of a bizarre appearance that supports the conclusion that districting has caused [discriminatory] effects," the court wrote. "At most it may be fairly inferred from bizarreness that the apportionment was the result of intentional political action and resulted in political effect. But, of course, political effect itself is an expected, and indeed intended, result of apportionment."

These redistricters were motivated by [gasp!] politics. That's not unconstitutional.

Sometimes a picture is worth a thousand words. As I read this opinion, I was dying to see the shape of these allegedly "unconstitutionally bizarre" districts. Here is an article with a color drawing (at the bottom) so you can see for yourself.

Someday, I hope some daring Fourth Circuit judge includes an illustration in an opinion like this.

Is West Virginia a tobacco state?

I always get a kick out of seeing what the great uninformed media thinks about West Virginia. Lately, I have seen our state referred to as a tobacco state, which perplexes me because I am aware of no tobacco farms at all in West Virginia.

The Inquirer recently published an article about Microsoft's settlement with the state Attorney General entitled "Microsoft wraps deal with tobacco state."

A few months ago, the infamous Jayson Blair of the New York times, when writing about Jessica Lynch's home (which he never visited), described it as overlooking "tobacco fields and cattle pastures." The porch, of course, overlooks no such thing.

Now I know that Jayson Blair has been exposed as a fraud and that nothing he wrote can be relied upon, but the fact remains that his "idea" of West Virginia (having never visited it) is that it is a tobacco state.

What gives? My guess is that people are just associating us with Virginia or other southern states. I once heard David Satterfield, Executive Director of the West Virginia Development Office, say that we all think people have a bad image of West Virginia, but the fact is, people have no image of West Virginia at all. We have the chance to create our own image and to make it a positive image. Stories like these make me think David is right on.

State Supreme Court refuses Union Carbide challenge to asbestos mass litigation procedure

Rory Perry's Weblog contains this post announcing that the Supreme Court yesterday "refused a petition for a writ of prohibition sought by Union Carbide to prevent mass litigation related to asbestos exposure from proceeding in the Circuit Court of Kanawha County."

Can tech forever change the judiciary?

CNET has this piece by Judge Herbert B. Dixon Jr. who says e-filing can help courts with declining resources and increasing caseloads do more with less.

Wednesday, June 18, 2003

New opinion summaries and a per curiam opinion that makes new law

Supreme Court Clerk Rory Perry has issued 22 new opinion summaries today.  He also includes in his own weblog a post that summarizes the areas in which the Court plowed new legal ground.

I would note that some new law was made in a per curiam opinion that is among the 22 cases Rory summarized. The case of Wounaris v. West Virginia State College, No. 30845 (May 7, 2003) created a new public policy exception to the at-will employment rule.

In Wounaris, an at-will public employee was fired by the college that employed him and he filed a grievance. The College defaulted in the grievance procedure, and the employee was reinstated by the administrative law judge. In response, the College rehired him and then immediately terminated him even before the appeals process had run its course. The employee sued for wrongful discharge, alleging violation of West Virginia public policy. A jury found in favor of the college and he appealed. The Supreme Court reversed, finding that his discharge violated public policy.

To my knowledge this case presented a novel issue. One would normally expect the issues to be decided in a signed opinion. However, the Court decided to issue the opinion per curiam to limit it to its facts.

Had the opinion been signed, the new syllabus point would have read something like this:

Where a public employee files a grievance in accordance with W. Va. Code § 18-29-1, et seq., and the administrative law judge orders that the employee be reinstated, it is a clear violation of the substantial public policy of this state for the employer to terminate the employee before the appeals process has run its course unless a significant, novel reason exists to justify the termination.

Clearly, however, the Court was worried its decision would make an employee who files a grievance "bulletproof," so it issued the opinion per curiam. I am always perplexed when the Court throws an opinion like this one into the per curiam barrell. The Court is clearly making new law just to achieve a particular result in a particular case. Are employers supposed to rely on this new public policy exception as "the law" of this state? One simply cannot say with any certainty when no new syllabus point is created, and the opinion is unsigned.

