28 November 2010

Appealing Sturm und Drang

An Intermediate Court of Appeals?

A chief goal of some business interests in West Virginia in the upcoming session of the Legislature is to establish an intermediate Court of Appeals.

When I talk about the legal structure of Mother West Virginia, I always picture myself talking to Mum in the UK and Flick Down Under, so I’ll refrain from rushing ahead. People go to court to resolve disputes and everywhere in the civilized world there is some sort of court of general jurisdiction, a court for citizens to obtain justice. Wherever the English Common-Law model of justice is followed, that court of general jurisdiction is where juries will sit. In West Virginia, the court of general jurisdiction is called the circuit court and a circuit usually consists of one or more counties. Circuit Judges are elected in partisan elections.

You have to have a safeguard against error, passion and prejudice. If you have any system and declare that what you have is perfect, you’re wrong. And so, in the Common-Law jurisdictions, there are courts of appeal. Someone who is dissatisfied with what a trial court does can appeal the case and ask a “higher” court to review what the trial court did and correct mistakes. Generally, the limitation is that the lower court decision is given great deference in its factual determinations because that’s where the live witnesses were heard. Here in West Virginia, there is a single appellate court, the Supreme Court of Appeals of West Virginia. And so, the loser at Circuit Court has one chance to correct mistakes. In nearly every other state, there is at least one intermediate court between the trial court and the Supreme Court of the state.

One thing which powers the desire in West Virginia for the Intermediate Court of Appeals is the perception that jury verdicts are too high. (That’s an oversimplification, of course.) Another motivation is that appeals in West Virginia are not a matter of right, that is, the Supreme Court doesn’t have to hear the appeal. (See below the recent changes to the rules.), And so, there is the very real fear that someone will eat an unjust verdict and then have no way to know that someone will at least listen to their claim that it is unfair.

The Supreme Court of Appeals has responded to the concern by altering the Rules of Appellate Procedure. Formerly, if you filed a petition for appeal, the court could deny it with a two sentence order. Under the new rules, the Court will issue a “memorandum opinion,” that is, a short opinion which says why they are rejecting an appeal. The Court said before that they did carefully read every petition for appeal but, like so much of what happens in any courthouse, that was behind closed doors. The Court reasons, I presume, that the memorandum opinion will prove that every case has been given individual attention by the justices.

The problem here is that we have five Supreme Court justices (also selected by partisan election) and they have exactly 168 hours in every week to pursue their vocation, to care for their families, and for refreshment and sleep. The justices themselves cannot review every appeal much more thoroughly than they already are doing. They are ably assisted by very smart lawyer-law clerks, some the “superstars” of their law school classes, but those aren’t the people who were elected to rule on cases.

The “formula” answer for a lawyer who does not represent big business interests or insurance companies is that we do not need an intermediate appeal court because we can trust our circuit judges and juries.

Right, like I’ll follow a formula. Here again – you think you have a perfect system? If so, you probably have other hallucinations. Just because business interests, who are the loudest at the moment, want such a court, should other interests oppose their position? That’s pretty sloppy thinking. I cannot help but conclude that a just result justly arrived at is safe on appeal.

That being said, please remember that not a lot of people want justice in the abstract. That’s the sad secret of our justice system. People want to win. People want to find advantage for themselves. In our system of partisan elections and indeed in systems of nonpartisan elections, the heavy money does not closely track law school transcripts or superior intellect. How will a prospective judge vote in cases in which I’m interested? That’s the question. So it’s not so much the concept of an intermediate appellate court or a discussion of whether it’s needed or at least whether it would be quite useful. The Devil is in the details.

The real questions are who will the judges be (which means how will they be selected), how strict will the legal standards of appeal be, in other words, how much deference will be given to the actions of the trial court, and how transparent will the process the? I don’t hear much discussion in the last two questions, perhaps because they represent fairly settled law. A trial court should be granted a lot of discretion on determinations of fact. And if we say that an Intermediate Court is a good idea because people haven’t been adequately heard, then we should expect a genuine, reasoned written opinion in every case. Question number one is where the rubber meets the road. I will not reprise the endless discussion about partisan election versus nonpartisan election versus appointment versus retention elections versus mixed schemes ad nauseum. My own tin can version of statistical analysis, thinking about the judges I’ve known over the years, tells me that the Bell Curve follows any selection method. Two of the genuinely finest judges before whom I practiced died over the past week – United States District Judge Robert Maxwell and state Circuit Judge Les Fury. Judge Maxwell was appointed; Judge Fury elected.

