Monday, August 18, 2003

McGraw buying air time

The Daily Mail reports that Attorney General Darrell McGraw's office plans to spend at least $200,000 on TV and radio commercials, a move that one critic says could give McGraw and his brother, Supreme Court Justice Warren McGraw, an unfair election-year advantage.

I seem to remember a similar occurrence back in 1998 when Attorney General McGraw was giving out refrigerator magnets promoting some consumer fraud settlement or something that said "Judge" McGraw on them when his brother Warren was running for his seat on the supreme court. Attorney General McGraw could easily avoid any appearance of impropriety by keeping his name off these ads. After all, the purpose of the ads is to notify consumers of their rights. That goal can easily be accomplished without the use of the McGraw family name.

Thursday, August 14, 2003

W.Va. teachers union files lawsuit

According to this Daily Mail article, the West Virginia Education Association (WVEA) is teaming up with its national affiliate to sue the federal government for what they say is a lack of funding to fulfill the requirements of the sweeping No Child Left Behind Act.

The unions say the massive educational reform amounts to "nothing but unfunded mandates" for state governments and school systems.

Gotta get those CLE hours in

The Charleston Gazette reports that Larry L. Harless, the lawyer fighting against using state Lottery money to fund economic development projects, will have his law license suspended Aug. 22 unless he can prove he has taken required Continuing Legal Education courses.

"State Bar regulations required all lawyers to take 24 credit hours of approved CLE courses between July 2000 and June 2002. At least three of those credit hours must have covered legal ethics, office management and/or substance abuse," the article notes.

Tuesday, August 12, 2003

Fourth Circuit reverses verdict for failure to give mixed motive instruction

In Rowland v. Am. Gen. Fin., Inc., No. 01-2481 (4th Cir. Aug. 12, 2003), a Title VII sex discrimination case, the Fourth Circuit reversed a defense verdict, finding that the district court abused its discretion in denying plaintiff's request for a mixed-motive jury instruction on her failure to promote claim. The case applied the new relaxed standard for mixed-motive instructions stated by the Supreme Court in Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003).

At trial, Rowland provided evidence that the supervisor who knew of her qualifications for and interest in a district manager position, and who had the power to promote her but did not do so, told her that he did not need any more women in the position that she sought. She also provided evidence of statements by another female superior suggesting that sex was a "motivating factor" in employment decisions at American General. ("That's just life at American General. That's the way it is. The men run the company, and you just have to do what they say.") "Under Costa, this evidence certainly suffices to merit a mixed-motive instruction," the court ruled.

Governor Wise will not seek re-election

August 12, 2003

On November 5, 2000, the people of West Virginia asked me to serve as their governor. In the past three years, my administration recognized and dealt directly with the state's tough issues: introduced and signed medical malpractice and workers' compensation reforms; created the largest job creation package envisioned in the state; provided a balanced budget through tight financial management; and funded the PROMISE Scholarship, keeping our best and brightest students in the state. I am proud of what we have accomplished, and I am grateful for the hard work and commitment from members of my administration.

I have three major opportunities ahead of me in the next 16 months. First, I must continue working to heal the pain I caused my family. I do this by being a full-time father and husband. Second, I want to be an effective governor and meet the challenges our state faces. The third would be to campaign for re-election. Each of these undertakings is a full-time and important endeavor; each requires my full effort.

I know I can only do two of the three well and give the effort they require. I want very much to give my wife and children the time and attention they deserve. I also want very much to be an effective governor for the term I was elected. These are my top priorities.

Without question, I know I will only be able to meet two of the three opportunities ahead. Therefore, I will not seek re-election for the Office of Governor.

While I am not running for re-election, I will continue to fight for the people of West Virginia to improve access to education, increase job creation and provide affordable health care for our families. It has been a challenging time for my family and me, and I want to thank the people of West Virginia for their thoughts and prayers. I have and always will remain committed to public service. I am truly honored to be your governor, and I will continue to work full time with you as we move West Virginia forward.

State marker recognizes 1848 black community

The Charleston Gazette reports that a state historical marker (you know, those fancy white signs with raised black lettering along the highway) has been erected at Johnsontown, West Virginia (near Charles Town), the site of a 155-year-old community where blacks lived freely in a time of slavery. I live within 20 miles of Johnsontown and never knew it existed.

Anyone interested in Civil War history ought to visit West Virginia's Eastern Panhandle. Its history really is unique.

