This article on the history and current use of the anti-lynching statute in South Carolina notes that Virginia is one of the few other states with similar laws.
Under Virginia law, "Any act of violence by a mob upon the body of any person, which shall result in the death of such person, shall constitute a 'lynching.'" Va. Code § 18.2-39. Under Va. Code § 18.2-40, "Any and every person composing a mob and any and every accessory thereto, by which any person is lynched, shall be guilty of murder."
Saturday, May 17, 2003
Still looking for answers over sentence for murderer of deputy sheriff
The Danville paper reports here that some citizens are still looking for an explanation of a circuit court judge's decision to sentence a convicted murder to life in prison, rather than following the death sentence chosen by the jury. Judge William Alexander, II, overturned the jury's recommendation on April 24.
"Prolific flasher, 73, gets year in jail for Norfolk cases"
The Virginian-Pilot has this report on the criminal history of a senior citizen who says he has exposed himself in public more than 300 times.
Political contributions and the cigarette fraud case in Illinois
Regarding the case of the judge in Illinois who awarded billions in the case against Philip Morris, having received campaign contributions from plaintiffs' counsel, one Missouri judge has declared "[t]hat's an outrage," as reported in this article, which also quotes the current president of the American Bar Association (ABA) as saying that "states should adopt rules requiring judges to recuse themselves from cases brought by attorneys who gave them political contributions."
Six tobacco buyers settle growers' anti-trust claims
As reported in the Richmond paper, by the AP, in the Louisville paper, in Raleigh here and here, and in Myrtle Beach, Philip Morris/Altria and five other tobacco companies have agreed to settle a class-action suit brought by tobacco growers claiming anti-trust violations in the purchase of tobacco. R.J. Reynolds declined to join the settlement.
As recently as 1999, 10 million pounds of burley tobacco were bought at action in Abingdon, as shown here.
As recently as 1999, 10 million pounds of burley tobacco were bought at action in Abingdon, as shown here.
More on the Fairfax County killer of his parents who claims he was under the influence of "The Matrix"
The Washington Post has this report on the double murder case against a Fairfax County teenager who claims that killings were the result of his obsession with the movie "The Matrix," and the report explains that the Oakton killings are but one of several cases in which criminal defendants have referenced this movie. A few days ago, I posted this story on the case, from the Virginia Connection.
Friday, May 16, 2003
TN insurance commissioner petitions for liquidation of ANLIR
As reported here, the Tennessee Insurance Commissioner Paula Flowers filed a petition today in the Chancery Court of Davidson County, Tennessee for the liquidation of American National Lawyers Insurance Reciprocal (ANLIR), citing the fact that ANLIR is insolvent by over $30 million. This afternoon's press release from the Tennessee Department of Commerce and Insurance is here. The actual petition is here.
Sports marketing pioneer Mark McCormack dies at 72
Mark McCormack died today in New York. He was a graduate of the College of William & Mary in Virginia, where a tennis center is named after him. His firm International Marketing Group made clients such as Arnold Palmer and Jack Nicklaus, Tiger Woods and the Williams sisters, Wayne Gretsky and Larry Csonka rich and famous. A Yale law graduate, one of his books was titled "The Terrible Truth About Lawyers: How Lawyers Really Work and How to Deal With Them Successfully."
AG Kilgore forms task form on access to higher education
What's the difference between the "invocation" to open U.S. Supreme Court sessions and a dinner prayer at VMI?
The Rule of Reason explains its views here of how Virginia AG Kilgore's analogy between the VMI dinner prayer and what is said to open the U.S. Supreme Court is not well taken.
Admission of wife's privileged testimony against defendant held to be harmless error
In U.S. v. Foresman, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams, Gregory, and Shedd concluded that the trial court had erred in allowing testimony from the defendant's wife about the defendant's statements to her to be used against him by the prosecution, but also held that the error was harmless because there was plenty of other incriminating evidence, including other, non-privileged testimony from the wife.
