Saturday, April 05, 2003

Virginia conference on local government and telecommunications

The Virginia Association of Telecommunications Officers and Advisors is holding its first annual conference April 7-8 in Williamsburg - and I'll be there, and so to the loyal readers (and you know you are), more blogging next week. On the program among others are Jim Baller of the Baller Herbst Law Group and Nicholas Van Eaton of Miller & Van Eaton. Jim Baller represented the City of Bristol in its successful lawsuit against the Attorney General, which resulted in this opinion in which Judge Jones of the W.D. Va. declared that the Federal Telecommunications Act preempted a Virginia statute precluding localities from providing telecommunications.

EEOC finds employment discrimination at state school in Newport News

The president of Christopher Newport University in Newport News took issue with the findings of EEOC investigators who concluded that two school employees were victims of racial harassment, as reported here, which relates that "CNU President Paul Trible said the agency's findings weren't valid, and said he plans to take no action in response to the finding except fighting the case in court if necessary."

Friday, April 04, 2003

Virginia Tech paper says "experts refute" the necessity of the Board of Visitor's ending policy on sexual orientation

The Collegiate Times in Blacksburg has this report, which claims that there is no justification for the Board of Visitor's elimination of policies protecting against discrimination based on sexual orientation.

Rightly or wrongly, the BOV's move has some foundation in Virginia law. Attorney General opinions have consistently held that public bodies in Virginia have no authority under Virginia law to promulgate rules against discrimination based on sexual orientation. In November 2002, Attorney General Kilgore ruled in this opinion that the Fairfax County school system has no authority to amend its discrimination policy to include sexual orientation. In 1986, Attorney General Baliles concluded that the City of Alexandria did not have authority to prohibit discrimination on the basis of sexual orientation in the city's employment practices and in the award of government contracts. In 1993, Attorney General Rosenthal opined that that Arlington County could not prohibit discrimination based on sexual orientation, except to the same extent it is prohibited under general law. Also in 2002, Attorney General Kilgore ruled that a statutory amendment would be required to authorize the Fairfax County Human Rights commission to prohibit discrimination based on sexual orientation.

These decisions are grounded in the strict Dillon rule tradition in Virginia, which lays the powers of government at the feet of the legislature. The Attorneys General have never concluded that the legislature could not allow protections for sexual orientation, but that it has not, and without that authority Virginia's government agencies and institutions are powerless to act.

The Tech article quotes one expert as saying, however, that "university policies routinely go over and above the laws approved by Virginia’s General Assembly," citing as examples that "universities have policies prohibiting cheating, allowing grades to be issued and causing students to be suspended for poor academic performance, he said, all rules that go beyond the laws set by the government." Those are not very good examples - most academic policies probably are based on some statutory authority, I suspect, such as this statute describing generally the powers of the Tech Board of Visitors.

The problem of the Dillon rule is not limited to human rights problems - Judge Jones of the W.D. Va. applied the Dillon rule of strict construction in concluding here last December that the City of Bristol had no authority to operate a cable television system. "When doubtful, the question of whether a municipality has a particular power must be answered in the negative," Judge Jones explained. The bottom line is that the only safe course for any government agency in Virginia to do something new is to obtain explicit legislative authority.

The Tech article goes on to describe the financial effects of the policy change:

"The removal of sexual orientation from the anti-discrimination policy is already having a negative impact on contributions to the university, said Tom Brobson, Tech’s associate director of corporate relations — one of the university’s chief fundraisers.

The administration has been inundated with letters from alumni outraged at the board’s action, many who are threatening to withhold donations unless sexual orientation is put back into the policy, Brobson said.

Among the withheld donations have been several major gifts of about $100,000, he said. Some donors have even demanded their contributions be given back.

'These alumni are concerned about the state and the future of the university,' Brobson said.

Also, several major corporations that have traditionally given generously to Tech have expressed displeasure, possibly causing corporate giving to be hindered as well, he said."

As the paper noted in a separate article, the Board may reconsider its controversial decisions at a special meeting to be convened on Sunday.

William & Mary president interprets rankings to mean more money is needed

Timothy Sullivan, president of the College of William & Mary, said here the improved rankings of the law school and the education are evidence of how more money is needed "to sustain this positive development that means so much to our students." Sullivan was the law school dean and taught first-year Contracts in my day.