A final consideration is that appeals be promptly resolved, for the great majority of appeals are not about million-dollar judgments. They are about child custody and alimony, boundary line disputes, people waiting in jail or waiting to find out if they have to go to jail, or other questions vital to just a few common citizens. We need to consider their rights, too.

Yes, I know this part of the post is dreadfully dull. It’s funny – looking rationally at important public issues should be dull in a lot of instances. Does the Sesame Street generation have the patience to govern America?

Minor Observations –

Ho, ho, ho, asking the obvious -

The State Journal, a statewide newspaper in West Virginia which focuses on business issues, ran an editorial on the question of whether the confusion and competing interests concerning a special election for governor in 2011 will prevent the Legislature from dealing with more substantive issues. The title of the editorial was “Will Politics Trump Good Government?”

The obviousness of the answer is pitiful, just pitiful, to quote noted philosopher Jed Clampett.

Gun Show

There is an ad today’s Times-West Virginian for the gun show which comes the Fairmont two or three times a year. Sometime in the future, I’ll make a stab at describing the experience and spirit of the gun show. The ad in today’s paper includes the line:

Get Your Guns While You Still Can!

I understand that creating a fear of lack is a marketing technique. But, to my Second Amendment, compatriots: Listen. Are you listening? Over the short term, there will be no shortage of firearms. Before the midterms, gun rights were pretty secure in Congress. You think maybe the midterms hurt? With the Heller/McDonald decisions, constitutional law is on the side of a liberal interpretation of the Second Amendment. So, relax.

The Catch of the Breath, “Liberal” Defined

No, no, no, when I talk about a liberal interpretation of the Second Amendment, I’m Nancy Pelosi and I'm not talking about an interpretation that restricts firearms to members of an organized militia who may only carry muzzle-loading flintlocks. Those who read that into what I wrote are succumbing to the propaganda paranoia coming from media zealots who are more interested in book sales and Nielsen ratings than in advancing rational and helpful political and social thought. “Liberal” and “conservative” are names placed on two dinky little pigeonholes nailed together by someone other than We the People and into which interests other than We want to cram every conceivable political or economic thought. How can we pretend to be a Land of the Free if we blithely let someone else hand us a list of our own “approved” beliefs? The “liberal” to which I refer includes the definitions:

favorable to or in accord with concepts of maximum individual freedom possible;
favoring or permitting freedom of action, esp. with respect to matters of
personal belief or expression; of or pertaining to representational forms of
government rather than aristocracies and monarchies; not strict or rigorous;
free; not literal: a liberal interpretation of a rule.

A restrictive non-liberal reading of the Second Amendment would activate the militia clause in a manner which the United States Supreme Court (in McDonald) decided was not intended by the founders.

Once words start scaring us, we are no better off than Pavlov’s dogs.

Almost Heaven

I really love the John Denver song, Almost Heaven, West Virginia. He makes reference to the Blue Ridge mountains which are more commonly identified with the Commonwealth of Virginia but which lie partially in West Virginia. [A little bit of nickel knowledge: the “blue” in Blue Ridge refers to the color imparted in the atmosphere by natural chemicals from trees.] On the other hand, when Denver makes reference to the “Shenandoah River,” I always cringe a little bit. The edge of the Shenandoah watershed defines a part of the border between Virginia and West Virginia, with all of the Shenandoah lying on the Virginia side. I thought we settled this one in the Civil War. Okay, I still like the song.

Good Example by the President

Pres. Obama is going around sporting a fat lip with stitches in it from injury while playing basketball. What an excellent example for young people. These are the bumps and bangs of real-life, not the puny intakes of breath from the Xbox NBA basketball game. For that matter, all of the presidents going back to Theodore Roosevelt (with perhaps two or three exceptions) have been quite active people. There's a lesson there.

A Wise Hobbyhorse?

Why in the world would anyone ever refer to himself or herself as “wise”? That is cockiness incarnate. I have been treated to professional advertising lately, most of it by lawyers, where the advertisers lay claim to the sobriquet “wise” and award themselves with the mantle of “wisdom.”

Even when “I am the greatest!,” I run into the fray looking like a blowhard and I also run the risk of meeting Joe Frazier and getting knocked on my ass.

The simple fact is that neither I nor anybody I know is anywhere near smart enough to refer to themselves as “wise.” This is a determination to be made only by others, and only invariably after a long and consistent history of intelligence, moderation and moral rectitude.