Oops - trial court enters corrected order, appellant relying on corrected order date misses Rule 59 deadline
In Nationwide Mutual Ins. Co. v. Folden, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson and Motz and Senior Judge Beezer from the Ninth Circuit held that the appellant's Rule 59 motion was untimely, so as to toll the time for filing a notice of appeal, where the motion was filed within 10 days of entry of a "corrected" order but not within 10 days of the original order, where the correction was slight - citing Federal Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12 (1952) (holding that, where a judgment previously entered has been reentered or revised in an immaterial way, the time within which review must be sought is not tolled).
Fourth Circuit rejects plaintiff's attempt to use Eleventh Amendment in support of remand of case removed by state
In Gustin v. West Virginia University, the Fourth Circuit in a per curiam opinion for the panel of Judges Luttig, Williams, and Gregory concluded that plaintiff could not use West Virginia's Eleventh Amendment protection in support of her motion to remand her case to state court, because even if she somehow had standing to raise the issue, the Eleventh Amendment was waived when WV removed the case.
This is certainly a new twist, plaintiff using Eleventh Amendment, but maybe she knew that her prospects were not good in federal court, and any such fears proved to be true, as the trial court granted summary judgment on all claims and the court of appeals affirmed on all issues.
This is certainly a new twist, plaintiff using Eleventh Amendment, but maybe she knew that her prospects were not good in federal court, and any such fears proved to be true, as the trial court granted summary judgment on all claims and the court of appeals affirmed on all issues.
Judge Jones applies "doctrine of collective knowledge" for consent to search
In U.S. v. Hagerman, posted online today, Judge Jones denied the defendant's motion to suppress the evidence of the firearms found in his home, after he was arrested because of the ten-foot tall marijuana plants in his yard. As part of the Court's ruling, the judge held that one law enforcement's officer's knowledge of a valid consent to search the property was enough to validate the search by another officer, who may or may not have known that there was consent.
Marylanders against Claude Allen nomination
The Baltimore Sun has this commentary in opposition to the nomination of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit, preferring instead that a Maryland lawyer should be nominated what it calls "the Murnaghan seat."
Blacksburg man charged with felony for killing roommate's dog
As reported here in the Roanoke Times, a general district court judge has certified to the grand jury a felony charge against a Blacksburg man who whipped a metal bowl at his roommate's dog, causing the dog's death. The article notes that the law making this crime a felony, Va. Code § 18.2-144, is called "the 'T-Bone' bill because it was inspired by an English pointer named T-Bone that was shot and killed."
Linkage between terrorism and Va. cigarette smuggling?
The Washington Post has this report on the possible connection between terrorist groups and smugglers of low-tax cigarettes sold in Virginia.
Supporting the further appeal of the VMI dinner prayer case
The Virginian-Pilot has this editorial and the Free Lance-Star has this editorial in support of AG Kilgore's decision to take further appeals of the decision in the VMI dinner prayer case, concluding that "the parties might as well get clarification by taking the issue as high as possible within the court system" and noting that the "solemnity and sense of order and humility that organized prayer can convey are in keeping with [VMI]'s unique philosophy."
Of course, the majority of the U.S. Supreme Court has not shown much sympathy for the unique philosophy of VMI in the prior cases dealing with another issue, the admission of women. I've never met a VMI graduate of any age who did not impress me, so maybe that "philosophy" deserves some deference.
Of course, the majority of the U.S. Supreme Court has not shown much sympathy for the unique philosophy of VMI in the prior cases dealing with another issue, the admission of women. I've never met a VMI graduate of any age who did not impress me, so maybe that "philosophy" deserves some deference.
Norfolk mayor won't run for lieutenant governor of Virginia in 2005
The Virginian-Pilot reports here that the mayor of Norfolk has decided not to run for the office of lieutenant governor in 2005, despite being asked to run by the current lieutenant governor, Tim Kaine, the apparent Democratic nominee for governor in the next election.
Reforming the Virginia tax code is "an issue we have to take on this coming year"
Governor Warner has formed a small group to help him figure out how to reform Virginia's tax laws, according to this report, which notes that the committee of legislators has made no particular progress on this massive undertaking.