Monday, August 11, 2003

How not to get sued by the RIAA for filesharing

Via Technolawyer's IP Memes Newsletter:
A little nervous over whether you or someone in your household might be sued as part of the highly-publicized efforts of RIAA to go after file-sharing music fans? The Electronic Frontier Foundation has prepared a timely and informative guide called "How Not To Get Sued By The RIAA For File-Sharing." Electronic Frontier Foundation Guide

What does your sex life have to do with your ability to drive a truck?

Now here's an interesting employment case decided recently by the Eighth Circuit. In Wood v. Crown Redi-Mix, Inc., No. 02-3506 (8th Cir. Aug. 7, 2003), the Plaintiff suffered nerve damage from a fall that allegedly limited his major life activities of walking, standing, turning, bending, lifting, working, and procreation. He requested an accommodation of being moved to a job that was not a concrete truck driver job, but the accommodation was denied. He sued his employer under the ADA.

The court ruled the Plaintiff failed to make out a prima facie ADA case because, with the exception of procreation, there was no evidence that his life activities were "prevented or severely limited." With regard to the remaining major life activity, the court held that no causal connection existed between procreation and the accommodation sought. "It would be a strange result, and one we do not believe Congress intended, to have the viability of Wood's claim that he should have been accommodated as an employee of a truckdriving company turn solely on whether or not he was impotent." In other words, a requested workplace accommodation must be related to the limitation that serves as the basis for the plaintiff's disability.

My question is, what accommodation could one request that would be causally related to the major life activity of procreation?

West Virginia's 529 Plan performing well

As an investor in West Virginia's 529 College Savings plan, I was pleased to see this article at that says:
One of the top-performing funds within a 529 plan, for example, was the West Virginia Smart 529 MidCap portfolio, which is managed by the Hartford Insurance Company. For the five years through the first half of this year, the fund returned 16.53 percent, according to the Morningstar 529 Adviser, a service for financial advisers.

Ex-governor appeals insurance decision

The Wheeling Intelligencer reports that former governor Arch Moore is appealing to the State Supreme Court an April ruling denying his claim against CNA Insurance Company (formerly the insurer for the State Board of Risk and Insurance Management "BRIM") for breach of the duty to defend in a case where the state sued him for racketeering and fraud back in 1990.

School officials unhappy with their grades

This report in the Daily Mail makes the startling revelation that schools branded "in need of improvement" under the No Child Left Behind Act feel they are being "stigmatized." According to the report, teachers and principals "worry that having the 'in need of improvement' label slapped on their school could be a deterrent to parents who may look to private schools or to sending their children to a school out of their area."

No kidding. Isn't that the whole idea? Schools that are underperforming for multiple years are labeled "in need of improvement," and parents are given the option of transferring their children to higher-performing schools in the area or seeking other supplemental educational services.

I think it is interesting what happens when people accostomed to doling out bad grades become the recipients.

Disabled hunter cross about crossbow ban

The Dominion Post (AP) reports that disabled hunter Peter Cuffaro of Wheeling is challenging West Virginia's crossbow hunting ban, claiming it violates the Americans with Disabilities Act. He sent a complaint to the U.S. Department of Justice in June naming the state's Division of Natural Resources, which regulates hunting, according to the report. Cuffaro is paralyzed from the chest down. He claims his disability prohibits him from handling a bow, but he could handle a crossbow.

It seems the reasonable accommodation here is to let him hunt during rifle season with a rifle.

Magistrate courts to begin accepting plastic

The Daily Mail reports that the State Supreme Court equip all 55 of the state's magistrate courts to accept credit cards for payments of fines. Kanawha and Monongalia counties were the first to implement the change earlier this month.

In the past, the Supreme Court did not allow payment by credit card because the big name card companies take a percentage of the charges and do not permit the vendor to pass the charge on to the customer. The Court has determined it would be better to eat the administrative cost in hopes of seeing an increase in payments because of the convenience of charging the payment.

Friday, August 08, 2003

Fourth Circuit rules W.Va. tax statute not preempted by federal law

In United States v. State of West Virginia, No. 02-2037 (4th Cir., Aug. 7, 2003), the Fourth Circuit was faced with the issue of the preemption of a state tax statute.

The Federal Employees Health Benefits Act prohibits States and their subdivisions from imposing a "tax, fee, or other monetary payment" "directly or indirectly" on "a carrier" "with respect to any payment made from the [Employees Health Benefits] Fund." 5 U.S.C. § 8909(f)(1). West Virginia's Health Care Provider Taxes, W. Va. Code § 11-27-1 to 11-27-36, are imposed upon health care providers (e.g. hospitals) that often pass on the cost to insurance carriers that participate in the Federal Employees Health Benefits Program (FEHBP). As an example, Morgan County War Memorial Hospital currently passes on the cost of West Virginia's health care provider taxes to GEHA and Mail Handlers carriers. The district court found this to be an indirect tax, and ruled that the state's tax statute was preempted. The Fourth Circuit disagreed and reversed.