W.Va. Pharmacy Board looks to close store selling Canadian prescription drugs

According to this report on the CBS Evening News, the FDA and the W.Va. Board of Pharmacy are looking to close an Internet business in Fairmont that acts as a middleman for customers seeking cheaper Canadian prescription drugs. Steve and Carol Becker use the Internet to hook customers up to pharmacies in Canada, where drug prices can be as little as half the price. Many seniors who want to take advantage of the lower prices don't know how to use the Internet, so they look to the Beckers for help.

The FDA says it's illegal to order drugs from Canada whether people do it at home or using discount centers. The purported reason is the risk of counterfeit drugs.

I would be interested to know how Canada compares to the United States in the number of incidents of prescription drug counterfeiting.

Tuesday, June 17, 2003

Injunction denied in video lottery suit

The Daily Mail reports that on Monday, Kanawha County Circuit Judge Paul Zakaib denied preliminary injunctive relief to the two anti-gambling groups suing the state to shut down all video lottery machines.

Judge Zakaib found that the plaintiffs failed to comply with a state law that requires plaintiffs to give 30 days' notice to the state before such a suit is filed.

Larry Harless, the attorney for the plaintiffs, has vowed to appeal the ruling and challenge the constitutionality of the notice law, which was passed last year.

New medical malpractice reform law challenged

The ink is barely dry on the new malpractice reform bill, and it has already been challenged.

This particular battle is over the effective date.  According to this article in the Daily Mail, Charleston lawyer William Druckman filed a 29-page petition with the state Supreme Court on June 10 asking it to rule that the law should apply only to cases where alleged malpractice occurred on or after July 1, 2003.

The clear text of the new law (HB 2122) states at section 55-7B-10(b) "[t]he amendments to this article provided in Enrolled Committee Substitute for House bill No. 2122 during the regular session of the Legislature, two thousand three, apply to all causes of action alleging medical professional liability which are filed on or after the first day of July, two thousand three."

The text of the bill seems pretty clear to me that the legislature intended the reform amendments to apply to all medical malpractice claims filed on or after July 1, 2003, not merely to those alleging injuries which occurred on or after July 1, 2003. I would be curious to see what arguments exist supporting Mr. Druckman's reading.

West Virginia Settles Microsoft Antitrust Case

The Associated Press reports here that Massachusetts is now the only state remaining that has not settled the antitrust suit against software behemoth Microsoft.

Microsoft agreed to pay a little more than $300,000 in unpaid attorneys fees to the attorney general's office and to provide about $19.7 million in vouchers for free computer hardware and software, including products from Microsoft's rivals, according to the report.

Monday, June 16, 2003

W.Va. Legislature passes worker's compensation bill

According to the legislative summary for June 14, 2003, "[b]oth bodies agreed upon provisions relating to the Workers’ Compensation Program and passed Senate Bill 2013. This measure relates generally to the state’s Workers’ Compensation system."

The final bill will be posted later this week.

Family feud ends after 115 years

The Dominion Post reports that the descendants of the Hatfields and McCoys signed a truce on Saturday ending their 115 year family feud.

Analyzing "public figure" status just got a little tougher

In Wilson v. Daily Gazette Co., No. 31045 (June 13, 2003)a 17-year old high school basketball player sued a newspaper for reporting allegations that he exposed himself to opposing fans following a basketball game. The circuit court found that he was a public figure and dismissed the claim. The West Virginia Supreme Court of Appeals reversed the finding of "public figure" status, and outlined a new analysis on that issue.

The Court now recognizes three types of public figures in a defamation claim:(1) "involuntary public figures," who become public figures through no purposeful action of their own; (2) "all-purpose public figures," who achieve such pervasive fame or notoriety that they become public figures for all purposes and in all contexts; and (3) "limited purpose public figures," who voluntarily inject themselves into a particular public controversy and thereby become public figures for a limited range of issues.