WV doctor claims state's trial lawyers in conspiracy against physicians

In West Virginia, a circuit court refused to dismiss a doctor's lawsuit against the West Virginia Trial Lawyers Association and its president for conspiracy to injury the doctors of West Virginia, as reported here. The doctor is proceeding pro se, and was quoted as saying "My life has been ruined by the activities of the trial lawyers."

Former Wythe County judge profiled - a Virginia gentleman

The Wythe County paper recounts here the life and times of Judge Roy William Arthur, who died this week at age 85. He served as mayor of Wytheville during the late 1940s and early 1950s, including a time when the town was quarantined during an outbreak of polio, and later served as circuit court judge . The article quotes this admonition from a speech by Judge Arthur, addressed to the youth of Wythe County (and elsewhere):

"In the speech, he quoted the words of a Colorado Juvenile Court judge. 'The world does not owe you a living,' Arthur told them. 'You owe the world something. You owe it your time and energy and talents so that no one will be at war or in poverty or sick or lonely again….In plain words: Grow up! Quit being a crybaby, get out of your dream world, develop a backbone, not a wishbone, and start acting like a man, or a lady!'"

Rear-ended by IRS agent, claimant can't prove negligence

In this opinion the Fourth Circuit affirmed judgement for the United States in a Federal Tort Claims Act case based on the alleged negligence of an IRS agent whose vehicle crashed into appellant's car on the interstate after appellant braked sharply to avoid a ladder that had falled off a truck in front of him.

State-federal dispute over regionalization of electricity distribution may be headed for federal court

FERC's approval of allowing Dominion Power and American Electric Power subsidiaries to join in the regional power system, after the legislature passed a statute prohibiting participation in the regional group by Virginia's power producers, means it is more likely that the issue will end up in federal court, as reported here. A spokesman for AEP said "This is a complicated, complex issue that puts us in the middle of a jurisdictional dispute between the federal regulators and the state regulators."

No era of good feelings following close of legislative session in Richmond

Virginia's Democratic Governor and Republican-majority legislators "are in some danger of having very bad relations," as described in this Washington Post article titled "In Va., Cordiality Shown The Door."

Illinois state senate refuses to bail out tobacco settlement funds

As reported here, the Illinois senate refused to pass new legislature to alter the bond requirement for Philip Morris to appeal the $12 billion judgment entered against it, despite arguments that other states including Virginia will suffer if the tobacco company has to post the bond and therefore cannot make its tobacco settlement payments.

Tazewell murder defendant takes the stand and claims "I was set up"

In Tazewell County, the defendant testified for himself at the end of the murder trial, blaming the victims, as reported here.

FERC not sure about "if you build it, they will come"

The Federal Energy Regulatory Commission ("FERC") wants Dominion Power to answer more questions about the need for its proposed Greenbrier pipeline, since some proposed power plants that would have used gas from the line have been cancelled, as reported here.

Making budget sense of the U.S. News grad school ratings

This Roanoke Times article cites declines in the ratings of some of Virginia's graduate school programs, and quotes a Virginia Tech official as saying that cuts in government spending must be having an effect, which fails to explain the numbers for U.Va. Law (as it doesn't take state money anymore) and William & Mary Law (which went up).

The law school rankings can be found here.

Thursday, April 03, 2003

One arrest, many claims, most dismissed

Judge Wilson of the W.D. Va. issued this opinion earlier this week, disposing of most of the constitutional claims of a woman who was arrested for driving without a license and proceeded to sue everyone from the arresting officer to the Circuit Court judge, and whose claims include a request for an injunction against Virginia State Police checkpoints. Judge Wilson dismissed the judges and the prosecutors as absolutely immune. He dismissed the "deliberate indifference" and "cruel and unusual punishment" claims against the state troopers and the Sheriff's Department for failure to state a claim, and likewise threw out the RICO, conspiracy, and injunction claims. The court took under advisement the excessive force claims against the two troopers.