The majority opinion, authored by Judge Luttig, traces the term "indirect tax" all the way back to the Federalist Papers to support its finding that West Virginia's tax was not indirect.

Workers' Comp Division refuses to apply new law to pending cases

This article in the State Journal details the decision by Tim Leach, chief administrative law judge, that appeals pending before July 1 will fall under the "old law." The decision affects more than 17,000 pending appeals.

Among the reasons for the decision is fear that the State Supreme Court would prohibit the law from being applied to these cases.

Thursday, August 07, 2003


The article at reports that "last week, in a move that may sound the death knell for UCITA, the National Conference of Commissioners on Uniform State Laws announced that it would no longer push for adoption of the act in any state."


Even the dot-com boom could not lure 48 of the 50 states to adopt this one-sided consumer rights nightmare. Virginia and Maryland were the only two states that bit. West Virginia, I am pleased to say, had the good sense to be among the four states that passed "bomb shelter" legislation expressly rejecting UCITA.

Is there any deep pocket the State of West Virginia won't go after?

I am losing count of the number of lawsuits our state has brought in the last few years alleging corporate wrongdoing. This article in the Daily Mail reports our latest target: Freddie Mac.

Apparently, last month, Freddie Mac released an internal investigation showing it underreported profits to meet Wall Street forecasts and keep its stock price high. And of course wherever the smell of corporate fraud wafts in the air, our state seems to be Johnny-on-the-spot, blazing a path to the courthouse.

In June, we sued 10 Wall Street brokerage firms for violating the state's Consumer Credit Protection Act, despite an opportunity to receive a $4 million share of a $1.4 billion settlement already reached with the firms.

Today's article mentions that we are "also participating in class-action lawsuits against Enron and Dynegy, while suing AOL Time Warner and WorldCom in individual rather than class-action cases." We were, of course, one of the last states to settle with Microsoft. We sued Bristol Myers-Squibb Company, Watson Pharma, Inc. and Danbury Pharmacal, Inc., over alleged antitrust violations in the sale of prescription drugs. I know there are many others I am leaving out.

I just find it hard to believe our state has the resources to take on Freddie Mac. Less than a year ago, the Attorney General's office was complaining that it didn't have sufficient staff to take on minor matters. My bet is we are hoping some other plaintiffs with greater resources will join in and take the reins.

Wednesday, August 06, 2003

Justice McGraw on a national "hit list"

The AP reports here in this article carried on the West Virginia Chamber of Commerce's web site that Justice McGraw "has become a target in a 'secret war on judges' orchestrated by the U.S. Chamber of Commerce, according to Forbes magazine."

McGraw is regarded as the most liberal of the five justices on West Virginia's Supreme Court of Appeals, and the Chamber of Commerce is hoping to help unseat him in 2004.

Tuesday, August 05, 2003

Is a 19th-century law actually inspiring home-grown arsonists to bilk insurance companies by torching over-valued houses?

The Register-Herald has this article, explaining that under an 1899 state law, insurance carriers can amend a policy at the owner's insistence, if the value appreciates, but are powerless to depreciate it.

Thus, even if the value of the house decreases by half over the years, the homeowner can recover the full amount of the policy, in cash, if the house is destroyed. Such a law can increase the incentive for arson, some have argued.

Friday, August 01, 2003

Round two in the suit to ban video lottery

The Charleston Gazette reports that Larry Harless is refiling his suit challenging the legality of state-run video lottery.

An injunction was denied in June because Harless failed to provide state officials with 30-days' notice of the intent to file suit, as required by state law. The Supreme Court refused the petition for appeal early last month. This time, Harless has sent notice to the Lottery Commission and the Attorney General.

The article also notes that Harless said he intends to sue the 9 members of the newly re-constituted Economic Development Grant Committee "if most or all of the 35 projects originally certified for funding are approved again...."

Thursday, July 31, 2003

West Virginia: A great place to die

This article from the AP reports that "West Virginia is considered a national leader in improving the quality of [end-of-life] care, according to a recent study by Midwest Bioethics Center in Kansas City, Mo., which directed a national community-state partnership program supported by the Robert Wood Johnson Foundation. The foundation in the past has provided funding to West Virginia state for end-of-life care initiatives."

Stop, in the name of Spam!

