Tuesday, March 30, 2004

Computer nerd runs for governor

This article in today's Daily Mail leads off with the revelation that Lloyd Jackson, candidate for governor, "is a computer nerd."

If elected, Governor Jackson vows to use government to help bring broadband Internet connections to rural West Virginia communities.

I live in Inwood, West Virginia, and we just got broadband access in our community a few weeks ago (through the cable company). I'm all for it.

You can learn more about Lloyd Jackson's campaign at www.jacksonforgov.com.

Friday, March 26, 2004

Starcher defends behavior at forum

The State Journal has this interesting article revealing some more details about Justice Starcher's recent outburst at a judicial candidate forum. Starcher yelled to candidate Jim Rowe to "tell the truth" while he was reading from a dissenting opinion in State v. Arbaugh (No. 31326). The dissent criticizes the majority for finding that the Court's "constitutional rule making authority gives [it] the power to trump the Youthful Offender Act."

According to the article, the opinion was issued without a majority of justices signing off on it. Justices Davis and Maynard have dissented, and a concurring opinion bears the names of Justices Albright, Starcher and McGraw. However, Justice Starcher states in the article that the opinons were filed before he could review them.

So not only did the majority opinion not have 3 votes, the concurring opinion, filed a few days later, mistakenly states that Justice Starcher joined. How could something like that happen?

Fourth Circuit finds Virginia Internet pornography law unconstitutional

Yesterday, the Fourth Circuit held in PSINet v. Chapman, No. 01-2352 (4th Cir. March 25, 2004) (pdf) that in light of current technology, a Virginia statute (Va. Code 18.2-391) which criminalizes the dissemination of material harmful to minors over the Internet, violates both the First Amendment and the Commerce Clause.

The district court ruled that the law, which makes it a crime for web site operators to publish any material that could be considered "harmful to minors," violated the First Amendment. The court found the law to be overly broad, and the Fourth Circuit agreed, finding that a law "banning the display of all 'electronic file[s] or message[s],' containing 'harmful' words, images or sound recordings, that juveniles may 'examine and peruse,' is not a narrowly tailored solution and is unconstitutionally overbroad."

The Court found that the statute also violates the commerce clause by unduly burdening interstate commerce. With the Internet, there is "no effective way to limit access to online materials by geographic location." In effect, this law restricts commercial electronic materials in all states, not just in Virginia.

Thursday, March 25, 2004

Where would Jesus live?

Today's Daily Mail has this piece that mentions a positive alternative to the t-shirt poking fun at West Virginia: the "Where would Jesus Live?" t-shirt. The design plays on the state's "Almost Heaven" motto. The t-shirt is sold at www.wherewouldjesuslive.com for $14.50 -- ten dollars cheaper than the A&F shirt.

Gov. Wise vetoes bill criminalizing violence against fetuses

The Bluefield Daily Telegraph reports that Governor Wise has opted to veto a "Laci Peterson" bill that outlaws crimes against fetuses. The Governor found that the goal of the bill was not to protect pregnant women, but to establish various legal rights for embryos and fetuses.

Wednesday, March 24, 2004

"Choose Life" license plate law dead on arrival

The U.S. Court of Appeals for the Fourth Circuit declared unconstitutional a South Carolina law authorizing specialty license plates imprinted with the words "Choose Life," holding that the law amounts to impermissible viewpoint discrimination by the State, which has insulated itself from electoral accountability by disguising its own pro-life advocacy. Planned Parenthood of S. Carolina Inc. v. Rose, No. 03-1118 (4th Cir. March 22, 2004) (pdf).

Judge Michael, who wrote the lead opinion with concurrences in various parts by Judges Luttig and Gregory, reasoned that the "speaker" of the "Choose Life" message was ambiguous. Was it the state speaking or the driver of the car bearing the specialty license plate? He wrote that "precisely because this is a case of mixed speech, and the identity of the Chose Life message is likely to be unclear to viewers of the license plate, government accountability is diminished. South Carolina has placed itself in a position to advocate for a political position while disguising its advocacy as that of private vehicle owners."

He suggested that South Carolina could solve this problem by changing the state motto to "Choose Life." (As a sidenote, this would seem to answer the question posed by the New Hampshire state motto "Live free or die"). Then, the identity of the state as the speaker of the message would be unambiguous.

