Legal Background: This is an appeal of a final order from the Human Rights Commission affirming the decision of the Administrative Law Judge who found that the appellant, Barbara Cobb, a teacher had engaged in a course of racially discriminatory conduct against a student.

Procedural History: A complaint was filed with the West Virginia Human Rights Commission against the appellant in her individual capacity as a high school teacher, alleging racial discrimination, harassment and retaliation against a student. The Administrative Law Judge found that the Appellant created a racially hostile environment which interfered with the student=s enjoyment of equal access to the public accommodation of public schooling and found the student was aggrieved by such unlawful discriminatory practice, establishing a prima facie case of race discrimination. The final order of the Administrative Law Judge ordered that the appellant cease and desist from engaging in unlawful discriminatory practices, and pay $500.00 in damages to the student for humiliation, embarrassment, emotional distress, and loss of personal dignity, finding that the student contributed to the problems by engaging in rude and insubordinate behavior. The appellant was also ordered to pay the costs incurred in the prosecution of this matter. The West Virginia Human Rights Commission affirmed the final decision of the Administrative Law Judge. Appellant now asks this Court to vacate the decision of the Administrative Law Judge and dismiss the case. W. Va. Code '29A-5-4 sets forth the standard of review of a final order of the Human Rights Commission.

Appellant's Argument: On appeal, the appellant argues that the Administrative Law Judge failed to recognize the need to afford some deference, a qualified privilege, to the actions of a teacher in maintaining order in the classroom and during school hours. She argues disciplinary action to control her classroom and the school environment are not discrimination. In support of this argument she asserts that the student=s conduct was the cause of her actions.

Appellee's Argument: The West Virginia Human Rights Commission responds and states that the decision of the Administrative Law Judge should be affirmed by this Court as it is a fair and balanced treatment of the case. The Commission argues that the harassment and discriminatory treatment was racially motivated and is supported by substantial evidence, neither being justified by any conduct on the part of a student. The Commission also argues that status, as a teacher does not provide an exemption from a duty of nondiscrimination, as a teacher's authority to discipline is not license to discriminate or harass minority students.

• Appellant's Brief
• Appellee's Brief
• Appellant's Reply Brief

3.  Charlotte Hinchman et al. v. Julie M. Gillette, R.N., et al., No. 31760

Legal Background: This is an appeal of a civil case brought by the Appellant, Charlotte Hinchman. The Lewis County Circuit Court order dismissed three medical malpractice defendants, leading to the ultimate dismissal of the entire case. The circuit court found that the substance of plaintiff’s pre-suit screening certificate of merit failed to comply with the requirements of the West Virginia Medical Professional Liability Act. West Virginia Code §55-7B-6 sets forth the procedure and requirements for filing a medical professional liability action against any health care provider.

Procedural History: This appeal is brought by Charlotte Hinchman, the widow and personal representative of the estate of Paul Hinchman. Paul Hinchman died on June 17, 2002, while undergoing a surgical procedure. In December 2002 the plaintiff sent pre-suit notice letters and a screening certificate of merit. The plaintiff instituted this action against Julie M. Gillette, R.N., CRNA, individually and as agent, servant and/or employee of Medical Doctor Associates, Inc., and as agent, servant and/or employee of Stonewall Jackson Memorial Hospital Company, Roger K. Pons, M.D., individually and as agent, servant and/or employee of Stonewall Jackson Memorial Hospital Company, Medical Doctors Associates, Inc. and Stonewall Jackson Memorial Hospital Company alleging a cause of action for medical negligence. Defendants Gillette, Pons and Stonewall Jackson moved to dismiss the lawsuit, alleging that the screening certificate of merit was insufficient was insufficient under the 2001 amendments to the Medical Professional Liability Act, W. Va. Code §55-7B-6(b). The circuit court granted the motion to dismiss, finding that the certificate of merit was insufficient. The plaintiff filed a petition for appeal to this Court, which was granted. The Court will now hear and decide this case.

Appellant's Argument: The appellant argues that the circuit court erred in dismissing this action because the circuit court’s ruling unduly restricts guaranteed access to the courts in violation of the West Virginia Constitution Art. III, §17. In support of this argument she states that the statute must be interpreted so as to not unduly restrict a citizen’s guaranteed access to the courts, while at the same time carrying out the legislative policy of screening our frivolous lawsuits. Appellant also argues the Medical Professional Liability Act violates the separation of powers doctrine, and the circuit court erred in finding that defendants had a right to challenge the sufficiency of the plaintiff’s notice of claim and pre-suit screening certificate despite the fact that they had failed to timely respond thereto and/or had waived pre-litigation mediation. In addition, Appellant argues that the circuit court erred by taking judicial notice of the allegation that "doctors are leaving this state and we’ve got to do something about it." The appellant asks this court to reverse the final judgment of the circuit court dismissing the action and remand the case for a trial on the merits.

Appellee's Argument: Appellees contend the circuit court properly dismissed the action for failure to comply with the Medical Professional Liability Act. The appellees submit that the circuit court’s statement about doctors leaving the state does not amount to the court taking judicial notice of anything, but was a comment on the legislation.

• Appellant's Brief
• Appellee's Brief(Stonewall Jackson Memorial Hosp.)
• Appellee's Brief(Julie M. Gillette)
• Appellee's Brief(Roger K. Pons, M.D.)

4.  State of West Virginia v. Harry David Leonard, No. 31857

Legal Background: This is an appeal of a criminal case tried in the Jackson County Circuit Court. At trial the jury must be satisfied of the defendant’s guilt beyond a reasonable doubt before the defendant can be convicted of an offense. Petitioner appeals his conviction for first degree murder and sentence to life imprisonment without a recommendation of mercy.

Procedural History: Geneva Leonard was strangled to death in the home she shared with her son Harry David Leonard on February 26, 2002. After a trial by jury, Harry David Leonard was convicted of first degree murder in the death of his mother. He was sentenced to life in prison, without a recommendation of mercy. He now appeals that conviction and sentence to this Court.

Appellant’s Argument: The defendant raises several assignments of error. He argues that the circuit court erred by denying repeated motions to dismiss upon the grounds that agents of the State caused to be destroyed a voicemail recording of Geneva Leonard that would be evidence that he could not have killed her at the time alleged as it was recorded almost an hour after she had been reported as being dead. Alternatively, he argues that the circuit court erred in refusing to permit evidence that the State's witness Anita Jo Butcher had been beaten by her husband Robert Butcher and that she feared him further harming her. He states that if believed, the testimony from Anita Jo Butcher could support that it was a crime of passion, resulting in a voluntary manslaughter option being given to the jury to consider. The defendant also argues that the circuit court denied the defendant a speedy trial by granting the State a continuance based upon the State's own failure to ensure that DNA testing was timely performed. The defendant asks this Court to reverse the judgment of the circuit court and remand the case for a new trial.

Appellee’s Argument: The State contends that the defendant’s conviction should be affirmed, as none of the assignments of error raised by the defendant are reversible error. They state that an instruction on voluntary manslaughter was not warranted or necessary.

• Appellant's Brief
• Appellee's Brief
• Appellant's Reply Brief

Friday, March 18, 2005