The AP is reporting that "[t]he canned-meat company filed two legal challenges with the U.S. Patent and Trademark Office to try to stop SpamArrest from using the decades-old name Spam, for which it holds the trademark."

Smoking ban case appealed to State Supreme Court

The Daily Mail reports that the Kanawha County Board of Health has appealed a ruling by Judge Charlie King which relaxes the county-wide smoking ban to exempt bars and restaurants. The judge found that the state constitution prohibits a board of health from regulating the air inside bars and alcohol-serving restaurants because state law considers them private clubs, not public places.

Wednesday, July 30, 2003

326 of W.Va's 728 schools are "left behind"

The Hagerstown Herald reports that in implementing the No Child Left Behind Act, "[s]tatewide, 326 schools were listed as being in need of improvement, as opposed to 78 the year before. Overall, 402 schools in the state had no problems meeting the guidelines...."

Citizens group creates "questionable doctors" list on the web

According to this report in the Charleston Gazette, a consumer group called the Public Citizen's Health Research Group has posted on its web site the names of 293 doctors in West Virginia who have been disciplined by state medical boards and the government for incompetence, sexual misconduct, criminal convictions and other offenses.

Tuesday, July 29, 2003

In defense of the "F" word

The Smoking Gun posts an interesting motion to dismiss authored by a public defender in Colorado who sought dismissal of criminal charges against his client, a juvenile, who cursed at his principal using variants of the "F" word.

Needless to say, the brief contains explicit language which may be offensive to some, but not to others (which is among the points made in the brief). It is the first brief I have seen that cites Google results and the Wikipedia to support legal arguments.

An important time in history for gay rights

In case there was any doubt that we have reached a pivotal moment in the gay rights movement, the following AP articles are all available online today:

N.Y. to Open 1st Public Gay High School This article discusses the new Harvey Milk high school in New York City, which is just for gay, bisexual and transsexual students. I thought separate but equal schools went out with Brown v. Board of Education, but it looks like the minority group in this case is requesting segregation for safety reasons.

Vatican Waging Offensive on Gay Marriages The Roman Catholic Church is stepping ups its offensive against legislation worldwide that "legitimizes" same sex marriage and civil unions.

A church split on gay inclusion. Meanwhile, the "other" Catholic church, the Episcopal Church, is struggling with whether it should confirm a gay bishop and allow civil unions for gay couples in the church at its upcoming National Convention. The Episcopals in North America favor inclusion of homosexuals, but the worldwide church is more conservative.

The effect of Lawrence v. Texas on the issue of gay rights cannot be understated. 2003 will prove to be an important year for the movement.

Buy computers tax-free

As reported here in the Dominion Post, this Saturday is the sales tax holiday in West Virginia. Computers up to $750, computer accessories and office supplies will all be sold without the 6% sales tax. Stock up!

Wednesday, July 23, 2003

W.Va. Lottery officials trying to close advertising loophole

The Charleston Gazette reports that "State Lottery officials are trying to close a loophole in the state's limited video lottery law that lets some bar operators get around the ban on advertising video slot machines[.]"

Regulations prohibit video lottery retailers from advertising, but the operators have opted to name their establishments in suggestive ways (like "Lucky Draw," "High Rollers" or "Monti Casino") to avoid the advertising ban. Lottery officials want to craft a bill to eliminate such wordplay in corporate names.

ACLU fights hunting ban in Ritchie County

The Dominion Post reports that the ACLU filed a suit in Ritchie County Circuit Court on Monday arguing that the County Commission cannot ban Sunday hunting on private property.

This article in the Daily Mail fleshes out the details of the suit a little more.

A magistrate that is not afraid to do some heavy lifting

[Via USAToday]

Tuesday, July 22
Martinsburg - If you're looking for a strong couple, try Berkeley County Magistrate Carlton DeHaven and his wife, Cindy. Both are weightlifters who broke state records in their respective divisions at a recent competition. They say weightlifting is an escape from high-stress jobs.

New law review article about weblogs

Thanks to Gary O'Connor (Statutory Construction Zone) and Stephanie Tai (blueblanketblog) for mentioning this weblog in their recent article "LEGAL AND APPELLATE WEBLOGS: WHAT THEY ARE, WHY YOU SHOULD READ THEM, AND WHY YOU SHOULD CONSIDER STARTING YOUR OWN," reprinted at the Statutory Construction Zone. The article mentions this weblog as one of several focusing on the law of a particular state.

I was just asking Steven Minor (Southwest Virginia Law Blog) the other day if he was aware of how many "state law" bloggers there were. This article points out in footnotes 19-27 that nine states are currently covered.