The claim of deliberate indifference is that her jailers in Roanoke refused to let the plaintiff remove her contact lenses. The Court noted that neither the troopers nor the county jail could be responsible for what happened to plaintiff in the city jail. The judge decided to look at the videotape of plaintiff's arrest before deciding whether she could have an excessive force claim, or whether the officers might be entitled to qualified immunity - that is, if a reasonable officer could have believed that the level of force used by defendants would not violate the plaintiff's constitutional rights.

Give me your tires, your stuff you don't want any more, your wretched refuse

According to this report, Virginia is "Ranked Second in Top Trash-Importing States."

Congressman Boucher stands alone among Democrats on gun bill

This report indicates that the House Judiciary Committee forwarded the bill prohibiting lawsuits against gun manufacturers to the full House, on a party-line vote with the exception of SW Va's Rick Boucher, the lone Democrat who also voted for the lawsuit ban.

In the period 1989-1998, Congressman Boucher was one of the leading recipients in the House of campaign contributions from the National Rifle Association, as shown here.

Tell General Franks to check his numbers

As reported here in, Virginia law allows an extension of the deadline for claiming lottery winnings to a serviceman who can show he or she missed the deadline because of military service requirements.

On April fooling - better late than never

This link contains a list of the 100 Greatest April Fool's Hoaxes of all time, from the Museum of Hoaxes.

This link is to a remarkable essay simply titled "On Bullshit" by Harry Frankfurt of Princeton University, professor emeritus of Philosophy.

This is not to suggest a connection between these topics and the profession of law, in SW VA or elsewhere.

First person account of oral argument before Fourth Circuit in Microsoft case

At this link you can read a description of oral argument in the Microsoft injunction case, before a panel of Judge Emory Widener, Judge Paul Niemeyer, and Judge Roger Gregory. The author writes that Judge Niemeyer asked most of the questions and made no secret of his views of the case: "Although Judge Widener presided over today’s hearing, for all intents and purposes this was Judge Niemeyer’s show. Aside from two brief interjections from Judge Gregory, Judge Niemeyer monopolized—no pun intended—this morning’s oral argument. He was particularly belligerent towards Sun’s counsel, and by the end of the one-hour hearing, I got the impression that Judge Niemeyer planned to catch a train to Baltimore and physically beat Judge Motz with a shovel for issuing his injunction in the first place."

Reuters published this account of the same argument, noting that Judge Niemeyer, "who dominated questioning during an hour of presentations from both sides, also criticized the legal basis of the injunction issued late last year by U.S. District Judge J. Frederick Motz in Baltimore."

This eWeek article described the argument as "Harding vs. Kerrigan revisited," quoting this exchange:

Judge Gregory: "Your argument is Microsoft is being found guilty of discharging a firearm in the direction of human beings, but it's a slow-moving bullet and now we have to see where it lands?"

Counsel for Sun: "Yes, and Microsoft was shooting at Sun's knee. What Microsoft did is what Tonya Harding did."

Judge Niemeyer: "But what you did is asked for a remedy to fix her elbow and not her knee."

David Tulchin of Sullivan & Cromwell argued for Microsoft, Lloyd Day from Cupertino argued for Sun.

Statement of purpose requirement eliminated from online records law

The General Assembly accepted the Governor's recommendations to eliminate a requirement that persons requesting government records online state the purpose of their requests, as reported here. One opponent of the "purpose" requirement was quoted as saying: "Stating a purpose would be a 'radical departure' from the state's Freedom of Information Act."

"National recreation area" status opposed again by Scott County

The Scott County Board of Supervisors voted again to declare their opposition to the designation by Congress of a portion of the county in the High Knob area as a "national recreation area," as reported here.

Tazewell defendant claims murder in victim's home was self-defense

As described here, the trial of a murder case of a Tazewell County man charged with murdering his ex-girlfriend's father was slowed by a "drawn-out argument of self-defense," which prompted the Commonwealth's Attorney to observe, "You can't break into a person's home and shoot someone in the head and kill them claiming self-defense when someone tries to stop you from doing more harm." Shea Cook represents the defendant.

Third sentencing for former WV governor's aide

Having been reversed twice by the Fourth Circuit, Judge Wilson of the W.D. Va. further reduced the amount of jail time required of a WV man convicted of using the Internet to arrange to meet an underaged male in Virginia, according to this account. The new sentence of 27 months is less than time already served while the various appeals were pending.