The Washington Post is reporting here that the governor will not put forth his tax reform proposals until after the November elections, when all the seats in the General Assembly will be on the ballot.
Earlier in the week, the Virginian-Pilot noted here that Del. Robert McDonnell, a statewide candidate for 2005, is stepping out of the legislative effort on tax reform, and blaming the governor for its lack of success.
The Washington Post is reporting here that the governor will not put forth his tax reform proposals until after the November elections, when all the seats in the General Assembly will be on the ballot.
Earlier in the week, the Virginian-Pilot noted here that Del. Robert McDonnell, a statewide candidate for 2005, is stepping out of the legislative effort on tax reform, and blaming the governor for its lack of success.
Dismissal of suit against TN judge for "wrongful incarceration" affirmed on appeal
This report describes the appellate court's decision to affirm dismissal of a lawsuit against a Carter County, TN judge for "wrongful incarceration," which seems like a sure loser of a case to me, from what little description of it there is in the paper. The only exception I ever heard of to the absolute immunity of judges is where they act without jurisdiction, so maybe that was the argument. The judge's decision at issue involved the revocation of plaintiff's probation, which was reversed on appeal. The plaintiff apparently has been convicted three times of driving under the influence.
Virginia Supreme Court takes on Pease murder case from Wise County
As described here, the murder case has been the subject of two trials, two convictions, two reversals, a reversal of the last reversal by the en banc Virginia Court of Appeals, and now the case goes to the Virginia Supreme Court. Ms. Pease claims that her husband killed himself.
Why not move Malvo case to Lee County, Virginia?
CrimLaw says in gest that if accused sniper Lee Malvo wants a different venue, why not Lee County, as far away from Fairfax County as you can get in Virginia? Why not indeed? Almost no one in Lee County reads the Washington Post.
Jury selection in Lee County might be less likely to run afoul of Batson v. Kentucky. The 2000 census, as shown here, indicates that the population of Jonesville, the county seat, was 995, with 1 (one) African-American.
When I first discovered this statistic, I asked my grandmother, who lived on her farm outside of Jonesville until she died last year, "Grandma, the federal government says there is one black person in town, do you know who he or she is?" She thought that maybe she did.
Jury selection in Lee County might be less likely to run afoul of Batson v. Kentucky. The 2000 census, as shown here, indicates that the population of Jonesville, the county seat, was 995, with 1 (one) African-American.
When I first discovered this statistic, I asked my grandmother, who lived on her farm outside of Jonesville until she died last year, "Grandma, the federal government says there is one black person in town, do you know who he or she is?" She thought that maybe she did.
Thursday, May 15, 2003
A day in one of Virginia's juvenile and domestic relations district courts
The work of Judge Dudley Payne, Jr., in the Fauquier County, Virginia Juvenile and Domestic Relations District Court in Warrenton is profiled here.
Governor Warner backs decision to seek rehearing in VMI dinner prayer case
Virginia's Governor Mark Warner announced today that he joins in the decision by AG Jerry Kilgore to seek rehearing en banc in the case against the dinner prayer at the Virginia Military Institute, as reported here. Kilgore's reasons for seeking rehearing are stated in this press release from earlier in the week.
June Carter Cash, born in SW VA, died today
Here are stories from E!, the AP's Joe Edwards, the NY Times, the Tennessean, and Yahoo. Ms. Cash was born in Scott County, VA, part of the Carter family that has been recording country music since country music was first recorded.
Growing up here, I knew who Johnny Cash was and who June Carter Cash was, before I ever heard of John, Paul, George, or Ringo.
Growing up here, I knew who Johnny Cash was and who June Carter Cash was, before I ever heard of John, Paul, George, or Ringo.
Fourth Circuit rejects appeal of defendant who claims both that he should have been allowed to try the case himself and that his lawyer was bad
In U.S. v. Eady, the Fourth Circuit in a per curiam opinion for the panel of Judge Luttig and Motz and Senior Judge Hamilton reject the appellant's laundry list of issues which include both the claim that the trial court erred in not allowing the defendant to try the case himself and that the defendant's lawyer provided ineffective assistance.
