Latest / Ask the Lawyer / 02/29/2024 Ask the Lawyer with Harvey Peyton

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02/29/2024 Ask the Lawyer with Harvey Peyton · Ask the Lawyer

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date here five Just the voice of Charleston is eight twenty two and Harvey Payton
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getting in under the dead lacks just under the line. I tell you.
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But they don't give you any gold star for being early. You learn that
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from fifty years of practicing law. When the due date on a brief is
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day AH or day B, you don't get any gold stars from doing it
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on day A. That's why people said, well, these lawyers do things
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at the last minute. Well, when do you do things, you know,
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when they're required to be done. It was just a traffic day on
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I sixty four this morning, and really it's hard. It's hard to gauge
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it is because the traffic really stopped there on the Dunbar Bridge moved pretty well.
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So I got off of Mantras, just came up the south Side Expressway
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and came across the bridge south Side Bridge. But as I'm in, traffic's
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just backed up solid from Montrose as far as I can see east. But
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as I'm going up the expressway, I look up on the Interstate and traffic's
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moving right along. So who knows, you know, it's hard to Yeah,
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fortunately we I mean traffic and all about it that we consider bad would
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be a mere wrinkle in other places, like if you're driving through how about
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driving through Columbus and speed. That's just the most terrifying thing in the world.
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But you know, the one good thing about coming towards Charleston is the
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exodus from Charleston will begins and the legislature is going to be well, they
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had about two more weeks. They got a week from Sunday, we got
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in nine days. Well, of course this is the time when your life,
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liberty and boundary are the greatest danger when they're under the legislature is under
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pressure to do things that they want to do. You know the about about
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six weeks ago there was an op ed in the Charleston Cause had written by
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one of Charleston's glitterati, you know, one of the ancestors of the first
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slaveholders that came here and built fortune by renting slaves and making salt. But
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that's all in the past. I mean, the fact is they ended up
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owning thousands and tens of thousands of acres of timberland, which, being driven
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by the human profit motive, they want to subject to carbon contract agreements.
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I mean West Virginia being the most forested state I believe, perhaps except when
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the Maine east of the Mississippi. There are people who are involved in industries
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that generate a lot of carbon, a lot of tonnage of carbon dioxide,
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and so they can and so we don't want to get deep into this,
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or you want to talk about other things, but you can. So you
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can contract where there are trees and get the credits right kind of cancel out
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you're based upon the type of forestland you have the density of the forest,
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the amount of acreage of the climate. You know, foresters can con accurately
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calculate, well, this is how many tons of carbon are absorbed by this
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forest land in any given year. So we take that tonnage that's absorbed by
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this forest land and we package it up in a sellable certificate, and we
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go over here to maybe California where a particular utility or industry is pumping out
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some tons of carbon and over what would be limited by the EPA or whatever
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state agency, and they say, okay, well we'll sell you these carbon
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credits which you can use to stay in business. This is the same thing
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we did with acid rain. You know, we dealt in that for a
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long time and eliminated the acid rain. I don't see how that makes any
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sense, But that's just a person. Ye that makes any sense either.
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But it's an open marketplace, and it's a way for property owners who have
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passive investments in forest land to manage the land and make some money. Now,
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the legitimate question I think our legislature has is how do you to balance
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the sale of carbon credits against the placement of your forest and the managed timberland
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category for real property taxation, which already gives a managed forest a huge tax
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benefit. Real property taxes support schools that cost some of these rural counties like
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Webster County and Tucker County hundreds and hundreds of thousands of dollars a year and
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potential tax revenue because the forest land is in management, which never madey sense
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to me. You're paying or subsidizing a company for doing what they do for
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a living. And should you be able to layer up money you get for
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a carbon credit by saying we won't cut the trees. I mean, the
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purpose of the managed forestland potent theoretically was to promote the wood industries, which
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is harvesting timber, building, furniture, making buy products. So how does
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that gear up with then the person who's getting that credit or that treatment on
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their taxes then sells the carbon credits from that land and agrees not to produce.