There might have been one Republican professor at my law school

This study of the campaign contributions of law school professors at the "top 22" law schools (22?) concludes that the faculty are all a bunch of liberals, but did find that "Republican-contributing law professors are very disproportionately concentrated at two schools -- the University of Virginia and Northwestern."

One of my law school professors was made a judge on the Virginia Court of Appeals by the Republican-majority legislature after working in the Gilmore administration - which makes me think he just might be considered a Republican, in some circles. Perhaps those law professors in Charlottesville who contribute to the Republicans are anxious to follow the examples of Judges Walter Felton and their own J. Harvie Wilkinson.

No more in-state tuition rates for illegal aliens

As the Washington Times reports here, "State lawmakers yesterday overwhelmingly rejected Gov. Mark Warner's amendments to legislation that would bar illegal aliens from paying in-state tuition rates at state public colleges and universities."

Roanoke area legislators react to veto session

This report from the Roanoke Times includes comments from Democratic Senator John Edwards of Roanoke, who led the effort in the Senate to sustain the governor's veto of the estate tax and is a possible candidate for statewide office in 2005, and also comments from Delegate Steve Newman of Lynchburg, who sponsored the partial birth abortion law as to which the governor's recommendations were rejected yesterday.

Wise County probationers to do road clean-up work

St. Paul attorney Frank Kilgore, whose mind never quits, is the moving force behind a new program about to be implemented at last in Wise County, by which persons on probation will be assigned to pick up litter on roadsides near their homes, according to this report.

Wednesday, April 02, 2003

Dos and don'ts in Tidewater hair litigation

The Virginian Pilot reports here on "2 lawsuits against stylists presented in Norfolk court."

Veto session scoreboard

Apparently, the governor's vetoes of the estate tax (SB 1123, HB 2490) and the "Choose Life" license plate (HB 1406) were sustained.

The governor's recommendations on the parental consent for abortion bill (HB 1402, SB 1124), the "partial birth infanticide" bill (HB 1541, SB 1205), and the definition of "mental retardation" in death penalty cases (HB 1923) were rejected.

The Washington Post has this report, titled "Warner Blocks Repeal of Virginia Estate Tax," and this report, titled "Va. Lawmakers Uphold Limits on Abortions." The AP reports here "Veto stands on "Choose Life" bill; abortion amendments rejected." The AP also reports here that "Senate OKs amendment delaying enactment of 21-day rule bill."

Terms of PSINet settlement proposal

Possibly Virginia's best-known example of the boom and bust of the telecom bubble, PSINet, having filed for bankruptcy and essentially liquidated the company, proposes to pay shareholders $17.8 million to settle pending securities fraud claims, as described here. A company attorney is quoted as having said this: "PSINet was a victim of the Internet bubble, and the Internet bubble burst."

Chief Judge Wilson grants stay in death penalty case

As described here and here, Judge Wilson of the W.D. Va. stayed the execution of a death row inmate convicted of rape and murder, who said last year that he did not want to pursue any more appeals. The petitioner was scheduled to be put to death tonight.

Company won, survivor lost

That's about the bottom line of this grisly Black Lung benefits case decided today by the Fourth Circuit, which overturned the decision of the Benefits Review Board to award death benefits. Judge Williams and Senior Judge Hamilton joined in a per curiam opinion for the Court, Judge Motz dissented. The lawyers were Tim Gresham of Penn Stuart for the company, Terry Kilgore, Bobby Belcher, and Joe Wolfe from the Wolfe Williams & Rutherford firm for the claimant.

Virginia No. 5, W&L No. 46, Richmond No. 75, Tennessee No. 80, Kentucky No. 89, WVU No. 114

Noticed on weblog "Southern Appeal:" this list of most-cited law reviews (the review of which I was once an humble staffer came in at #22).

More on the unusual Commonwealth's Attorney campaign in Loudon County

This article contains more of the comments of the Republican candidate being investigated in Northern Virginia, who has lashed out at his opponent and the Circuit Court. One source quoted in the article observed: "If I was running for commonwealth's attorney, I wouldn't start my campaign by blasting the chief judge of our circuit. It's certainly an unusual campaign strategy." A second article has more.

