Saturday, May 03, 2003

"A gratuitous and unattractive swipe at the children of undocumented aliens"

That's what the Hampton paper called the General Assembly's alien tuition bill in this commentary praising Governor Warner's veto.

Debating the merits of SOLs and the like

The Richmond paper has this editorial which claims that "[r]ecent studies suggest so-called high-stakes testing leads to higher scores," which it says is bad news for opponents of the Virginia Standards of Learning testing program.

In California, as reported here, a new study is being cited as grounds to delay mandatory exit exams for high school students because it is apparent that too many are not passing.

Claims of laid-off AG employees dismissed on "procedural" grounds

This Richmond Times-Dispatch story describes the dismissal of the lawsuit brought by former employees of the office of the Attorney General as based on sovereign immunity.

Virginia as (illegal) cigarette tax haven for West Virginians and New Yorkers

The Bluefield paper has this report on West Virginians, while the Richmond paper has this report on New Yorkers.

VMI prayer opinion described as "a truly wacky ruling"

That's the view of the Kingsport paper, stated here.

Johnson City facing lawsuits totalling $3 million

The Kingsport Times has this report, which explains that the Housing Authority has sued for repairs to damaged water and sewer lines, and a group of firefighters are suing for unpaid overtime.

Atlantic Coast conference expansion to be announced this week?

The latest I've seen about whether the ACC will expand to include Miami and others from the Big East are these items from CBS Sportsline, the Boston Globe, the St. Petersburg Times, the Charleston WV Gazette, the South Florida Sun-Sentinel, and the Miami Herald. It sounds like it will happen and there will be some kind of movement as soon as this week.

No word on whether a new ACC tournament of moot court competitions would be organized, as adding Miami, Pitt, and West Virginia to Virginia, Wake, UNC, and Duke would make seven law schools (the only legal angle that occurs to me), but I wouldn't hold my breath on the other two new admittees being Pitt or WVU.

More on proposed liquidation of Reciprocal of America and its effect on legal malpractice insurer ANLIR

The Tennessean has this report on the Virginia receiver's petition to liquidate ROA, which notes that "reduces the likelihood that money will be there to pay claims of policyholders insured by Tennessee companies," American National Lawyers Insurance Reciprocal (ANLIR) and Doctors Insurance Reciprocal (DIR). The Richmond paper has this report, which notes that two hearings have been set for the petition, one in June and one in September, and has this link to the SCC's order.

Motley Fool puts a number on the eBay case in E.D. Va.

The Fool says here the case if it goes wrong could cost the company $100 million in damages.

The Nature Conservancy's billions

The Washington Post has this report on the wealth of the Nature Conservancy.

One thing not in the article is an odd fact I learned a while back which is that the Nature Conservancy grows tobacco on some of its properties.

Another story on attempts to revive the ERA

The New York Times has this report, which notes among other things that legislation that would revive the amendment "in the recently ended session of the Virginia Legislature did not make it out of committee."

How would a $300,000 bill of costs go over in Virginia?

In the Lowe's Motor Speedway collapsed pedestrian bridge case, the trial court judge reduced the plaintiffs' counsel's request for costs of more than $355,000 to $21,475.13, according to this report. The article quotes defense counsel as saying "I have never seen a bill of cost that approached even $100,000, much less $300,000."

"How many more traditions must VMI sacrifice to political correctness?"

That's the question asked by a VMI cadet in this letter to the Washington Post.

Well, what have I done now?

Pardon our technical difficulties.

UPDATE: 90 minutes later, I think we're back to normal (perhaps as in the military acronym, "SNAFU").

Friday, May 02, 2003

Just like Forrest Gump's million-dollar wound

Blogshares says here that this space is worth $58.71, but I don't guess I'll get to see any of that money.

Mexican tree-trimmers sue Norfolk landscaper over inhumane conditions

The AP has this report.

Gay watchdogs don't like nomination of Claude Allen to Fourth Circuit

Here is one report, which notes nevertheless that "a number of Democratic senators who oppose Allen's positions on the issues are likely to vote for his confirmation on grounds that more minorities are needed on the 4th Circuit bench."

"Our drinke cold water taken out of the River, which was at a floud very salt, at low tide full of slime and filth"

Evidently, good water was a problem at Jamestown, more than three hundred years before the Chesapeake Bay Foundation got to work on the problem, as reported here.

Curious ruling on the order of operations in disposing of defamation claims - consider state law first, then Times v. Sullivan

In Hugger v. The Rutherford Institute, the court of appeals affirmed denial of remand finding there was diversity jurisdiction, affirmed summary judgment on the intentional and negligent infliction of emotional distress claims, and reversed on the defamation claim, concluding that the trial court had addressed the defamation issues in the wrong order, and should have ruled on the state law of defamation before reaching the NY Times v. Sullivan malice standard.

The case involves the intervention of John Whitehead and the Rutherford Institute into a classroom matter at a school in North Carolina. The Rutherford Institute issued a press release titled "Sixth Grader Punished for Refusing to Curse in Class." Eventually, the sixth grader recanted her story, and the school officials sued Whitehead and the institute in state court.

The removal issue was decided on the basis of fraudulent joinder - the NC defendant was held to be a sham defendant, against which plaintiffs had no claim. On the emotional distress claims, there was not enough evidence of emotional distress (always a good issue in the Fourth Circuit). On the defamation claim, the court of appeals held that the trial court erred by proceeding to determine first whether the plaintiff school officials were public figures (as I would have thought they were). The panel held that the trial court should have first addressed "the state law question of whether Hugger and Settle proffered sufficient evidence to establish a claim of defamation under North Carolina law," under the rule from Bell Atl. Md., Inc. v. Prince George’s County, Md., 212 F.3d 863 (4th Cir. 2000) that it is reversible to proceed first on the constitutional question.

