In a case decided by a 5-4 vote, Justice Kennedy delivered the opinion of the Court, in which Justices Stevens, Souter, Ginsburg and Breyer joined, with Justices Roberts, Scalia, Thomas and Alito dissenting.   In a fact-driven decision, the majority reasoned that, as an objective matter, the Due Process Clause requires recusal by a judge where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutional,” quoting Withrow v. Larkin, 421 U.S. 35.  

The majority then explained that the real question was not whether actual bias existed, making it clear that it did not question Justice Benjamin’s subjective findings of impartiality and propriety, but the question was whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”  Withrow  at 47.  

 In this case, the Court found “[t]here is a serious risk of actual bias when a person with a personal stake in a particular case had a significant an disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  

As for the test to be applied, “[t]he proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome.  It is not whether the contributions were a necessary and sufficient cause of [judge's] victory.

In the end, the majority dismiss fears that its decision would result in a flood of recusal motions or in unnecessary interference with judicial elections by pointing to the “extreme by any measure” facts of this case.  

In a news article on the decision, Reuters reports that A. T. Massey’s General Counsel continues to be confident that the same result will be reached on remand of the case back to the West Virginia Supreme Court of Appeals.  

“While we are disappointed in the outcome of the Court’s close vote, our outlook about the ultimate resolution of this legal matter remains positive,” Shane Harvey, Massey’s General Counsel, said in a statement.

“We are confident that the Harman case was properly decided by the West Virginia Supreme Court initially and believe that any new examination of the same facts and same laws by new justices should yield the same result as before.” 

“U.S court:  Recusal required in Massey Energy case,” Reuters, June 8, 2009.

Of course, beyond the immediate question whether recusal will lead to a different result in this particular case, the broader questions are whether the decision will impact the commission now studying potential changes to the West Virginia judicial system, including the process for selecting judges, and whether recusal motions will become more frequent despite assurances from the majority to the contrary. 

As always, please keep me in mind should you need a mediator in any commercial litigation or other matters.

My practice in this area focuses on (1) the representation of persons who have been the victims of workplace discrimination and (2) service as as a neutral mediator to assist parties in resolving workplace discrimination disputes.  I hope my readers will find my series of posts on these issues to be timely and informative. 

I. STATUTORY FRAMEWORK AND REGULATORY AGENCIES 

A. Federal Law – The Americans with Disabilities Act  (“ADA”) 

     1. The ADA, 42 U.S.C. §§ 12101, et seq., was passed by Congress in 1990 with an express purpose “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”  42 U.S.C. § 1201(b)(1).

     2. Title I of the ADA applies to employers with 15 or more employees.

     3. Discrimination by an employer under Title I of the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee” unless the employer “can demonstrate that “the accommodation would impose an undue hardship” on the operation of the employer’s business. 42 U.S.C. § 12112(b)(5)(A).  See also 42 U.S.C. §§ 2000e et seq. (enforcement provisions of Title VII of the Civil Rights Act of 1964 and  incorporated into the ADA, which are governed by 42 U.S.C. § 1981a; see 42 U.S.C. § 12117(a)).

     4. The ADA, 42 U.S.C. § 12102(1), as amended, lays out a three-prong definition of “disability” to include:

       a. a physical or mental impairment that substantially limits one ore more major life activities;

       b. a record of such impairment;

       c. being regarded as having such impairment.

     5. The Equal Employment Opportunity Commission (“EEOC”) is the federal agency charged with enforcing Title I of the ADA and with issuing regulations relating to such enforcement.

B. Federal Law – The ADA Amendments Act (“ADAA”)

     1. The ADAA, S. 3406, Pub.L. No. 110-325 (2008), as enacted by Congress, was signed by then President Bush on September 25, 2008, and became effective on January 1, 2009. 

     2. As explained by the EEOC in its “Notice Concerning the Americans With Disabilities Act (ADA) Amendments Act of 2008,” the ADAA  “emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.”  See 42 U.S.C. § 12102(4)(A)-(E), as amended.