Maybe wisdom this a good goal to shoot for. But unlike a merit badge, there is no guaranteed path and you are not in control.

Pippa passes.


19 November 2010

Darwin & Daffodils

A Quick Lesson in Leadership

The notion of "social Darwinism" is quite overused, just as our several other scientific principles when folks try to hammer them into social systems. Nevertheless, I see some parallel between extended Darwinian kinds of concepts and leadership.

One such concept to which I heartily adhere is that leadership is not grasped, declared, proclaimed or bragged about, it is simply exercised. In other words, the person who yells out “I’m the leader!,” has already relinquished any control. The leader who will be followed, in my experience, is the one who simply gets out and leads knowing that his or her lead will be followed. This week has furnished West Virginia with an excellent example of this principle in action..

Those of you in the flat lands may be unaware of the triflingly unusual situation in the executive branch in the government of West Virginia. Our two-term governor elected in 2004 and 2008, Joe Manchin, was just elected to serve out Sen. Byrd’s unexpired term in the United States Senate. (Incidentally, I consider this a very good choice for West Virginia and for the nation. For instance, with the arrival of now-Senator Manchin, the ill-considered concept of “cap and trade” is dead on arrival in Washington.) Sen. Manchin's selection left a vacancy in the governor’s chair. The West Virginia Constitution provides that in the event of such a vacancy, the president of the Senate shall act as governor. The statute is not a model of clarity on this point nor is the rather fuzzy statute which recently designated the president of the Senate as the lieutenant governor. Likely, someone will bring some sort of petition to the Supreme Court of Appeals of West Virginia to clarify the situation and determine, among other things, whether there shall be some sort of special election for governor in 2011, right before the general election for governor in 2012, and whether the president of the Senate will be serving as governor, acting governor or shall act as governor (See? The nuances are somewhat complicated.) in the meantime.

But into the thick of this bothersome uncertainty has stepped Senate President Earl Ray Tomblin. As soon as Sen. Manchin moved out, Mr. Tomblin moved into the governor’s office and just started doing the job. He has brought in his own staff, made some changes in administration leadership positions and has wasted no time in putting his stamp on the governor’s office. I don’t know Gov. Tomblin, and have never met the man. But I do think that this is a darn fine lesson in leadership. If you wait for your critics to give you permission, you'll never even get started.

2011 is going to be an interesting year in these mountains.

Anonymity & Timidity

The Good Lord Himself (OK, Herself?) personally knows my many weaknesses. Absent from them,I am happy to say, is faint-heartedness of principle.

Today’s Charleston Gazette reports a lawyer disciplinary case of some note and controversy. Some nasty comments to the story are from lawyers writing under pseudonyms. (One styles him/herself the “great american,” lowercase theirs. Holy Cow, chutzpah on the hoof.) Writing criticism anonymously, I believe, demonstrates a certain kind of weakness of character.

If someone reads something I write and thinks that the writer is a stupid, arrogant SOB, they will damn sure know that Roger Curry is the stupid, arrogant SOB that they are thinking about.

Dumb, De-dumb, Dumb

One of the myriad weaknesses I must cop to is the occasional intransigent shortsightedness.

Some few years ago, a “Gateway Connector” highway was begun through a moderately rundown area of East Fairmont in order to provide a more direct connection with Interstate 79. It has long been my unshrouded opinion that this was the Road to Nowhere and a bloody awful waste of money.

Okay. They’ve opened part of it, and I drove up the Connector yesterday. I was wrong. Just plain, flat wrong. This darn road is such a benefit in opening the downtown area to outside access that I have to say it was worth the money. I still think with regret about some of the older people displaced from homes which they continued to carefully tend in a steadily deteriorating area. On the other hand, some of the structures razed were blatant slums when I was last in them 25 years ago and had not had a hammer or paintbrush cross their thresholds from then until the time they were bulldozed to make room for the road, so good riddance to them.

Someone please write this down and remind me the next time I appear to be just absolutely dead bang certain about something.

Asses Watching Other Asses

America has a tradition of free speech and town meetings and so-called ordinary people standing up on their hind legs and saying extraordinary things. These were the pamphleteers of the colonial and Revolutionary eras; these the acid writers of the 19th century; these even the new thinkers published by small houses in the 1950s. And these traditions were given such a quantum boost by this universal soapbox and printing press right before your eyes.

Not only has the written word flourished through the blogosphere, radio-like opinion has now started to take off (e.g., blogtalkradio.com) and of course there is the Everyman medium, YouTube and similar entrants into the Visual Marketplace of Ideas.

