Saturday, April 26, 2003

E. Ky. leaders declare: "Li'l Abner doesn't live here"

That's a message from this year's East Kentucky Leadership Conference, as reported here.

As listed here, topics at the conference which concluded today included the following: "In addition to the intensive session, “Communities in Crisis: Strategies for Addressing Substance Abuse” on Saturday morning the other sessions are: Lil’ Abner Doesn’t Live Here: Updating East KY’s Stereotypes; Chance or Chancey: Gambling as an Economic Development Strategy; East KY Downtowns Go Up-Town: Revitalization Successes; Networking in Higher Education: Creating a Model for Rural America; Bringing KY’s Tax System into the 21st Century; and Robinson Scholars Program."

Ethics of breaching confidences to disclose wrongdoing

This Charleston, WV editorial puzzles over a recent legal ethics case from Washington State.

The other new Fourth Circuit nominee from NC (and VA) - Claude Allen

As reported here, the White House will nominate Claude Allen to the Fourth Circuit, another African-American Republican from the State of North Carolina.

According to this biography from the U.S. Department of Health and Human Services, Allen not only worked for former Senator Helms but was Secretary of Health and Human Resources for Virginia during the Gilmore administration, and worked in the Virginia AG's office, and is a graduate of UNC and the law school at Duke.

DNA might exonerate death row inmate in TN

It would be a first in Tennessee, according to this report.

New form of government cutbacks proposed in Danville - shallower graves

Virginia cities will do anything to save money, or so this report suggests.

Eight years of truth in sentencing

The Commonwealth's attorney in Lynchburg says "I liken it to changing currency from yen — which means nothing — to dollars — which means something,” whatever that means, in this article about criminal sentences in Virginia in the years since the abolition of parole.

Key party primaries to be held in June

"Some of the most important Virginia legislative races in years won't wait for autumn," according to this report.

Campaign dirty trick for the 21st century - steal name for opponent's website

The Washington Post has this story of Va. Del. Jack Rollison, who is complaining that "his Republican primary opponent, Jeff Frederick, has snatched up the rights to the Web site name"

Verbena Askew controversy won't go away anytime soon

So says the Norfolk paper, in this commentary.

More on Va. Ct. App.'s Jackson case

The Virginian-Pilot has this report on the Jackson case, where the Court of Appeals refused to allow the judge who had prosecuted the defendant to hear his probation revocation hearing.

Johnny Oates - Hall of Famer

Former major league player and manager Johnny Oates will be inducted tonight into the Virginia Sports Hall of Fame, and he'll be there to see it, as reported here and here.

Oates grew up in the mountains of NC, as described here and here, and went to school at Virginia Tech, where his jersey was retired last year, as described here. He has lived with cancer for several years and is battling it again. In an article in the Sporting News, he said of his life with his wife and family, "Right now, we're having the time of our lives." His record as a manager is here, and his record as a player is here. He played for the Atlanta Braves during the time when Hank Aaron caught up to Babe Ruth's home run record. Somehow all my sports heroes were etched in my mind in the 1970s, but I'm a bigger Johnny Oates fan now than I was then.

I like this quote from the website of an Orioles' fan: "It's a pity that there isn't a character wing in the Baseball Hall of Fame. If there were, that would be the one I'd most want my kids to see, and I know that Johnny Oates' plaque would be foremost among the enshrinees."

Spending the tobacco money

This article describes this past week's choices by the Tobacco Commission on how to spend the money they hope to receive.

School closure leads to litigation over student loans

This report describes lawsuits that have followed the closure of a computer school in Northern Virginia.

New federal regulations could delay I-81 expansion

Virginia's attorney general is looking for a way around new environmental rules which could delay construction for years, according to this Roanoke Times report.

Virginia teenagers runaway to TN, find no privacy

"A Unicoi County Sheriff’s Department deputy discovered a runaway teenage couple naked in the back seat of a car in the Unicoi Funeral Home parking lot early Friday morning," begins this report in the Johnson City paper.

Third Democrat running for Commonwealth's Attorney in Wise

Greg Kallen has thrown his hat in the ring, as reported here.