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I mean, it seems contradictory. Although I think some of the carbon
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credit contracts do call for certain controlled, well managed production. Why is that
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the state's business? I mean, why is that the business of the state
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of West Virginia. They got a couple of bills, as you know that
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you surely got a couple of bills. And I will say this, for
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all of his pig headedness, Eric Tarr at least honest enough to say,
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well, this is just something for the extractive industries. We don't want these
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big land companies to be selling these carbon credits so that they can just sit
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on the land and make money. We would rather have it like the hooverers
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land down here off the turnpike, where you know, the trees aren't doing
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them any good, so they want to sell the coal to be stripped.
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So you just pile up the timber and a pile and burn it. You
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know, they've burned hundreds of thousands, if not millions, of board feet
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of timber down here along the turnpike when the land company decided we want to
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call market's good. Let's sell this and strip it in exchange for which they
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got a couple of bucks an acre for what's called quote service disturbance. Well,
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it's just a preference over cold natural gas or people who cut timber.
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There are two thousand jobs in West Virginia if you look at the Labor Department
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of Labor reports. Well, we first put in timber managed timberland as a
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tax benefit forced related jobs eighteen hundred to two thousand. That was thirty years
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ago. If you look at it today, eighteen hundred to two thousand,
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where did the money go? Went into the pockets mostly of land company owners,
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most of whom are in fact nond rest them, and a lot of
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whom, like the lady who wrote the op ed for the Gazette, live
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right and they live up there at Maldon, right. So just leave town,
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please just leave town. I mean, they are taken away the ability
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of parents to help suicidal children, want to take away the rights of propagators
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to lease their timberland, want to take away the ability of boards of educational
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limit at least a number of people who can carry a pistol into a grade
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school. We can't have that, excuse me, So let's get him out
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of town. Get him out of town before they get their hands into the
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ivf ITSU, which is sure to be screwed up if we get our hands
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on it. Right, we're going to talk about that. Take a break
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and let Harvey start there. I'm going to reset here because of we just
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got we jumped right into it. So this is Harvey Payton or the Peyton
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Law Firm in Nitro. And this is his show for a quarter of a
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century on Thursday mornings on five to eighty whs. And we're glad to have
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him here. And the lines are always open. Any questions about the law.
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Harvey is here to answer those. Three O four three four five fIF
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eight three oh four three four five fifty eight fifty eight it's eight thirty.
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Will be back in a moment to talk about this issue is popped up in
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Alabama and impacting the nation. Soubble yep. So we're coming back in a
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moment on five eight wcchs. Injured physically or financially, when the bills pile
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your rights. When you need action, count on us. What's the power
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of pason on your side? The power of beag And it's a thirty three
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on five eighty WCS, the Voice of Charless and I'm Jeff Jenkins with Harvey
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Payton at the Peyton Law Firm in Nitro number to call three O four three
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four five fifty eight fifty eight three oh four three four five fifty eight fifty
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It's an issue you hear almost every hour on the national news. This situation
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obviously in Alabama, well in UH cases burst upon the scene for one principle
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which is often I think misinterpreted or carried to its logical perhaps illogical extreme,
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which to a degree is what's happened with the matter in Alabama. The Alabama
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Alabama Supreme Court. This was the case. If you want to look it
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up online, folks, it's Lapage, L. E. Page and others
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against the Center for Reproductive Medicine. It's out of the mobile Alabama circuit,
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and it's it's clinic nationwide. I mean, the New York Times is lighted
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up with this and editorials that quote the Alabama Supreme Court has said that an
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embryo in an in vitro fertilization center is quote a child. Well, that's
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sort of true, and it set off a hubbah. What's this going to
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do to women's rights to control reproductive growth? Really? What's going to do
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to the in vitro fertilization programs in a lot of states which we've accepted that
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as valuable in the twenty first century. This is not a It's one of
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these situations I think where science and cultural norms and medicine have just outrun the
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law. The case in Alabama wasn't any sort of a criminal case. It
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didn't involve abortion at all. It didn't involve any restriction on the rights of
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parents to engage in the practice of in vitro fertilization or fertility practices that call
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for the harvesting of eggs from a mother and the harvesting of sperm from a
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father, and they join those in a laboratory setting outside the it's in vitro,
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it's not in siu mayr, it's not in the mother. That's a
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different thing that's been done for ages. I mean, the implantation of a
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fertilized egg in the uterus of the mother who produced the egg or perhaps didn't
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has been an accepted practice, although it's fraught with legal issues genetically, whose
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child is that right? If you take an egg or if you take the
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sperm from a donor. But in this case it's become quite common, at
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least since the nineteen eighties for the birth of what are called quote test two
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babies. I mean, this is an embryo that's implanted in the uterine wall
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or in the uterus, that is the result of a blasticyst a growing clump
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of cells that result from the united unification of a human ova and a human
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sperm, and essentially a dish in a laboratory and cultivated for about a week
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so that the cell growth is healthy and then flash frozen so that anytime in
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the future that embryo that well, it's cell blastises. It's probably not an
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mbria until about fourteen days after fertilization. From that point up until eight eight
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plus weeks, it remains an embryo, and after that it becomes a fetus.
