Mountain Stage

For one of the many great things about West Virginia, I went to Mountain Stage in Princeton on Sunday night. As always, an excellent show. Julie Adams and Larry Groce of the Mountain Stage Band were in fine voice, and the Band was as tight as ever.

I went to see Steve Earle, especially to hear him sing stuff from the new Townes album. It was just Steve and an acoustic guitar to end out the show, and he didn't disappoint, with a talking folk beginning about Townes, followed by Pancho and Lefty, and adding a pretty rousing Copperhead Road. The rest of the show was a real pleasant surprise, with folks I had not heard before. Doyle Lawson & Quicksilver did some classic bluegrass and gospel with some soaring harmonies. I probably liked Sara Watkins the best as she showed some considerable range from her days with Nickel Creek. King Wilkie was sort of interesting with a mix of bluegrass and almost Beatle like songs. The Lovell Sisters were the most surprising with a tight set of fiddle, mandolin and dobro backed by bass and drums.

If you ever get the chance to see Mountain Stage, it is well worth the price of a ticket, which ranges from $12 to 18 bucks.

Recusal after Caperton v. Massey

The United States Supreme Court, in Caperton v. Massey, held that West Virginia Supremre Court Justice Benjamin should have recused himself from hearing the case because of financial support of his campaign of $3 million dollars by the president of the defendant company. Factually, the contributions were to an independent advocacy group which also collected money from others. Due to the "extreme" amount of contributions, the SCOTUS found there was an appearance of impropriety which rose to the level of a denial of due process.

The SCOTUS made it clear that there was no evidence of actual bias by Justice Benjamin. Thus, it is the "appearance of impropriety" or perception of unfairness that drove the ruling. The dissents, by Justice Roberts and Scalia, focused on the questions raised and unanswered by the ruling.

A couple of thoughts on this one. First, disclosure: Massey and its subsidiaries are clients of my law firm.

This opinion reverses one case based on what the Court calls "extreme" facts, particularly the amount of money contributed. Otherwise, it provides no guidance as to what amount of contribution, and by whom, rises to the level of requiring recusal. In this respect, the opinion is reminiscent of Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), where Justice Stewart, describing hard core pornography stated "I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it...." Future litigants, faced with the issue of contributions, will find little to answer the question of whether due process requires recusal from this opinion. As the dissents note, the opinion raises a host of questions it simply doesn't answer.

What this opinion means is unclear. The WV Court will now rehear the case sans Justice Benjamin. In the future, it appears that litigants will have to consider the issue of recusal in any case where there is a party or counsel who was a significant supporter of a justice in our partisan political elections. Do "bundled" donations - raised from many different people through the efforts of an organization (the dissents note the Trial Lawyers raised $2M in the same election) count toward the due process total? It seems to me that as long as there are partisan political elections, there will be supporters, donors and independent groups who get involved. For me, I agree with the ABA - merit selection with broad based commissions doing the selection in a transparent public way is better than the fistfights we and other states are seeing in our judicial elections. See, ABA Report, "An Independent Judiciary" (1997).
http://www.abanet.org/poladv/documents/indepenjud.pdf

Unfortunately, this is another black eye for the WV Justice system, ironically in a case where the Court finds no actual bias or prejudice on the part of Justice Benjamin.

Anyone interested in this decision should actually read it. Here is the link:

http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf

New Opinions from the WV Supreme Court

The Supreme Court issued new opinions today, including another separate opinion in the Andreini case, which (short story) overturned a new trial (granted as a "mistrial" by the circuit court) over inflammatory arguments by defense counsel.

First, in Stuyvesant v. Preston Cty Comm'n, the Court affirmed the dismissal of a complaint as barred by the statute of limitations. The plaintiff's decedent hung himself in the county jail. Suit was filed over two years after the death, but within two years of the family learning, according to the complaint, that the decedent had received medical care at the jail prior to his death. The court found there was no allegation that a wrongful act related to the medical care caused the death:

More specifically, as per the fourth part of the Bradshaw test, the appellant failed to make even the barest of allegations in his complaint, or in any of his subsequent filings below, “that [a] wrongful act, neglect or default of that person or entity [had] a causal relation to the decedent's death.” In that regard, the appellant's complaint did not allege, even upon information and belief, that the Sheriff fraudulently concealed or misrepresented material facts surrounding the death of Mr. Daft. Instead, the appellant states that the discovery of the invoice during the month after Mr. Daft's death, in and of itself, caused the appellant to “doubt the Sheriff's assertion that Mr. Daft committed suicide.” Such a broad and disconnected allegation is woefully insufficient to allow for the statute of limitations to be tolled in this case. Had the appellant alleged any causal connection or nexus between his perception of the evasive reaction by the Sheriff in response to questions about the invoice and Mr. Daft's subsequent death by hanging, the result of this case may have been different. However, that is not the situation before this Court. Thus, the circuit court did not commit error in finding that there was no factual basis to permit application of the discovery rule.

This case shows a focus on the exact allegations plead in the complaint (a la Twombly and Iqbal?) and on enforcement of the statute of limitations absent a showing which merits an exception.

Next, Timberline v. Herlan arises from a contractual squabble, and focuses on the black letter law of agency relationships, but nothing new here.

Huffman v. Goals Coal arises from the placement of a coal silo near a grade school, with the issue being whether it was within the area permitted by the DEP. Coal River Mountain Watch (“CRMW”) intervened in the case and argued the DEP and the Surface Mine Board could only consider the original maps submitted with the permit application, and could not consider any landmarks or other information, which would not allow the building of the silo. The Court emphasized that the case was not about where the silo should be built, but rather about simple statutory interpretation, under which DEP was entitled to consider markers and other evidence demonstrating the permitted area.

Finally, the Andreini case produced two separate opinions. Justice Ketchum concurred that declaring a mistrial after the verdict was improper, and with treating it as a new trial issue, but would reverse on the substantive issue of the comments by defense counsel, finding counsel "invited error" by failing to request a transcript of plaintiff's closing to which he claimed he was merely responding. Justice Workman stated that without the transcript, the court should have deferred to the trial judge's recollection.

Liberal or Conservative?

In State ex rel Kutil v. Blake, No. 34618 (June 5, 2009), the Supreme Court of Appeals reversed a ruling removing a child from the home of a same sex foster couple. This morning's Gazette headline states: "State Supreme Court rules in favor of same-sex foster parents." http://www.wvgazette.com/News/200906050247. The headline should have read "State Supreme Court rules in favor of foster child." By tomorrow morning, if not already today, we will have an outcry about activist liberal judges destroying the core of our society.

Before anyone gets on the soapbox, here is the opinion:
http://www.state.wv.us/wvsca/docs/Spring09/34618.htm. Read the opinion.

If you read the opinion carefully, instead of just looking at the result, it shows the Court follows long established precedent by requiring that in placing children, the best interest of the child must the basis for decisions affecting the placement of children in foster homes. The Court found the child was removed on motion of a guardian ad litem from a foster home described as "comfortable and physically safe for the infant respondent," because "the best interest of the child is not to be raised, short term or long term, in a homosexual environment and that the same is detrimental to the child's overall welfare and well-being.”

Examining the relevant statute, West Virginia Code § 48-22-201 (2001), the Court found no prohibition on foster placement or adoption by same sex couples and no legislative preference for married couples. The Court declined to create language in a statute where no such language existed. One basis for removing the child was overcrowding, but the Court found there was no analysis by the DHHR about which child to remove from the home consistent the best interest of the child, because the only reason for removing this kid was the issue of a same sex foster couple. By oral argument, the issue of overcrowding, due to temporary placements, was moot. The Court also found that even though the foster parents expressed a desire for adoption, that issue was not before the court - only the issue of short term placement.

So, liberal or conservative? First, I don't like these labels, because the truth is that people like to put labels on decisions not because of how the court addresses issues within its constitutional power, but because they don't agree with the result.

But, if this is the debate, this decision is conservative. The Court found no statutory prohibition on same sex foster parents or adoptive parents, so it didn't create any new law on that issue. Indeed, no one said all the other kids should have been taken from the home which was described by all as a good home. The Court required the best interest of the child to be the "polar star" or driving force. With no analysis by anyone, and no evidence the foster home was bad, how is it "liberal" or "activist" to require evidence and to require circuit courts to follow precedent? For my two cents, the Court followed established law, read exactly what our statutes say and did not create new law, and focused on the best interest of the child. I think well meaning, honest people can disagree on a lot of things, but not putting the best interest of kids first.