Friday, April 25, 2003

"Republicans are thrusting the issue of race to the center stage of state politics"

So said this commentary earlier in the week in the Washington Post, which cited issues including college admissions, the Judge Askew matter, and opposition to the Lincoln statue in Richmond as evidence of "a belief that race can be an important voter motivator for Republicans in this year's legislative elections and beyond."

Norfolk mayor might run for lieutenant governor in 2005

The Virginian-Pilot has this report, which says the mayor is not yet of a mind to go for it.

Out-of-state tuition for in-state illegal aliens

That appears to be one of the ideas approved by this Richmond Times-Dispatch editorial.

Virginia and other southern states still average below average on college admission tests

This report tells the story.

Former postwoman pleads guilty to dumping mail

A former postal worker entered a guilty plea in W.D. Va. to destruction of mail, as reported here.

Convicted murderer in TN sues attorney for $5.6 million

A man who entered a guilty plea to charges of first-degree murder is now suing his court-appointed attorney, claiming that the attorney concealed exculpatory evidence from him, according to this report.

Memo to Va. judges on medical records procedures in light of new statutes

The Virginia judiciary website has this memo which deals with application of Va. Code 32.1-127.1:03, which took effect March 22, 2003.

Forget the Heisman, bring on the Sudler!

If U.Va. is soon to have a regular marching band, it will join in the competition for the Sudler Cup, presented to the nation's best college marching bands - past winners are listed here, and include Florida A&M, JMU, and West Virginia, but never as yet a school from the ACC. (No kidding.)

Sometimes losing beats winning when the prize files Chapter 11

So says this Raleigh newspaper story, on the state's efforts to lure Blacksburg, VA's CropTech to NC, before it went into bankruptcy.

Spot zoning in Spotsylvania?

This report describes the case for which the Virginia Supreme Court has recently granted a petition for appeal.

Defendant picked up by FBI for no driver's license challenges application of Whren

It hardly seems sporting, that the FBI should allowed to pick up somebody on something so trivial, transparently pretextual, and blatantly non-federal as the mere fact that his driver's license has expired, but that kind of argument was rejected by the Fourth Circuit in this opinion.

Fourth Circuit rejects constitutional challenge to HIPAA from SC doctors

This opinion sides with the government on HIPAA regulations against what seems to be strange and lame constitutional arguments.

Judge Jones grants summary judgment for Trigon in chiropractors' suit

Judge Jones of the W.D. Va. granted summary judgment for Trigon in this opinion, which disposes of the claims of the American Chiropractic Association and others against Trigon for unfairly steering its insureds away from chiropractors.

Most of the opinion deals with whether the various Trigon defendants could legally conspire, to which the Court said no. The Court also dismissed the plaintiffs' state law tort claims.

Quest for the ABA mug

No luck yet again, as shown here. Will they run out of mugs before I run out of stories?

New nominee(s) from NC for Fourth Circuit

How Appealing cites this article from Charlotte and this article from Raleigh, both of which say the White House will go forward with the nomination of Allyson Duncan to the Fourth Circuit.

Ms. Duncan's biography on her law firm's website notes, among other things: "Ms. Duncan worked for the federal Equal Employment Opportunity Commission in Washington, D.C. from 1978 to 1986, first as an appellate attorney, briefing and arguing employment discrimination cases before the federal courts of appeals. She served as Executive Assistant to Chairman Clarence Thomas, and ultimately as the agency’s Legal Counsel, managing a staff of 70 responsible for the representation of the Commission in defensive litigation, advising the members of the Commission, writing substantive guidelines and regulations (such as the Commission’s Sexual Harassment Guidelines), reviewing agency contracts for legal sufficiency, and working with the White House, Congress and federal agencies to coordinate matters of EEO law and policy." In addition, she served on the NC Ct. App., and is a utilities lawyer.

"$6 million IOU"

That's what an expert witness called the note from Philip Morris in the IL tobacco case, according to this report.

U.Va. pep band to be replaced

Carl Smith from Wise County has donated money to buy a real band for the University, according to this report.

Apparently, the band's showing at the Continental Tire Bowl was the final straw.

