Internal workings: a blog
Observations by me about life, the law, lawyers, and shiny objects that catch my attention. Please feel free to disagree with me, to correct me, but always be civil, or I'll delete your ass.
|Posted on September 22, 2015 at 2:45 PM||comments (4)|
Call me odd, but one of the things I like to do is to go to the West Virginia Supreme Court website, and read through the new opinions. My particular favorite is a juicy civil case, with an engaging fact pattern, a novel question about the law, and a well reasoned, understandable, and USABLE explanation of the law. Too often, however, I have to make my way through heaps of WC (Workers' Compensation Appeals), the vast majority of which are MD (Memorandum Decision). (I take nothing away from workers' compensation cases, but it is just not an area of law that I am involved with.) Likewise, insofar as I understand them, I take no real issue with memorandum decisions. (Memorandum decisions apply to all appellate case types, civil, family, workers' compensation, abuse and neglect, etc., they just seem to appear most often in workers' compensation cases because workers' compensation cases seem to take up such a large part of the Court's docket.) Memorandum decisions do just what they are supposed to: they decide a specific question for a specific case. A memorandum decision can be cited as pursuasive authority, but you won't find them in any reporter, rather only on the Court's website, and they do not add to the thin thing that is West Virginia jurisprudence. Rule 21(d) of the West Virginia Rules of Appellate Procedure, provides that a memorandum decision which reverses a circuit court should only be issued in limited circumstances. In other words, so long as you agree with the circuit court, a MD is a very useful thing, but if you take issue with a circuit court ruling, a MD will offer you little guidance, or solace.
My real purpose in writing this post, however, does not have to do with workers' compensation decisions or memorandum decisions directly, but rather, with the question: does West Virginia need an intermediate court of appeals (sometimes referred to as an IAC)? West Virginia is one of only ten states that does not have an intermediate court of appeals. I have to confess that even as I write this blog post, I am not completely decided one way or the other as to whether West Virginia ought to have an intermediate court of appeals.
Prior to a rule change, appeals to the Supreme Court of Appeals of West Virginia were "by permission". This was, understandably, a big issue for big business, who felt, rightly or wrongly that they got treated shabbily in West Virginia courtrooms, and argued for that reason alone West Virginia should have an intermediate court of appeals. Now, however, all appeals are a matter of right. In other words, if you've got the time, and the dime, and your ox has been gored in the lower court, the Supreme Court of Appeals of West Virginia will hear your case. Despite that rule change, some still argue that West Virginia needs an intermediate court of appeals.
The present arguments in favor of an intermediate court of appeals are as follows:
1) To decrease the burden on the Supreme Court of Appeals, and allow that Court to focus on criminal and civil cases;
2) By allowing the Court to focus on the fewer civil and criminal cases that are appealed, the Court would, as a matter of course, issue fewer memorandum decisons, and the guidance that could be drawn from the decisions that were issued, which make up the West Virginia jurisprudence, would be improved.
The arguments in opposition to an intermediate court of appeals are:
1) There would be a delay in a litigant obtaining sought after relief;
2) The intermediate court of appeals would add costs to West Virginia's already struggling economy; and
3) The intermediate court of appeals would provide just one more layer of government where everyday West Virginians would suffer at the hands of well-funded litigants such as insurance companies, banks, and big business.
Both positions seem to have merit. I mean, who wouldn't want more clear laws? On the other hand, who wants to pay for more lawyers? In this instance, however, the identity of the groups advocating for, and against an intermediate court of appeals in West Virginia is, for me, telling. Arguing in favor of an intermediate court of appeals is a coalition of primarily republican, primarily big business oriented interests, CALA (Citizens Against Lawsuit Abuse) and their ilk, and academically inclined lawyers. Those arguing against an intermediate court of appeals are probably the rest of the people of West Virginia.
CALA and it's confederates, big business, and the republican party, which are generally in favor of what they call "fiscal restraint", are forced, in this instance to argue that the total West Virginia judiciary makes up only 3% of the West Virginia's economy, so "[a]dding an appeals court would be a relatively minor expense." Charleston Gazette-Mail, Editorial, Jan. 5, 2015. In my experience, whenever an entity is forced to abandon one of its' core principles in order to get something else, there is generally some chicanery, or subterfuge going on. That subterfuge was identified by Paul T. Farrell, Jr., president of the West Virginia Association for Justice, who said "[w]hat they want is to try to create a new layer of judges that the richest companies in West Virginia can appoint themselves...[t]he whole key is that this is an agenda that is just the newest wave of how the rich can attack our judicial system because they don't want a democracy." Appeals declining in WV but some still want intermdiate court, www.statejournal.com, Mar. 7, 2012.
Looking at what I do for a living, and the arguments for and against an intermediate court of appeals, I think, in the end, I will have to join Farrell, and the others who say that West Virginia does not need an intermediate court of appeals. But, what about clearer laws, some might say. I agree, clearer laws would be nice. Being able to have a question about a point of law, and go to a reporter and always be able to have a case on point that addresses that particular issue of law is great. In the end, however, I don't want to be one of those lawyers who value the "logical coherency of the system itself over the well being of individuals." John Chipman Gray, The Nature and Sources of the law, Columbia University Press, pg. 263 (1909). I think I would prefer to stand in front of a jury made up of the people of West Virginia, sling the law, thin as it is, as subject to as many interpretations as it might be, and let the jury decide the case...after all, these are the peoples' courts.
|Posted on September 21, 2015 at 10:50 AM||comments (0)|
I haven't written on this blog since the early part of the Summer. Part of my problem was the lethargy that comes with the warmer months, and another part of my problem was that I seemed to be writing to myself. I've finally gotten over both the lethargy, and caring whether anyone reads my scribblings or not. So I began to look at some of the older posts, and found that there were several posts that could probably use some freshening up. One post in particular called out for some new reporting.