Geez, that sounds like a mess to me. I thought the "malice" standards were incorporated into the state law, at least in Virginia - the question of whether was defamation is affected by what level of deliberateness lay behind the publication of the false information, and that in turn is a function of whether or not the plaintiff is a public figure. I like the rule from the case of DiMeglio v. Haines, a qualified immunity case from some years ago, which said basically (in a somewhat analogous context, although state law claims were not involved) the court ought to take the shortest route to summary judgment. The Bell Atlantic case was a preemption challenge to state ordinance, and Judge Widener's opinion quite reasonably reversed because the state law issues were not addressed.

In Virginia, the courts have "harmonized" the state law of defamation with the constitutional requirements. Great Coastal Exp., Inc. v. Ellington, 230 Va. 142, 149, 334 S.E.2d 846, 851 (1985). I've sought summary judgment in federal court on state law defamation cases in Virginia and always argued public figure first (which is often easy when government employees are the plaintiffs), then tried to win out on lack of actual malice. This opinion makes me think I've been going about it the wrong way, but I don't see that the state law of defamation necessarily provides the adequate and independent grounds for a decision, when the state law liability standard and the constitutional standard have been merged.

(By the way, Whitehead himself did not argue the case on behalf of himself and the Rutherford Institute; they were represented by a lawyer named Thomas Neuberger from Wilmington, Delaware.)

In Hilton Head roof case, admission of improperly-disclosed expert testimony is harmless error, but trial court errs in measuring damages

In Sea Side Villas II Horizontal Property Regime v. Single Source Roofing Corp., the Fourth Circuit found no error in the admission of expert testimony despite irregularities in the manner of their disclosure, but also reversed on damages because the trial court failed to apply the proper measure under South Carolina law, which was the reasonable cost of repairing the bad roof.

Teacher/wife/mother plea bargains to reduced charge of consensual sodomy in schoolgirl case, gets 10 months

The circuit court judge gave the defendant 10 months, when the sentencing guidelines indicated only probation, in the case described here in Northern Virginia's Connection newspaper.

I'm not sure this is the kind of case that opponents of sodomy laws have in mind.

More on dismissal of SC jail wrongful death case affirmed by Fourth Circuit

The AP has this report on the Fourth Circuit's unpublished decision in Walters v. Williams, the case involving the death of a man in jail for not paying child support.

Governor Warner raising his national profile

The Washington Post has this report.

Third trial ends in conviction in Norfolk

The Norfolk paper has this report on a criminal defendant convicted after two mistrials.

Times-Dispatch supports choice of Allen for Fourth Circuit

The Richmond paper has this editorial in support of the nomination of Claude Allen to the court of appeals.

Democratic state chairman stays on when no successor found

Richmond attorney Larry Framme will stay on the job, according to this article in the Richmond Times-Dispatch.

Man whose crimes inspired new law indicted again

The Richmond Times-Dispatch has this report.

"There are many more things in life that are much more important than financial gain"

So said Virginia Supreme Court Chief Justice Leroy Hassell, in address extolling the virtues of public service to lawyers in Roanoke, as reported here.

Ill-tempered motorist barred from Blue Ridge Parkway

The Roanoke Times has this report of what appears to be road rage on federal property.

Pittston changes name to "The Brink's Company"

So says this report.

Drunk man locks himself in ambulance

The Johnson City Press has this report, which included the observation that "one primary reason the vehicles sometimes become a target of burglars is due to the mistaken notion that the rescue units contain drugs."

Kilgores criticize alien tuition veto

The Kingsport Times has this report, with the comments of Attorney General Kilgore and Del. Kilgore on Governor Warner's refusal to sign the ban on in-state tuition for illegal aliens.

Volokh sees First Amendment violations at UT

The story is told here.

The authorities in Knoxville seem to be advocating a somewhat different point of view than the positions taken (then taken back, mostly) by their peers up the road in Blacksburg, as described here.

Thursday, May 01, 2003

Law school bloggers exam talk recalls to mind my own version of the exam dream

I've been reading the travails of the many law school bloggers, all cramming for finals, which brings to mind the "exam dream", described here:

"It's exam day. You have to go to your exam.

But there's a big problem: You haven't studied for this class all year. In fact, you haven't attended this class all year. You don't even know where the class meets.

OK, you can wake up now. You've had the exam dream.

And you're not alone. A large percentage of the population has had it at one time or another."

Yeah, I've had the exam dream, and my own version doesn't make much sense. Somehow it involves most commonly a terrifying combination of Cabell Hall at U.Va. (actually New Cabell Hall), calculus (which I've not seen while awake since one of these in high school), and William & Mary law professor Lynda Butler (who used to teach math but now teaches Property Law), with the added twist that I can't find a blue book. (You could never have too many blue books, way back in the 1980s, but I can't remember now where they were sold or how I managed to get them.)

"[N]o more dancers and no more beer at staff meetings"

Just when you thought there were too many employment lawyers, a story like this one in the Lynchburg paper comes along.

"Restaurant health inspections go online in Virginia"

That's the title of this report in the Virginian-Pilot; the website is here.

One man's nightmare inspires Virginia law for civil commitment of sexual predators

The AP has this report, and there are further reports in the Virginian-Pilot, the Roanoke Times, and this Virginia TV station's website.

