Sunday, August 31, 2003

New report an attack on State Supreme court? Not so, pair says

It is not surprising that the West Virginia Trial Lawyers Association and the West Virginia Defense Trial Counsel disagree about the validity of a recent year-long study (179-page PDF) by the DTC that reported, among other things, that a "majority of respondents [to the survey] believe that the [W.Va. Supreme] Court openly exhibits bias, is result-oriented, is not in the mainstream in its decisions and does not enforce procedural rules fairly." The trial lawyers dismiss the report as "nothing more than an orchestrated attack on the independence and integrity of the West Virginia Supreme Court."

The report was released on August 15, 2003. [Beckley Register-Herald]

The history of West Virginia's Eastern Panhandle

The Hagerstown Herald-Mail has this great article about several historic events that occurred in the Eastern Panhandle of West Virginia.

Among them was a legal "first" I should have known about but did not:
As an attorney, [J.R.] Clifford won what some consider a landmark case. Representing black teacher Carrie Williams in 1898, Clifford won the first case ruling that racial discrimination was illegal. Williams had sought advice from Clifford when the school term for black students in Tucker County, W.Va., was shortened from eight to five months to save money. Following Clifford's suggestion, she continued teaching for all eight months but was not paid. The West Virginia Supreme Court ruled in Williams' favor, according to the Web site of West Virginia Archives and History.
Who knows, maybe Rory could unearth the original opinion and scan it to share with all the world on the Court's web site.

Friday, August 29, 2003

W.Va. Contemplating suit against MCI reports that West Virginia is contemplating suing MCI for tax fraud.

Like Enron, MCI has been accused of overstating its earnings during the stock market boom of the 1990s. Of course, they paid taxes on their overstated earnings, and now they claim they are entitled to a refund of those taxes. Amazing. I would imagine they would claim this as an offset to any fraud damages West Virginia can prove.

This article at provides a little more information, but the details of the type of fraud to be alleged are sketchy.

How many suits can our AG's office maintain without increasing its staff?

Thursday, August 28, 2003

Justice McGraw blasts chamber leadership at annual meeting

This article in the Charleston Gazette reports that Justice McGraw used his podium time at the state Chamber of Commerce annual meeting to criticize the leadership of the Chamber for targeting him for defeat in the upcoming election.

According to the article, McGraw "began his speech by thanking Chamber members for their time while simultaneously blasting its leadership for not inviting him before." President Steve Roberts said after the speech that McGraw was invited last year, but he might have forgotten.

"You, my friends, have made me your No. 1 target this year," McGraw said. "The job of a Supreme Court justice is not to be pro-business, pro-labor or pro-anything. The job of any justice is to call the issues as they see them in any particular case."

Interesting that today's Daily Mail runs this article, which notes that "[i]n a fund-raising letter sent out this spring, Wheeling lawyer Bob Fitzsimmons wrote, 'Justice Warren McGraw has consistently advocated for the injured persons of our state.' Advocated.

[Aside: The title of that article is "McGraw ahead in race, poll shows." It is difficult for me to comprehend how Bob Kiss can be behind in a "race" he hasn't even entered. To say McGraw is "ahead" in a one-man race is not surprising.]

According to a Defense Trial Counsel report, McGraw voted in favor of workers' compensation claimants 100% of the time since 1999. That is quite a pro-labor track record for someone who is not an advocate for employees.

Tuesday, August 26, 2003

State Chamber of Commerce publishes Court Watch newsletter

The W.Va. Chamber of Commerce has posted its latest issue of Court Watch online. (PDF) The issue stresses the negative impact West Virginia's court system has had on the state's economy.

The Chamber plans to be vocal in its opposition to Justice Warren McGraw, whose term ends in 2004. Justice McGraw will be speaking at the Chamber's upcoming convention at the Greenbrier.

Monday, August 25, 2003

W.Va. law firm assists with homeland security initiative

The Wheeling Intelligencer runs this article detailing the new electronic application system for visas, which was organized with the assistance of a West Virginia law firm Steptoe & Johnson.

The main benefit of an electronic system (to be located at is the ability to easily organize and retain the 10 million applications received each year for the 55,000 visas available through the lottery program. In the past, the government just shredded the applications because it couldn't handle all of them.

The new process will require applicants to submit the lottery form and photos through the Internet and allow the State Department to store them electronically.

W.Va. law firm stops taking cases for malpractice

The Parkersburg News and Sentinel reports that as a direct result of the new damages caps in medical malpractice cases, a local firm has stopped taking on new malpractice cases.

The first firm mentioned in the article only took on about 5 such cases per year, so I am not sure this demonstrates a new trend. The new regulations have created pre-litigation expenses by requiring a certificate of merit and requiring mediation in some cases, which makes the costs higher. These added burdens may also be a turn-off to lawyers who only "dabble" in this area of the law.

Thursday, August 21, 2003

Round 2 between Larry Harless and the Economic Development Grant Committee appears inevitable

According to the Daily Mail, Larry Harless intends to sue the state again over the distribution of the $ 225.8 million in economic development grants (assuming, of course, he maintains his law license). He claims that the committee, in dividing out the money among 48 projects (listed at the end of the article), didn't seem to consistently follow the primary mission of "economic development."

Last summer, Harless successfully challenged the formation of the first grant committee. A new committee was formed in accordance with the guidelines set forth in the state supreme court's opinion.

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...."