Friday, January 28, 2011

Fourth Circuit abandons last-served defendant rule in en banc decision

In Barbour v. Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am., No. 08-1740 (4th Cir. Jan. 27, 2011), the Fourth Circuit sitting en banc, has finally settled the question of how to calculate the 30-day removal time period in multiple defendant cases.

Astute readers may recall that the court decided this case in February 2010.  However, the decision was vacated a few months later when a petition for rehearing was granted.

Now, the Fourth Circuit has reversed course and held that the last-served defendant rule is not the correct interpretation of our removal statutes.

Instead it has adopted what is commonly referred to as the "McKinney Intermediate Rule." Senior Judge Hamilton, writing for the majority, explained that
Like the First-Served Defendant Rule, the McKinney Intermediate Rule requires a notice of removal to be filed within the first-served defendant’s thirty-day window, but gives later-served defendants thirty days from the date they were served to join the notice of removal. 
Judge Hamilton, incidentally, wrote the dissent in the February 2010 decision.  His new 32-page majority opinion was not, however, unanimous.  In a 36-page concurring opinion authored by Judge Agee, five judges dissented to the adoption of a First-Served Defendant Rule, of which the McKinney Intermediate Rule is a variety.  The minority "believe[d] the last-served defendant rule represents the more accurate and appropriate reading of the terms of 28 U.S.C. § 1446(b)."  Nevertheless, they concurred in the remand of the case on jurisdictional grounds.

So much for the last-served defendant rule.  We hardly new ye.

Tuesday, January 18, 2011

West Virginia to Elect a New Governor in 2011

The West Virginia Supreme Court of Appeals ruled this afternoon that Acting Governor Earl Ray Tomblin must "to forthwith issue a proclamation fixing a time for a new statewide election for governor consistent with W. Va. Const., art. VII, § 16 and W. Va. Code § 3-10-2 (1967)." SER W. Va. Citizen Action Group v. Earl Ray Tomblin, President of the W. Va. Senate, et al. AND SER Thornton Cooper v. Earl Ray Tomblin, et al., No. 10-4004 (W.Va. Supreme Court, 1/18/2011)

The unanimous opinion, authored by Justice Benjamin, contains the following new syllabus points:
7. Pursuant to W. Va. Const., art. VII, § 16, the period of time in which the duties of the governor shall be performed by a person who was not elected to the office of governor by the people in a statewide election shall not exceed one year.
8. Pursuant to W. Va. Const., art. VII, §16, whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new statewide election shall be held as soon as practicable and in compliance with the constitutional prescription that the office be assumed by an elected successor within one year of the date when the vacancy occurred.
9. The procedure established in the second paragraph of W. Va. Code § 3-10-2 regarding the holding of a new or special election to fill the vacancy in the office of governor is within the legislative prerogative and does not violate the State Constitution.
10. The Legislature may amend the procedure for providing for a new or special election if it deems it appropriate to do so; provided, however, any new procedure may not conflict with the Constitution which requires that all acts necessary to elect a governor shall be completed within one year of the vacancy in the office.
Now, let's all move on with life.