All-purpose public figures "In a defamation action, in order to find that a plaintiff is an all-purpose public figure, a defendant must produce clear evidence of the plaintiff's general fame or notoriety in the state, and pervasive involvement in the affairs of society. In determining whether a plaintiff is an all-purpose public figure, a trial court may consider (1) statistical survey data concerning the plaintiff's name recognition; (2) evidence of previous coverage of the plaintiff by the media; (3) evidence that others alter or reevaluate their conduct or ideas in light of the plaintiff's actions; and (4) any other relevant evidence." (Syl. Pt. 4)

Limited purpose public figure "A libel plaintiff is a limited purpose public figure if the defendant proves the following: (1) the plaintiff voluntarily engaged in significant efforts to influence a public debate--or voluntarily assumed a position that would propel him to the forefront of a public debate--on a matter of public concern; (2) the public debate or controversy and the plaintiff's involvement in it existed prior to the publication of the allegedly libelous statement; and (3) the plaintiff had reasonable access to channels of communication that would permit him to make an effective response to the defamatory statement in question." (Syl. Pt. 5, quoting Syllabus point 3, State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 480 S.E.2d 548 (1996).

Involuntary public figure "In a defamation action, to prove that a plaintiff is an involuntary public figure, the defendant must demonstrate by clear evidence that (1) the plaintiff has become a central figure in a significant public controversy, (2) that the allegedly defamatory statement has arisen in the course of discourse regarding the public matter, and (3) the plaintiff has taken some action, or failed to act when action was required, in circumstances in which a reasonable person would understand that publicity would likely inhere." (Syl. Pt. 6)

First-party bad faith claim does not automatically waive insurer's attorney-client privilege

In a first-party bad faith claim, an insurer is at odds with its insured. In State ex rel. Brison v. Kaufman, No. 31114 (June 13, 2003), the plaintiff sued a third party for wrongful death and also made a claim against her own carrier for underinsurance coverage. Claiming her own carrier exercised bad faith in the settlement of that claim, the plaintiff sued her own carrier.

During pretrial discovery, the plaintiff requested her insurer's litigation file and redacted portions of a claim file, both of which were created and maintained during the earlier wrongful death action. The circuit court ruled that the attorney-client privilege did bar the production of these file materials, and the insurer and its attorneys brought writs of prohibition seeking a reversal of the order compelling production.

Granting the petitioners' writs as moulded, the State Supreme Court (Justice McGraw writing for the majority) held in Syllabus Point 7 that "[w]here the interests of an insured and his or her insurance company are in conflict with regard to a claim for underinsured motorist coverage and the insurance company is represented by counsel, the bringing of a related first-party bad faith action by the insured does not automatically result in a waiver of the insurance company's attorney-client privilege concerning the underinsurance claim."

State Supreme Court clarifies final order rule

In Hubbard v. State Farm Indemnity Co., No. 31031 (June 13, 2003), the West Virginia Supreme Court of Appeals gave some clarification on the proper approach to an order that might be construed as final under W.Va. R. Civ. P., Rule 54(b), but which is not certified as required by that Rule. It held in Syllabus Point 3,
3. An otherwise interlocutory order that is not expressly certified as final by using the language required by Rule 54(b) of the West Virginia Rules of Civil Procedure remains interlocutory so long as the affected party does not seek an appeal. Consequently, when a party seeks to have a circuit court reconsider its ruling on such an order prior to entry of a final judgment disposing of the entire case, the interlocutory order should not be reviewed under Rule 60(b) of the West Virginia Rules of Civil Procedure.

The confusion on this issue has been generated by the rule stated in syllabus point two of Durm's v. Heck's Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991), in which the court held:
Where an order granting summary judgment to a party completely disposes of any issues of liability as to that party, the absence of language prescribed by Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that "no just reason for delay" exists and "directi[ng] . . . entry of judgment" will not render the order interlocutory and bar appeal provided that this Court can determine from the order that the trial court's ruling approximates a final order in its nature and effect.
Under the new rule, Durm-type orders are appealable, but need not be appealed.

Rule 60(b), then, should not be applied to a Durm-type order because such an order is interlocutory, and the circuit court has plenary power to revisit the order at any time before a final order is enterd disposing of the entire case. The thus clarified in Syllabus Point 4 that "[a]s long as a circuit court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient."

This helpful opinion was authored by Justice Davis.