On May 4, 2015, I wrote about a case that was going to be argued before the West Virginia Supreme Court of Appeals. The case involved a pit bull dog, named Tinkerbell, who had injured a child, and who had been court ordered to be euthanized. In a decision named State of West Virginia v. Blatt, et ux., No. 14-0757, filed on June 16, 2015, the Supremes reversed the lower court order directing that Tinkerbell be killed.
The facts briefly: Tinkerbell, a pitbull dog was alleged to have bitten a young boy while he was visiting at Tinkerbell's house; pursuant to West Virginia Code Section 19-20-20, a criminal trial was had against Tinkerbell's owners, Michael and Kim Blatt, to determine if they were guilty of having violated Code Section 19-20-20; in other words, could the State prove beyond a reasonable doubt that the Blatts owned, kept or harboured a dog (Tinkerbell) known to the Blatts to be vicious, dangerous, or in the habit of biting other people. In the criminal trial against the Blatts, the Blatts were found to be not guilty of having violated 19-20-20.
In a case named Durham v. Jenkins, 229 W.Va. 669, 735 S.E.2d 266 (2012), the Court determined that "[s]ection 19-20-20, which is entirely criminal in nature, only provides for the killing of a dog when it is first found that the dog's owner committed a crime described in the first sentence of the section..." that is owning, keeping, or harboring a vicious, dangerous dog, or a dog in the habit of biting other people.
To my way of thinking, the case of Durham v. Jenkins was pretty clear, and I wrote, in my previous blog post, that I was pulling for Tinkerbell and hoping that the Supremes would agree with me that, given the plain language of 19-20-20, and the ruling of Durham v. Jenkins, the underlying judge had exceeded his authority in ordering the euthenasia of Tinkerbell in that the Blatts had not been convicted of a crime under 19-20-20.
Well, my happiness in reporting that Tinkerbell was spared the executioner's ministrations by the Supremes is only slightly tempered by the fact that, while we both agreed that Tinkerbell should not die, we came at the decision from two different paths. I argued, as described above, that because the Blatts were innocent of having violated Section 19-20-20, there could be no further inquiry into whether Tinkerbell should be euthanized. The Supremes, on the other hand, in an opinion authored by Justice Benjamin, sort of wiggled around their holding in Durham v. Jenkins and declared "[s]pecifically, a conviction in a criminal proceeding is not a prerequisite to the separate consideration of whether a dog should be destroyed." Justice Benjamin then went on to write that the underlying court did not make a mistake in "engaging in a proceeding collateral to the criminal matter to determine whether Tinkerbell should be destroyed...", but that the court did make an error in engaging in a presumption that Tinkerbell, because she was a pit bull, was a vicious, dangerous dog, or one in the habit of biting other people. Justice Benjamin went on to argue that because the legislature had not seen fit to include in the language of 19-20-20 a provision for breed specific assumptions, the courts should not permit such presumptions to influence their decisions.
It should be noted that Justice Benjamin is a good republican, and in keeping with the more conservative wing of the judiciary eschews what is sometimes described as judicial activism. This wing of the judiciary also holds that the Constitution is a dead thing, and must be construed exactly as it is is written.
I, on the other hand, am slightly more liberal, and believe that the Constitution is a living document, and must be construed pursuant to precedent, and current context.
In the case of Code Section 19-20-20, Justice Benjamin and I came to the same result; he, by looking at the plain meaning of the words making up the code section, and seeing no words allowing breed specific presumptions, and I by looking at the Court's decision in Durham v. Jenkins which helped to interpret a less than well written code section.
I wonder how we would look at the similarly muddy language of the 2nd Amendment? That is an argument for another day. Today, I, as I am sure is Justice Benjamin, am just happy that Tinkerbell lives!
Revisiting Posts Regarding Delegate Folk, and Delegate Overington, and an Observation on Lawyer Humor
|Posted on June 4, 2015 at 11:05 PM||comments (0)|
This evening, while reading the June 4, 2015 West Virginia Record, I was gratified to come across the article titled "Governor wants Common Core lawsuit dismissed". There, next to the "oh so stern" image of Delegate Folk was an article written by Kyla Asbury, wherein she describes what must be an excellent motion to dismiss filed by Attorney Benjamin Bailey in response to a "brief" filed by Delegate Folk opposing the Common Core State Standards as being unconstitutional. I write that the motion must be excellent because it mirrors several points that I made in my recent blog post: "Political Grandstanding", posted on April 28, 2015. Attorney Bailey writes:
Delegate Michael Folk claims that the State's participation in the Smarter Balanced Assessment Consortium violates the Constitution.... That claim is dead wrong, and an unfortunate and wasteful attempt to bully through the courts a non-justiciable, purely political attack.