Circuit court rules against police and fire veterans on retirement benefits

The Virginian-Pilot reports here on a circuit court ruling against fire and police employees who claimed the city of Norfolk had reneged on an agreement from 1970.

AG's office still studying "morning-after" pill, after JMU acts alone

The AG's office wants a studied and uniform response to criticisms of the Virginia legislator who has targeted sale of the morning-after birth control pill at Virginia's state colleges and universities, as reported here.

Elsewhere, the Richmond paper editorializes here that the flap over JMU's decision has caused a "knee-jerk reaction from the usual suspects."

Virginia's tobacco commission still doling out funds

Despite uncertainty about future funding and the securitization of Virginia's expected money, the Tobacco Commission is operating as it has the past three years, according to this report.

17 King Pharmaceuticals shareholder suits consolidated in Greeneville

The spate of shareholder suits filed against Bristol's King Pharmaceuticals in the E.D. Tenn. have been consolidated by Judge Hull, who designated the first filed plaintiff as lead plaintiff, according to this report. Baker Donelson is representing the defendants.

Budget cuts, Title IX could lead to no more football at ETSU

The Johnson City paper has this report.

Thursday, April 24, 2003

Virginia one of nine states that gives tax credits for land donations

The Nature Conservancy has this report.

Local officials protest Governor Warner's location of violent sex-offender facility in their area

The Petersburg paper has this report.

Lawyer in IL tobacco case wants Philip Morris "dividends" paid over to the court

Virginia law issues took center stage in the continuing drama of the Illinois tobacco case, where the plaintiff's counsel claimed that the company was making illegal payments to its parent company, arguing that the money should go instead to the appeal bond, as reported here. An expert witness from Harvard testified that under Virginia law, a dividend is illegal if the corporation's liabilities exceed its assets, and that such is the case with Philip Morris.

"Little-known" attractions of Lynchburg and Central Virginia

I've been to Lynchburg a time or too, but it will never look the same again to me after reading over this website cataloging the obscure and delightful attractions of the area, every single one of which I've missed so far, instead gawking at old mansions and such.

(This is my second Elvis-related posting in less than a week, a sure sign of slippage.)

Virginia's efforts to cash in tobacco money "in limbo"

Nobody knows when Virginia's deal to sell its income stream from the tobacco settlement will close, if ever, according to this report.

Elsewhere, the head of Philip Morris-Altria said the company's exposure in smoker suits is manageable, as reported here.

April 24 Fourth Circuit opinions

In NLRB v. Mining Specialists, a panel of the Fourth Circuit including Judge Jones of the W.D. Va. granted the NLRB's petition for enforcement against a West Virginia mining company and its "successor or alter ego", with respect to the claims of individual employees that their recall rights were ignored when the successor company did not hire them off the panel of laid off workers from the first company. The issues include failure to mitigate, and the effect of one claimant's incarceration on his right to backpay, and the company's obligation to pay bonuses for productivity.

In Rowsey v. Lee, a panel affirmed denial of habeas corpus in a death penalty case from North Carolina.

Controversy over nice field at W&M linked to senate campaign

The Virginia Gazette has this story on opposition to construction of new buildings on the William & Mary campus along Jamestown Road. The story includes allegations that a member of the school's board of visitors who is also a senate candidate is using the issue to generate publicity.

When I was a law student in Williamsburg, one day I was waiting to make a left turn off the Jamestown Road and the fellow driving behind me was watching the young women in shorts on that field and he drove into the back of my car without slowing, so maybe that greenspace there at Barksdale is a real hazard.

Methamphetamine labs in the woods of Southwest Virginia

The Coalfield Progress has this report on the proliferation of meth labs in Southwest Virginia.

On the Va. S.Ct.'s Hudson decision

The Winchester paper has this report on the Court's reinstatement of a murder conviction last week.

"Gilmore's reemergence on the transportation scene a year and a half after he left office has surprised many public officials in Virginia"

That's from this Post story on James Gilmore's new job as transportation consultant.

Northern Virginia sheriff alleged to have violated election laws with opinion poll

Pollsters for the sheriff in Prince William did not make proper disclosures, according to this Washington Post story.

