Friday, September 23, 2005

Committee Endorses Merit Selection for Supreme Court Justices

The State Journal reports here that in an 8-7 vote, the West Virginia State Bar Judicial Selection Committee has approved a merit selection process for justices of the West Virginia Supreme Court of Appeals.

According to the article, here's the proposal:
The committee suggests a nominating committee made up of 13 citizens -- two lawyers elected by a vote of the State Bar from each of the states' three Congressional districts and six citizens, with one from each Congressional district selected the by the speaker of the House and one selected by the president of the Senate. The final member would be designated by the chief justice of the state Supreme Court and would serve as chairperson of the nominating commission.

In the event of a vacancy on the court, the nominating commission would select and announce three nominees. The public would have a chance to comment on the nominees, and the governor would appoint one of the three to a 12-year term. At the end of the term, the seat would be available for a new appointment.

The State Bar committee also suggested the same procedure be used for any mid-term vacancies in circuit or family courts. Those nominating committees also would include two additional members, a lawyer and citizen from the local circuit.
Sounds complicated to me. Why not just let the Governor appoint a candidate and have the nominee confirmed by the legislature. She would serve an 8 year term, then face a non-partisan tenure election every 8 years.

Wednesday, September 14, 2005

Fourth Circuit tough on appeals of summary judgment denials after trial

In Varghese v. Honeywell Int'l Inc., No. 04-2271 (4th Cir. September 14, 2005) (PDF), the Fourth Circuit reversed a jury verdict in favor of an employee, holding that employer-granted stock options are not "wages" as that term is defined by the Maryland Wage Payment and Collection Law. But that's not the interesting part of the ruling.

The employer also appealed the denial of its motion for summary judgment on the grounds of ERISA preemption. The Fourth Circuit refused to consider that part of the appeal, holding that under Chesapeake Paper Products Co. v. Stone & Webster Engineering Corp., 51 F.3d 1229 (4th Cir. 1995), "this Court will not review, under any standard, the pretrial denial of a motion for summary judgment after a full trial and final judgment on the merits." Id. at 1237. So what should Honeywell have done? "Honeywell had the option to move for judgment as a matter of law (the denial of which we will review), arguing that ERISA preempted Dr. Varghese’s state law separation pay claims. As we noted in Chesapeake, 'a party may appropriately move for judgment as a matter of law on discrete legal issues.' Id. at 1236 (emphasis added)."

So if you are like me, you are asking yourself "What's the difference?" If it is a legal issue, why does it matter whether it is raised under Rule 56 before trial or under Rule 50 during or after trial?

Judge Motz did not like the holding on this issue, either, and she dissented from that part. She felt that the court should distinguish between summary judgment motions that assert purely legal defenses (res judicata, preemption, etc.) and those asserting that insufficient evidence existed to create a triable issue of fact: "I would hold ... that when, as here, a district court denies a motion for summary judgment based entirely on a legal defense, a subsequent trial does not eliminate the movant’s right to assert that defense on appeal." She noted that this is the approach followed by a majority of the other circuits. She called the holding in Varghese an imprudent expansion of the rule in Chesapeake.

I think Judge Motz is right. Quoting liberally from Judge Posner's opinion in Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313 (7th Cir. 1995), Judge Motz wrote:
"[t]he injustice would be" to deny the party moving for summary judgment on the basis of a legal defense the opportunity to reassert that defense on appeal because "most defenses . . . would have no function if all [they] did was bar meritless suits." Id. Accordingly, a defense must "remain[ ] available . . . even when the plaintiff, having survived summary judgment, goes on to win a judgment on the merits." Id. (citing cases). "Defenses are not extinguished merely because" they are "denied at the summary judgment stage." Id. Rather, "[i]f the plaintiff goes on to win [at trial], the defendant can reassert the defense on appeal." Id.
And why not? On summary judgment, the matter is fully briefed and considered by the district judge, and both parties presumably have a full and fair opportunity to argue their positions. Why should they forfeit their right to appellate review following a trial simply because they fail to repeat the same argument in a Rule 50 motion?