Chiropractors will "vigorously appeal" Judge Jones' ruling in Trigon case

So says this press release, which quotes the head of the American Chiropractic Association as saying, "We refuse to capitulate," and likening the case to another suit which went on for 16 years.

Former U.S. Senator Paul Trible may run for lieutenant governor

According to this report in the Washington Post, other Republican possibilities include "the nominal front runner" Senator Bill Bolling of Richmond, former Lt. Gov. John Hager, one-time AG candidate Gil Davis, Del. Jeannemarie A. Devolites from Fairfax, and Sen. Emmett W. Hanger Jr. of Staunton (described as "best known recently for co-chairing a tax restructuring commission that produced no substantive recommendations after more than a year of study").

When does a Virginia governor become a lame duck?

Virginia's Secretary of Technology George Newstrom in this interview says the one-term limit for Virginia's governors "requires very quick action. We have to have a direct impact in 18 months. If our plans aren't implemented in, say, 18 to 24 months, we've probably lost our window of opportunity."

(Tick, tick, tick, tick . . . . )

Taxpayers lose on deductibility of investment-advice fees

In Scott v. U.S., the Fourth Circuit upheld the government's position regarding the limited deductibility of fees paid to investment advisors.

Exclusion of evidence affirmed in case against helicopter manufacturer for death of Marine officer

In Edwards v. Bell Helicopter Textron, the court of appeals affirmed the trial court's exclusion of evidence about a kind of warning system that Bell later installed in other helicopters, based on expert testimony that the system could not have prevented the accident which resulted in the death of plaintiff's decedent, for which the jury in a nine-day trial had found that the manufacturer was not responsible.

District court opinion reversed for failure to state whether judge undertook de novo review of magistrate judge's report

In Eastwood v. Huffman, the court of appeals reversed and remanded a case where the plaintiff had made timely objections to the recommendations of the magistrate judge and the district court in accepting the recommendations did not expressly state whether it had exercised de novo review.

Denial of continuance affirmed

In U.S. v. Oshunleti, the panel of the Fourth Circuit in an unpublished per curiam opinion affirmed the defendant's convictions over his objection that he was wrongfully denied a motion for continuance when he wanted to change lawyers on the morning of trial.

Virginia judicial news - "town hall" meetings for judicial council, new clerk for S.Ct.

The Virginia Judicial Council will hold meetings across the state, as described here.

Patricia Krueger has been appointed as the new Clerk of the Virginia Supreme Court, as reported here. Probably everyone who ever had a case in the Virginia Supreme Court in the last ten years has talked to Patricia Krueger on the telephone; she is very helpful and does excellent work.

100% olive oil

As Emeril says, "pork fat rules," even from a pig named Olive, as told in this tale from the Knoxville paper.

Ain't no lower class than Tennessee trash

In this article about Elizabethton's litter ordinance, a police officer said that "he naturally has been cursed at a time or two for handing out litter violations and once even had a hex put on him by a city resident he cited for health and safety violations." (Well, OK, so long as he was not cursed unnaturally.)

U.S. Supreme Court denies cert in Virginia Vermiculite case

The Daily Progress has this report on the denial of certiorari by the U.S. Supreme Court in the long-running Virginia Vermiculite unfair competition case, noting that "[t]he nation’s highest court has declined to hear a suit that pitted a Louisa County preservation organization against a vermiculite mining company for the better part of a decade."

Ill-gotten booty or cosmic underwater reception area?

Authorities have found 300 satellite dish antennas in Lake Anna in Louisa County, and nobody knows what they were doing there, according to this report.

Other localities may contract with Highlands for juvenile detention

While the bad kids are wanting to get out, some counties and cities are wanting to get into to the Highlands juvenile detention facility in Bristol, as reported here.

More on oral argument in Virginia v. Hicks, the trespass v. First Amendment case

Here are reports from the Boston Globe, the New York Times, and the Washington Post.

ROA stops making payments on hospital claims, more on liquidation

Here are reports from the Insurance Journal and the Richmond Times-Dispatch, plus a press release from the SCC titled "SCC TEMPORARILY STOPS PAYMENT OF CERTAIN ROA CLAIMS", another SCC press release that says "2002 ROA STATEMENT CONFIRMS FINANCIAL WOES; SCC ASKED TO FIND COMPANY INSOLVENT," and the ROA receiver's petition for liquidation filed with the SCC available here.

Reciprocal of America was the reinsurer for American National Lawyers Insurance Reciprocal, or ANLIR, which was the legal malpractice insurance carrier for thousands of lawyers in Virginia and Tennessee, and is now in receivership in Tennessee as the result of ROA's receivership, which has likewise resulted in the receivership of Doctors Insurance Reciprocal, a company providing medical malpractice insurance. ROA itself besides acting as reinsurer sold malpractice insurance to hospitals. At the request of the Tennessee receivers of DIR and ANLIR, the SCC has ordered that the Virginia receiver of ROA will stop paying the hospital malpractice claims, while the SCC determines whether the doctor and lawyer claims should be treated like policyholder claims rather than creditor claims.

U.Va. reviewing Del. Marshall's letter on "morning-after" pill

The Richmond Times-Dispatch has this report.

Governor Warner vetoes legislation barring illegal aliens from in-state tuition

Here are reports from the Roanoke Times, the Washington Post, the Washington Times, and the AP.

