SCOTUS Rules: Caperton v. A. T. Massey

The United States Supreme Court ruled today in Caperton v. A. T. Massey, No. 08-22, that the Due Process Clause of the United States Constitution required that West Virginia Supreme Court Justice Brent Benjamin should have recused himself in a case involving A. T. Massey.

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.


Disability Law: Reasonable Accommodation Requests and the Interactive Process in West Virginia, Framework

I was recently invited to deliver a presentation to a group of lawyers on “Reasonable Accommodation Requests and the Interactive Process in West Virginia.”  In connection with my presentation, I prepared an outline detailing the statutory and regulatory framework which form the anti-discrimination laws governing covered workplaces in West Virginia.  

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. 


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.”

WV Legislature: The First Shock Wave

April 4, 2009 1 comment

In non-mediation news, one of the first bills which has passed both houses of the West Virginia Legislature and is awaiting action by the Governor deals with the Certificate of Need process in West Virginia (Senate Bill 321).  Although not directly related to mediation or the courts, I glanced at the bill because of my general interest in health care and found something kind of interesting:  shock waves are now open for business!

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.”

Mediation Gets Results

March 31, 2009 Leave a comment

Two more cases settled through mediation!  

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.”

Brain Injury Awareness Month

March 25, 2009 Leave a comment

The recent death of actress Natasha Richardson from a brain injury she suffered after falling on a beginner’s ski slope has brought attention to the potentially devastating impacts which can result from what appears to be a mild head injury.  While Ms. Richardson’s death was tragic, it brings home the need for awareness about the risks of head injuries, the precautions that can be taken to prevent such injuries and the treatment options available after such injuries.  

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.”

WV Legislature: Deliberate Intent Bill Introduced In Senate

March 21, 2009 Leave a comment

On March 20, 2009, a bill was introduced in the West Virginia Senate concerning deliberate intent actions under West Virginia law.  The bill, Senate Bill No. 661, has been referred to the Committee on the Judiciary and is described as follows: A BILL to amend and reenact §23-4-2 of the Code of West Virginia, 1931, as amended, relating to disbursement where injury is self-inflicted or intentionally caused by the employer.  As I am off to enjoy a beautiful spring day, I will not go into the details about this bill, other than to say it is an important bill for West Virginia employees and employers (click here to read the bill as introduced, Senate Bill No. 661.)  

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.”

Morning Comes to Morgantown

Morning comes to Morgantown . . . I am visiting Morgantown this weekend to attend the WVU v. Louisville basketball and, through a bit of mediation, to go shopping with my wife in Morgantown and in Pittsburgh (my apologies to Mountaineer fans everywhere).

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.”

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