Keep your home school at home

In GOULART v. MEADOWS, No. 02-1962 (4th Cir. September 26, 2003), two mothers of home schooled children sued the Board of County Commissioners of Calvert County, Maryland over its policy prohibiting the use of its four community centers for private educational instruction intended to meet state educational requirements. Pursuant to the policy, the Board denied the applications of the mothers to use space at one center for meetings of a geography club and a fiber arts club. (Fiber arts was a new one on me. To the uninitiated, it entails crochet, knitting, etc.) The mothers alleged that the denial of their applications violated their free speech rights under the First and Fourteenth Amendments and also violated their right to equal protection of the law under the Fourteenth Amendment.

The Fourth Circuit disagreed, holding that although

the plaintiffs' proposed use is afforded First Amendment protection ... We also conclude ... that the Board's exclusion of the plaintiffs from the community centers, which we classify as limited public fora, is viewpoint-neutral and reasonable in light of the purpose of the centers. It is reasonable for the Board to limit use of the community centers to recreational and community enrichment activities, and formal private education is not a use that is consistent with those purposes. We conclude that Calvert County's exclusion of the plaintiffs' proposed uses does not violate the plaintiffs' right to free speech or to equal protection under the First or Fourteenth Amendments. We affirm the order of the district court....although under different reasoning.

I always thought the idea of homeschooling was to teach the kids at home. Why should you expect to be granted the use of a government building to conduct homeschooling of your children? The government has already invested millions of dollars in school buildings for that exact purpose. The court here recognized that it was reasonable for the county to prohibit schooling activities in these community centers. The restriction is content-neutral in that it does not attempt to decide what can be taught or learned. It is a blanket prohibition. Therefore it survives First Amendment scrutiny, in the opinion of the court.

'Do-not-call' list put on hold

The Dominion Post reports that a federal judge in Oklahoma has ruled that the FTC pushed too far when it created the national do not call list. The immensely popular list was slated to become effective on October 1.

The article notes that the do not call list could jepardize thousands of West Virginia jobs. An appeal of the ruling is expected.

Vision Shared Technology Report Recommends Consolidations, Changes In State Government IT

[Via W.Va. Chamber of Commerce "Chamber Links" newsletter]
West Virginia’s Vision Shared initiative has produced a technology study report, entitled “eWest Virginia, Comparative Analysis of State Government IT Enterprises,” highlights deficiencies and recommended improvements in the state’s information technology management and infrastructure.

The report was prepared by the Southern Growth Policies Board and the Vision Shared New Economy Task Force chaired by Verizon’s Gale Given and Cabell County Circuit Judge Dan O'Hanlon. The Southern Growth Policies Board was asked to carry out an analysis of West Virginia's strengths and weaknesses in state government information technology. SGPB is a non-profit agency supporting governmental and economic development programs across a 14-state southern region.

Among its findings and recommendations, the report highlights states that are exemplary in “their use of technology to improve delivery of state services to citizens. The authors also cite lessons learned from poorly implemented plans in other states,” according to Vision Shared.

The report’s main proposition is that there should be a centralization in the management and operation of the state's "fragmented" IT infrastructure....with other general recommendations on undertaking strategic technology planning, empowering a strong state CIO and creating an independent, consolidated state IT authority (see pages 33-36).

The report also have a number of recommendations and best practices suggestions from other states regarding rural broadband access and availability, which is an emerging issue for W.Va.'s community technological and economic development efforts.

“This study sets the stage for an ongoing strategic technology planning process in state government, whereby we can integrate our efforts, set priorities and timetables and, ultimately, realize the results from our technology investments,” Judge O’Hanlon said.

W.Va. Supreme Court opts to combine grant lawsuits

The Hagerstown Herald-Mail Online reports that the state Supreme Court decided Tuesday to consolidate a legal challenge recently filed against video lottery with its pending review of the Economic Development Grant Committee. Thus, the October 10 oral argument will tackle both the legality of video lottery in general and the committee's approval of $225 million in grants funded by lottery proceeds. It will be a busy few weeks for Larry Harless, who is prosecuting both cases for the plaintiffs.

Divided Fourth Circuit panel resolves challenge to North Carolina's election and campaign finance laws

Via How Appealing

You can access today's ruling by a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link.

Court to hear oral argument in medical monitoring case

On Tuesday, the State Supreme Court will hear oral arguments in the DuPont C-8 case. The Charleston Gazette has this article which notes that lawyers from DuPont Co. "want to block a circuit court order that required the company to pay for blood tests for neighbors of the company's Parkersburg plant."