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But that is implanted in the woman's uterus, and if it adheres to
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the uterine wall can absent the natural course. That calls out about twenty five
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percent of uterine implants, resulting the birth of a child and the creation of
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a quote human being a person. Well, in Alabama, what happened.
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These folks went to a reproductive clinic. Eggs were harvested from the three women.
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They were fertilized with the sperm of the three men, the husbands,
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and they restored. The reason they do that, and they do it in
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the United States more than any other country, is that cheap. It makes
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the procedure more affordable. The harvesting of these eggs under control old conditions expensive
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and the act of fertilization is expensive. And so they do several because these
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don't all take It's not just a matter of going in and say, hey,
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take the sag and fertilize it and put it back in me. It
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doesn't work that way. It's highly risky. And so what happened in the
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laboratory in Mobile, Alabama, there were a number of embryos. They'd reached
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an embryonic stays. They were flash frozen, and they were kept at the
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clinic. Now, and when you read the case, you realize that bad
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cases make bad law. These for what happened. A patient was walked into
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an unsecured area of the reproductive center, oh, and went to pick up
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open a refrigerator door and reached it and touched one of these trays. Well,
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it's super cold, so it burned her hands and she dropped it on
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the floor, destroying the embryonic holdings felt up to these three couples. Now,
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each of these three couples had already successfully achieved a pregnancy and live birth
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from this center using these frozen embryos or other frozen umbreas well. They brought
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a lawsuit. Expect they want some money. So these three couples, two
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of them combined in one suit, one couple on their own, all combined
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for an appeal. They bring a lawsuit against the clinic, saying, well,
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if you accept as everyone involved in this case did, all the lawyers,
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all the parties, and the judges it's noted independent, all accept the
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proposition that life begins a conception which is when an egg and a sperm unite.
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And if you accept that, then this is a it's a child,
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it is life. Now, the mere fact that the life is outside the
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mother shouldn't make any difference as far as the wrongful death statute in Alabama,
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I get this. The wrongful death statue in Alabama was enacted in eighteen seventy
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two, which allowed, for the first time in Alabama, parents to sue
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for the death of unborn children. Now, in eighteen seventy two was nobody
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contemplated what's happened today. And all the Supreme Court of Alabama did was to
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say, well, if you accept that principle, which everyone in Alabama does,
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and we have a constitutional amendment in Alabama which says life begins a conception,
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then there's no rational basis to distinguish between a fertilized blasticist in the womb
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and one of that's in vitro and so, and that's all the case decided.