Tuesday, March 23, 2004

Links to the West Virginia gay marriage case

Rory Perry posts links to the petition and briefs in what is sure to be a high-profile case involving a lesbian couple's quest for a marriage license in Kanawha County. High-profile assuming the petition is accepted, of course.

The case is State ex rel. Link, et al. v. King, Clerk, etc.

Group to fight against gay marriage in West Virginia

This article in the Daily Mail notes that a lesbian couple is appealing Kanawha county's decision to deny them a marriage license. Although the state Supreme Court has not yet accepted the petition for appeal, groups are lining up to intervene. The latest is a group of six Republican and three Democratic legislators. "We’re just defending marriage as between a man and a woman, that’s all," [Delegate Ann] Calvert said. "That’s been a standard of civilization," the group said. To my recollection, polygamy was pretty popular "standard of civilization" for centuries, but no legislators seemed to be fighting for that cause.

I noticed at the end of the article that Sen. Lisa Smith (R-Putnam), who operates two home health care businesses, says "[w]hat will it mean for small businesses to be required to provide insurance for partners that are legally joined in this way?

"I have 175 employees, and I don’t know how many of them might have partners of the same sex, but I’m sure there are some, and I know that would be a concern, and it would be a definite increase in cost to cover them all."

But couldn't she just choose to discriminate against them? It's not a violation of the West Virginia Human Rights Act or any federal law to discriminate against employees based on sexual orientation. But, such invidious discrimination could be considered immoral, I suppose.

Been there, done that ... got the t-shirt?

The Charleston Gazette is reporting that Governor Wise has asked clothing store Abercrombie & Fitch to stop manufacturing t-shirts with the phrase "It's all relative in West Virginia" superimposed over an outline of the state. The article mentions that the t-shirt is selling well at Abercrombie & Fitch's Charleston Town Center store, which has trouble keeping them in stock.

I can see why such t-shirts would sell well in Ohio, Pennsylvania, Virginia and Kentucky, but why in West Virginia? Have we no pride? The article doesn't mention that Governor Wise criticized the Charleston Town Center store, but he certainly should have. I hope he marches right over there and has a word with the store manager about this. Not publicly--that would just add to the negative publicity. It should be done privately.

The only saving grace at play here is that the t-shirt is an ugly orange color.

Monday, March 22, 2004

West Virginia loses a great jurist

This article in the Dominion Post announces the death Saturday of United States District Judge Charles H. Haden, II. Haden was appointed to the federal bench by President Ford in 1975. He served as chief judge of the southern district from May 1982 to December 2002.

Judge Haden made two very courageous decisions in mountaintop removal cases, both of which were reversed by the Fourth Circuit. He ruled in favor of environmental interests in a region where coal interests are the dominant political and economic force. He was a man of tremendous integrity and will be sorely missed.

Friday, March 19, 2004

State Supreme Court race heats up

In order to be a judicial candidate, you have to be careful not to violate the judical ethics rules as you campaign. For instance, you can't come out and say, "If you elect me, I will vote for the working people of this state every chance I get." Canon 5 of the Code of Judicial Conduct states that a judicial candidate shall not "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." (emphasis added). Talking about current cases is clearly off-limits, but discussions of ideologies is more of a gray area.

There is no doubt that Justice McGraw is a formidable politician. These recent articles in the Charleston Gazette and Charleston Daily Mail prove this out. According to the articles, Justice McGraw is defining his candidacy by talking about who is out to get him. He claims that the U.S. Chamber of Commerce (read "big business") has put a $50 million bounty out for his political extermination. (This might be an exaggeration, according to the Daily Mail article.) He leaves it up to the listener to make the leap that if "big business" does not like him, he must be looking out for the working people. Does this violate Canon 5? Probably not, but the spirit of the Canon is to keep judges talking about being "fair and impartial" and not on one side or another.

Indirect comments like these two from Justice McGraw are little more troubling to me:

(1) "I do have a judicial philosophy ... It comes from some of my life experiences. I grew up in a community where I watched working people struggle."
(2) After discussing how he left his home in southern West Virginia to go to Cleveland to become a steelworker only to be laid off when the industry started to tank, McGraw said "I rode a long and lonely bus back to West Virginia. I swore to do everything in my power so no child would have to face what I did," he said.