The problem I see with the order is that it required that area residents be tested at DuPont's expense before trial without all of the Bower v. Westinghouse factors being met. (See this previous post). As the company's attorneys are arguing, "[b]y ordering blood testing before a trial, DuPont says, Hill 'put the cart before the horse.'"

The Carter v. Monsanto case would seem to say that any pre-trial testing is the responsibility of the allegedly injured party, not the defendant. The first element of a cause of action for medical monitoring is a showing that the Plaintiff was "significantly exposed" to the hazardous substance in question. That is part of the plaintiff's burden of proof. I do not believe the court should shift the cost of proving that element to the defendant. That was the sentiment expressed in the Monsanto case, and I can't see any difference here. The plaintiffs can all recover their testing costs once they receive a verdict, if indeed they are successful.

Separation of cyber-powers

The new West Virginia web portal uses frames. For instance, when you select the Supreme Court's website from the drop down menus, you are taken to the Court's web site, but the top of the portal site stays with you.

Rory (Rory Perry's Weblog) mentions in this post that he would prefer not to have the portal frame over the Supreme Court's web site, and I don't blame him. It took a lot of work to create the look and feel of the Court's web site, and the folks who built the portal site apparently think their product is so good, no one will mind taking it with them. It is obnoxious. Rory also notes some separation of powers issues. "Quite apart from the accesibility issues created by the inserting the image-map into our site, the practice would also appear to violate separation of powers principles, as well as interfere with the impartiality and independence of the judiciary, not to mention being a questionable security practice."

I was really just kidding in this post about the executive branch power play, but Rory is not joking. He is looking to the blog community for suggestions regarding measures he can implement to prevent the portal's navigation element. So if you are a good scripter and can lend a hand, please contact him.

Senate blocks overhaul of overtime regulations

This article in the Atlanta Journal-Constitution reports that the U.S. Senate has voted 54-45 to block changes proposed by the Department of Labor to regulations governing payment of overtime. Democrats say the changes could force millions of people to work extra hours with no overtime pay.

A new portal to West Virginia opens up

This piece in today's Daily Mail states that "[t]he state government launched a completely redesigned main Web site at a simplified location: www.wv.gov."

I noticed that the article does not hyperlink the new URL. Why? I can understand having a policy about not linking to web sites, but when your article is posted online, and the subject of the article is a new web site, and you print the URL in the article, wouldn't it make sense to hyperlink it?

Anyway, the new site is supposed to be streamlined and more user-friendly. It uses folder-style tabs toward the top with drop-down menus, a left sidebar with featured links, and a right side bar for information such as lottery numbers and weather info. No links to all of the video lottery locations on the main page yet, but I am sure that is in the works.

The site search window has been moved to the top, which is a good idea. However, I clicked on it, typed supreme court and when I hit enter, I got a pop-up window that said I had to click on the button with my mouse -- annoying. Also, I was surprised to find that the words supreme court turned up zero hits. (Could that be an intentional move by the executive branch? The term governor turned up several hits. -- Rory, you may want to investigate this blatant power play.)

The site also has an annoying "crawler banner" along the top which you can read if you want to sit there for a minute or two staring at it.

The Governor wanted the site to be a portal for all of the branches of state government. According to the article, this is only two phases of a bigger web site overhaul. Over the next year the look of sites for each agency and department will be standardized to match the portal.

A new tourism site similar in style is expected to be launched on September 30.

W.Va. Supreme Court consolidates two economic development grant cases

State Supreme Court Clerk Rory Perry has this post noting that the Court yesterday consolidated SER Cities of Charleston and Huntington, et al. v. WV Economic Development Authority, No. 31540 and SER Lewis v. WV Economic Development Authority, No. 31541, two cases challenging the issuance of video lottery revenue bonds to fund certain economic development projects.

An expedited review has been ordered, with oral argument to take place on Friday, October 10, at 9 AM. The post also contains links to the papers filed in the cases, and a copy of the order.

Hey, I paid for that freebie!

According to CNET.com, "Google-owned Web log-creation site Blogger is eliminating its paid version and folding premium functions into its free service, bucking a trend toward making people pay for Web site extras."

There is a silver lining, however. People who paid for the premium upgrade can get a "refund in the form of a Blogger sweatshirt," according to the article.

ME: "Hey, I paid for the premium upgrade so I could get an XML feed for a year, and now you are giving it away!"

BLOGGER: "Yeah, well, uh, sure, but we'll give you a refund."

ME: "Great! A prorated return of my annual fee for the unused months?"