Marilyn from the Munsters returns to Norfolk

I'm still thinking of a legal angle for this story, and there is none, except that Fred "Herman" Gwynne was also the judge in that trial practice classic, "My Cousin Vinnie."

News stories on Tuesday's Fourth Circuit opinions

The Virginian Pilot has this story on the airport security case, in which the Court held that misrepresentations were not material, and this report on the Virginia Beach school employment case, in which the divided Court held the former gifted program leader had stated claims against the school system.

One gun-a-month for ten years

The Times-Dispatch has this commentary on Virginia guns at New York crime scenes.

Protesters say Virginia is "tobacco-friendly"

The Richmond paper has this report.

Candidate threatens $10 million slander suit against incumbent

The Jost-Norment campaign continues to make headlines, as evidenced by this report.

Drug forfeiture of Harley-Davidson dealership

The owners entered their guilty pleas earlier this week, according to this report.

Dog shooting in Norton could be a felony

The possibilities are discussed here.

More on Judge McClanahan's big day

The Bristol paper had this report.

Wednesday, April 23, 2003

Yesterday's Fourth Circuit opinions

On April 22, a panel of the Fourth Circuit reversed the E.D. Va. in an employment case called Peters v. Jenney. The opinion was by Judge Karen Williams, joined by Judge Motz, with Judge Widener dissenting. On the Title VI claim, the majority concluded that there is a private right of action for retaliation in accordance with regulations implementing Title VI. The opinion instructs the trial court on remand to consider these elements: "To make a claim for Title VI retaliation, Peters must show (1) that she engaged in protected activity; (2) that Appellees took a material adverse employment action against her, and (3) that a causal connection existed between the protected activity and the adverse action," and "to show 'protected activity,' the plaintiff in a Title VI retaliation case need 'only . . . prove that he opposed an unlawful employment practice which he reasonably believed had occurred or was occurring.'" On the First Amendment claim, the district court had held that no such claim was in the complaint, and there was no proof of causation.

The majority opinion strikes me as too much, too much in the way of advisory opinions. The appellees and the district court ought to be able to go back and start over on the evidence, since the first ruling was essentially that there were no claims stated. There might be some other and better issues on which to litigate these claims, in particular the First Amendment claim. I don't see how the director of the gifted program has a whole lot of latitude to argue about whether the gifted program should be doing this, that, or the other thing - that sounds like the kind of policy differences that even Judge Murnaghan said were not protected in McVey v. Stacy. The Pickering balance of the disruptive effect versus the value of the speech has yet to be weighed. It's not all that clear to me to what the speech is, and whether it can be separated from the plaintiff's own employment, as opposed to a matter of public concern under the Connick test. In other words, there's a lot left unsaid on the defense side of this case, and it appears it was not said because the trial court felt there was no First Amendment claim in the complaint.

In Wade v. Robinson, the Fourth Circuit affirmed Judge Turk of the W.D. Va. in a habeas corpus case, where the issues were whether the one-year limitations period of 28 U.S.C. 2244 applied, and if so, when did it begin to run. The court concluded that the petition was untimely, although they did not agree with how Judge Turk arrived at that conclusion. Judge Gregory wrote a concurring opinion explaining why he had signed off on a certificate of appealability in the case, without which the panel would not have taken on the merits of the appeal.

In Williams v. Hansen, the defendant Hansen had brought a collateral order appeal on the issue of qualified immunity in a section 1983 case where the plaintiffs claimed defendants had violated their rights under the Equal Protection clause. By 2-1 vote, the panel decided that the defendant is entitled to qualified immunity, because there was no clearly established law against him. Judge King dissented, concluding that the law was clearly established against what the defendant is alleged to have done.

I don't know what to make of this case, it seems like some elements of what the defendant did were pretty obviously wrong, but I can't quite get my mind around what is the nature of the claim. There were complaints of racism in the police department. The defendant ordered interviews of all the black officers to get information about discrimination, but did not order interviews of any white officers. That seems like an odd thing to do, and the district court ruled that even if the defendant's stated purpose was his real purpose, he had made a racial classification which could not be justified. But then, somehow race has to be considered in an investigation of racism, or as the court noted, "until such time as the black officers were questioned Hansen could not know which officers felt that there was a discrimination problem."