SCC defends avoiding regional power transmission

In this article, Virginia's State Corporation Commission responds to the Federal Energy Regulatory Commission ("FERC") regarding charges that the new Virginia statute precluding Virginia companies from joining a regional power transmission system is unconstitutional under the Interstate Commerce Clause. The article says that "The SCC has advised the federal agency that states legally share jurisdiction over the transfer of management and control of transmission lines to regional organizations. The SCC said it knows of no judicial opinion that says the division of responsibility between the states and federal government violates the Commerce Clause of the U.S. Constitution, as the three states claim."

More applicants, fewer dollars

The College of William & Mary reports here a record 10,140 applications for its 1,300 undergraduate spots, while noting elsewhere a budget crisis as the result of tuition caps, a requirement to accept a certain percentage of in-state students, and a limit on how many students the school can handle.

Wrestling with a proper sentence for disabled man's animal cruelty

This article in the Washington Post describes a Virginia general district court judge's determination to impose no jail time on an Arlington man who overcame his disabilities to find work walking dogs for money but was found to have thrown one of them to its death off a ninth-floor balcony.

Accounting advice from accused VDOT employee

According to this report, the VDOT employee accused of soliciting kickbacks recommended that the money be charged back to the Commonwealth.

Republican eavesdropper avoids jail time

This Richmond Times article on the plea agreement of former Republican party official Ed Matricardi for listening in on the conference call of Democratic officials notes among other things that he will likely lose his law license.

More on Wise County commissioner's decision to tax gas wells as real property

The Coalfield Progress has this article on the commissioner of revenue's determination to tax natural gas wells as real property. The commissioner cited the Virginia Supreme Court's decision in Transcontinental Gas Pipe Line Corp. v. Prince William County, 210 Va. 550, 172 S.E.2d 757 (1970), in which the Court held that underground gas mains were real property rather than personal property for tax purposes.

Who knows what proposed "national recreation area" designation would mean

Not the High Knob advisory committee, who reached no consensus at Saturday's meeting, according to this report. Congressman Boucher favors designating the High Knob area in Wise County as a "national recreation area," Senator Allen apparently does not, as reported here.

Timing is everything, Virginia tobacco commission learns

The bond deal by which Virginia sold its revenue stream from the tobacco settlement has been declared off because Philip Morris/Altria says it cannot make its next payment as a consequence of the $12 billion judgment against it in Illinois, according to this report. The closing was scheduled for Thursday of this week. In a Richmond Times article, the state agency involved with the sale said hopefully that the closing is "on hold." This Reuters article quotes one financial expert as stating the opinion that there would be no more tobacco bond sales until the Illinois appeal bond issue is resolved. Meanwhile, the Illinois attorney general vowed to sue if the tobacco payment is not made on time, as reported here.

Michael Jordan, Mario Lemieux, now Dennis Godfrey

The former Washington County Commonwealth's attorney, having come back to the area from his retirement to Florida, declares in this story that he is making a comeback run for his old office by popular demand.

Virginia Court of Appeals decisions from April 1

The Court issued these opinions: this one holding in a case from Loudon County that a tax return was not joint marital property, this one overturning the Worker's Compensation Commission on the issue of a comp recipient's unreasonable refusal to return to work, this one affirming a murder conviction from Westmoreland County, and this one overturning a conviction (in the City of Newport News Circuit Court, presided over by Judge Verbena Askew) for defrauding an innkeeper.

Tuesday, April 01, 2003

W.D. Va. bankruptcies on the rise

The Roanoke Times has this report on the increased filings this year in the U.S. Bankruptcy Court for the Western District of Virginia, setting a new record at 12,744 filings in 2002.

Haven't come closer to agreement with opinions in Roanoke paper since Ed Shamy, Beth Macy, and Bill Brill were there every day

The Roanoke paper had two-law related editorials today - this one says drop the Richard Burrow fundraising prosecution, and this one says race in college admissions should be allowed.

(I never agreed totally with Brill, particularly since he wrote those Duke basketball books.)

Virginia city's public information policy criticized

The Society of Professional Journalists is protesting the press information policy of the City of Chesapeake, which limits media contracts with approval of the public communications department, according to this account.