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Really, there was not any evidence taken. This was a motion to
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dismiss. The lawsuit was filed. The Center moved to dismiss, saying,
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well, this statute does not include embryos outside the mother. That's the only
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issue that was there. Does this statute from eighteen seventy two the class of
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protected things extend to a frozen embryo being held in a laboratory? And the
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justices went out of their way to say, this is not a determination of
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whether this is a person under the fourteenth Amendment. This is not a determination
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of other legal issues involving quote personhood. This is a legal question only on
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does the protection that's already provided to an embryo in the womb extend to an
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embryo voluntarily created by the parents and kept in an inanimate, frozen state in
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a laboratory. Now, that's the only issue that could be decided. I
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say, bad cases make bad law. While the court sent the case back
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to the Mobile district to say, look, you cannot dismiss this case based
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upon the statutory language because we find that and that's all we find when we
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don't make any comment. Now that's the naivete of the court, because that
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is the comment that's being made now. But the fact is that one set
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of parents, when they signed their contract with the Reproductive Center, authorized the
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destruction of the embryos five years after the contract was entered. Into the other
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set of parents authorize the use of the destruction and use of the embryos for
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scientific research after the like five year period, and the other couple simply authorized
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the destruction period. The ones we don't use destory, they hadn't been destroyed
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yet. So, from the standpoint of a civil case, which this is,
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it was people wanting some money. Wasn't someone seeking to declare that there
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was a separate civil right or protection under the Fourteenth Amendment for a quote person
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in existence in a peatraditional lab It was people who wanted some money by extending
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the statue to its farthest possible reaches in hopes that they would make some sort
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of recovery. Right, Well, bad cases make bad law. I mean
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accepting what, accepting what the judges in this case say, Well, it's
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an accepted, it's accepted law in Alabama that life begins a conception. Well,
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now they're on a Now they're on the hook. Now that now the
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unseen consequences, the chickens are coming home to rouse. So having made that
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statement, particularly the chief Justice in Alabama, now he didn't write this opinion,
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but the chief Justice who's gotten all the attention is a devout, outspoken
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Methodist preacher or Methodist something who wrote a concurring opinion saying that, yes,
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that this was God's creation in this petritition which everybody doesn't believe. I mean,
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you just have to accept the fact. Everybody doesn't have to believe the
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way you have to unless you think you're the Supreme Court Chief Justice of Alabama,
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which is clearly what he wanted in his dissent. Just set that aside.
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The discussion is way more than the case itself. I think now it
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might surprise folks to know that we're on the forefront of this. In nineteen
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ninety five, in the case of Farley versus and Starting Trucking Company, the
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question arose whether a non viable fetus or embryo was and could be the subject
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of a wrongful death action in the state of West Virginia. Think of that,
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nineteen ninety five. Now we were lucky in this state. I was
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lucky in my legal career. I was blessed that when I was in law
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school, I was taught by one Franklin Cleckley. He was my advisor when
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I was on the Law review writing articles for The Wonderful Person from Huntingdon,
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Harvard educated brilliant was appointed to the Supreme Court by guest in Caberden. So
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this case went to file down a Wayne County, and it went to followed
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the same path. It was dismissed by the district or the circuit court judge
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because well, it's a non viable whatever, and you can't viability is the
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test. And this here's the syllabus point, which is the law of this
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case in the light of our interpretation of the Wrongful Death Act and the goals
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and purposes of wrongful death statutes. Generally, the term quote person as used
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in West Virginia Code fifty five seven five, which is the Wrongful Death Act
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and the equivalent language in its counterpart encompasses a non viable unborn child, and
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that permits a cause of action for the tortous deaths of such child. A
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non viable And now this case was somewhat different. This was a non Bible
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fetus embryotic stage of development. Last is about what the first eight weeks perhaps,
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and after that point then you can see clearly defined parts and functions,
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and so then you're talking about a fetus. But all fetuses aren't viable.
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We know that their life out indefinitely outside the womb after about twenty weeks.
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Was twenty four. I think when Roe v. Wade was decided may have
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been cut back to twenty now. It was a scientific determination. Really,
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even with our advanced medisine, we don't have the potential to sustain life,
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life, personhood, activity, movement, speech, interaction with others. The
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ability to love hate cry doesn't happen up to a point, but the principle
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is the same. And I mean and there was a big human cry about
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that. Of course that was still when the review Wade was the law of
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the land, and there wasn't really the attention paid at the time. But
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I would just like the listeners, this is Frank Cleckley, just a guy
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from hunting in West Virginia, teaching the law school, appointed to the court.