I doubt there would be en banc review on this point because Honeywell got its reversal on other grounds. But it's an interesting issue.

Judge Roberts' terrific "opening statement"

Steve Minor over at the SW Virginia Law Blog posts the text of Judge John Roberts' opening statement in the Senate Judiciary Committee hearings. Regardless of what you think about Bush or this "Republican nominee," you have to like Roberts' statement. Here's one of my favorite parts:
Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Great stuff. And, although I did not see the video footage, I was told by some colleagues today that Roberts delivered this statement without the aid of notes.

Monday, September 12, 2005

Review of the video poker boom in W. Va.

Be sure to check out the three-part AP article on the video lottery industry in West Virginia. Part one has some pretty amazing statistics:

- West Virginia gamblers poured $1.05 billion into video lottery machines within the past year -- enough to fund nearly a third of the state budget.

- Nearly 1,970 restaurants, clubs and parlors statewide held licenses to host the so-called "limited" video lottery machines, which offer such games as slots, poker, blackjack and Keno;

- Each day, gamblers put an average of $2.87 million into the machines.

- As a result, 335 of these locations became million-dollar mini-casinos; more than a dozen grossed $3 million each.

- The four Northern Panhandle counties had 14 machines for every 1,000 residents last fiscal year, nearly triple the statewide average.

- Only one county in 55 -- Webster -- is machine-free.

Wow. I hope this series profiles the average "player." Are they West Virginians? Are they middle or upper class? My sense is that these machines are fed by lower to middle-class wage earners--people with little disposable income. Does that matter to anyone?

Hey, hey hey! Don't squat on my domain

"Arbitrators for the World Intellectual Property Organization ordered the transfer of to [comedian Bill] Cosby, who had complained it was being used in bad faith to divert visitors to a commercial search engine and a Web site selling sexually explicit products." [Washington Post]

I loved that cartoon as a kid. I'm glad to see its image protected from tarnish. This movie caused enough tarnish.

Saturday, September 10, 2005

Escape military custody? No way, Jose.

Padilla v. Hanft, No. 05-6396 (4th Cir. September 09, 2005) (PDF):
The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.

We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed.

Attorney General Alberto R. Gonzales: "[The Fourth Circuit] has reaffirmed the president's critical authority to detain enemy combatants who take up arms on behalf of Al Qaeda and travel to the United States to kill innocent Americans. ... [T]he authority to detain enemy combatants like Mr. Padilla plays an important role in protecting American citizens from the very kind of savage attack that took place almost four years ago to the day " (NY Times)

Jonathan M. Freiman, a lawyer who represents Mr. Padilla: "[It is] a sad day for the nation when a federal court finds the president has the power to detain indefinitely and without criminal charge any American citizen whom he deems an enemy combatant." (NY Times)

I'm torn on this case. I think it is right to detain Padilla, but the rule of law is so expansive it is bound to be abused. A rule allowing detention of enemy combatants so they cannot return to the battlefield and do us harm is a good idea when (1) the war has a definite beginning, middle and end, and (2) the battlefield is not "everywhere." The war on terrorism, like the "war on drugs," the "war on crime" and the "war on poverty," will never end. When will Mr. Padilla be freed or tried (or even charged with a crime)? He's a U.S. citizen stripped of his basic constitutional rights by the mere designation of "enemy combatant." Would our Founding Fathers approve of this? They knew all about war and treason, but still did not provide for an "enemy combatant" exception to the Bill of Rights. Can't we find some middle ground?

Thursday, September 01, 2005

WVU Announces Katrina Help

The State Journal notes that WVU is joining other outreach agencies to help Katrina's victims. "The best way for people to help is through a financial contribution to the American Red Cross disaster relief fund," said local Red Cross public affairs officer Chris Dale.

Everyone needs to be on the lookout for scams.

Another great way to give is through UMCOR, the United Methodist Committee on Relief. Every penny of your donation will go directly to assist the needy. No administrative costs are deducted. Donations can be made online through's secure server.

Get your free credit report today

Beginning Thursday, West Virginia residents will be able to request free credit reports through a government-mandated program overseen by the FTC.

To get yours, point your browswer here.