There was no word on whether anyone proposed "imbedding" journalists into Chesapeake city offices as an alternative program for dealing with the media.

Tennessee also squeals at tobacco money pinch

This article notes that Tennessee will suffer without the tobacco money which Philip Morris now Altria claims it cannot pay because of the $12 billion bond required to appeal the judgment in that amount entered by an Illinois Court.

So, the state governments used trial lawyers to generate tobacco money (instead of higher taxes), but now face losing the tobacco money to other trial lawyers and start to worry about the budget. Maybe the tobacco money never should have been part of their budget-balancing acts in the first place.

Wise County discovers new form of underground property to tax

The Wise County Commissioner of Revenue is notifying the owners of Wise County's 516 natural gas wells that the underground cement and steel will count as real property for county tax purposes, according to this report in the Kingsport Times-News.

This ruling will surely result in litigation, and will be closely watched by the other coalfield counties.

Eastman cuts laborers 3%, executives 6%

This article describes the temporary wages cuts at Eastman, which suggests to me that no one there has a fixed wage in a written employment contract.

Law enforcement at Klan rally

The Ku Klux Klan rally in Greeneville on Saturday, noted earlier on this site, was monitored by 200 federal, state, and local law enforcement officials, including some of the highest-ranking officers in Tennessee, according to this report.

Elizabethton school system going through lawyers

At least 4 lawyers have been used to represent Elizabethton, TN schools in this saga of charges, counter-charges, and investigations (also described here), with the latest stage being the indefinite suspension of the high school principal. The lawyers include Tom Garland of Milligan and Coleman in Greeneville; Scott Bennett, a government and employment law specialist from Chattanooga; David Duggan of Maryville; and Patrick Hull of Kingsport.

Water fight

This article describes a suit brought by residents of a Louisa County historic district against a developer and state officials to prevent the sale of state land for a subdivision which would result in the diversion of their water. Rae Ely of Louisa represents the plaintiffs, Ed Lowry is one of the lawyers trying the case for the defense.

Governor Warner says there's no tolerance today

The governor noted the lack of tolerance for opposing views in today's politics in his remarks to Professor Larry Sabato's government class at the University of Virginia as reported here. Larry Sabato is beyond compare, but I will never forget that in the summer of 1985 when I took his class he was quoted in the press as saying that Doug Wilder was a 1,000-to-1 shot to become lieutenant governor. (Also, when defending political firing cases, I want to quote Sabato's slogan - "politics is a good thing"!)

That courthouse in Knoxville

Today was spent in Knoxville, and included a trip to see the still new (to me) federal courthouse there - it is awesome. The building was bought by the government after the original owner went under, and its transformation into a courthouse earned design awards when it was new. The pictures on this web page of one of the developers give a sense of what it looks like.

Monday, March 31, 2003

Junk tobacco

Not sticks and stems, but the bonds which Virginia and other states sold to cash in on their shares of the tobacco settlements may be classified as junk if Philip Morris/Altria misses a scheduled payment because of the multi-billion dollar judgment entered in Illinois, according to this story in Forbes, which reports that the Virginia bond sale has not yet "settled."

Diversity at the University

The Christian Science Monitor has this commentary on the effects of diversity on the University of Virginia, noting that "many say the rise of Virginia's flagship institution to academic stardom is intimately intertwined with admissions policies that actively recruited women and today still give a 'plus factor' to minorities." The second part of the article cites President Casteen as saying that "the university is sticking by its policy of 'race sensitive' admissions. It is not, he says, backing off its commitment to minority students - a commitment he believes makes UVA academically stronger, not weaker."

Fourth Circuit upholds fingerprint and handwriting evidence under Daubert

Today the Fourth Circuit in this opinion by Judge King joined by Chief Judge Wilkins with Judge Michael dissenting upheld the admissibility in a criminal case of expert analysis of fingerprints and handwriting under the Daubert standard. Judge Michael wrote in dissent that the government did not make the necessary showing to meet the requirements of Daubert, while acknowledging that he was not saying that such a showing could not be made.

Also today: Judge Michael wrote this opinion for another panel which reversed Judge Jackson of the E.D. Va. on the issue of whether lying about gun offenses is a punishable offense under the new statutes governing the penalties for lying to get a job as an airport employee.

