Sunday, October 30, 2005

Another judicial campaign showdown shaping up

This article in the Charleston Gazette notes that Don Blankenship was scoping out Justice Starcher at a recent public speaking engagement. Blankenship said he had never heard him speak. Justice Starcher allegedly called Blankenship "stupid," and said he was not afraid of him. Blankenship previously vowed to lend his aid to defeat Starcher if he chooses to run for reelection, according to the article.

Monday, October 24, 2005

What circuit is West Virginia in?

From beSpacific:
New Locator Map to Federal Courts
From the Federal Judiciary Newsroom, "a new locator map...helps you find all federal courts and probation and pretrial services offices. It is searchable by city and state, zip code, county and state, and area code."

Thursday, October 13, 2005

W.Va. State Bar Rejects Ending Judicial Elections

This article in the Charleston Gazette notes that the West Virginia State Bar has recommended that West Virginia continue its partisan judicial election system instead of changing to an appointment system.

The Board of Governors voted "overwhelmingly" in support of continuing judicial elections, and "by a closer majority vote" backed the partisan election of the five-seat Supreme Court, according to the article.

But the board did indicate that it did not believe everything went just fine with that last supreme court election by endorsing recommendations that the bar study "both the financing of future Supreme Court races through public funds and advertising in judicial races."

Tuesday, October 11, 2005

Fourth Circuit gives "dirty dancer" a second chance

Oh, the things we litigate in this country...

In Willis v. Town of Marshall, No. 03-2252, 04-1240 (4th Cir. Oct. 7, 2005) (PDF), the Fourth Circuit reversed the dismissal of a civil rights suit brought by a woman alleging that the defendant town unconstitutionally banned her from public dancing.

The Town of Marshall held Friday night concerts and community gatherings at a local community center. Rebecca Willis was banned from the concerts for her "unorthodox dancing style" that involved "gyrating and simulating sexual intercourse with her partner while 'hunch[ed]' on the floor," according to the Town's evidence. As you might imagine, people complained and Ms. Willis was asked not to return.

Willis's complaint alleged (1) that the Town violated her substantive due process rights by permanently banishing her from a public forum; (2) that the Town violated her First Amendment rights of free expression, of association, and to receive information by banning her from the Depot; (3) that the Town deprived Willis of a liberty interest without affording her adequate procedural protections; (4) that the authority upon which the Town relied to banish Willis was unconstitutionally
vague and overbroad; and (5) that the Town denied her equal protection of the law by singling out Willis for banishment. The District Court dismissed all of her claims on summary judgment before allowing discovery.

On appeal, the Fourth Circuit affirmed dismissal of the First Amendment claims, holding that "recreational dancing of the type at issue in this case is not expressive conduct protected by the First Amendment." (Not necessarily because it was lewd, but because it was recreational.) However, with regard to Willis's Equal Protection claim, the Court held that her "allegations of arbitrary singling-out by the Town are sufficient to support a ... 'class of one' claim." The Court found that summary judgment on this claim before discovery was premature because Willis had no opportunity to demonstrate that others situated similarly in this regard were not treated similarly. The Court did note that rational basis scrutiny for the Town's actions would be appropriate because the recreational dancing did not implicate First Amendment rights. So, as long as the Town had a rational basis for singling her out for banishment, it should prevail.

The substantive and procedural due process claims were properly dismissed because the claims fully overlapped her Equal Protection claim.