Self Defense in Spousal Abuse Cases Defined

Yesterday, the Supreme Court reversed the conviction of a woman convicted of murdering her husband, finding "the State failed to prove beyond a reasonable doubt that the defendant’s actions were not made in self-defense." The Court vacated the conviction and remanded the case directing the circuit court to enter a judgment of acquittal.

The Court issued three new syllabus points on the admissibility of prior abuse or threats and self defense, overruling two prior cases.

3. Where a defendant has asserted a plea of self-defense, evidence showing that the decedent had previously abused or threatened the life of the defendant is relevant evidence of the defendant’s state of mind at the time deadly force was used. In determining whether the circumstances formed a reasonable basis for the defendant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the decedent, the inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is to say that the defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when considering all of the circumstances surrounding the defendant’s use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), is expressly overruled.

4. Where it is determined that the defendant’s actions were not reasonably made in self-defense, evidence that the decedent had abused or threatened the life of the defendant is nonetheless relevant and may negate or tend to negate a necessary element of the offense(s) charged, such as malice or intent.

5. An occupant who is, without provocation, attacked in his or her home, dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be upon the premises, may invoke the law of self-defense and in such circumstances use deadly force, without retreating, where the occupant reasonably believes, and does believe, that he or she is at imminent risk of death or serious bodily injury. In determining whether the circumstances formed a reasonable basis for the occupant to believe that he or she was at imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry is two-fold. First, the occupant’s belief must be subjectively
reasonable, which is to say that the occupant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the occupant’s belief must be objectively reasonable when considering all of the circumstances surrounding the occupant’s use of deadly force, which is to say that another person,
similarly situated, could have reasonably formed the same belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909), is expressly 0verruled.

This appears to be a pretty important decision for defendants in cases involving self defense in the face of spousal abuse or battery. I suspect it will get some press. Opinion link is below.

http://www.state.wv.us/wvsca/docs/Spring09/34268.pdf

Consensus on Twombly/Iqbal?

An excellent discussion brewing among lawyers, both academic and practicing, over the plausibility requirement - the pleading of facts to justify claims - seen in Twombly and Iqbal. The American College of Trial Lawyers and the Institute for the Advancement of the American Legal System got the ball rolling with its interim report in 2008 which called for reforms in pleading and in discovery. For a couple of thoughtful treatments, take a look at the last few posts on the Beck/Herrmann Drug & Device Blog (which give the ACTL some kudos) for the discussion of pleadings and discovery, and to the SCOTUS blog discussion which focuses more on the governmental immunity issues in the case.

In West Virginia, our Court has often cited, and long followed the Conley v. Gibson formula:

"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)." Syllabus Point 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).

Several friends & colleagues have alerted me to subsequent treatment of this issue by the WV Court in footnotes in various cases. Russell Jessee of Steptoe & Johnson, http://www.steptoelaw.com/attorneys/personnel/RussellDJessee,289.aspx, advises that in Highmark v. Jamie, 221 W. Va. 487, 655 S.E.2d 509 (2007), the Court said in a footnote that Conley v. Gibson is still good law in WV. But wait, there's more. Brian Peterson of the Bowles firm, http://www.bowlesrice.com/attorneys/attorney/content,148.aspx, and Al Emch of my shop, http://www.jacksonkelly.com/jk/index.asp?w=Attorneysbio&empl_uno=31, respond that Highmark was a pre Iqbal opinion, and there are conflicting footnotes in Hoover v. Moran, 662 S.E.2d 711 at n.3 (W.Va. 2008); In Re Flood Litigation Coal River Watershed, 668 S.E.2d 203 at n.10 (W.Va. 2008).

So, at the least, it is fair to say that the WV Court has not, in a syllabus point, tangled with the Conley formula, nor has it, in a footnote or otherwise, addressed Iqbal.

Drug & Device Law: http://druganddevicelaw.blogspot.com/
SCOTUS Blog: http://www.scotusblog.com/wp/analysis-a-pass-for-high-officials/#more-9553