BLOGGER: "No, just this sweatshirt with our corporate logo, so you can do some advertising for us out there in meatspace."

ME: "So you are taking my money and making me your walking billboard?"

BLOGGER: "Right, but you have to act fast. The offer is only good until October 1!"

ME: "Let's see... What was Ernie saying about TypePad..."

Barnes & Noble.com drops e-books

ZDNet.com reports Barnes&Noble.com has discontinued sales of e-books. Customers using Microsoft's eBook reader have until Dec. 9 to access downloads purchased from the store, while Adobe Reader customers have 90 days to retrieve any outstanding files, according to a notice posted on the site Tuesday. Meanwhile thousands of e-book titles were listed as unavailable. "B&N.com no longer sells eBooks," the statement noted.

I have downloaded one or two e-books, and I must admit I did not enjoy the reading experience. In fact, I could not bring myself to finish two of the books, and I paid full-price for them. The e-book format is great for reading in short spurts of 10 or 15 minutes--great for reference books, but not so great for novels. I greatly enjoy having the Bible on my PDA. Zipping to a particular verse has never been easier. I downloaded the Pocket PC version of the Modern King James Bible, which you can find at Olive Tree Bible Software.

Suit filed to halt grants

The Daily Mail reports that a retired pastor represented by Larry Harless has filed a suit asking the state Supreme Court to block the work of the state Economic Development Committee for a second time. The pastor claims that the program is a "a giveaway to big business," and has little relationship to economic development.

This suit brings the total to three pending or threatened. Harless has another suit in the works challenging the constitutionality of video gambling, which provides revenue to fund the program.

The cities of Charleston and Huntington along with Kanawha and Ohio Counties filed a separate lawsuit asking the state Supreme Court to uphold the constitutionality of the grant handouts and video gambling.

Paper is still not dead. But here's a thought about how we might kill it.

Let's face it. Even though paper is made from dead trees, it is not dead in our law offices. This article in Wired News notes that 20 years after Wang Labs introduced an image scanning and storage system for documents, we're still using reams of paper each day to conduct our business. What will it take to get us to change?

I have the answer (aren't you glad?). It will take a cheaper, more portable and more versatile display. I have a device in mind: a very thin, simple, inexpensive, wireless "tablet" that has not been invented yet. It would be able to display anything a monitor can display (including video, etc.) The device would look sort of like the duty rosters on Star Trek the Next Generation except a little bigger-- about 1/8" to 1/4" in thickness and slightly larger than an 8 1/2" x 11" piece of paper (about the size of a basic clipboard without the clip). It would have a few very simple control buttons (hopefully flat) in the nature of an e-book reader (a power button, arrow buttons to turn pages, etc). Document images could be loaded onto the unit instantly and wirelessly from a notebook PC, a PDA, computer or other tablet. Tablets could be synchronized by the users, so if say four people (you, a judge, a witness and opposing counsel) wanted to look at the same document, you could do that with one person controlling the displays of the other three. The only purpose of this unit is to display and share documents.

Such a device is the missing link for lawyers and probably for most business people trying to get away from paper. With modern tools, you can scan all of your case documents into PDF format, but just try to show them to a judge at a hearing. Or try sharing them with other parties at a deposition. You can store them on a PDA, but reading a PDF document on a PDA is torture. You may have all of your documents in digital format, but the fact is you still have to print them if you want to share them in a live setting. No one wants to carry a projector to a hearing or a deposition just to show a handful of documents to the witness or a judge, so they are forced to print out the pages they think they will need and take them along. The irony is that paperless systems are less "portable" and "sharable" than paper systems. With paper documents, you can just pass the document around the room or hand it to the bailiff to show the judge. With digital documents, you don't have that option unless the Court is using the same technology as you (and knows how to use it). That's why we need a simple device like this.

The tablet PC is a step in the right direction, but they are just too expensive and clunky. They are trying to be laptop computers. We need a lean, mean, quick and reliable device to replace paper. Okay, now who is going to build it?

W.Va. could piggyback on Va.-Md. water fight

West Virginia is one of only two East Coast states that does not regulate water use, according to this AP article in the Charleston Gazette. (As an aside, it is hard to categorize West Virginia as an "East Coast" state, seeing as how it lacks any ocean shoreline, but it is too far east to be Midwest, too far north to be South, and too far south to be North.)