How are comments like these supposed to be interpreted? Is Justice McGraw saying, "If elected, I will do everything within my power to help working people?" Not in so many words, but comments like these certainly can be taken to mean just that. As a lawyer and a voter, it turns me off and makes me wonder why we make judges campaign for the State Supreme Court in the first place. We're just setting ourselves up for political discourse like this. The only way to keep politics out of the judical system is to keep politicians out of the judicial system.

Wednesday, March 17, 2004

Sheriff calls W.Va. ATV law 'useless'

I have to agree with Sheriff's Boober's comments regarding the new ATV law appearing in today's Dominion Post. He said the lawmakers who drafted the legislation are "out of touch with reality."

ATVs are still allowed on the shoulders of roads with center lines. The irony of the apparently powerful ATV lobby in West Virginia is its goal of keeping ATVs legally on the roads. Aren't ATVs supposed to be off-road vehicles? And why are we not banning passengers when the manufacturers themselves say that carrying passengers is unsafe?

If John Kerry really wants to sew up the West Virginia vote, he'll ride in to Charleston on an ATV during his next trip. It'll be a great photo op because he won't have to wear a helmet, he can ride along major highways for 10 miles at up to 25 mph, and his VP running mate can ride on the back as a passenger. Why not? It's legal?

The new WVU football schedule is here!

The Dominion Post runs this important article about WVU's new football schedule. It appears the "Backyard Brawl" between WVU and Pitt is shaping up to be a new Thanksgiving night tradition.

Here's the new schedule according to MSN SportsNet:

Sat, Sep 4 East Carolina
Sat, Sep 11 at Central Florida
Sat, Sep 18 Maryland
Sat, Sep 25 James Madison
Sat, Oct 2 at Virginia Tech
Wed, Oct 13 at Connecticut
Wed/Thu, Oct 20/21 Syracuse
Sat, Oct 30 at Rutgers
Sat, Nov 6 Temple
Sat, Nov 13 Boston College
Thu, Nov 25 at Pitt

Thursday, March 11, 2004

Bad luck continues for woman injured by falling mirrors

In Hodge v. Wal-Mart Stores, Inc., No. 03-1597 (4th Cir. March 10, 2004) a woman who was shopping at Wal-Mart was injured when several mirrors sitting on a high shelf fell on her. Her case was dismissed on summary judgment because the Court found that Wal-Mart did not know, nor should it have known, of the dangerous condition. The Court also rejected the woman's claim that Wal-Mart was guilty of spoliation of evidence because the associate that responded to the incident failed to detain an eyewitness. (He mistakenly believed a nearby security camera captured the incident and that the witness' statement was unnecessary.)

Adressing the spoliation issue first, the Court held that the clerk's conduct in failing to detain the witness did not constitute a "willful loss of evidence resulting in an abuse of the judicial process." The Court noted that even if the clerk could be said to have had access to the witness in some sense, "that access was under sufficiently hurried conditions and for a sufficiently brief time as to take it outside of the spoliation rule’s ambit."

Turning to the issue of negligence, the Court explained that "even assuming that the mirror display posed an unsafe condition that resulted in her injury, Hodge has neither evidence that Wal-Mart had actual notice of the condition nor evidence of when the condition arose, and thus cannot prove that the condition existed sufficiently long for a jury to conclude that Wal-Mart had constructive notice of it." There was evidence that a sales associate had straightened the mirrors 2 1/2 hours beforehand. Although the defendant knew the mirrors often became disorganized, there was no evidence they knew they posed a dangerous condition. The Fourth Circuit was applying Virginia law.

ATV legislation enacted

As several papers, including the Hagerstown Herald, report Governor Wise has signed the state's first ATV safety bill--"The All-Terrain Vehicle Safety Regulation Act." The law is a compromise bill with which no one seems completely pleased.

The Herald article provides these details:

Child Safety:
Riders under 18 required to wear a helmet at all times, including on private land.

Riders under 18 can carry child passengers only if they have a driver's license.

Riders under 18 must by Jan. 1, 2005, pass free, state-certified safety courses to be offered in Division of Motor Vehicle offices and perhaps other sites.

Riders under 18 can ride on the Hatfield-McCoy Trail or other public recreational trails with their own safety programs without first passing state-certified safety courses.