     3. More specifically, the ADAA rejects the holdings by the United States Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (held that plaintiffs were not disabled under the ADA because corrective mitigating  measures must be taken into account when determining if someone is impaired) and in Toyota Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) (held that plaintiff was not substantially limited under the ADA because her limitations did not affect her ability to perform most personal and household tasks, but only limited her ability to perform certain manual tasks  relating to a particular job).

       a. Sutton (“Mitigating Measures”): The ADAA overturns the holding in Sutton that the determination whether an impairment substantially limits a major life activity must be made with reference to mitigating measures and now provides that mitigating measures other than “ordinary eyeglasses or contact lenses” are not to be considered in assessing whether someone has a disability (e.g., the ADAA directs courts to evaluate conditions “without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies or equipment, prosthetics, assistive technology, reasonable accommodations or auxiliary aids, or behavioral or adaptive neurological modifications” – so that episodic impairments will be protected) 

       b. Sutton (“Regarded As”):  The ADAA rejected the Supreme Court’s restrictive reasoning in Sutton concerning the “regarded as” prong of the definition of disability and instead now mandates a broad view and, according to the EEOC, “changes the definition of ‘regarded as’ so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is ‘regarded as’ disabled if he or she is subject to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major activity” (excluded are impairments that are transitory and minor – with “transitory” defined as “an actual or expected duration of six months or less);

       c. Toyota Manufacturing (“Substantially Limits” and “Major Life Activities”): The ADAA rejects the standards adopted by the Supreme Court in Toyota Manufacturing that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled”; and that to be substantially limited in performing a major life activity under the ADA an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”

     4. ADAA (Requires EEOC to Revise Regulations Defining “Substantially Limits”)

     5. ADAA (Expanded Definition of “Major Life Activities”)

       a. The ADAA contains a broad, non-exhaustive list of conditions that will be considered major life activities by stating that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” 

       b. The ADAA adds “major bodily function” as a new class of “major life activities” by providing that major life activities “also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

     6. ADAA (Reasonable Accommodation Is Not Required for “Regarded As” Disabilities)

       a. In rejecting holdings from the Third, Tenth and Eleventh Circuit Courts, the ADAA makes it clear that an employee “regarded as” having a disability is not entitled to a “reasonable accommodation” from the employer

 C. West Virginia Law – West Virginia Human Rights Act (“WVHRA”)

     1. The WVHRA provides that it shall be an unlawful discriminatory practice “[f]or any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the employee is able and competent to perform the services required even if such individual is blind or disabled . . . .”  WVHRA, W. Va. Code § 5-11-9(1).

     2. The WVHRA applies to employers with 12 or more employees, including the state and political subdivisions

     3. In order to be protected by the WVHRA, a person must prove that he or she is a person with a “disability,” which is defined by the act as follows: (m) The term “disability” means:                                                                                                       

       (1) A mental or physical impairment which substantially limits one or more of such person’s major life activities.  The term “major life activities” includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;

       (2)   A record of such impairment; or

       (3)   Being regarded as having such an impairment.

     4. The West Virginia Human Rights Commission is the state agency charged with issuing rules intended to interpret and implement the provisions of the WVHRA and the Commission has issued “Rules Regarding Discrimination  Against Persons With Disabilities.”  See W.Va. C.S.R. § 77-1-1, et seq., filed on May 19, 1994 (whether this Legislative Rule will be amended to reflect West Virginia case law and the changes to the ADA as amended by the ADAA remains to be seen). 

     5. Importantly, the rule  issued by the West Virginia Human Rights Commission, constitutes a “legislative rule” as defined by the State Administrative Procedures Act, W. Va. Code § 29A-1-2(d), and as such “has the force and effect of law.”  Syl. Pt. 5, Smith v. The West Virginia Human Rights Commission, 216 W. Va. 2, 602 S.E.2d 445 (2004).

     6. Skaggs : The leading case from the West Virginia Supreme Court of Appeals concerning an employer’s duty to provide a reasonable accommodation is Skaggs v. Elk Run coal Company, Inc., 198 W. Va. 51, 479 S.E.2d 561 (1996).  In Skaggs, the West Virginia Court acknowledged that the WVHRA does not have an explicit provision obligating employers to provide a reasonable accommodation for disabled individuals, but found that the West Virginia Human Rights Commission and the Court “have inferred that our Human Rights Act imposes this duty of reasonable accommodation.”  Skaggs, 479 S.E.2d at 574, citing W. Va. C.S.R. §  77-1- 4.4 (1994) and Morris Mem. Convalescent Nursing Home, Inc. v. West Va. Human Rights Comm’n, 189 W. Va 314, 431 S.E.2d 353 (1993).

It is important to note that the EEOC is in the process of amending its regulations and interpretative guidelines as instructed by Congress.  

My next post in this area will provide more details about (1) the types of Reasonable Accommodations to be considered under the law and (2) the Interactive Process in which the employee and employer should engage when a Reasonable Accommodation has been requested.

As always, to hire me as a mediator, or just to learn more about my mediation or other practice areas, click here “Mediating with Keith Jones.”

While the Legislature has delegated to the Health Care Authority the duty to specify by rule those health services subject to certificate of need review, the Legislature specifically provides in this bill that lithotripsy services (a medical procedure that uses shock waves to break up stones in the kidney, bladder, ureters or gallbladder)  are not subject to certificate of need review. 