The majority opinion describes the issue as this: "whether when there are allegations that a discrete racial group has been subjected to discrimination, it is lawful to conduct interviews in the first instance only of members of that group to ascertain their experiences and perceptions with respect to the discrimination." The issue, so defined, is not one that has been litigated over and over. The majority concluded that there was no claim, and even if there was a claim, it was not clearly established and so the defendant was entitled to qualified immunity. Ambiguity in the law weighs in favor of qualified immunity, so if the precise nature of the claim is a bit muddled, then qualified immunity is probably the right result.

The opinion is chock full of interesting and important issues - how does qualified immunity apply when motive is at issue, how does a government official avoid discrimination in investigating claims of discrimination. The employer has to investigate claims of discrimination or risk strict liability and/or punitive damages under Title VII. It is a troubling case, perhaps it will be reheard, and even more conflicting opinions generated.

Local school board contemplates impact of "No Child Left Behind"

According to this report, Roanoke County schools must comply with the new federal law or face losing $2.5 million in federal funds, which is about 2% of their budget.

TN lawyer arrested for "yelling and cursing" at public meeting

The Knoxville paper has this report.

Still hooked on Rocky Top

Here is what it sounds like as played by the UT band.

"Lawyers, business people hold most state lawmaker positions"

The Lynchburg paper has figured this out and written about it here. There are fewer lawyer-legislators than there used to be, but the article cites Professor Sabato as authority for the conclusion that Virginia has more than most.

Another commentary on the 21-day rule and Governor Warner's veto of the 90-day rule

The Daily Progress had this editorial earlier this week, which notes that "Virginia is notorious for shelving the work of its study groups and 'blue-ribbon commissions.'"

U.Va. student paper bashes JMU's move on "morning after" pill

This editorial from the Cavalier Daily declares that "[f]iscally, the General Assembly has all but declared war on higher education."

Affirmative action and Radford University

This article describes the policies regarding race at Radford, a state school just down the interstate from Virginia Tech.

Virginia county discovers tax not being collected

James City County discovered it was not collecting a tax on video and equipment rentals, as reported here.

More on the eBay trial in Norfolk before Judge Friedman

The AP has this report on the contentious proceedings in the eBay trial. Reuters has this report. Judge Jerome Friedman is the presiding judge.

W&M student dies swimming in Crim Dell

Details here.

"State Worker Charged With Sex Crimes Stays On Job For Nearly Five Months"

That's the headline of this story from a Norfolk TV station.

Marketing campaign of elder law firm in Portsmouth

The ad agency's efforts are described here.

Affirming judgment for defendants on excessive force claims where man in jail for not paying child support died in fight with jailers

In this unpublished opinion, a panel of the Fourth Circuit affirmed judgment as a matter of law for the jailers in an Eighth Amendment claim brought by the estate of a 327-pound who died in an altercation with jailers in Charleston, SC.

Electronic filing in the W.D. Va. and some thoughts on PDF software

Someone in my office got the word from the clerk's office today that the U.S. District Court for the Western District of Virginia will soon be accepting electronic filing of court documents. I'm sure there'll be more information about this coming soon.

The best cheap software I've seen so far for converting WP documents to PDF is something called RoboPDF, which can be found here, and at $49 is a bargain over the full-featured Adobe Acrobat, which sells for more like $249. There is also a blog called PDF for Lawyers, that gets updated occasionally.

Investiture of Judge McClanahan

The Court of Appeals sat in Abingdon this afternoon, for the investiture of Judge Elizabeth McClanahan. Speakers included Attorney General Kilgore and attorneys Brad Stallard and Jill Harrison from Penn Stuart, past and former members of the SCHEV, Delegate Kilgore and Senator Wampler, the current VBA president Frank Thomas, former Secretary of the Commonwealth Betsy Beamer, and the oath was administered by Justice Kinser. It is a good thing for a boatload of Richmonders to come to SWVA once in a while, although I understand at least three Supreme Court justices will be here in July to hear petitions.