Wednesday, April 30, 2003

Stories on oral argument in the Hicks trespassing case

Here are various accounts from the AP's Gina Holland, another AP story, the Richmond Times-Dispatch, Reuters, the Legal Times, and finally, via How Appealing and the Volokh Conspiracy, this note on a funny exchange between Justice Breyer and Justice Scalia.

From what I can gather based on these reports, the likelihood is that Hicks will lose, or at least, the case will be remanded.

Virginia receiver proposes liquidation of Reciprocal of America

Virginia Lawyers Weekly and the AP are reporting that the Virginia receiver of the Reciprocal of America proposes its liquidation.

One goody, one iffy

That the Wilmington, NC paper's take in this commentary on the nominations of Allyson Duncan and Claude Allen for the Fourth Circuit.

Still more on Virginia's new spam law

Here are articles in the Richmond Times-Dispatch, TechWeb, another in the Washington Post, AdAge, CBS Marketwatch, and a commentary in GreenvilleOnline.

Reaction on campus to the VMI prayer ruling

The Richmond paper had this report.

More on the nomination of Judge Glen Conrad for the W.D. Va.

See this press release from Senator Allen's website and this item in the Richmond Times-Dispatch.

Putting some dates together in my head, it appears to me that Judge Conrad was a new magistrate in Abingdon at about the same time that George Allen (and Justice Cynthia Kinser) were law clerks for Judge Glen Williams.

Lawyers who got $10 billion verdict in Philip Morris case had donated to judge's campaign

The Overlawyered blog has this item.

911 call about boyfriend's injuries leads to boyfriend's arrest and qualified immunity for arresting officers

The Sixth Circuit case of Thacker v. City of Columbus, decided today, presents an interesting scenario demonstrating the Fourth Amendment consequences of a 911 call. The police showed up with the paramedics and entered the premises without permission to find out what was going on and to make sure the paramedics were safe, and while they were there, they noticed bruises all over the injured man's girlfriend, and arrested the man for domestic violence. The court of appeals concluded that there was no Fourth Amendment violation, or in any event, the defendants were entitled to qualified immunity.

Battering medical patients no more related to interstate commerce than battering women?

Findlaw's Michael Dorf has this analysis of the constitutionality of tort reform measures now before Congress.

Claude Allen nomination draws criticism from Senator Sarbanes and others

The Richmond Times-Dispatch has this report on reaction by some senators to the nomination by President Bush of Claude Allen to serve on the U.S. Court of Appeals for the Fourth Circuit. Also, as described in this transcript of a press briefing by Ari Fleischer of the White House, the Maryland senators claim that the seat should go to a Maryland lawyer, since it is to fill the vacancy left by Judge Murnaghan from Baltimore. Fleisher had no particular response.

The Washington Post reports here that the White House had considered two Maryland lawyers, but both were rejected by Maryland's senators (both Democrats) as unsuitable. The same article notes that "[s]ome Republican officials said the political benefits of nominating women and minorities appear increasingly clear, even if some of them are rejected."

The Raleigh paper reported here that the events of Senator Jesse Helms' 1984 campaign were being revisited to consider statements by Allen in the course of that campaign, including the statement supposedly made by Allen that Helms' opponent was vulnerable because of his associations with "the queers."

Summary judgment upheld for ATF on Privacy Act claim based on disclosure to condo association where plaintiff planned to sell guns

In Fattahi v. Bureau of Alcohol, Tobacco, and Firearms, the Fourth Circuit affirmed summary judgment for the ATF, where plaintiff claimed the ATF had violated the Privacy Act by notifying his condominium association about his federal firearms license application, on which he had stated that he intended to sell guns from his condo. The opinion was by Chief Judge Wilkins.

Corrections guard may have religious discrimination claim when denied right to wear dreadlocks

In Booth v. State of Maryland, the district court had granted summary judgment on plaintiff correctional officer's claims religious and racial discrimination based on his being disciplined for wearing dreadlocks, and the Fourth Circuit reversed in part, concluding that Title VII was not the exclusive remedy for the plaintiff's religion claims under the Free Exercise clause of the First Amendment and there was some evidence that other religious exceptions had been made to the dress code, while affirming judgment against the plaintiff on his race and defamation.

The opinion was by Judge Traxler, joined by Judge Luttig and Judge King, and included some language dealing with Judge Luttig's issue of recent complaint, about how panel decisions cannot be thrown out except by the en banc court, which liberated this panel to ignore a more recent panel decision with which they disagreed and which was at odds with an earlier panel decision on point.

What makes this even more interesting is language which says the district courts who felt obliged to follow opinion No. 2 instead of opinion No. 1 were wrong: "This footnote, in turn, has led several district courts to erroneously conclude that it must follow Hughes, instead of Keller, either because Hughes is a more recent decision by this court or because the plaintiff in Hughes, unlike the plaintiff in Keller, did not bring a Title VII claim along with a Section 1983 claim." It seems to me that it's one thing to say that the court of appeals cannot overrule itself, it's another and more radical thing to suggest that the district courts are free to decide the latest panel decision can be ignored.

State suit against trustee individually does not violate the automatic stay

In Greer v. Hartford Life & Accident Ins. Co., the Fourth Circuit held that a lawsuit brought by the defendant against the Chapter 11 trustee of a bankruptcy estate, rather than against the debtor itself, did not violate the automatic stay under the Bankruptcy Code.

District court erred in construction of contract for removal of USTs

In Steve A. Harris, Inc. v. Kenyon Oil Co., a panel of the Fourth Circuit reversed the district court's entry of summary judgment for the defendant, concluding that there was an issue of fact about whether the defendant had performed his obligations in compliance with state and federal environmental laws.