Somehow this reminds me of a case where I was hired by an insurer to represent a defendant in a civil case and the client also hired its own counsel to work with me and after the jury awarded much more than I (or the Court) thought was possible, I told my co-counsel that as much as I had enjoyed working with him, I could have lost the case that badly all by myself.
Somehow this reminds me of a case where I was hired by an insurer to represent a defendant in a civil case and the client also hired its own counsel to work with me and after the jury awarded much more than I (or the Court) thought was possible, I told my co-counsel that as much as I had enjoyed working with him, I could have lost the case that badly all by myself.
Fourth Circuit rejects as not ripe challenge to executive order for assistance to persons with limited English in obtaining federal benefits
In ProEnglish v. Bush, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins, Judge Shedd, and District Court Judge Wooten held that plaintiffs' challenge to an executive order issued by President Clinton, providing assistance for persons with limited proficiency in English in obtaining federal benefits, was not within the trial court's subject matter jurisdiction because the claims were not ripe or the plaintiffs lacked standing, or both.
When the Senate refused to confirm the Chief Judge of the Fourth Circuit to the Supreme Court
Seventy-three years ago, in May of 1930, the U.S. Senate denied confirmation of President Hoover's nominee John J. Parker, then Chief Judge of the Fourth Circuit, to the U.S. Supreme Court, mostly because of his racial and anti-union statements, as reported here.
Twenty years later, the NAACP came before Judge Parker in one of the anti-segregation cases that became part of Brown v. Board of Education, and by that time, Parker had proven to be "as fair-minded and generous-spirited a Southerner as had ever sat on the federal bench," according to Richard Kluger's Simple Justice, but he refused in the Briggs case to do what a dissenting colleague and later the Supreme Court did - to declare that racial discrimination was indefensible and segregation was a denial of equal protection.
[UPDATE - On reflection, Judge Clement F. Haynsworth, Jr., from South Carolina was also Chief Judge of the Fourth Circuit when the Senate rejected him after he was nominated to the Supreme Court in 1969 by President Nixon.]
Twenty years later, the NAACP came before Judge Parker in one of the anti-segregation cases that became part of Brown v. Board of Education, and by that time, Parker had proven to be "as fair-minded and generous-spirited a Southerner as had ever sat on the federal bench," according to Richard Kluger's Simple Justice, but he refused in the Briggs case to do what a dissenting colleague and later the Supreme Court did - to declare that racial discrimination was indefensible and segregation was a denial of equal protection.
[UPDATE - On reflection, Judge Clement F. Haynsworth, Jr., from South Carolina was also Chief Judge of the Fourth Circuit when the Senate rejected him after he was nominated to the Supreme Court in 1969 by President Nixon.]
"Drop the prayer case and move on"
The Roanoke Times in this editorial advises AG Jerry Kilgore to not pursue further appeals of the Fourth Circuit's decision affirming Judge Moon's decision that the VMI dinner prayer violates the Establishment Clause of the First Amendment.
Virginia town's mayor calls councilman a "scumbag dirtbag worm" for leaking secret memo
According to this report, the mayor of Purcellville lashed out at one of his fellow council members for airing a memorandum about the legality of the town's employment contract with the town manager. The article notes that the mayor targeted the wrong council member, as it was someone else who gave the memo to the newspaper.
Richmond city councilman says he can't get a fair trial in Richmond
Sa'ad El Amin, charged with tax evasion, is claiming in federal court that the venue for his criminal trial should be changed because he cannot get a fair trial in Richmond, according to this report.
I would have thought that he had a few friends in Richmond or he would not have been elected.
I would have thought that he had a few friends in Richmond or he would not have been elected.
Robert E. Lee logo removed from Virginia Boy Scout uniforms
The Washington Times has this report, which quotes the state's NAACP director as saying "It's a funny thing here in Virginia, because the Confederate side is still fighting the Civil War."