The article also notes that "[w]hile West Virginia considers its first stab at a water use law, it could also play a role in a legal battle between Virginia and Maryland that is now before the U.S. Supreme Court." Apparently, Virginia is suing Maryland to increase its access to the Potomac River. "As West Virginia was part of Virginia until the 1860s, the Mountain State could claim to have inherited whatever rights the justices say that Virginia has." We'll keep a close eye on that one.

W.Va. Lottery Commission Joins Cities, Counties in Suit

The Wheeling Intelligencer notes that the list of folks joining the mandamus suits seeking release of Economic Development Grant Committee funds has expanded. Now, the West Virginia Lottery Commission is expected to file a motion to intervene in the the suit brought by Kanawha County, Ohio County and the cities of Huntington and Charleston.

Most kids don't seem to mind being left behind

This report in the Charleston Daily Mail says that "[f]ewer than 100 students have transferred out of West Virginia's seven low-performing schools required to offer the choice under the federal No Child Left Behind Act."

60 of the children were from one school -- Van Devender Junior High School in Wood County.

West Virginian in charge of e-Government

This article in Federal Computer Week announces that "Karen Evans, the chief information officer at the Energy Department and a rising star in the government information technology world, is expected to be named to replace E-Government Chief Mark Forman." As noted in this follow-up piece, Evans is a West Virginian.

The purpose of the e-Goverment initiative is to "use[] improved Internet-based technology to make it easy for citizens and businesses to interact with the government, save taxpayer dollars, and streamline citizen-to-government communications." That, to me, sounds like a critical function in the 21st century. The follow-up article makes the surprising revelation that the U.S. Senate has slashed the e-Gov program to $1 million for fiscal 2004. This seems like a paltry sum of money for such an important program. And I am not just saying that because a fellow West Virginian is taking over the helm. Someone out there needs to be pushing the government toward common standards--hopefully open source standards like XML. I wonder if this is a priority?

Update: I just noticed this article in ZDNet that says "Jamie Love, an open-source advocate at Ralph Nader's Consumer Project on Technology, said he had made some progress persuading Forman--Evans' predecessor--to move toward open standards and open file formats inside the federal government." It doesn't mention XML, but I would bet that is a component of the lobbying effort. The ZDNet article also adds that Evans is a graduate of my alma mater, West Virginia University.

Little "overlapping" in Harless lawsuit

The Charleston Gazette reports that "there appears to be little overlap," between Larry Harless' new suit challenging the use of video lottery funds for economic development and the petitions for writs of mandamus filed by several West Virginia cities (see Rory's post) seeking issuance of economic development revenue bonds.

They want their money, Larry wants to hold everything and reexamine the use of video lottery funds in the first place.

I think the expansion of gambling in this state was a terrible idea we will live to regret. I regret it every time I drive through town and see flashing neon signs advertising "casinos." (Even though West Virginia does not allow "casinos," apparently these video lottery facilities are using "casino" in their corporate names to circumvent the advertising ban. Something has to be done about that. ... But I digress).

I also don't like the idea of our government spending millions of dollars every year to directly fund private projects (why not spend the money on improved infrastructure and schools to support new businesses?) However, the people, through the legislature, have spoken on these issues, and it is time for use to move on. This incessant stream of litigation over the Economic Development Grant Committee and the way they spend their funds must end. It is time for us to live with the consequences of our choices.

Study: IRS workers steer taxpayers wrong on tax law

You know your federal tax code is too complicated when the IRS does not even understand it. This AP report in the Dominion Post provides the shocking statistics from a recent Treasury Department investigation. "IRS employees at tax help centers gave correct answers to just 57 percent of tax law questions asked by Treasury Department investigators posing as taxpayers."

If the IRS doesn't understand the tax code, how can it expect taxpayers to understand it?

KeyLogic Systems plans to bring jobs to W.Va.'s I-79 high tech corridor

This blurb in the Charleston Gazette says "KeyLogic Systems, a knowledge management technology firm with corporate offices in Morgantown, plans to use the U.S. Small Business Administration’s HUBZone (Historically Underutilized Business Zone) program to bring high-tech jobs to West Virginia." The company's President, Jon Hammock, says the company can bring thousands of tech jobs that were previously done in Washington and the Silicon Valley.

He hopes to help create a critical mass of small technology firms in the Interstate 79 high technology corridor, using resources of West Virginia University’s tech research initiatives and Wheeling’s National Technology Transfer Center.

Some college graduates find it hard to land jobs in their field

This piece in the Huntington Herald-Dispatch notes that tough economic times has made the job search more difficult for the area's college graduates. According to a recent survey of Marshall University grads, accounting, nursing, social services and law enforcement were the four professions with the best job availability.

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.