The bill is officially described as follows:
A BILL to amend and reenact §16-2D-2, §16-2D-3, §16-2D-4, §16-2D-5 and §16-2D-7 of the Code of West Virginia, 1931, as amended, all relating generally to the certificate of need process; eliminating certain services of certificate of need review; defining terms; raising the expenditure minimum amount for a capital expenditure and major medical equipment threshold; eliminating archaic language; providing for legislative rule- making authority; setting forth standards for when certain ambulatory health care facilities are not subject to certificate of review; providing that electronic health records are not subject to certificate of review; providing that nonhealth-related projects are subject to certificate of review; and modifying the fee structure for certificate of review by setting forth a capitated amount for certificate of need fees. 

While I will look to my health care and business blogging friends to provide more in-depth commentary about the many other significant changes in this bill, I thought the lithotripsy services lobby should be recognized.  Look out for the rest of the shock waves certain to come from the West Virginia Legislature. As they do, I will provide more comments about legislation impacting West Virginia’s courts and litigants.  

In the meanwhile, to hire me as a mediator, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”

If you have the need for a West Virginia mediator, I hope you will consider giving me the opportunity to help your clients and their adversaries mediate toward resolution.

As always, to hire me as a mediator, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”

In an excellent article by ABC News, Dr. Alan Faden, a professor of neuroscience at Georgetown University, explains the surprising frequency of head injuries and explains that even apparently mild traumatic injuries can result in severe complications.  Ironically, March has been declared Brain Injury Awareness Month, and the focus this year is on Sports and Concussions. You can learn more about the brain injury awareness campaign by visiting the Brain Injury Association of America’s website.  

My office represents people who have suffered traumatic brain injuries and acquired brain injuries.  As a litigator, my understanding of the medical and scientific issues helps me to effectively represent my clients.  As a mediator, this same knowledge allows me to help parties resolve brain injury cases in a fair and efficient manner.

As always, to hire me as a mediator in a traumatic brain injury or other case, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”

Now that the West Virginia Legislature is heading into the final weeks of its 2009 Regular Session, I plan to provide periodic status reports on bills pertaining to the courts and other legal matters.  As always, to hire me as a mediator in a deliberate intent or other case, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”

It turns out that I came to town on a big news day!

First, the Board of Governors announced yesterday that WVU has a new President. Dr. James P. Clements, 44, former provost of Towson University in Maryland has been selected to serve as WVU’s 23rd President. In reading the story about him in the Charleston Gazette, it sounds like Dr. Clements comes in with a “can do” attitude as my dad likes to say (a South Korean boy nicknamed my dad “#1 can do” during my dad’s service in Korea — in part because of my dad’s role as a soldier and in greater part because he played baseball with the kid). Anyway, if Dr. Clements keeps and can instill that attitude in others at WVU, as well as in its alumni throughout West Virginia, he will be great leader. Like all other Mountaineer faithful, I wish him the best.

Second, although I am here for a basketball game, I am reminded by the change to daylight savings time tonight (don’t forget to set your clocks forward an hour) that football season will soon be underway. Spring football practice begins on March 24 and the annual Gold Blue Spring game will be held on April 18, 2009. And how about this for timing. WVU announced its 2009 football schedule this morning. This year I plan to take a trip to sunny South Florida to watch the Mountaineers take on the Bulls on October 30. Other big games include the usual conference battles with Pitt and Louisville and solid non-conference games against Auburn and Colorado (looking for a little revenge in this one).

First things first. The Mountaineers need to beat Louisville tonight as a warm- up for some March Madness!!!

I will be back reporting on mediation and legal matters next week. Hope everyone enjoys their weekend. As always, to hire me as a mediator in a case, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”

Perhaps the most significant question to be resolved by the Supreme Court is not whether Justice Benjamin should have recused himself in this particular case, but whether the Supreme Court will fashion a ruling finding that his failure to recuse arose to the level of a violation of the plaintiff’s due process rights under the United States Constitution.  

Some commentators believe this approach — which would federalize the judicial recusal process as opposed to leaving it to the states — would be overreaching.  Author Dan Pero made this argument last week in an article appearing in the American Courthouse blog.

In another blog commentary, author Andrew Grossman, in a posting at PointofLaw.com, opines that a broad ruling finding that an appearance of impropriety violates the Due Process Clause of the Fourteenth Amendment could result in the end of judicial elections:  

Thus, the odd question presented to the Supreme Court: Whether a judge’s mere appearance of impropriety, something usually left to state ethics rules and political processes, somehow violates the Due Process Clause of the Fourteenth Amendment.