Some days I drive down the Lee Highway between Abingdon and Bristol, but maybe I should stick to calling it U.S. Route 11 for fear of being viewed as supporting slavery.
Some days I drive down the Lee Highway between Abingdon and Bristol, but maybe I should stick to calling it U.S. Route 11 for fear of being viewed as supporting slavery.
"Business Leaders Take Issue With GOP Conservatism"
The Washington Post reports here that there is dissatisfaction among some Virginia business leaders "with the direction in which the state is heading under the leadership of a General Assembly that they say is too preoccupied with a conservative social agenda -- at the expense of education, transportation and other long-term, largely apolitical investments."
It seems like there ought to be more to a story like this - more evidence - or it should not be in the newspaper.
It seems like there ought to be more to a story like this - more evidence - or it should not be in the newspaper.
Affirmative action on law review?
The Baltimore Sun has this report on concerns about the all-white law review staff at the Vanderbilt law school, which has prompted one student to say that "[m]aybe grades and writing just aren't the only things to determine who should be on the law review." The article notes that at some law schools, "such as the University of Virginia, have adopted some form of affirmative action - for instance, by having applicants submit a 'diversity statement' on how they would add perspective to the review."
Wednesday, May 14, 2003
Summary of 2003 legislation affecting Virginia's circuit courts
The Virginia judicial website has this memo describing new laws affecting the circuit courts. One statutory change reflects that "[a]mendments to the Rules of Court are placed on the Supreme Court's Internet site as soon as they are adopted and this is the primary source for the bench, bar and public to become aware of new Rules."
Among the many other items is the new crime of resisting arrest: "Any person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor." In the old days, my court-appointed clients often made a run for it, and would get charged with something, but the charge usually did not quite fit the facts, since under the old law mere flight was not a crime. Judge Flannagan wrote a letter opinion on this point in one of my big-money cases, where a fellow decided to hop out of a police car in which he was sitting to get out of the rain while the officer questioned him.
Among the many other items is the new crime of resisting arrest: "Any person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor." In the old days, my court-appointed clients often made a run for it, and would get charged with something, but the charge usually did not quite fit the facts, since under the old law mere flight was not a crime. Judge Flannagan wrote a letter opinion on this point in one of my big-money cases, where a fellow decided to hop out of a police car in which he was sitting to get out of the rain while the officer questioned him.
Dr. Ralph Stanley putting out line of food products
This article describes how bluegrass legend Ralph Stanley is putting out a line of Dickenson County food products.
I doubt they will use his song from the soundtrack of "O Brother Where Art Thou?" as the jingle to sell these items. Ralph Stanley's fan club website is here.
I doubt they will use his song from the soundtrack of "O Brother Where Art Thou?" as the jingle to sell these items. Ralph Stanley's fan club website is here.
eBay may yet settle the patent infringement suit being tried in Norfolk
Forbes has this report on the prospects in the eBay patent litigation now being tried to a jury in the E.D. Va., which notes that the defendant is using a "shadow jury" in the case, and that the damages could be $35 million if the plaintiff wins.
Malvo's attorneys want a change of venue?
The Washington Post is reporting here that attorneys for the accused sniper Lee Malvo are seeking a change of venue away from Fairfax County.
I don't know what the statistics are but I imagine the chances of getting the death penalty are increased in some less urban jurisdictions, although the death sentence is given in Fairfax County, as in the Kasi case almost six years ago. The Commonwealth's attorney in Prince William County, where the sniper Muhammad will be tried, has gotten juries to decide on a sentence of death 12 times, the most of any Virginia prosecutor since the reinstatement of the death penalty, as reported here.
I don't know what the statistics are but I imagine the chances of getting the death penalty are increased in some less urban jurisdictions, although the death sentence is given in Fairfax County, as in the Kasi case almost six years ago. The Commonwealth's attorney in Prince William County, where the sniper Muhammad will be tried, has gotten juries to decide on a sentence of death 12 times, the most of any Virginia prosecutor since the reinstatement of the death penalty, as reported here.