Attorney Bailey also notes that Delegate Folk's lawsuit contains numerous jurisdictional, and due process related failings "because Delegate Folk's Petition appears to have been copied in substantial part from a similar petition filed in Missouri...." To be fair, in my blog post, I indicated that I thought that Delegate Folk had purloined the intellectual work from a Connecticut lawsuit. I stand corrected, he apparantly ripped off the inspiration, intellectual effort, and verbiage from a Missouri lawsuit. Oh well, the point remains: Delegate Folk has cynically used up precious court resources, a thing he claims to abhor by his attacks on 'frivilous lawsuits' in order to make a bigger political name for himself. (see http://www.wvrecord.com)
In a like fashion, I was pleased to read David Von Drehle's article titled "The Last Execution: Why the era of capital punishment is ending" contained in the June 8, 2015 edition of Time. Mr. Von Drehle's article makes some of the same points that I made when I criticized Delegate Overington for his consistently wrong-headed support for reinstating the death penalty in West Virginia. (see Delegate Overington: Consistently Wrong on Judicial Hellhole) In my May 11, 2015 blog post I pointed out that the death penalty should not be reinstated because it was expensive, flawed in its application, and was ineffective at deterring crime. While my denunciation of the death penalty was, in my opinion, correct, I could not have said it nearly as well as did David J. Burge of the Georgia Republican Party, who Mr. Von Drehele quoted as saying:
Capital punishment runs counter to core conservative principles of life, fiscal responsibility and limited government.
Is it possible? Is the Georgia republican party smarter than a West Virginia republican, or is Delegate Overington's support of reinstating the death penalty just another political stunt?
Finally, lawyer humor. I know, I know, sounds like an oxymoron, but as someone out there in the vast internet ether might know, I enjoy publishing, from time to time, a lawyer joke or two. It was with some surprise that I found myself miffed by an anonymous post contained in the Journal Junction on May 29, 2015. The post read as follows:
Okay, so now we have a lawyer for "nonhuman rights" suing a university to free two chimps that are there for research. He says it is "akin to slavery" because they are in "solitary confinement." Nonhumans do not have rights, and lawyers should be classified as such.
For a moment my nose was bent out of joint, but then I thought, that's kind of funny. So feel free to joke on, and I will do as well!
|Posted on May 26, 2015 at 3:35 PM||comments (0)|
Ordinarily I try to write new content for these blog posts, but today I will happily throw off that constraint. Today, I am writing in praise of another local attorney, and his letter to the editor that was published in the Monday, May 25, 2015 edition of The Journal. In his letter, Legislative majority is not worker-friendly, local attorney, Garry Geffert identifies two bills passed by the 2015 legislature which have substantially erroded worker's rights in West Virginia. I am writing this blog post in the hope that Garry's excellent, and insightful letter gets as much attention as is possible.
Today, I am only going to discuss SB 12. Garry describes SB 12, sponsored by Craig Blair, and Charles Trump, as being a bill designed to "make it cheaper to steal the wages of working people." Garry goes on to explain that before the 2015 leglislative session, if an employer had failed to pay his employee all of the wages due to him in a timely fashion, then the employee could sue the employer for the unpaid wage, plus three times that amount, and, if the employee was successful, then the employer also had to pay the employee's attorney's fees and costs. The present law, with Senator Blair's and Senator Trump's fingerprints all over it, reduces the penalty to two times the stolen wages. Further, if the wages being sought are overtime wages, then the employee must pay for his own attorney. (Dirty little secret: this is where most employers try to get one over on an employee...they can see working a woman 60 to 80 hours a week, but not paying time and one half for it. Since this category of wage theft is most prevalent, by removing the attorney's fees as an award that can be recouped, Blair and Trump have nipped the lion's share of these cases in the bud. See below.)
When a law requires the offending party to pay for the attorney's fees and costs of the injured party, that is known as a fee shifting statute, and is designed by "thoughtful" leglislatures to discourage, in this case, employers from stealing from employees. The problem that 'thoughtful' legislatures understand is that most of these wage theft cases are for relatively small amounts of money, and as a result of the exorbitant expense involved in ligitating almost anything in America today, an employee who has been screwed out of, say $1000.00 of wages, cannot, absent a fee shifting statute, afford to hire a lawyer to pursue such a small case. Accordingly, under the Blair/Trump regime, workers who have been screwed out of their wages by employers will file fewer lawsuits to recover their wages, and wage thieves will get away with theft more often.
If you pointed the above fact out to Senators Blair and Trump, I'm sure that they would respond with "fewer lawsuits, why, that's a win for West Virginia!" It certainly is not a win for the poor West Virginia family that has been screwed out of $1000.00 worth of wages, and now has no real recourse left to them. $1000.00 in wages is enough to feed a family of four for almost 6.8 weeks. An average human being can survive for approximately 16 days after food is taken away from him. Accordingly, because our hypothetical West Virginia family of four is deprived of food for 47 days due to the wage theft, then that is enough employer greed to kill them all 2.9 times over.
I wonder which constituent of either Senator Blair, or Senator Trump asked for such legislation as the new SB 12? Most West Virginians are employees, not employers, why would employees, who stand to be hurt by legislation such as the new SB 12, vote for people such as Senators Blair and Trump? Perhaps they are taking orders from a different paymaster? I suspect that most people who voted for Senators Blair and Trump only voted for a slick ad campaign paid for by well off employers and corporations. Those voters never voted to screw over wage earners, but the result of their uninformed votes has led to just that result. It is time for West Virginians to begin to educate themselves to the issues, and to start voting for their own interests.
Thanks again, Garry Geffert, for the tremendous letter to the editor!
|Posted on May 19, 2015 at 3:50 PM||comments (0)|
Yesterday, Monday, May 18, 2015, I was reading the local paper, The Journal, when I came across an article entitled: Amtrak could pay more than $200 million to crash victims. The article was on page A3 and below the fold. In my opinion it should have been on the first page and in huge bold face. That's how important any news article is that serves to educate us about damage caps.