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In our judgment, justice is denied when a TOWRT fees is permitted to
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walk away with impunity because the happenstance and the unborn child has not yet reached
26:21
viability at the time of death. A matter of justice, the societal and
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parental loss is egregious regardless of the state of fetal development. Our concern reflects
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the fundamental value determination of our society that life, old, young, and
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perspectives should not be wrongfully taken away in the absence of legislative direction. The
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overriding importance of the treatment of the interest that we have identified merriage judicial recognition
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and protects by imposing the most liberal means of recovery that our law permits.
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Now that's pretty when you think about nineteen ninety five. Now, I'll say
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this in a footnote to that decision, because Frankley was really, really smart.
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They say, footnote three, we explicitly limit this holding to unborn children
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who are in vitro Mayer which means in the mother, and decline to address
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the issues that may arise with advances in medical technology now enabling conception outside the
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womb. Boom. So they noted that issue in the opinion which came up
27:45
later. So how would we be roll today? What would happen in West
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Virginia if we'd had this case, I submit in my opinion, we would
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have decided that the same way that Alabama did, because we had a case
28:06
Salay versus Damren decided in twenty nineteen. Now, this opinion was written by
28:12
unfortunately Justice Jenkins that was remember our temporary justice. He was a temporary senator,
28:21
he was a temporary congresspund he became a temporary to Supreme Court justice.
28:23
And I guess now he is a permanent lobbyist for some interests. But it
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evolved a question for the United States District Court. This is kind of getting
28:36
into the weeds. But I mean there's reporting. I'll just be honest with
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you, Jeff. I read the editorials and the comments in the New York
28:44
Times, the Washington Post, of Wall Street, Journal, of Charleston Gazette,
28:48
and none of them have any really in depth look at what these cases
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are about or what they mean. I mean that Alabama legislature now is going
28:59
to confront the fact that this is a contradictory position, and there's no question.
29:03
I mean, you cannot reconcile. I mean Senator Aisinger from from Wood
29:11
County, he said, I think on the Senate floor maybe yesterday or the
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day before that there's a flash of light whenever a sperm unites with an egg
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and it's fertilized. But and therefore, but those are things we don't know.
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That's the unknowable. You know, medical science says of what some sixty
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percent of fertilized eggs never implant the uter a wall, and of those that
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do, maybe half sluff off and don't. We don't know who and why.
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I mean, it's the beginning of the beginning, obviously, but it
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is is that the beginning of a thing that we as a human society can
29:56
learn to wrestle with as the law and recognize. And that's this has sort
30:00
of been pushed aside by this philosophical or ideological debate. The tree ei are
30:03
on one side or the other. So if you don't believe life begins a
30:07
conception, where long the paradigm does it start? I mean, why don't
30:11
we answer that question? I mean, we know when people die. Right.
30:18
We had a real legal issue in the United States while I was in
30:21
law school, because then these are tremendous advances in science with antibiotics and with
30:29
heart lung machines and the ability to ventilate and stimulate a human essentially a corpse,
30:38
so that some appearance of life, a respiratory cycle, a heartbeat,
30:47
may be visible for any period of time. So in the eighties, you
30:51
know, we actually the medical community in the United States, the legal community
30:56
there was a commission, and the definition of death legally is the complete cessation
31:03
of brain activity, complete cessation even the brain stem, which control because even
31:11
with cessation in the brain stem, if you have a ventilator, you can
31:18
give a corpse the appearance of life. And so we decided that that is
31:23
death, flat light on the brain. Now, do we need to define
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where along the line quote personhood begins, life begins? Probably would probably do,
31:38
probably do. In the secular governmental paradigm, right, there are people
31:45
who believe, I think, in good faith that the legal definition of death
31:53
as we have recognized it over the last fifty years is wrong, that so
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long as there's any any motion, any breath to be drawn, any heartbeat
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to be felt, there's life. Well that's that's your belief, and that's
32:07
you can act upon that. But from the standpoint of the sector, the
32:12
law, how we govern ourselves, we probably do need to And whether we
32:16
can define that in today's world, I think we should we can. I
32:22
mean, if we could learn to accept the fact and you always have to
32:27
enter if you're going to be successful, you've got to enter into every congress
32:30
bar And I don't think that folks who but I don't think that Senator Aising
32:36
are speaking in bad faith. But I'm thinking he's speaking in a hyperbolic statement
32:40
of his personal beliefs. But I think we have to accept in the United
32:46
States that's not the way we govern, and a lot of us dictated by
32:51
our society. Anyway, I just thought it was interesting that we're you know,
32:53
Virginia has a case and has dealt with it that well. Listen,
32:57
you read in this case of Sola versus Day, which was a case,
33:01
it was a question, it was decided in twenty nineteen, and it was
33:07
a certified question from the Southern District of West Virginia, where the subject of
33:10
the wrongful death complaint was an eptopic ectopic pregnancy, that is, where the
33:17
egg had not descended completely through the Filippian tube, but had become fertilized in
33:23
the tube and had clustered sufficiently that it became lodged in the Philippian tube.