Pro se defendant with standby counsel has no claim for denial of legal resources

In U.S. v. Neely, the Fourth Circuit denied the defendant's claim that the trial court denied him legal resources necessary for his defense, when the court had appointed standby counsel to assist him.

Judge Jones rules no discretion to modify prison sentence

In this opinion posted today, Judge Jones denied a criminal defendant's motion for modification of sentence based on extraordinary circumstances, concluding that he had no authority to entertain the defendant's request.

Judge Jones remands case of doctor claiming national origin discrimination

In an opinion posted today, Judge Jones of the W.D. Va. ruled in Payman v. Bishop that he would remand Dr. Payman's case to state court, despite the defendants' argument that Payman's claim of national origin discrimination arises under federal law.

More on PDF software tools

ESQlawtech has this item on a software tool to convert PDF files back to text, which you can use in your word-processing documents. The program is called AutoCapture-X, available here, from the PDF Store.

I know there was a post asking for just such a program not too long ago on one of the Technolawyer lists. It would come in handy if in fact the W.D. Va. is going to electronic filing, with PDF as the format of choice.

More on Virginia spam law

See articles from Computerworld, NY Times (via SF Chronicle),, the Washington Times, Tricities Business Journal, Arizona Daily Star, USA Today, and the Washington Post.

Solution to WV workers comp crisis - more government lawyers?

This AP story in the Bluefield paper says that no lawyer shows up to contest most workers' comp appeals in WV.

"When spam gets fried in Virginia, hold the mayo but don't spare the hot sauce"

Only the Kingsport paper would publish such a sentence, in this story on the new Virginia spam law.

Blawgers on Virginia spam law

See Lawrence Lessig, LawMeme, Virtual Chase, ESQlawtech - and those were just the ones on the Daily Whirl.

Where is the blog of the general counsel for the Spammers of America? The spammers have no friends.

Tuesday, April 29, 2003

Litigating under the malpractice cap - as in the Fredericksburg med mal case

The National Law Journal has this report on the implications of Virginia's medical malpractice damages cap on cases like the one that resulted in the record verdict in Fredericksburg.

NY also contemplating raising the bar of admittance

As described here, NY like Florida is considering raising the passing score on the bar exam.

How long before Virginia joins in the fun?

Va. S.Ct. grants petition in two zoning cases and a restrictive covenant case

Among the appeals granted that were posted to the Court's website today, RAYNOLD C. GLAZEBROOK, JR., TRUSTEE, ET AL. v. BOARD OF SUPERVISORS OF SPOTSYLVANIA COUNTY involves the sufficiency of notice under Va. Code 15.2-2204, DAWSON, L.C., ET AL. v. BOARD OF SUPERVISORS OF LOUDOUN COUNTY, ET AL involves matters of rezoning, including the interesting issue of whether "[t]he trial court erred by prohibiting the Dawsons from taking the deposition of the Board's designee under Rule 4:5(b)(6) of the Supreme Court of Virginia on the ground that the Board was not a "governmental agency" within the meaning of Rule 4:5(b)(6)," and in RIVER HEIGHTS ASSOCIATES LIMITED PARTNERSHIP, ET AL. v. ALICE BATTEN, ET AL, the issues concern the trial court's failure to remove a restrictive covenant, even in "light of the overwhelming evidence that established a change of conditions so radical as practically to destroy the essential objects and purposes of the restriction," or so the petitioner claims.

Today's Virginia court of appeals opinions

In a case out of Roanoke, the Court in King v. Commonwealth rejected the defendant's claim that the trial court should not have ordered a mistrial when one of the jurors became too ill to continue and the Commonwealth object to proceeding without 12 jurors.

In Allison v. Commonwealth, another Roanoke case, the Court by Chief Judge Fitzpatrick held that the fact of the defendant's flight tolled the one-year period in which the trial court could reinstate the defendant's suspended sentence.

In Frazier v. Commonwealth, the defendant's conviction was reversed, because the trial court improperly admitted her earlier statements in violation of Va. Code 19.2-270, which says that "In a criminal prosecution, other than for perjury, or in an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination, in a criminal or civil action, unless such statement was made when examined as a witness in his own behalf."

In Londono v. Commonwealth, the Court in an opinion by Judge Clements affirmed the convictions of a defendant accused of transporting heroine into the Commonwealth with intent to distribute, over the defendant's complaint about being prosecuted in federal court for the same conduct and that the state court allowed in evidence that the federal court suppressed.

In the case of Blevins v. Commonwealth, a panel of the Court in an opinion by Judge Elder rejected a Roanoke defendant's claims that the eyewitness identification was improper and that a juror's incorrect statement in voir dire was grounds for a mistrial.

Implied consent and the meaning to put upon "upon"

In Roell v. Withrow, dealing with the constitutional requirement of consent to entry of final judgment by a magistrate judge, the majority of the Supreme Court concluded that "the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge."

The dissent says that the statutory language "[u]pon the consent . . ." means that the consent must come first.

I wonder if the justices would have been aligned differently had the issue been whether consent to a police search could be implied from the fact that the police said several times they thought they had consent and the citizen said nothing until after the search was over.

Governor Warner signs tough new spam law

Governor Warner went to the headquarters of AOL for the ceremonial signing of Virginia's new anti-spam law, as reported here and here and here.

Included in the new law is a new section, § 18.2-152.3:1, in addition to beefed-up and somewhat spam-specific punishments provided in the Virginia Computer Crimes Act:

§ 18.2-152.3:1. Transmission of unsolicited bulk electronic mail; penalty.