What is a damage cap? A cap on damages is a legislative creation that puts an arbitrary "one-size-fits all" limit on how much an injured person can receive in compensation for their injuries. Caps are generally defined by dollar figures ($250,000.00, $200,000,000.00). Damage caps have been the law in West Virginia since 2003, when the legislature enacted the Medical Professional Liability Act, which caps non-economic damages, things like pain and suffering, disfigurement, disability, inability to enjoy life in the future, etc. to $250,000.00, regardless of what the evidence showed the true nature of the damages to be. For example, an infant could be horribly mangled in some type of birth incident that was wholly the doctor's fault due to the fact that he was high on skittles at the time of delivery. Despite the fact that the infant would never be able to work, or have any enjoyment in life, and would forever bear the marks of his injury through horrible disfigurement, and would suffer for the rest of his life due to pain from his injuries, according to the idea of damage caps, he could only recover $250,000.00.
I began this post by citing a newspaper article which declared that Amtrak could end up paying more than $200 million to the crash victims of the May 12, 2015 Amtrak crash that occurred just outside of Philadelphia. When I read the article, however, I really didn't have a good understanding of how Amtrak could be compelled to pay more than $200 million in damages. Sure, the collective damages as shown by the evidence may well eclipse the $200 million dollar mark, but that doesn't matter. What matters is that in 1997, without knowing any of the facts about the May 12 disaster, without knowing any of the 8 lives that were snuffed out by that crash, without knowing any of the injuries that have been suffered, without pausing to calculate even a single dollars worth of damages that will spring from that May 12 disaster, Congress enacted the Amtrak Reform and Accountability Act, which, in part, restricted liability payments for any single train accident to a total of $200 million. You might say, "$200 million, that should cover it!" But does it? In the May 12 crash, more than 200 people were injured, 20 people remain in the hospital, and could be there for a long time, backs were broken, arms were almost severed, and 8 people lost their lives. The May 12 crash will have permanent, life altering consequences for hundreds, perhaps thousands of people.
"But", you say, "we have $200 million to cover the losses...that should be enough...I mean how much could one life be worth?" I don't know, but I do know that if it were the life of my children, or my wife, or any other person that I cherish, $200 million would not be enough. My theory of damages is irrational, tinged by love, the fear of loss and loneliness, and emotion. But in a world where GoPro's CEO is being paid $285 million a year, or Chenire Energy is set to pay its' CEO $142 million a year, or where a soccer player is paid $80 million dollars a year to kick a ball around, why should the lives of ordinary people matter so little, or be subject to the whims of arbitrary damage caps?
I am opposed to legislatively imposed damage caps. They serve no purpose other than to pander to huge, well funded special interest groups. They do not represent a cost savings to the taxpayer. They hurt those most who are most vulnerable, and they are positively un-American.
In the case of the West Virginia Medical Professional Liability Act, the special interest group that was most pleased by the passage of the act was the West Virginia Medical Association. In 2015, the West Virginia legislature enacted another damage cap, by including nursing homes under the protective damage limits of the Medical Professional Liability Act. The $250,000 cap on non-economic damages has certainly delighted corporations like Beverly Enterprises Inc., a multi-billion dollar nursing home conglomerate, and HCR Manor Care, who got hit with a $92 million dollar verdict in 2013 for allowing an 87 year old dementia patient to die of dehydration and starvation due to under staffing.
In 2003, West Virginia was in the throes of a manufactured crisis relating to high medical costs, caused by exorbitant costs for medical malpractice insurance, and the lack of doctors to serve the rural areas of West Virginia. Lobbyists for the West Virginia Medical Association said that without caps on liability damages, West Virginia would continue to face skyrocketing medical costs, and doctors would continue to abandon the State for less toxic legal climes. The crisis was manufactured by groups such as the American Insurance Association and Americans for Tort Reform Association. The problem was, and remains that the medical malpractice liability crisis was mostly made up out of whole cloth and for the purpose of scaring voters and legislators into protecting special interest groups. Other than serving the insurance industry, the West Virginia cap was wholly ineffective. Simply put, damage caps do not reduce medical malpractice insurance premiums. Testimony taken in 2003 by a Congressional subcommittee disclosed that five states with damage caps: Florida, Michigan, Nevada, Ohio and West Virginia, also had the highest medical malpractice insurance premium costs. Oklahoma, on the other hand, did not have damage caps, and had an actual decrease in medical liability pay outs. Not only did damage caps prove ineffective at reducing insurance premium costs, but they also could not avoid cost increases. In Texas, soon after the legislature enacted a constitutional amendment limiting damages, some insurers requested rate hikes as high as 35% for doctors and 60% for hospitals. The American Insurance Association admitted, sheepishly, that insurers "never promised that tort reform [would] achieve specific savings." In addition to serving a very limited constituency, and being ineffective, damage caps also have a tendency to hurt the littlest, or most vulnerable among us the most. In that damage caps are almost always targeted at non-economic damages, such as pain and suffering, disfigurement, disability, and the inability to enjoy life in the future, they typically act to reduce damages for new born infants, and elderly patients the most. Neither of these groups work, and therefore their damages are not based upon calculable numbers such as lost wages, or future medical care, but rather are based upon non-economic damages, which, in the instances under discussion, are capped and bear no relationship to the actual damages suffered.