And where goes humankind goes Gresham’s Law. There are now, and I kid you not, videos on YouTube showing video games imitating real-life which gamers have played and want to display – So we have an opportunity to sit on our asses and watch the effects of other people sitting on their asses while pretending to participate in Reality.

Ben Franklin? Thomas Paine? Are you there? Where have you gone, Joe DiMaggio, a nation turns its lonely eyes to you.

Dodgeball and Daffodils

The director of the West Virginia's “Office of Education Performance Audits” is a bold crusader against . . . dodgeball. When he visits a school, he examines even the lesson plans of physical education teachers to ferret out apostasy. The summer, he was quoted in the Charleston Daily Mail:

"Dodgeball ... is not part of the West Virginia 21st Century physical education content standards and objectives. This practice had the potential to cause physical and emotional harm to students and was not of an educational nature."

Mind you, when the teams lined up at dear old Parkersburg high school to play dodgeball, I had trouble getting out of my own way. It was not an unheard-of circumstance that my handsome visage had the reverse imprint of “Wilson” planted somewhere. But give me a break – it’s dodgeball. I tell children with whom I interact that the occasional bangs and bruises are parts of growing up and indeed some of the good parts, because they show that you’re really living. Tell me, is that a terribly pass√© attitude? When I got creamed with a dodgeball, it may have hurt my little feelings but it also pissed me off. Somehow this seems moderately educational to me.

What’s next? Shall we change the name of school sports teams to those of harmless herbivores, pastels, flora and other vanilla things? Will the Fairmont Daffodils edge out the Charleston Chipmunks in a gentle game of tiddly-winks or croquet? And will the winner then have to apologize? After all – we don’t want to upset anyone.

So is sitting on one's ass watching other people sit on their asses and play video games such a great surprise right now?

Perking Up

It will be a nice fall day in West Virginia for a walk in the woods Saturday.

Pippa passes.


04 November 2010

Titanium, Germanium and Francis Scott Key

All that Glitters is Not Titanium

Earlier this week, I was in the Fairmont General Hospital HealthPlex where there is a large wellness center/gym/work out area, urgent care center, doctors offices and so forth. FGH is a non-profit hospital and occasionally runs capital contribution campaigns. The HealthPlex was built three or four years ago, partly with sizeable donations, and there are the usual plaques to commemorate the donors and the levels of giving. On the wall by the elevators are four large plaques for the five levels. The first four are fairly humdrum, and follow the per ounce monetary value of metals: Bronze, Silver, Gold and Platinum. But they had five levels and had to name another metal. Plutonium and Americium are more valuable than Platinum, but I understand why they might avoid those. So, the highest giving level is denoted “Titanium.” That seems strange.

Mind you, I consider titanium a superior metal. The spreader arms of the first model of the Hurst Rescue Tool (“The Jaws of Life”) were fabricated of forged titanium. They were about 2 feet long had to be able to exert over 20,000 pounds of force at the tips without deforming or breaking. Titanium is used in some aircraft construction. Also, titanium is being used these days to make some very nice looking and relatively inexpensive jewelry. Perhaps this is not something random and the FGH Foundation has hit upon the idea of ranking metals not solely by their monetary value but by by their metallurgical properties and their usefulness to mankind. Based upon that, I have made a careful study of the periodical table of elements [don’t hassle me, I know that bronze is an alloy] and I suggest the following11 levels of giving, Olympic medals, and so forth, based on usefulness to mankind and my personal yet impeccable opinions:

1 - Iron
2 - Copper
3 - Aluminum
4 - Lead
5 - Zinc
6 - Mercury
7 - Tungsten
8 - Germanium
9 - Titanium
10 - Magnesium
11 - Chromium

If I had to choose number 12, it would be bronze. Silver and gold just don’t make the list. I extend apologies to Oliver Goldsmith and Paul Revere.

Note: I recognize that it would be a real bear of a job to fashion a medal out of mercury. Not my problem, I’m just the creative brains of the outfit.

Dumb Question for Wednesday

“How did the election go for you?”

Who cares? The election is OVER. What counts now is what the people we elected DO and what WE do as citizens from this day forward.

Francis Scott Key - Read the Next Stanza

The old boy knew that he wasn’t waxing lyrical about a people who were already perfect:

“God mend thine every flaw.
Confirm thy soul in self control,
Thy liberty in law.”

Pippa passes.