A. Any person who:

1. Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers; or

2. Knowingly sells, gives, or otherwise distributes or possesses with the intent to sell, give, or distribute software that (i) is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information; (ii) has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or (iii) is marketed by that person acting alone or with another for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information is guilty of a Class 1 misdemeanor.

B. A person is guilty of a Class 6 felony if he commits a violation of subsection A and:

1. The volume of UBE transmitted exceeded 10,000 attempted recipients in any 24-hour period, 100,000 attempted recipients in any 30-day time period, or one million attempted recipients in any one-year time period; or

2. The revenue generated from a specific UBE transmission exceeded $1,000 or the total revenue generated from all UBE transmitted to any EMSP exceeded $50,000.

C. A person is guilty of a Class 6 felony if he knowingly hires, employs, uses, or permits any minor to assist in the transmission of UBE in violation of subdivision B 1 or subdivision B 2.

§ 18.2-152.12. Civil relief; damages.

A. Any person whose property or person is injured by reason of a violation of any provision of this article may sue therefor and recover for any damages sustained and the costs of suit. Without limiting the generality of the term, "damages" shall include loss of profits.

B. If the injury under this article arises from the transmission of unsolicited bulk electronic mail in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider where the defendant has knowledge of the authority or policies of the EMSP or where the authority or policies of the EMSP are available on the electronic mail service provider's website, the injured person, other than an electronic mail service provider, may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the lesser of ten dollars $10 for each and every unsolicited bulk electronic mail message transmitted in violation of this article, or $25,000 per day. The injured person shall not have a cause of action against the electronic mail service provider which that merely transmits the unsolicited bulk electronic mail over its computer network. Transmission of electronic mail from an organization to its members shall not be deemed to be unsolicited bulk electronic mail.

C. If the injury under this article arises from the transmission of unsolicited bulk electronic mail in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider where the defendant has knowledge of the authority or policies of the EMSP or where the authority or policies of the EMSP are available on the electronic mail service provider's website, an injured electronic mail service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the greater of ten dollars $1 for each and every intended recipient of an unsolicited bulk electronic mail message transmitted in violation of this article, or $25,000 per day where the intended recipient is an end user of the EMSP or $25,000 for each day an attempt is made to transmit an unsolicited bulk electronic mail message to an end user of the EMSP. In calculating the statutory damages under this provision, the court may adjust the amount awarded as necessary, but in doing so shall take into account the number of complaints to the EMSP generated by the defendant's messages, the defendant's degree of culpability, the defendant's prior history of such conduct, and the extent of economic gain resulting from the conduct. Transmission of electronic mail from an organization to its members shall not be deemed to be unsolicited bulk electronic mail.

D. At the request of any party to an action brought pursuant to this section, the court may, in its discretion, conduct all legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party and in such a way as to protect the privacy of nonparties who complain about violations of this section.

E. The provisions of this article shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.

F. A civil action under this section must be commenced before expiration of the time period prescribed in § 8.01-40.1. In actions alleging injury arising from the transmission of unsolicited bulk electronic mail, personal jurisdiction may be exercised pursuant to § 8.01-328.1.

§ 18.2-152.16. Forfeitures for violation of this article.

All moneys and other income, including all proceeds earned but not yet received by a defendant from a third party as a result of the defendant's violations of this article, and all computer equipment, all computer software, and all personal property used in connection with any violation of this article known by the owner thereof to have been used in violation of this article, shall be subject to lawful seizure by a law-enforcement officer and forfeiture by the Commonwealth in accordance with the procedures set forth in Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2, applied mutatis mutandis.

§ 18.2-376.1. Enhanced penalties for using a computer in certain violations.

Any person who uses a computer in connection with a violation of §§ 18.2-374, 18.2-375, or § 18.2-376 is guilty of a separate and distinct Class 1 misdemeanor, and for a second or subsequent such offense within 10 years of a prior such offense is guilty of a Class 6 felony, the penalties to be imposed in addition to any other punishment otherwise prescribed for a violation of any of those sections.

2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.

More on the campaign web address dispute

The candidate for the House of Delegates accused of taking a web address with his opponent's name says the opponent can have it back, as reported here.

Public employee overtime settlement disputed in Chesapeake

The Virginian-Pilot has this report on the multi-million dollar litigation pending in state court in Chesapeake, where the city is claiming the claims are governed by federal law and there is no evidence of fraud.

Teaching labor and employment law at VCU

A profile of VCU professor Carol Daugherty Rasnic, who has roots in the coalfields, appears here.

More on those nasty primaries

The Richmond Times has this commentary.

Who says Richmond is tobacco-friendly?

Richmond city councilman Saad El-Amin proposes a cigarette tax hike, as reported here.

First meeting on fixing the 21-day rule

The Roanoke Times has this report, which says the study group has to "decide what court would receive a defendant's petition for introducing new evidence, what types of evidence would be eligible for consideration, and what time limits would apply."

W.D. Va. prosecuting couple accused of embezzling $100,000 from church

This Roanoke Times article and this AP story tell of the prosecution involving a church in Henry County and it makes me wonder why don't such people get caught sooner - what could the annual budget of the church be?

More on the VMI prayer case

The Roanoke Times has this story, and the Richmond Times-Dispatch has this story.

Also - the readers of How Appealing have spotted an error in the opinion, described here.