The thing that bothers me the most about damage caps, however, is that they are un-American. As I have written above, damage caps are a sop to the rich and privileged, and a swipe at our constitutional freedoms. Pursuant to the 7th Amendment to the Constitution, we, as Americans, have a right to have our cases decided by a jury. The jury is often times called the finder of fact in a trial. Who would you rather have making factual determinations as to what were your damages in a case: the jury who heard the evidence, or a bunch of legislators in a closed room, hundreds of miles away from where you were injured, who don't know your name, let alone your damages? Could a multi-billion dollar corporation, who was being sued for wrongdoing rush out and "buy" the jury that is trying their particular case? Not very likely. But a legislature could be buffaloed, wooed and subjected to blandishments by corporations and lobbyists before, during, and after a legislative session, and could be induced to write bills that favored the corporate wrongdoers, and hurt, in a way that a jury would never do, common people making claims for legitimate injuries.
In some states, the constitutionality of damage caps has been successfully challenged. The claims that the legislative grab at judicial power, which is what a damage cap is, violates the separation of powers, the 7th Amendment, substantive due process, and equal protection under the laws have been successfully heard in Alabama, Georgia, Illinois, New Hampshire, Oregon, and Washington. Many other states are considering challenges to the damage caps. Unfortunately, Maryland, Virginia and West Virginia have each declared their damage caps to be constitutional. While damage caps are bad for Americans, it is little wonder that they exist. In a poll conducted by the Kaiser Family Foundation, approximately 63% of the people polled favored caps on non-economic damages. Nearly 70% of the people questioned said that they believed that limiting damages for pain and suffering would help "a lot" or "some" These poll numbers reflect the powerful influence of the messages being spread by slick advertising, and paid for by shell groups such as Citizens Against Lawsuit Abuse, or American Tort Reform Association, or the American Insurance Association. (These messages can be summarized thusly: lawyers, lawsuits bad, corporations good for America, good for economy.)
Perhaps that nearly 70% would like to explain to the last Amtrak victim why there is no more money to pay for his injuries. We, as Americans, must stop accepting, without question, the lies that corporations, and their bagmen (see above, CALA, ATRA, AIA) are feeding us, we must stop giving away our constitutionally guaranteed rights in the name of a more efficient economy, we must stop acting against our own interests. This is particularly so in West Virginia, where it seems that since the days of the company store, the common man has lost out to the corporation. I want jury verdicts to be fair and based upon an examination of the evidence. I don't want them to be manipulated and whittled away by powerful corporate lobbyists, and paid for legislators who don't know your name, and don't care about your pain. Rant over...for now.
|Posted on May 11, 2015 at 4:50 PM||comments (1)|
"Foolish Consistency is the hobgoblin of little minds..." said Ralph Waldo Emerson. When I think of Delegate Overington, the Republican delegate representing the 62 District of West Virginia, I often think of Mr. Emerson and his famous discourse on consistency. Delegate Overington, who is a very nice man, I'm sure, is the longest serving legislator in the West Virginia House of Delegates, having served, I believe, 29 years. During those 29 years, Delegate Overington has shown a remarkably consistent support for: reinstating the death penalty in West Virginia, for reforming the civil justice system to benefit corporations and hurt individual West Virginians, and for searching for the largest tree in his District.
I will not chide Delegate Overingon for his annual large tree contest, for an interest in all things arboreal is probably a good thing, particularly in a Republican delegate. For his consistent support of reinstating the death penalty in West Virginia, however, I can only shake my head. West Virginia is presently facing a 195 million dollar budget shortfall, and yet, during the 2015 legislative session, Delegate Overington, for the 29th year in a row, saw fit to introduce his bill to reinstate the death penalty. The fact that a death penalty prosecution costs, on average, 1 million dollars more than a criminal prosecution where life imprisonment is the maximum penalty probably did not figure into Delegate Overington's consistent support for this bill. In the past, Delegate Overington has explained that his support for reinstating the death penalty springs from his fear that because most of the states surrounding West Virginia have the death penalty, killers would be more likely to visit West Virginia: sort of like a tourist attraction for the killer on the go. I guess the fact that West Virginia consistently has a lower homicide rate than its neighbors also did not figure into Delegate Overington's calculus.
While I am confused by Delegate Overington's blood thirsty support for the death penalty from such a nice, well mannered man, it is his efforts to tweak the civil justice system to favor the corporate wrongdoer that has caused me to write the present blog post. Those efforts are encapsulated in Delegate Overington's use of the objectionable phrase: "judicial hellhole" to describe West Virginia. To be sure, Delegate Overington has used this phrase in the past, but his latest offense against the people of West Virginia occurred in his Delegate John Overington Report ("Report"), published in The Journal on Sunday, May 10, 2015. In the Report, Delegate Overington explains that his number one priority is "to create a jobs friendly environment in West Virginia", and explains further that he intends on doing that by "ending our national status as a 'judicial hellhole.'"
The term judicial hellhole is not a clever turn of phrase coined by Delegate Overington, but rather is one that was developed, and has been used by a group called the American Tort Reform Association ("ATRA") since 2002. ATRA claims that it is a non-profit group organized solely for the purpose of illuminating for the American public the seamy truth about our civil justice system. Like the phrase, judicial hellhole, ATRA's purpose is, simply put, a lie. ATRA is funded by major corporate interests from across America, including representatives of the pharmaceutical, auto, insurance, and manufacturing industries, all with a profit motive for avoiding liability for wrongdoing. Each year, since 2002, ATRA has published its Judicial Hellhole Report, and has frequently named West Virginia as being one of the worst offenders. Neutral scholars, however, have criticized ATRA's statistical, and fact gathering methodology, and reporting, and have compared it to the big lie, or the grosse luge, used by Adolf Hitler during World War II.