AG Kilgore raises $500,000 tonight at banquet featuring Giuliani
Articles like this one in the Washington Post and this AP report make me think that the 2005 governor's race is already decided. Attorney General Jerry Kilgore has the money and the AG's position offers him the chance to be in the news doing "real work" (as someone said in this article), usually something at least some segment of the electorate thinks is worthwhile, almost every week. The Post's report begins with this: "Attorney General Jerry W. Kilgore raised $500,000 today for his 2005 gubernatorial campaign with a show of Republican unity and organizational strength rarely seen so early in a Virginia election cycle." One of the persons quoted in the article observed that "He plays very well in Northern Virginia, despite his accent."
A trip to "Ms. Rogers' neighborhood"
In oral argument in the case of Virginia v. Hicks, one of the justices referred to the project from which the case arose as "Ms. Rogers' neighborhood", since Gloria Rogers got to decide who could be barred from the property.
Having now read the transcript, it sounds to me like the Virginia Supreme Court is going back to Ms. Rogers' neighborhood either to do a better job of explaining how it is that Mr. Hicks can assert the First Amendment issues on which the Va. S.Ct. hung its hat, or to address some of the seven other ways that Hicks' counsel Steven Benjamin claims the trespass ordinance is unconstitutional.
Having now read the transcript, it sounds to me like the Virginia Supreme Court is going back to Ms. Rogers' neighborhood either to do a better job of explaining how it is that Mr. Hicks can assert the First Amendment issues on which the Va. S.Ct. hung its hat, or to address some of the seven other ways that Hicks' counsel Steven Benjamin claims the trespass ordinance is unconstitutional.
Nomination of Allyson Duncan to the Fourth Circuit moves to the level
The Charlotte paper has this report on how both NC senators Dole and Edwards have given Raleigh attorney Allyson Duncan the blue slip, which is not like getting the pink slip, so the Senate may proceed with its advice and consent on her nomination to serve on the U.S. Court of Appeals for the Fourth Circuit. (Thanks to How Appealing.)
Wise County prison official appeals to U.S. Supreme Court in Internet defamation case
The Coalfield Progress has reports here and here on the certiorari petition of the prison warden from Wise County who sued in the W.D. Va.'s Big Stone Gap division a Connecticut newspaper, claiming personal jurisdiction based on the publication of the story on the paper's website. The Fourth Circuit held that there was no personal jurisdiction in Virginia, overruling Judge Williams, and now the plaintiff is seeking review before the Supreme Court.
Fourth Circuit rejects jury selection and evidentiary challenges where city defendants won verdict in wrongful arrest and excessive force case
In Taylor v. Molesky, a panel of the Fourth Circuit including Judges Wilkinson and Shedd and Senior Judge Hamilton concluded in a per curiam opinion that the appellant's arguments about the jury selection and the evidence in his trial against various law enforcement officials and jailers were without merit.
Regarding the jury, Taylor claimed that defense counsel struck a potential juror because of his race in violation of Batson v. Kentucky. The Court concluded on the Batson issue that plaintiff had failed to show that the proffered reason for the peremptory strike was pretextual, even though the stated reason was based in part on the appearance and demeanor of the juror. The Court also found no error in admitting court orders related to the plaintiff, even though they contained judicial findings that were prejudicial to the plaintiff's claims. (Man, I hate that, when the jury gets some exhibit that says some court or some agency already decided part of the case - we've litigated that kind of issue where there were related proceedings before the NLRB or the EEOC or some occupational safety agency.)
Regarding the jury, Taylor claimed that defense counsel struck a potential juror because of his race in violation of Batson v. Kentucky. The Court concluded on the Batson issue that plaintiff had failed to show that the proffered reason for the peremptory strike was pretextual, even though the stated reason was based in part on the appearance and demeanor of the juror. The Court also found no error in admitting court orders related to the plaintiff, even though they contained judicial findings that were prejudicial to the plaintiff's claims. (Man, I hate that, when the jury gets some exhibit that says some court or some agency already decided part of the case - we've litigated that kind of issue where there were related proceedings before the NLRB or the EEOC or some occupational safety agency.)