Roads:
ATVs allowed on unlined roads. About 13,000 of the state's 34,000 miles of roads have center lines.

ATVs not allowed on roads with center lines or more than two lanes, except to cross them at a 90-degree angle.

ATVs allowed on the shoulder of roads with center lines or more than two lanes at speeds of 25 mph for up to 10 miles.

ATVs not allowed on interstate highways except if driven by public safety personnel.

General safety:
No ATV can be ridden with more than one passenger unless recommended by a vehicle's manufacturer.

All applicable rules of the road, from illegal turns to drunken driving to insurance requirements, apply to ATV drivers.

Local regulation:
Municipalities can regulate or ban ATVs within city or town limits.

County commissions operating under comprehensive land-use plans can regulate or ban ATVs on county roads. About a dozen counties operate under such land-use plans.

This article in the Journal has more details about how the compromise bill was worked out. Delegate Dale Manuel said although a provision requiring helmets on all ATV operators lacked the necessary votes, "I think anyone who is really responsible and intelligent will wear a helmet when riding an ATV." Articles I've seen in the news suggest otherwise.

The text of the bill, H.B. 4022, can be found here.

Tuesday, March 09, 2004

How random must random jury selection be?

In a legal battle that pits John Adams against Patrick Henry (see the counsel notes below the case caption), the West Virginia Supreme Court of Appeals held in State of WV ex rel. Stanley v. Sine, Clerk. No. 31580 (Feb. 27, 2004) that "[t]he jury selection procedures enumerated in W.Va. Code § 52-1-6(c) (1993) (Repl. Vol. 2000) do not permit prospective jurors to be selected in sequential alphabetical order." Syl. Pt. 3, Stanely.

The suit was brought by a public defender who discovered that the last phase of the juror selection process was done alphabetically instead of randomly. The headnote is a bit misleading in that the process was random to some degree and not completely alphabetical. Clerk Sine used the following system to choose a jury panel:

1. She began with a source list consisting of a consolidated listing of licensed drivers and registered voters in Berkeley County, in accordance with the requirements of W. Va. Code § 52-1-5 (1993) (Repl. Vol. 2000).

2. A master list is then created every two years by a computer-generated random drawing of 10,000 names from the source list, pursuant to W. Va. Code § 52-1-6(b) (1993) (Repl. Vol. 2000).

3. The prospective juror list is then compiled each month through a computer-generated random drawing of 300 names from the master list, as required by W. Va. Code § 52-1-7(a) (1993) (Repl. Vol. 2000).

4. Upon selection as a member of the prospective juror list, all prospective jurors are sent a questionnaire.

5. After disqualifying jurors who indicate an inability to serve due to non-residence, age, death, or other legal disability, the remaining members of the prospective juror list ultimately comprise the jury box.

6. (Here's where the controversy lies) Rather than selecting prospective jurors according to the key number system delineated in W. Va. Code § 52-1- 6(c), by which a key number is derived and used to select members of the jury box, the clerk had been directed to start at the beginning of the jury box list [which was already in alphabetical order] and to select prospective jurors in sequential alphabetical order until the desired number of jurors had been attained.

Thus, the Clerk was not grabbing the phone book and starting at "A" every time she needed to pick a jury. Random selection processes were being used at certain points, but the process was not "completely random," which is a requirement of the code. Afterall, surnames are not given out at random in our society. The writ of prohibition was granted to halt the process.

The big question presented by this case is not addressed by the Court: What happens to all of those criminals convicted by improperly selected juries since 1998 in Berkeley County? Are they all to receive new trials?

The Court notes in the opinion, "[i]t goes without saying that the far-reaching consequences of the propriety of the jury selection process in Berkeley County affects not only those cases prosecuted by Petitioner Stanley but also the entirety of all judicial proceedings currently pending in that circuit." Does this mean that the "far-reaching" consequences do not reach back to 1998, when Clerk Sine began choosing juries in an illegal manner? Undoubtedy, criminal defendants were denied a fundamental right to have a jury selected at random. It will be interesting to see how many habeas petitions are filed over this.

Friday, March 05, 2004

The Judge is back from Djibouti. Where's Djibouti?