Supreme Court rules debt on contract settling fraud claim non-dischargeable

The Supreme Court held today in this split decision that the debts arising out of the breach of a settlement agreement covering claims of fraud were non-dischargeable in bankruptcy. The vote was 7-2, with the rare alignment of Justice Stevens joining in Justice Thomas's dissenting opinion.

The case calls to mind some recent research I did in a case on the Tennessee side, and that is - what do you get when a settlement agreement is breached? Apparently, the intention of the parties controls how the settlement is supposed to work; i.e., whether the parties intended for the new promise to replace the old one, or whether their intent was that the new promise must be performed for the old one to be discharged. See Rhea v. Marko Construction Company, 652 S.W.2d 332, 334 (Tenn. 1983); Douglas v. General Motors Acceptance Corp., 326 S.W.2d 846, 850 (Tenn. 1959); Poster v. Andrews, 167 S.W.2d 1001, 1003 (Tenn. App. 1942), rev’d on other grounds, 189 S.W.2d 580 (Tenn. 1943).

Some of these accord and satisfaction principles were involved in today's decision. Justice Thomas in his dissent pointed out that "[i]n this case, the parties have made clear their intent to replace the old 'fraud' debt with a new 'contract' debt. Accordingly, the only debt that remains intact for bankruptcy purposes is the one 'obtained by' voluntary agreement of the parties, not by fraud." Moreover, Justice Thomas noted that "Petitioners’ own actions in the course of this litigation support this conclusion. Throughout the proceedings below and continuing in this Court, petitioners have sought to recover only the amount of the debt set forth in the settlement agreement, which is lower than the total damages they allegedly suffered as a result of respondent’s alleged fraud." Maybe I'm wrong, but Justice Thomas (and the Fourth Circuit) seem to have the better position to me, that under normal accord and satisfaction principles, in the particular case before the court, the facts about the intentions of the parties show that the fraud claim was wiped out leaving on the contract claim, which would not be dischargeable. (I can't pick winners in the NCAA tournament, either.)

Calls for a 25% cap on out-of-staters at Virginia schools

This article describes calls for a 25% cap on out-of-state students at Virginia's public colleges and universities, and quotes a Republican legislator as saying (despite years of funding freezes and cuts), "Virginians pay for Virginia's colleges and universities and we need to make them available to Virginians." The article notes that one-third of first-year undergraduate students at the University of Virginia are from outside Virginia.

Civil commitment for sex offenders in Virginia

This detailed article in the Richmond Times-Dispatch describes the controversial aspects of a program for civil commitment of sex offenders upon their release from prison. The author cites one expert who explains that "defense attorneys claim they treat these cases like death-penalty cases because their clients assume they will not be released if they are committed as sexually violent predators."

D-Day lawyer turned witness riles memorial supporters

This Roanoke Times article details the reaction of Bedford D-Day monument supporters to the news of the plea agreement made by the memorial's former lawyer to testify against fundraiser Richard Burrow. The lawyer's "recent admission of guilt in the fund-raising transactions and his agreement to testify against Burrow in a retrial have surprised the foundation's former board members, angered others associated with the project and shocked Bedford's small legal community."

The hypocrisy of preferences for legacies or athletes

This column says Virginia Tech should eliminate all kinds of preferences in admissions, if race is going to be eliminated. It includes this suggestion to Board member Bruce Smith: "The AG and rector probably wish that the Fifth Circuit ruling applied to Virginia schools but alas, it doesn't. Show them on a map, Bruce, exactly where Virginia is located and remind them that Bakke is still the controlling legal opinion concerning admissions and diversity in this state. Because you are a team player, you should probably give them this primer on case law and geography in private."

Why can't Virginia Democrats make higher taxes popular

Former Delegate Barnie Day says here that Virginia Republicans are winning the "word game" on taxes.

Commentary on the Attorney General

This Roanoke commentatory says Jerry Kilgore is "a man for our times."