33:30
Those pregnancies are dangerous and at least based upon the reading I've done, that
33:37
embryo, that fetus, if it grows, is not going to live.
33:43
There's no way, well, it can't survive because there's no placental attachment in
33:47
the uterus. It can grow and grow and grow, just like a tumor
33:52
can grow and grow and grow, just like a had added mule can grow
33:55
and grow and grow. But it's not going to be a full term birth
34:01
or even partial term birth baby. It's just not going to happen. So
34:06
which presented a real problem in that case. In the long run, what's
34:08
it worth is a wrongful death case? But the issue was whether that was
34:12
covered by our statute. Now, Jenkins had a long history of representing just
34:22
frankly insurance company's vested interests malpractice insurance carriers. To answer that question, the
34:29
affirmative is wrongful death relief available for an up topic pregnancy as the affirmative of
34:37
the planiff would have still had the possibility case that the conservative answer to say
34:42
there's going to be no recoveries. No, of course that was his answer.
34:45
No, but it was the most strained reasoning because which I disagree with.
34:54
They should have sent the case back to the circuit court, let it
34:58
develop a little more evidentiary wise, and then it would have been discussed.
35:04
Because there's no there's no real law. Once you once you were told that
35:08
the pregnancy is that topic, then that we cannot let this persist. It
35:14
can kill the mother. But instead they answered the question the negative, because
35:21
the Filippian tube is not the womb, and they interpreted the statement in some
35:27
mayor from the earlier cases being in the womb. Well, Justice Armstead wrote
35:36
a long concur or long dissenting opinion which if you read it could be one
35:45
of the concurring opinions in the Alabama case, at his point being well,
35:50
we gave the legislature twenty five years right to straighten out what this means,
35:59
and they did act, so we have to just go back to this nineteen
36:01
nine. Well, he gave us actly thirty years, and see what the
36:06
answer is going to be. Any answer is well, even if it's a
36:07
non viable I mean, it's the subject and that's what it should the law
36:13
should be. I would think if we had the same case in West Virginia
36:19
today we might get the same result as Alabama, except here we do have
36:24
an exception that perhaps defines the rule not on the wrongful death statue. But
36:28
there's the Harm to the Unborn Act, which specifically exempts in vitro fertilization from
36:37
the quote harm to the unborn. Even though that's not on the wrongful death
36:42
case. It probably sets the term greatly educational. Harvey. Well, and
36:45
I appreciate the research in the show. Yeah, well, I just thought
36:49
the public. You know, we just get short shrifts sometimes because all you
36:53
hear are the highlights. Each side picks their little snippet that suits there.
36:59
You know, I saw meme off this is a chicken in Alabama. It's
37:01
a picture of an egg. Well, no, there's You know, do
37:05
you think that people in Alabama are all of bad faith and evil and and
37:10
I want to come here and run away. We live. I mean,
37:13
they're just people of a certain belief and they've got a constitutional amendment that says
37:17
that in their courts when forced it. So we're almost out of time.
37:22
We're out of time. Payone God, I'm sorry. You know you're good.
37:23
Peyton Law Firm in Nitro, Peytonlall dot com and seven five five five
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