Maybe they should all transfer to Virginia to join the Carl Smith band

The end of football could also mean the end of the marching band at ETSU, according to this report in the Johnson City Press.

Need for teeth in TN seatbelt law

The Kingsport Times has this editorial, which says the opposite of what I wrote here yesterday.

Every traffic stop is a potential tragedy, as evidenced by this story.

Jonesborough man pleads in E.D. Tenn. to defrauding Medicare of millions

The story is in the Kingsport Times here and in the Johnson City Press here.

Morrissey's law license revoked

The controversial former prosecutor Joseph Morrissey plans to appeal to the Va. S.Ct., as reported here.

More on Judge Glen Conrad

The Roanoke Times has this report on the selection of Glen Conrad to be U.S. District Court Judge for the W.D. Va.

Litigating fees and costs for mine permit litigation

The Coalfield Progress has reports here, here, and here.

Monday, April 28, 2003

Virginia AG will seek en banc review in VMI prayer case

So says this report in the Washington Post. Here is the press release from the Attorney General's office. The AP has this report on the ruling.

"High-profile cases kind of have a law of their own"

So says legal pundit Jeffrey Toobin speaking here on the Malvo case, which is maybe why I can't seem to relate the sniper cases or the Moussaoui case to the kinds of Virginia cases within my experience.

More on judicial nominee Claude Allen

The Washington Post has this report, which cites an aide to one Democrat senator as saying that "the first indications were that Allen would be confirmed."

This week, Allen is co-hosting the 50th anniversary birthday party of his current government agency, the U.S. Department of Health and Human Services, as reported here.

Unrelated to anything, the Sneaking Suspicions weblog rates news stories on their "Claude-worthiness," on the degree to which they match the irony of the character played by Claude Rains in Casablanca, as explained here. My favorite Claude is a fellow named Claude Greever, profiled here, who taught me to play clarinet almost 30 years ago. I suspect Greever lamented the fire at the Leblanc factory earlier this year.

A Virginia gentleman's route to a judgeship

In this profile of retiring Virginia Court of Appeals Judge Willis, he describes how he became a judge:

"Becoming a judge in Virginia can be a highly political process, in which lawyers angle for spots on the bench and nurture the connections they need to get there.

Willis didn't take that route. Instead, he did the best job he could, made his interest known when appropriate, then let the promotions follow or not.

After nine years as commonwealth's attorney, Willis was considered for a circuit court judgeship. But when bar-association colleagues leaned toward another candidate, Willis withdrew his name.

The next year, he resigned as prosecutor, and "by 1974, I had just reconciled myself to going on with private practice and forgetting about judgeships," Willis re-called.

But as the Virginia General Assembly session of 1975 wound down, a circuit judgeship remained unfilled. The House and Senate were at odds over two candidates.

The Friday the session was to end, Willis' phone rang about noon. Would he give it another shot?

"I went home and talked to my wife, and she said, 'If that's what you want to do, go for it,'" Willis remembered.

That afternoon, he drove to Richmond, aced several hours of legislative interviews and accepted the job. A formal vote came the next day."

The one test I've been flunking since 1972

This article discussed whether Virginia law should require vision testing for school students.

President Bush nominates Glen Conrad for the W.D. Va.

This press release from the White House names Magistrate Judge Glen Conrad to fill the vacancy created by the senior status of Judge James Turk. The same release names Allyson Duncan and Claude Allen as nominees to the Fourth Circuit, to fill the vacancies following the deaths of Judge Ervin and Judge Murnaghan, respectively.

Judge Conrad I know more by reputation than from personal observation. He has been magistrate judge since the 1980s. My grandmother told me once that I was somehow related to Judge Conrad, and to me, he looks quite like my Conrad relatives from Christiansburg, but the one time I asked him about this he suggested diplomatically, without wanting to contradict anyone's dear old grandma, that the facts were otherwise.

Do you understand your own tax returns?

In U.S. v. Suddreth, the Fourth Circuit reversed the trial court for a downward departure from the guidelines, rejecting the defendant's attempt to put the blame on his tax advisers.

Fourth Circuit affirms ruling against VMI supper prayer

In Mellen v. Bunting, a panel of the Fourth Circuit in an opinion by Judge King affirmed the rulings of Judge Moon of the W.D. Va. on an Establishment Clause challenge to the dinner prayer at VMI. The Court affirmed also Judge Moon's determination that Josiah Bunting was entitled to qualified immunity, and vacated the injunctive relief on account of the plaintiffs' graduation.

More on Virginia v. Hicks

This AP report and this report from Findlaw discuss further the Richmond public housing trespass case.

Why Philip Morris thinks it will win on appeal in Illinois

The Richmond paper has this report.

Republicans thinking about sex

So says Jeff Schapiro, in this commentary.

Virginia receivers of ROA behavior "almost childlike," some critics say

The Richmond Times-Dispatch has this article updating the ROA-ANLIR-DIR jumble, including some criticisms of the lack of cooperation between Virginia and Tennessee officials.

What are they feeding them down in Norfolk?

ODU proposes to grow, according to this report by Del. Bryant.

Trying to avoid "Big Silicon Apple Valley East"

Western Virginia image makers need to do a better job, says this Roanoke Times commentary.

"The No Child act needs remedial work, starting with a federal commitment to pay for its mandates"

So says this Roanoke Times editorial.

Janet Reno commencement speaker at Appalachian School of Law

The former Attorney General of the United States under President Clinton will speak in Grundy on May 10 at the fourth commencement exercises of the Appalachian School of Law, or so says the letter in today's mail from Lu Ellsworth and Jeremy Davis.