The way the Court answers that question could go a long way toward ending judicial elections in the states–a long-time goal of “reformers” who favor undemocratic selection committees dominated by ABA and trial-bar apparatchiks. Could there be any other end when any sizable campaign donation–perhaps just a few thousand–guarantees recusal? (A cheap investment for some litigants, quips a colleague.)

Of course, the process for selecting judges is already under review and debate here in West Virginia, as noted in my earlier post concerning Governor Manchin’s appointment of a new commission to study the West Virginia judicial system.  So, if this prediction is right, those in West Virginia who oppose changes to the democratic election of judges could very well feed the reformer’s fire by seeking Justice Benjamin’s recusal in this particular case.  

If there was any question about the importance of this case, one need only consider the competing views expressed during today’s oral argument. 

In an indication as to where he is headed, Justice Stevens referred during today’s proceeding to what has become an old adage (first coined by then Justice Potter Stewart) about pornography:  ”We have never confronted a case this extreme before.  This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it.’”  On the other hand, Justice Scalia was just as forceful in stating, “We’re being urged to adopt out of nowhere a new standard of  probability of bias.  It’s not in the Constitution.”  

A very detailed analysis of the competing views, including Justice Kennedy’s apparent desire to craft a limited ruling, can be found in a posting by Lyle Denniston at the SCOTUSBLOG, Analysis: In search of a limiting principle.  

Newspapers across the country have also weighed in on the case.  

In an editorial, The New York Times said:  

“This case offers the nation’s top court the opportunity to make clear that judges who receive outsize campaign contributions have a duty to recuse themselves. Although not all contributions implicate due process, Mr. Blankenship’s multimillion-dollar quest to tilt the scales of justice surely does. It is vitally important for the Supreme Court to say so.”  

In another editorial, The Washington Post, while commenting that this case illustrates why the election of judges is a bad idea, offers a more pragmatic observation about the difficulty facing those Supreme Court Justices who want to order Justice Benjamin’s recusal without opening the proverbial litigation flood gates:

“As a matter of law, this is a more difficult case than it may appear. If the court rules that Mr. Caperton’s rights were violated, it may soon find itself in a thicket of related cases involving possible conflicts of interest by judges. Maybe $3 million is obviously enough to create the appearance of a conflict, but what about $100,000? In an amicus brief, the Conference of Chief Justices suggested that the total sum of money and timing, among other factors, should be considered in determining recusals. That approach makes sense, but it would be only the beginning of the debate.”

My prediction?  I have none.  Like most lawyers who have taken cases on appeal, I have learned to never make a prediction about how an appellate court will rule notwithstanding prior rulings or comments made during oral argument.  Like everyone else, I will wait until the Court speaks through its written opinion or opinions.

As always, to hire me as a mediator in a case, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”

Without going into details about the parties or the case, the mediation started in a traditional fashion with the plaintiff thinking solely in terms of a pure money settlement.  The defendants initially responded within the same parameters.  When the next round of negotiations revealed the significant differences between the cash positions, one of mediation’s many benefits kicked in (i.e., the ability to bring flexibility to the negotiating table so that the parties consider their respective “interests” instead of just considering the “positions” taken by each).  

This led to another round of negotiations which were not governed solely by monetary considerations and “positions.” Instead, by using the mediation process to learn about what “interests” might drive a settlement, the defendants made three alternative offers to the plaintiff, with each alternative offer including something of “value” but with cash still being the primary component. 

As a result, those offers were still judged from a cash”position,” so the plaintiff responded by rejecting the offers and making a take-it-or-leave-it cash only demand. It appeared at this point that the mediation might end without settlement and with the parties entrenched in their “positions.”  

After further mediation discussions, however, the defendants were encouraged to try a different approach.  Rather than focusing on the cash position of their offer, the defendants focused on how to increase the “value” component to better match the plaintiff’s expressed “interests,” while at the same time reaching a result consistent with their own “interests.”  The answer was simple, make “value” the primary component of the offer with cash being the secondary component.

Low and behold, after several hours of negotiations and after reaching what appeared to be an impasse, this “value” approached led to a settlement that was satisfactory to all of the parties. While this approach might not be available in all mediations, it is always worth considering alternative ways to settle when approaching settlement negotiations, particularly in business-related disputes. 

As demonstrated by this mediation, it is important for the parties to consider if there is a way to find “value” in a settlement that cannot be accomplished solely by cash; and this can best be accomplished by each party considering what “interests” are actually driving the other side rather than focusing on the stated “position” suggested by a cash demand or offer.  

To hire me as a mediator in a case, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”