Fourth Circuit affirms summary judgment on Virginia Tech public radio station manager's First Amendment and due process claims
In Mills v. Steger, the Fourth Circuit in an per curiam opinion for a panel including Judge Blaine Michael, Judge Karen Williams, and Judge Greenberg from the Third Circuit, affirmed the summary judgment entered by Judge Wilson of the W.D. Va. on the First Amendment and due process claims of the former station manager of WVTF, the public radio station that is a part of Virginia Tech. Monica Taylor Monday from Gentry Locke argued for the appellant (which is no surprise, since Monica is one of the appellate gurus and Gentry Locke is the firm that ex-Tech presidents, coaches, and the like always hire).
On the due process claim, the Court notes that Mills was not a tenured employee, that his "tenure" was at most a year, under the terms of his employment contract. The Court rejected Mills' claim that his transfer from WVTF to another position with an AM station was a deprivation of his property interest in his continued employment, citing Huang v. UNC, among other cases. The Court concluded that the procedure by which Mills was terminated did not fall below the level of process that Mills was due under the Constitution.
On the First Amendment claim, Judge Wilson for the district court had concluded in this opinion that the defendants did not violate Mills' First Amendment rights, because "Mills’ interest in speaking out on the programming decisions at WVTF is outweighed by Virginia Tech’s interest, as an employer, in promoting the efficiency of the public services it performs through its employees." The Fourth Circuit disagreed on the merits, concluding that under Connick the programming of the radio station was a matter of public concern and under Pickering the University's interest in avoiding the disruption caused by Mills' speech was slight, however, the individual defendants were protected by qualified immunity, because the outcome of the First Amendment analysis is almost never clear.
I think Judge Wilson had it right - the guy was in a high visibility position, he was in the news and on the radio all the time, he was calling some of the listeners "Opera Nazis," and it seems to me that the Court underestimated the disruptive impact of having the operator of what was literally the voice of the university out of sync with the administration. Probably Judge Wilson got a sense of this just reading his morning newspaper there in Roanoke. Not long ago I posted here a decision from the First Circuit about the First Amendment claims of the director of the PEG channels for a local government - the cases strike me as quite similar. For that matter, I think this case is similar to the Dixie McVey case, which defendants won ultimately after the first appeal, which was cited at some length in this Mills opinion. (Judge Michael was on the two panels in the McVey case and he voted in the last appeal the same way as he did in Mills, that there was a First Amendment violation but qualified immunity.) The government employee with a high level of public contact should not be able to claim broad free speech rights when there is substantial likelihood because of his public content of confusion about whether he speaks for his employer.
I don't disagree with the qualified immunity analysis. The Fourth Circuit has fairly consistently found qualified immunity in speech cases, the notable exception being in the Cromer case, in which the Court took some pains to explain that it was the exception.
On the due process claim, the Court notes that Mills was not a tenured employee, that his "tenure" was at most a year, under the terms of his employment contract. The Court rejected Mills' claim that his transfer from WVTF to another position with an AM station was a deprivation of his property interest in his continued employment, citing Huang v. UNC, among other cases. The Court concluded that the procedure by which Mills was terminated did not fall below the level of process that Mills was due under the Constitution.
On the First Amendment claim, Judge Wilson for the district court had concluded in this opinion that the defendants did not violate Mills' First Amendment rights, because "Mills’ interest in speaking out on the programming decisions at WVTF is outweighed by Virginia Tech’s interest, as an employer, in promoting the efficiency of the public services it performs through its employees." The Fourth Circuit disagreed on the merits, concluding that under Connick the programming of the radio station was a matter of public concern and under Pickering the University's interest in avoiding the disruption caused by Mills' speech was slight, however, the individual defendants were protected by qualified immunity, because the outcome of the First Amendment analysis is almost never clear.