Sunday, March 30, 2003

Turbulence in natural gas industry may lead to less demand for proposed pipeline through SWVA

According to this report, the cancellation of three gas-powered electricity generation plants has called into question the need for Dominion Power's proposed Greenbrier Pipeline Project, which would run 275 miles from West Virginia through Southwest Virginia, crossing the New River and the Appalachian Trail, to North Carolina. As noted here, regulatory approval for the pipeline is nearly complete, with the next step being property appraisals.

Citing natural gas prices, SWVA's Congressman Boucher earlier this month introduced federal legislation to encourage the use of more coal and less gas in the development of new power-generation plants, as described in this press release from the Congressman's website.

Lynchburg parents don't want middle schoolers to read death camp memoir

As reported here, parents in a Lynchburg school are challenging whether 12 year-old students should be assigned Nobel laureate Elie Wiesel's account of his survival of the concentration camps.

In the book, called Night, Wiesel wrote the following:

Never shall I forget that night, the first night in camp, which has turned my life into one long night, seven times cursed and seven times sealed. Never shall I forget that smoke. Never shall I forget the little faces of the children, whose bodies I saw turned into wreaths of smoke beneath a silent blue sky.
Never shall I forget those flames which consumed my faith forever.
Never shall I forget that nocturnal silence which deprived me, for all eternity, of the desire to live. Never shall I forget those moments which murdered my God and my soul and turned my dreams to dust. Never shall I forget these things, even if I am condemned to live as long as God Himself. Never.

The American Library Association's list of the 100 most-often challenged books for 1990-2000 appears here. (I can't say that I've read more than 20 of them.) Night is not on the list.

Commonwealth's attorney candidate claims court has become a "pawn and a tool in a political campaign"

Jonathon Mosely, Republican candidate for Commonwealth's Attorney in Loudon County, has filed a motion to quash the appointment of a special prosecutor to investigate whether he lied about his residence on the forms by which he registered to vote and as a candidate for office, according to this report in the Washington Post. Mosely assured the Post that he "has been sleeping and living in Loudoun County since March 6."

Northern Virginia woman's perspective on sodomy laws

In this commentary, an Arlington woman explains her interest in the Texas case argued before the Supreme Court this past week after Virginia authorities refused to permit her and her partner to adopt a foster child from D.C. because they are lesbians, citing the Commonwealth's sodomy laws.

More on the veto session, including how to define mental retardation in death cases

Here the Washington Post lists the key items on the agenda for the veto session of the General Assembly, including one I'd not noticed previously - a new statute defining procedures for determining who is mentally retarded in capital murder cases. The new bill SB 1239 was passed in response to the Supreme Court's ruling in Atkins v. Virginia. The governor's recommendation appears here. According to the Post, Governor Warner amended the bill because "the bill's definition of mental retardation 'could permit the execution of some people with lifelong, bona fide status as persons with mental retardation,' so he proposed amendments to conform with language proposed by the state Crime Commission." The new bill's definition of mental retardation is this: "Mentally retarded" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in all of the following: conceptual adaptive skills, social adaptive skills and practical adaptive skills.

Exercising their First Amendment rights to be offensive

Greeneville, TN, the birthplace of Davy Crockett, long-time home of President Andrew Johnson, and home of a brand new courthouse for the E.D. Tenn., was the site of a Ku Klux Klan rally on Saturday, as described here and here.

Virginia schools eying Michigan cases

U.Va. law professor and former president Robert O'Neil joins the list of people scratching their heads over the quick decision by the Tech BOV to eliminate race as a factor in admissions, according to this Roanoke Times article, which reviews the relevance of the pending University of Michigan cases to Virginia's colleges and universities.

In this one of the many, many articles on the Michigan cases, one of my undergraduate professors Barbara Perry, now professor of government at Sweet Briar College and sometime constitutional law pundit, predicts that ""This could sound the death knell for affirmative action as we know it."

Dodging tax cuts by waving the flag

Richmond Times columnist Jeff Schapiro suggests here that Governor Warner should package his veto of the repeal of the estate tax as the patriotic thing to do in time of war.

Trial of Richmond police officer draws to a close

The 6-day trial of a Richmond police officer for the death of an unarmed suspect is near its end, according to this column, which concludes that the trial "has pulled back the veil from Richmond's thin blue line, offering a fascinating, detailed and highly unusual glimpse into the guts of a police shooting."