Saturday, April 17, 2004

Supreme Court gives drug user a second chance at a big payday

In a per curiam opinion, our State Supreme Court has given a drug user a second chance at winning seven years of salary from his employer. In Benson v. AJR, Inc., No. 31542 (Apr. 16, 2004), an employer fired one of its supervisors who tested positive for cocaine use during a random drug screening. The employee had an eight-year contract with the company that guaranteed payment of his salary for the entire eight year term unless he quit or was discharged for "dishonesty" or conviction of a felony. His written termination form, issued less than seven months into his contract, stated as the reasons for his termination "controlled substance testing" and "tested positive for cocaine." However, the employee admitted he was dishonest in connection with his failure to truthfully respond to the owner's question regarding whether the employee was aware of drug use by any AJR employees. Salary payments under the contract were discontinued, and the employee sued for breach.

The circuit court granted summary judgment in favor of the employer, but our State Supreme Court reversed. The circuit court, applying dictionary definitions of "dishonesty," concluded that the employee's "actions in failing a drug test and arriving at work with drugs in his system demonstrates a lack of integrity, probity, or adherence to a code of moral values," and was therefore "dishonest."

On appeal, the Supreme Court found that while the employee was certainly dishonest, "the record in this case is unclear as to whether AJR dismissed Mr. Benson from its employ for drug use or for dishonesty." This question, in the Supreme Court's opinion, must be resolved by a jury. "If the jury determines that drug use, rather than dishonesty, was the basis for the dismissal, then the provisions of the employment contract with regard to continued payment of Appellant's salary for the duration of the contractual term are applicable. If, however, the jury determines that Mr. Benson was in fact terminated for being dishonest, then AJR is not required to pay his salary under the terms of the employment contract."

This opinion is simply amazing to me. A drug-using employee gets fired for flunking his drug test, lies to his employer about his knowledge of illegal drug use, but is still given a chance to collect seven years of salary from his former employer simply because the employer failed to list his lie as among the reasons for his termination? How can this be? The fact is, this man signed an agreement saying he would not be paid if he was fired for dishonesty, and he admits that he was, in fact, dishonest in conjunction with the very issue for which he was fired. How was it reversible error for the circuit judge to conclude that no reasonable juror could find in this guy's favor? This is the type of case I would expect the Court to decline in the first place. Justice was clearly accomplished by the circuit court, and unfortunately, it has been undone by the appellate court in this case. I certainly hope the jury will get this one right on remand.

Tuesday, April 13, 2004

Stranger than fiction

There are so many lousy reality-based TV shows airing right now that it's hard to keep track. Most of the stuff is staged because, let's face it, reality isn't interesting. Unless, of course, you are Jack Whittaker, Powerball "Winner." Pay a few guys to follow Jack around with some cameras, and you have yourself a show. His life has all the key qualities of your standard reality TV show--sex, drugs, money, lawyers--who could ask for anything more.

Last night, someone tried to break into Jack's house while he was away on vacation. Lucky for Jack, they didn't make off with any loot. (Don't they know Jack keeps all of his money in his Lincoln Navigator?) Actually, losing all of his money could be the best thing that ever happened to him.

This article in the Daily Mail has the rundown on Jack's life since winning the lottery. In other words, here's what the producers of Jack Whittaker, Powerball "Winner" have missed so far:

Christmas Day 2002. Sole winner of a $314.9 million Powerball jackpot.

August 2003. Drugged while visiting a Cross Lanes strip club. Two club employees conspire to drug Whittaker's drink, break into his Lincoln Navigator and steal a briefcase containing about $545,000. "Lucky" for Jack, the money is found.

January 2004. Jack is arrested and charged with threatening to kill the manager of a St. Albans bar.

January 2004. Jack is arrested again near the Tri-State Racetrack & Gaming Center in Nitro and charged with drunken driving.

January 2004. Lincoln Navigator broken into again and $100,000 stolen.

March 2004. Jack is robbed -- twice.

March 2004. Three employees of the Tri-State Racetrack & Gaming Center sued him, claiming he assaulted them in March 2003.

and now in April 2004, his house is broken into while he's away.

I think the reality TV producers are really missing some low hanging fruit here.

Friday, April 09, 2004

Everybody has an opinion

Chief Justice Maynard has filed a dissenting opinion of his own in State of West Virginia v. Arbaugh, Jr., No. 31326, bringing the total number of opinions to five. Justice Maynard had previously joined Justice Davis' dissent, but now writes to express a few thoughts of his own.

The latest dissent seeks to clarify the state of the law regarding probation following sentencing under the Youthful Offender Act. It's interesting to have this many opinions in a case that was issued per curiam, which supposedly means that no new law is being created.

I'm not sure how many cases in the past have yielded five separate opinions, but I don't think there are many.

Monday, April 05, 2004

Recent opinions reveal deep divisions in state supreme court

In reading Justice Starcher's concurring opinion in State of WV v. Arbaugh, Jr., No. 31326, it is clear that our supreme court is deeply divided. Concurring and dissenting opinions have been used lately as platform to editorialize and "blast" the opposition for distorting the law or the facts, ignoring precedent, and personally attacking other justices. This particular opinion blasts the dissenters for blasting the majority. As a legal practitioner, it is interesting reading because the opinions provide a window into the minds of the justices. Unlike majority opinions which are mostly sanitized and free from personal comments, concurring and dissenting opinions are sometimes pure stream of consciousness.

I must say, though, that Justice Starcher's Arbaugh concurrence is troubling to me not because it is a continuation of a feud between factions of the court, but because of the judicial philosopy it reveals. Justice Starcher writes,
During oral argument of this case, in subsequent discussions, and prior to any opinion being written (or at least being circulated), there was a search by this Court for some way within the bounds of existing law to prevent a less-than-twenty-year-old person from facing an up-to-thirty-five-year sentence - for behavior that last occurred prior to his fifteenth birthday, and for more recent misbehavior, consisting of not complying with conditions of probation: smoking marijuana, drinking alcohol, not attending counseling sessions, not accepting authority, etc. (emphasis added)
I recall a story from about a year ago in which an attorney was suspended in Indiana for suggesting in a footnote that a particular court opinion was "results-oriented." (The suspension was later reduced to a reprimand). If you read Justice Starcher's concurrence the way I do, our Court is unapologetically results-oriented. Many folks have been suggesting this for years, but I have never seen such an open endorsement of results orientation in an opinion. It just goes to show you that a judicial philosophy that is an anathema to one court is a badge of honor for another.

Saturday, April 03, 2004

W.Va. Supreme Court declines gay marriage petition

By a 3-2 vote, the West Virginia Supreme Court of Appeals has refused a petition for writ of mandamus in State ex Rel. Link, et al. v. King, the case in which gay couples sought an order compelling a county clerk to issue them marriage licenses. According to Rory's post, Justices Starcher and Davis would have accepted the petition.

Too bad. This would have been an interesting case for our court to handle. I can honestly say I have no idea how that one would have turned out.

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

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 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.