Tuesday, April 22, 2003

TN songwriter who wrote "Rocky Top" dies at 77

Felice Bryant died today. In her career with her husband Boudleaux she wrote 800+ songs, and "[t]he couple’s compositions played a key role in the Everly Brothers’ career, and their songs have been recorded by a wide range of artists including Eddy Arnold, Bob Dylan, Tony Bennett, Simon & Garfunkel, Sarah Vaughan, the Grateful Dead, Dolly Parton, Elvis Presley, the Beach Boys, Roy Orbison, George Harrison, Elvis Costello, Count Basie, Dean Martin, Ruth Brown, Cher, R.E.M. and Ray Charles," as reported here. This video clip from a Knoxville TV station tells the story.

Their most famous composition, to anyone who has ever been to, watched, or listened to a college football game in Knoxville, is "Rocky Top," facts about which are stated here. "Although it took a while to catch on, this song has become as much a part of the University of Tennessee's tradition as orange and white uniforms," according to this report in the Knoxville paper. At other SEC schools, the same article notes, "Just the thought of hearing "Rocky Top" - over and over again - makes people cringe."

I'm no Tennessee fan, but the sound of Rocky Top is exciting like much of the college football hoopla everywhere is exciting, and I like it just as much as the story of the first Smoky, who stirred up the crowd at Neyland Stadium in 1953, as retold here.

Tennessee football is pretty much summed up in this article, a version of which makes the rounds every fall I think and is one of the best pieces anyone ever sent me by e-mail.

Appeals granted

In FREDERICK COUNTY SCHOOL BOARD v. JOHN HARRIS HANNAH, JR., A MINOR, ET AL. , the Virginia Supreme Court has agreed to consider whether the trial court erred in failure to apply the statutory cap on damages arising from a school bus accident.

In TIMOTHY MICHAEL PRICE v. COMMONWEALTH OF VIRGINIA, the issue is whether "[t]he Court of Appeals erred in affirming the trial judge's denial of the Defendant's motion for recusal from the case as he had been the Commonwealth's Attorney when the crime was committed and when the plea agreement was entered into between the Commonwealth and the defendant/appellant." (I don't know how this fits with the Court of Appeals' decision on a similar issue that came out today.)

In BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA, ET AL. v. RICHARD M. ROBERTSON, the issues include the evils of piecemeal downzoning.

In THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA v. TINA MARIE CARTER the issue is sovereign immunity as applied to an agency of the Commonwealth.

In ROBERT I. JONES, SR. v. COMMONWEALTH OF VIRGINIA, ET AL., the issues include whether and under what standard was plaintiff a "statutory employee" of the University of Virginia.

In NATIONWIDE MUTUAL INSURANCE COMPANY v. RUTH PATTERSON WHITE the issue is whether the insurer can be made to paid twice the per person coverage limit for the injuries of one person.

Right to appeal through levels of state employee grievance process is mutual

Such was the holding in DMH v. Horner, decided today by the Virginia Court of Appeals.

No good for same individual to serve as prosecutor and later as judge on probation revocation

So held the Virginia Court of Appeals, in this en banc opinion released today.

Tolling provision in supplemental jurisdiction statute constitutional as applied to political subdivisions of the states

The Supreme Court held today in Jinks v. Richlands County that the tolling provision in 28 U.S.C. 1367 is constitutional as applied to claims against the political subdivisions of the states. The case involved a wrongful death case, in which plaintiff alleged constitutional claims under 42 U.S.C. 1983 and state law claims. After the federal law claims were dismissed, the federal court dismissed without prejudice the state law claims, which plaintiff then refiled in state court. The state court of appeals held that the refiled claims were untimely, because the tolling provision of section 1367 was unconstitutional. The Supreme Court reversed in a unanimous decision written by Justice Scalia, with a concurrence by Justice Souter.

I've been involved in a few similar cases. The federal judge is often glad to be rid of the case once the federal law claims are decided. If the trial court feared that the state law claims will be untimely, however, it would be less inclined to dismiss the supplemental claims, with the result that more state law claims will be tried in federal court, rather than less, which hardly seems like a desirable result even for states' rights advocates (political subdivisions facing state law claims in federal court rather than state court).

