If you like constitutional disputes involving allocation of the appointment power, then we've got an interesting argument on the docket at 2:00 pm tomorrow that will be webcast. More local details about the case appear at this post. The case concerns distribution of $215 million in economic development grant funds by a state committee appointed by the Governor. Among other points, petitioner argues that the committee appointment process violates separation of powers because the enabling legislation requires the Governor to choose three names for the committee from lists of five names submitted to him by the President of the Senate and the Speaker of the House. Petitioner contends that this process is not tantamount to appointment by the Governor as required by the WV Constitution, and therefore violates the principle of separation of powers.

Five different attorneys will appear at tomorrow's argument. It should be interesting, and closely watched locally, because projects like a new minor league ballpark for Charleston and a new outlet mall for downtown Wheeling hang in the balance.

The US Supreme Court issued its opinion this morning in Norfolk & Western Railway v. Ayers, No. 01-963, affirming the trial court's decision to allow mental anguish damages resulting from the fear of developing cancer to be recovered under FELA by railroad workers suffering from asbestosis caused by work-related exposure. The case arose from a damages verdict of $5.8 million in favor of six retired railroad workers following trial in the Circuit Court of Kanawha County, (MacQueen, Judge). The West Virginia Supreme Court refused the petition for appeal. The US Supreme Court granted certiorari to determine: (1) whether FELA plaintiffs may recover damages for emotional distress without any physical manifestation of emotional injury or other corroboration; and (2) whether FELA requires the apportionment of damages between railroad and non-railroad tortfeasors.

In an opinion authored by Justice Ginsburg, the court rejected both arguments advanced by the petitioners and affirmed the trial court's decision. You can access the various opinions at this link [Cornell's Legal Information Institute]. Briefs in the case are avialable at Findlaw.