In his smallish book, Mein Kampf, Hitler first identified the phrase, the big lie, and explained that if a reporter told a big enough lie, and repeated it often enough, it would take on the guise and aspect of the truth. Psychologists know of this phenomenon, and call it the social learning theory. The public is told that there is a litigation explosion, that the greedy trial lawyers are raping the nation, that run away juries are destroying the fabric of society and driving corporate employers out of business. (None of these things, by the way, are true.) These lies are consistently repeated by ATRA, and people like Delegate Overington, and soon the public has internalized the lies and believes them to be true. Professor Elizabeth G. Thornberg of Southern Methodist University explained that ATRA has no desire to paint a realistic picture of the civil justice system, but rather wants to induce a panic amongst the legislators, the judges and the public so that laws, and cases favor corporate defendants.
In order for social learning to work, the lies must be repeated over and over again. In this instance, Delegate Overington, who claims to be a champion for the people of West Virginia, is the one doing the heavy lifting: repeating the lie: judicial hellhole. If a place is said to be a judicial hellhole often enough, in the eyes of a corporate employer it becomes just that: a judicial hellhole. I can't imagine that there are many corporate employers who would be interested in relocating to such a locale. Why is Delegate Overinton publishing this lie? Why does he want corporate employers to think that the business environment in West Virginia is toxic, when, in fact, civil filings, and appeals are at their lowest level in years, jury awards are modest, punitive damage awards are rare, and, based upon unvarnished facts, the civil justice system in West Virginia treats corporate defendents fairly. I suspect the answer lies in Emerson's observation about "foolish consistency" and "little minds". Many years ago, Delegate Overington accepted from ATRA the lie that the civil justice system was broken and needed fixing. He didn't critically examine that lie because it fit into his limited world view. He simply accepted it, and began to repeat it over and over. Today, for him, it is probably perceived as the truth. So, for his 29th year in a row, Delegate Overington has continued to support corporate defendants at the expense of the average West Virginian. Given this foolishly consistent betrayal of West Virginia, I think that it is time for Delegate Overington, and any other delegate who repeats the lie, judicial hellhole, to resign and concentrate on, perhaps, finding their own biggest tree.
|Posted on May 4, 2015 at 4:55 PM||comments (2)|
From the perspective of one who handles dog bite cases, and who also loves dogs, there is an interesting case set for argument before the Supreme Court of Appeals of West Virginia on May 12, 2015. It is styled as State of West Virginia v. Blatt, No. 14-0757. In a nutshell, nine year old Nicholas Blake owned a pit bull terrier mix breed dog, who he had named Tinkerbell. On March 31, 2014, some of the neighborhood children, including a minor designated as LL in the record, had come over to play with Nicholas. At that time, Tinkerbell, or Tink as Nicholas called her, was confined to the fenced in front yard. As a result of a neighbor passing through the front yard and into the back yard and leaving the gate ajar, Tink was able to join the children in the back yard where they were playing. Everything was going well until Tink began to play with a ball on her own. Tink punctured the ball and then thought to bury it. Unfortunately, LL approached Tink, and took the ball from her, and held it up and away from the dog. Tink jumped up, and in attempting to retrieve the ball from LL, struck LL in the mouth and nose area. The evidence was that when Tink struck LL, she also bit her in the mouth. LL required several stiches for her lip.
A criminal trial pursuant to West Virginia Code section 19-20-20 was had later that summer. Section 19-20-20 reads as follows:
Except as provided in section twenty-one [19-20-21] of this article, no person shall own, keep, or harbor any dog known by him to be vicious, dangerous, or in the habit of biting or attacking other persons, whether or not such dog wears a tag or muzzle. Upon satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous or in the habit of biting or attacking other persons or other dogs or animals, the judge may authorize the humane officer to cause such dog to be killed.
At the conclusion of the bench trial (without a jury), the Blatts, Nicholas's parents, were found not guilty of having violated section 19-20-20. You would think that would be the end of the story, but, in this instance, the Judge decided to hold a hearing on the question of whether Tinkerbell was "vicious, dangerous, or in the habit of biting or attacking other persons." At the hearing, the evidence presented suggested that immediately after the March 31, 2014 incident, Tink retreated from the yard and cowered under a bar stool. LL's parents testified that they had never known Tink to be vicious or dangerous, and that they had no concerns with LL playing with Nicholas in his yard. The animal control officer testified that Tink was a very docile dog, and did not act vicious, or appear to be dangerous, but he did allow that family dogs could turn very easily. In the end, the Judge determined that Tink was a vicious, dangerous dog, and was in the habit of biting other persons or attacking other persons, and ordered that Tink be euthanized. The Blatts appealed the decision to kill Tink.
In this case, I'm pulling for Tink, and I think the Judge got it wrong. Section 19-20-20 was enacted for the purpose of protecting the public from dogs that are vicious, dangerous, or in the habit of biting or attacking people. In the matter of Durham v. Jenkins, 229 W.Va. 669, 735 S.E.2d 266 (2012) the West Virginia Supreme Court of Appeals considered section 19-20-20, and had this to say:
Section 19-20-20, which is entirely criminal in nature, only provides for the killing of a dog when it is first found that the dog's owner committed a crime described in the first sentence of the section. During that criminal proceeding, upon finding that the dog is dangerous, which is an element of the crime to be proved, the judge may then order the dog killed... This Court holds that the authority to order a dog killed pursuant to W.Va. section 19-20-20 (1981), stems solely from a criminal proceeding, and a private cause of action may not be brought for the destruction of a dog under this section.