UPDATE - The first version of this went out with the outcome described backwards, but it seems to be right now.

Profile of plaintiff in the eBay patent suit starting today in Norfolk

This article has more information on the background and position of the Northern Virginia businessman whose claims against eBay go on trial today in the E.D. Va.

"Virginia's population gets younger"

Northern Virginia leads the state in growing younger, according to this report.

Courthouse renovation too much money, not enough history

That's the view of the Daily Press regarding renovations of the 80 year-old courthouse in Surry, which could displace buildings in town that go back to the 1840s.

Askew's attorney says Stolle is "anti-woman"

Attorney Don McEachin said on Monday that Senator Stolle is "mean-spirited and he likes to pick on women point-blank, and we're going to put an end to it," according to this report. Senator Stolle described Askew, McEachin, and Askew supporter Sen. Louise Lucas as the "three stooges," the article said.

Almost two-thirds of the people in state Transportation Department jobs requiring a professional engineer's license do not hold one

So says this report in the Richmond Times-Dispatch.

8,506 coyotes were killed in Virginia during 2001-2002

Not enough, according to this report.

Gilliam and Dotson with mutual admiration pact despite campaign against each other

The No. 1 and No. 2 in the Wise County commonwealth's attorney's office are running against each other, and after the election, the odds are they'll both still be working in the same place at least for a while, no matter who wins, according to this report.

Fiction's place is in literature, not government finance

So says this Roanoke Times editorial on taxes.

Monday, April 21, 2003

The state of tobacco litigation as seen from Richmond

The Washington Post has this report.

Today's Fourth Circuit opinions

In this split decision, a panel affirmed Judge Turk's order convicting a man of failing to register his kitchen laboratory where he made GHB. Judge Michael dissented, that back when the case arose, GHB was not covered by the drug trafficking laws (as it is now), and which left the Court to determine whether "the square pegs of [Ellis’s] conduct can be pounded into the round holes of the FDCA."

Here a panel reversed Judge Williams of the E.D. Va. in an IDEA case against Henrico County and ordered reconsideration under the new standard announced in MM v. School District of Greenville County, 303 F.3d 523 (4th Cir. 2002) for "extended school year services," which is based on whether "the benefits a disabled child gains during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months."

This insurance coverage case dealt with the issue of injury to computers and stored data, and generated three opinions: Judge Gregory wrote for the Court, Judge Widener concurred, and Judge Niemeyer dissented. The insured was a small software company, the loss was the result of hacking by a disgruntled former employee, who installed "trap doors" to the system before his employment ended. The majority concluded that there was coverage, despite an exclusion for loss that results from the dishonest or criminal acts of a person to whom the insured had entrusted its property.

eBay patent infringement trial starts tomorrow in E.D. Va.

The Virginia plaintiff claims e-Bay infringed three of its patents, as reported here.

More on return of Philip Morris to Virginia

The Boston Globe has this report on the transfer from Manhattan to Richmond.

Former AG candidate McEachin to represent Askew before VSB on ethics charges brought by senator

The Daily Press has this report. Apparently, McEachin, Askew, and Senator Stolle are all running for Senate seats.

Changing economy in Southwest Virginia

According to this article in the Richmond paper, titled "Southwest Virginia repositions itself," "With less than 10 percent of its employment now in mining, we should no longer think about it as a declining coal region. Southwest Virginia has a repositioning work force that is bringing a strong and unified work ethic to its economy."

Del. Bryant says "it's a pretty safe bet that Republicans will continue to dominate the General Assembly with relative ease"

This commentary suggests that winning in November is no longer the hard part for Republicans in Virginia.

Year-long coyote-killing contest in Scott County

The contest is described in this article, in which one speaker notes that "coyotes are the only animals that will eat your cat food and then eat your cat."

Charlottesville Legal Aid reels in big dollars from John Grisham and Dave Matthews Band, still dollars short

As described here, Legal Aid in Charlottesville still needs some money before the end of the month.