Articles appear in today's Daily Mail and Journal (Martinsburg) about the return of United States District Judge W. Craig Broadwater. (The hometown paper refers to him as "Craig W. Broadwater." Oops.) Judge Broadwater is a General in the West Virginia National Guard, and like many other guard members, he was recently called to active duty. Anyone with a case on the active docket in Judge Broadwater's Court (Northern District of West Virginia, Martinsburg Division) will be ecstatic about his return. It's been tough to get a ruling on non-discovery motions these past few months.

Judge Broadwater has been working with a detachment of the U.S. Army Reserves 463rd Engineer Battalion and the 421st Civil Affairs Unit. One of the countries to which he was deployed is an African country I had never heard of: Djibouti. His law clerk told me he was there a few months ago, and I turned to Google to try to find out where it was, spelling it Jabuti, Jubuti, Jabooti, etc. without any luck. The experience made me realize how difficult it is to find information on the internet about a word you can't spell.

Welcome back, Judge!

Tuesday, March 02, 2004

W.Va. Legislative Update

The West Virginia Chamber of Commerce's "Legislative Report" newsletter has an update on the status of various bills before the Legislature. I have excerpted below the Chamber's report on a few bills of special interest to me. With less than two weeks to go in the regular session, here's the status report:

Water Use
The state Senate’s water use bill (S.B. 163) has passed by the upper body and is now in the House Judiciary Committee, where House Judiciary Chairman Jon Amores was placed it in a subcommittee chaired by Delegate Corey Palumbo (D-Kanawha). The subcommittee made several amendments to the bill, including an annual reporting requirement for large users. Pending further action by the House Judiciary Committee.

Tort Reform
The West Virginia Chamber and other groups are urging lawmakers to enact several tort reform measures, particularly restricting punitive damage awards, ensuring degree of liability is based on comparable degree of fault, preventing double-dipping of compensable claims, and enacting legislation to overturn the Supreme Court’s unprecedented "no proof, no problem" medical monitoring decision. A third-party bad faith bill was introduced today in the state Senate – S.B. 577. Senator Evan Jenkins (D-Cabell) is the sponsor. No new action. Prospects for passage appear dim. But, a study commission on third party claims is being considered.

Non-Partisan Election of Supreme Court Justices
S.B. 648 (Jenkins) has been introduced in the state Senate. The bill was referred to the Senate Judiciary committee. To a Study Commission.

Pharmaceutical Commission
House Speaker Kiss is pushing a bill (H.B. 4084) that would require state-run insurance programs (Medicaid, PEIA, Workers’ Comp and CHIP) to purchase prescription drugs at a cost not to exceed prices listed on the Federal Supply Schedule. If enacted, West Virginia would be the first state to enact such price controls. The bill has passed the House of Delegates and is pending in the Senate Health and Human Resources Committee. Issue still is pending in the Senate Health and Human Resources Committee. It is expected to be taken up before the end of this week. The West Virginia Chamber Board has adopted a position calling for careful study of this complex bill because of multiple constitutional issues.

Workers' Comp
The West Virginia Chamber and the West Virginia Coal Association are advocating legislative changes to “repair” the state’s deliberate intent statute. Basically, employers covered under Workers’ Comp are shielded from lawsuits by injured workers unless that injury was proved to be due to “deliberate intent”. However, attempts are being made to circumvent this through a “misinterpretation” of the law that has arisen thanks to recent Supreme Court rulings. State Republicans would like to see the Legislature pass a bill requiring the state to open the state’s Workers' Compensation system to private insurers. House passed a bill to clear up the confusion regarding LLCs. It is expected that the Senate will move a study resolution to begin work on the debt management portion of the Workers’ Comp program. Nothing new on the deliberate intent issue , but a study commission may be authorized.

ATV Legislation
The Governor is seeking, once again, to enact safety regulations for ATV operators and passengers, particularly for children. Passed and on its way to the Governor for his signature.

Gaming
Proponents are expected to introduce legislation to allow table games in certain areas of the state. The bill would allow local referendums in counties with racetracks. Legislation to permit table game local county options in counties with existing tracks has been introduced.


Monday, March 01, 2004

NRA t-shirt case settled

Steve Minor over at the SW Virginia Law Blog notes that the NRA t-shirt case has settled, after the Fourth Circuit made it pretty clear the school board's policy was unconstitutional. The article linked in this post points out the irony of a confidential settlement in a free speech case.