In the case against Tink, the Judge ruled that a single incident was enough to find a dog vicious, dangerous or in the habit of biting other persons. I think that the Judge is using a little judicial activism to see that justice, as he sees it, is done. (Perhaps he suffered at the paws of an unruly dog when he was a child?) The statute is pretty clear. The legislature, who, for better or worse, create our laws, determined that a crime is committed under section 19-20-20 if the owner of a dog knows that the dog he is keeping, owning, or harboring is vicious or dangerous. In that dogs cannot articulate their vicious or dangerous intent beforehand, in order to know whether a dog is vicious or dangerous, the owner must be aware of a similar act of viciousness or dangerousness occurring at some point earlier in time. Additionally, throughout section 19-20-20, the legislature used the phrase "habit of biting or attacking", which suggests that the legislature was concerned not with the dog that had committed a solitary nip, but rather with the dog that had made it a habit to bite other persons or animals. This is more in keeping with the common law doctrine sometimes called the "one bite rule". (It should be noted that because LL was an invitee to the Blatts' backyard, and LL was injured by Tink, the Blatts are liable to LL for her civil damages regardless of the 'one bite rule'. I am concerned, however, many insurance companies are excluding pit bulls from coverage, but that is a story for another day.)
I hope that following the May 12 argument, Tink is permitted to return home to Nicholas. If the Judge does not like the law, he should lobby the legislature to change it, but he should not twist it from the bench to satisfy himself. I also hope that LL is able to recover for her damages, which, even if Tink only gave her a nip, can be substantial. I'll let you know how things go.
|Posted on May 1, 2015 at 3:20 PM||comments (0)|
Yesterday, April 30, 2015, I read the editorial in The Journal: Safety First, Additional protection for miners just makes sense. I was primed to disagree with whatever was written, because The Journal is a corporate apologist, and I am not. Upon first reading the editorial, which was lauding the Robert C. Byrd Mine Safety and Protection Act of 2015, I was mildly surprised. The Act itself stands, generally, for the proposition that mine safety regulations must be enforced. It wasn't until my third reading of the editorial that I began to understand why The Journal was apparently supporting a mine safety bill. In fact, The Journal was not supporting increased mine safety.
I think that The Journal's real purpose behind the editorial is found in paragraph five:
Many mine owners complain MSHA inspectors are too eager to hand out citations for technical violations that have little if anything to do with keeping miners safe. Obviously that attitude, where present, should be discouraged--because, if anything, it may be a distraction from enforcing truly important rules.
The first question that came to my mind was who gets to decide what is a truly important rule versus a technical violation: the complaining mine owners?
Allowing the complaining mine owners to control safety in a mine would be consistent with The Journal's support for The Coal Jobs and Safety Act 2015 (the "Act"), that was passed by our republican led legislature, and signed into law on March 12, 2015. Cecil E. Roberts, President of the United Mine Workers of America International said of the law:
Today marks the first time in West Virginia history that our state has officially reduced safety standards for coal miners. It is a truly sad day for those miners and their families, and once again demonstrates that our beloved state has yet to break free of the out-of-state corporate interests.
As usual, I had to do some research, and I found that the Friends of Coal, disagreed with Cecil, and thought the Act was a pretty good deal, and found that the West Virginia Coal Association also thought the Act was a step in the right direction. There was something curious about the logos for these two organizations, however, they looked suspiciously alike: their name with a glorious swoop underneath, probably to signify progress or something. Upon further research, however, I found that there was a perfectly logical explanation for why their logos were similar: Friends of Coal is a West Virginia based, republican supported political action committee (read hidden money), and West Virginia Coal Association is made up of the owners of the various mines, not the miners, just the owners (read more hidden money).
I was still curious about why Cecil thought that the Act was a bad thing for miners, and I found that Delegate Mike Caputo, a democrat representing Marion County, had laid it out in a fairly understandable manner. Delegate Caputo said that there were many areas in which the Act rolled back safety regulations, but identified two in particular: the Act abolishes the West Virginia Diesel Commission, which protects miners in underground mines that use diesel equipment by ensuring that all such equipment meets safety standards (this job will now be done by a single person, the Director of the Office of Miners' Health and Safety Training - who obviously has nothing else to do); and the Act would increase the distance a rail track can be from a working face area from 500' to 1500' (accordingly, if a miner is injured at the face, he has to be transported by hand more than three times the distance before he can be transported out of the mine on a train.) The representatives of the coal industry (see Friends of Coal, and West Virginia Coal Association, above) have said the legislation will reduce operating costs to help make them more competitive. Well, even I can see that: think of the savings in just those 1000' of track alone!
In a very sad, but expected irony on March 15, 2015, three days after the Act became law, a miner died when a roof collapsed at the McElroy Mine. The McElroy Mine is owned by the Marshall County Coal Company, which is, in turn, owned by the Murray Energy Company, whose CEO is Robert Murray, a fabulously wealthy donor to all causes republican, and outspoken critic of any law that would impede productivity. In 2014 the McElroy Mine was cited by MSHA inspectors 970 times. In 2014, the McElroy Mine suffered 47 significant injuries to miners. In 2015, as of March 15, 2015, the McElroy Mine had already incurred another 14 significant injuries to miners. I wonder how many of those 970 citations were for those pesky "technical violations"?