Rebuilding Grundy includes broadband infrastructure

The Town of Grundy in Buchanan County which is being relocated as part of a flood control plan, will also be rewired for broadband in the new downtown, according to this report.

Sunday, April 20, 2003

Allegedly ineffective counsel might have done something right

In this opinion refusing to allow a habeas corpus petition on grounds including ineffective assistance of counsel, the Fourth Circuit noted in a footnote that the defendant looks guiltier now based on the post-judgment record than he did at trial.

Last week's criminal cases from Virginia Supreme Court

In Lenz v. Warden, the petitioner obtained a reversal of fortune in a death penalty, as the Court agreed that the verdict form was defective and the petitioner could raise the issue by way of a claim of ineffective assistance of counsel. The verdict was defective in that it "failed to inform the jury that it could sentence petitioner to life imprisonment even if the jury found petitioner guilty of both aggravating factors beyond a reasonable doubt." Chief Justice Hassell wrote the opinion.

In Rose v. Commonwealth, the Court considered the dreaded habitual offender statute, which makes it a crime for a person who has been adjudged in a civil proceeding to be a habitual offender gets caught driving. Remarkably, the defendant won the appeal, because the adjudication order was not filled out correctly, and the Supreme Court concluded that "that an 'incomplete' order which adjudicates a person as an habitual offender, but "erroneously" fails to impose the required prohibition against that person operating a motor vehicle, does not satisfy the Commonwealth's burden of proof in a subsequent trial charging that person with violating" Va. Code § 46.2-357. Also interesting is the fact the Court of Appeals affirmed the conviction, and both it and the litigants apparently focused on other issues, about a collateral attack on the adjudication.

In Commonwealth v. Hudson, the Supreme Court reinstated a second-degree murder conviction that had been thrown out by the Court of Appeals for insufficient evidence. Not to put too fine a point on it, it looks to me like the Supreme Court by Judge Lemons thought the Court of Appeals (in an opinion by Judge Agee, who is now on the Supreme Court, and so Senior Justice Compton took his place on this last appeal) messed up every which way, as the opinion says: "In the case before us, the analysis of the Court of Appeals viewed the evidence in the light most favorable to Hudson rather than to the Commonwealth as required. Additionally, the Court of Appeals emphasized Hudson's evidence rather than the totality of the evidence as required. Finally, the Court of Appeals' analysis did not give proper deference to the province of the jury to consider the testimony and the credibility of the witnesses to determine reasonable inferences from such evidence, and reject as unreasonable the hypotheses offered by Hudson."

Sure sign of spring - stories about ramp festivals

I've not eaten any ramp in years, but every spring stories like this and this and this and this make me want to go to a ramp festival.

Tri-cities area in NE TN has highest prescription drug usage rate in state

So says this report, which notes that the most prescribed medicine is hydrocodone.

More on this year's shad planking - Paula Jones' attorney to run for Lieutenant Governor

The Daily Press has this column on the shad planking beer, fish, and politics party, including the item that attorney Gil Davis, who represented Paula Jones against Bill Clinton and who lost a race for attorney general in 1997, had a booth and says he is running for lieutenant governor in 2005.

Why no power competition has followed electric deregulation in Virginia

The Daily Press has this report, titled "Va.'s open electricity market has no spark."

More Virginia incumbents find challengers from within own party

Bristol's Senator Wampler is not among the group that will face challenges from within the Republican Party, as in some places scores are still being settled from the last budget session of the Gilmore administration during which the party split on implementation of the elimination of the car tax, according to this report in the Richmond paper. The Washington Post has this story on the primary challenge to Sen. Chichester, another Republican who defied Governor Gilmore on the car tax, and quotes Chichester as saying of his opponent, "The guy is a goofball."

Tennessee has the highest bankruptcy rate in the nation

That's according to the state's Commissioner of Financial Institutions, who also says there 36 Tennessee banks in trouble including 5 over which he "loses sleep at night", according to this report.

"Individuals, not industry, the big polluters these days"

So says this article in the Kingsport paper, which concludes that consumers generate more of some kinds of pollution today than do manufacturers.