I suspect that Ms. Reno is coming to Grundy (with or without her pickup truck, I don't know) in further tribute to the late Dean Anthony Sutin, who worked for her and who was a very good man.

When to say Whren and driving while black

In this Eighth Circuit case of Johnson v. Crooks, the female plaintiff claimed she was stopped because she is African-American, the defendant deputy sheriff claimed that it was because the driver was over the middle line. Deputy Crooks won the appeal on qualified immunity, even though the driver swore that she never crossed the line.

This strikes me as the best reason to oppose laws that allow authorities to make stops to enforce seatbelt laws - it makes it very easy for police officers to justify pulling over whomever they like, whenever they like, but I guess Mr. and Mrs. Johnson would say that is already the case.

When blowing your horn is not as good as blowing the whistle

The First Circuit in Meaney v. Dever held that local officials were entitled to qualified immunity because it was not clearly established that firing a government employee for blowing his horn outside the mayor's inauguration was a violation of the employee's free speech rights. The practical implication for protesters is that it is better-grounded in the Constitution to use actual words rather than really loud noises to express your point of view.

S.Ct.'s Hyatt decision and the struggle over assets of ROA

Reading over the Supreme Court's decision in Franchise Tax Board of California v. Hyatt, I wondered whether someone in Tennessee will be inspired by this decision to sue the Virginia receivers of the Reciprocal of America insurance company in Tennessee.

In Hyatt, the Court held that Nevada was not required to recognize the immunity of California's tax board under California law, with regard to alleged torts committed against a Nevada resident.

Virginia law is fairly conservative on sovereign immunity, it does have a limited tort claims act for claims against the Commonwealth, but my impression is that the same immunity is not so broad in Tennessee. The TN receivers of ANLIR are claiming before the State Corporation Commission that the Virginia receivers are dissipating funds that belong to the ANLIR receivership, as stated here.

Sunday, April 27, 2003

Requiring higher test scores on the bar exam - is it about competence or competition?

This commentary says the Florida Supreme Court has got it wrong in requiring a higher score on the bar exam to become a lawyer in that state, concluding that "[t]he best way to promote the public interest is by easing restrictions on occupational licensure and allowing seekers clients to shop and negotiate among competing providers."

Fairfax County tea party on taxes

The Washington Post has this story on local politicians signing an anti-tax pact.

Capitol makeover in Richmond

The Washington Post has this report, which includes a quote from Senator Trumbo to the effect that "We don't want the FedEx Capitol or the CSX Capitol."

Virginia has no adequate legal standard for minimum care in nursing homes

So says this report in the Norfolk paper.

93,952 government employees in Richmond-Petersburg area

Someone at the Richmond paper had to count them, and wrote up the results here. I'm not sure how many of them were at the Homestead for the VaCo meeting.

Richmond housing trespass case to be argued in U.S. Supreme Court this week

The Richmond paper has this report, the Washington Post has this report, and the always excellent SCOTUSblog has this report. Earlier, the Attorney General put out this press release on the case.

From the SCOTUSblog report, I see that Steven Benjamin from Richmond is arguing for Mr. Hicks. I had never heard of Steven Benjamin before just now, but looking him up I see that he has argued dozens of criminal cases, so I suspect he will do well, better even than my hero Joseph Klock in his famous part of the Bush v. Gore oral argument. I'm rooting for the Commonwealth in this case, though; it's tough enough to keep the bad guys away from public housing without accommodating their bogus "speech" rights that might flow from the state court holding.

Richmond paper nails Virginia counties for extravagant convention

Virginia's association of counties met at the Homestead, and the Times-Dispatch says here that's news.

Did Nero wear a helmet?

The great public policy debate over motorcycle helmets continues in Tennessee, as reported here.

Kilgore-Kaine horse race update

The Kingsport Times has been studying the campaign finance figures, as reported here.

Not that they're likely to pick on Southerners or country people or veterans at the NY Times

This piece from the NY Times on the D-Day memorial in Bedford kind of riles me, makes me think that in the interests of editorial balance the author tried her best to make everyone look bad.

Even if it can never be proven that more from Bedford died on D-Day than from any place else (as written here), and even if their chief fundraiser crossed the line, the D-Day memorial is something worth seeing and honors something worth remembering.

Former VA AG among eclectic group working to make death penalty fairer

The Washington Times has this report.

Stafford county doctor reflects on Va.'s largest med mal verdict, need to overhaul system

The doctor says of the legal system that "I am always impressed with what an inefficient, long-winded, time-wasting dog's dinner of a bureaucratic mess it is," in this commentary.

Bizarre murder tale begins at Bristol, TN, ends in PA's Susquehanna River 400 miles away

This crime story reads like a geography bee.

Can city limit employment of former officials?

The mayor in Fredericksburg wants to know, according to this report, which notes that "[l]aws are already on the books that give certain Virginia localities the authority to pass ordinances restricting the activities of former officials". The Washington Post also has this report.

The referenced statutes, Va. Code sections 15.2-515 and 15.2-810, do not apply to rural counties, so far as I can tell.

Qwest seeks reallocation of universal service money

Telephone company Qwest wants more of the federal universal service money for telephone allocated to the regions where it is the incumbent local exchange carrier, and away from places like West Virginia, according to this report.

Senators and wannabes Jost-Norment-Stolle-Askew and flying venom

The Daily Press has this commentary, titled "Venom starts to fly in the Senate races".

Bigfoot in Virginia?

This wacky article from Cleveland says there's something out there.