Not to put too fine a point on it, but the point is this: West Virginians must stop hewing to the corporate line. Corporations care about profits, not people, and certainly not West Virginians.
|Posted on April 28, 2015 at 6:45 PM||comments (0)|
The other day, Delegate Mike Folk, representing District 63 for West Virginia, made a smallish splash in the world, when he "filed a brief" with the Berkeley County Circuit Court denouncing the constitutionality of Common Core State Standards, or as it is more commonly known, Common Core. Being a lawyer, I guess I should know what it means to "file a brief", but I'm not really sure what Mr. Folk has done in this instance. I've heard of filing briefs for and against a position, but those are briefs filed by the litigants in an active case. I've heard of filing an amicus brief, for or against a position, but those again are filed in connection with ongoing litigation. I've never heard of someone simply filing a brief before; perhaps something was lost in the translation. In the legal biz we might call such an unattended document a "fugitive pleading" and move to strike it from the record, but that is a topic for another day.
So, confused, as I am sometimes, I decided to do a little research. I found that Mr. Folk objects to Common Core because it is 1) a waste of educational resources, 2) takes money from our school system, 3) represents an impermissible, and unconsitutional power grab by the Federal Department of Education, and 4) allows the Federal Government to illegally collect data about children. I was marginally impressed. I'm not a great big fan of Common Core because I think that standardized testing is an overused crutch in this country. Overworked, underpaid teachers with a huge standardized test looming will abandon their life changing lesson plans, and simply 'teach to the test.' I note that Finland, possibly the world's most successful school system in terms of outcome, does not engage in a great deal of testing. While eschewing testing, the Finns do believe in 1) intrinsic motivation, 2) academic rigor, and 3) absolute reverence for teachers and their accomplishments.
As I said, I was marginally impressed with Mr. Folk's stated reasons for challenging Common Core, but then I thought a little bit more, and did a bit more research. I found that Common Core actually would pump money into our school system in terms of Federal dollars, and it is not a waste of educational resources in that it requires a student to learn a great deal about many required subjects, and to develop critical thinking skills. As far as Common Core being violative of the Constitution, specifically the 10th Amendment to the Constitution, you know the one that says that all powers not specifically delegated to the Federal Government remain with the states, eh...I guess you could make the argument without laughing, but you could also claim that Common Core does not establish a curriculum, which is forbidden, but rather only suggests fairly rigorous national standards of achievement. Finally, I was completely disinterested in Mr. Folk's tin foil hat suggestion that Common Core would trample parental rights, and allow "children to be harassed in our schools, all so the Federal Government can track and log information about our children from the cradle to the grave." Give me a break, unless you intend to take your children and go live completely off the grid, the Federal Government is going to know something about them by the time they are old enough to collect social security, at which point, they will be pretty happy that Uncle Sugar remembered them.
All that having been said, like I said, I am not a great big fan of Common Core. I am a fan of better teacher pay, more rigorous standards in the classroom, and a cultural shift in America where being the smartest kid in the room is a goal to be attained. If you're still with me, you've probably discerned that while Mr. Folk and I are marginally on the same page as regards Common Core, I have a sort of "snarky" attitude towards Mr. Folk and his smallish splash. His 'brief' which he suggests sprang from his own intellect, and desire to help the children, is actually part of a nationwide effort by like minded groups to push back against Common Core. I suspect the brief is a cut and paste job lifted from a group such as CT Against Common Core (Connecticut Against Common Core). There has been no independent thought about this matter by Mr. Folk, he has simply glommed on to a convenient whipping boy; he has not suddenly turned himself into a constitutional scholar, rather he is just mouthing phrases that he scarcely understands. To do this, Mr. Folk has used one of the most useful tools available to everyday Americans seeking redress for wrongs: the judicial system. The problem with this, and what grinds my bolts, is that Mr. Folk, and CALA (citizens against lawsuit abuse), who supported him in the last election cycle, are opposed to filing "frivolous lawsuits", and clogging up our judical system with unnecessary lawsuits. What is this present brief, but unnecessary? Common Core will either suceed or fail based upon more intellectually honest arguments than those made by Mr. Folk in his cookie cutter brief. Rather than scouring the internet for laws already written for you by ALEC, or briefs already filed in other states, why not figure out a way to pay our teachers more, Mr. Folk?
|Posted on April 28, 2015 at 2:50 AM||comments (0)|
This past weekend, I drove down to Hampton to visit my father. He has, for my 50 plus years, always been embarrassingly proud, and supportive of me, despite there being no reason for either emotional state on many occasions. Regardless, his unyielding optimism about me was, as always, a restorative tonic, better than a gin and tonic on a 90 plus day. I asked him to look over my website, and, after grumbling about witchcraft, and other nonsense, I finally got him to review the site. Everything went fairly well, until we got to this page. I hate to write it, but I forced this nice man to read every one of my blog posts. At the end, eyes bleeding, and begging for some sort of medicinal elixir, he said that while he appreciated my writing style (I told you he was senselessly supportive of me), he did not think that the subject matter would elicit much interest. I responded that I had written about an attractive young legislator being led astray by wanton corporate interests, and the rape of constitutionally protected rights by a wrong headed law. Dad countered, that the way I had written about those topics, while factually correct, could drive the sin out of Sodom. I reread the posts, and have to agree with him. I was obviously writing to my internal nerd. I have always enjoyed the law and the way that it worked, protected, and confounded our existence. Good law has destroyed tyrants, and freed men. Law is the tipping point between freedom and anarchy.
Rereading the last couple of sentences, I understand what my father was talking about. I have a tendency to wax poetic about anything that stirs up my gray matter. You, gentle reader, to steal a line from Stephen King, are not looking for poetry. I will try, in the future, to write about things more substantive. I will try to write about slip and fall accidents, dog bites, car accidents, and great big semi trucks rolling over tiny little motorcycles, or of ATVs sailing off into the ether.
My father's advice might choke off the poet inside me, but hopefully, in the more sensible topics that I will be writing about, you, gentle reader, will find an answer.