I think Judge Wilson had it right - the guy was in a high visibility position, he was in the news and on the radio all the time, he was calling some of the listeners "Opera Nazis," and it seems to me that the Court underestimated the disruptive impact of having the operator of what was literally the voice of the university out of sync with the administration. Probably Judge Wilson got a sense of this just reading his morning newspaper there in Roanoke. Not long ago I posted here a decision from the First Circuit about the First Amendment claims of the director of the PEG channels for a local government - the cases strike me as quite similar. For that matter, I think this case is similar to the Dixie McVey case, which defendants won ultimately after the first appeal, which was cited at some length in this Mills opinion. (Judge Michael was on the two panels in the McVey case and he voted in the last appeal the same way as he did in Mills, that there was a First Amendment violation but qualified immunity.) The government employee with a high level of public contact should not be able to claim broad free speech rights when there is substantial likelihood because of his public content of confusion about whether he speaks for his employer.
I don't disagree with the qualified immunity analysis. The Fourth Circuit has fairly consistently found qualified immunity in speech cases, the notable exception being in the Cromer case, in which the Court took some pains to explain that it was the exception.
One way to combat drunk driving is to make sure repeat offenders always face a prosecutor in court
The Virginian-Pilot in this editorial identifies three ways to close the loopholes for repeat offenders of drunk driving, and one way is to make sure the cases are prosecuted by lawyers, rather than just put on by police officers. That would mean the Commonwealth would have to pay for enough assistant Commonwealth's attorneys to staff the traffic court dockets.
AG Kilgore oks "morning-after" contraceptive pills
As reported here, "in an action that could complicate his drive toward Republican gubernatorial nomination in 2005," Attorney General Jerry Kilgore has approved as legal the practice of Virginia's state college and universities of dispensing through student health programs the "morning-after" contraceptive pills that were the target of Delegate Robert Marshall, who viewed them as a form of abortion. The article notes that Kilgore is "expected to raise $500,000 for his campaign today by hosting a Richmond luncheon featuring former New York Mayor Rudy Giuliani."
AG Kilgore says "being up to his neck in politically correct alligators is a good opportunity to make alligator shoes"
I'm not sure how this relates to the rest of this article in the Kingsport paper, about two appeals to which the Commonwealth is a party that are now pending before the Fourth Circuit, the VMI dinner prayer case and a pro se case involving the Pledge of Allegiance.
ACC presidents vote for expansion
Here are a few interesting reports:
from the Morris News Service, which notes that "Hurricanes officials have said they won't move from the Big East without Syracuse and Boston College. Meanwhile, Virginia voted for expansion but requested Virginia Tech instead of Boston College." (Why pick on BC? Because of Coach O'Brien?)
from the South Florida Sentinel, which says that "a representative from Virginia offered an amendment replacing Syracuse with Virginia Tech." (Syracuse? I thought it was BC?)
from the Washington Post, which quotes one insider as saying "Virginia Tech is located in a good spot, but there are others that say they have no media market and can't bring anything to the table. . . Then there are others who look at them and say, 'They look more like us.' But nobody really knows what will happen until we get to the day."
from the Atlanta Journal-Constitution, which says that "Virginia just had to make the effort to support Virginia Tech in order to satisfy the politicians who had gotten involved"
from the Daily Press columnist David Tell, who says "Yes, I know formal invitations were not extended Tuesday and that Virginia prefers Virginia Tech to Syracuse. But that's cover-Virginia's-butt politics." (Syracuse again?)
from the AP on the West Virginia perspective, quoting Coach Rodriguez as saying that "I don't think anybody at our school thought this thing would materialize this quickly"
from the Charlotte Observer, where one source was quoted as "saying the disagreement over the ACC's 12th team - apparently down to Syracuse or Virginia Tech - wasn't serious enough to scuttle expansion."
a commentary from the Sporting News, which says "It was as if the Wake Forest athletic program stood on the ledge and everyone below screamed, "Jump!" And the Demon Deacons obeyed."
a commentary from the Orlando Sentinel, which says that "The University of Miami is on the verge of making one of the biggest football blunders in its history."
from ESPN's Ivan Maisel, who says "The ACC presidents couldn't decide between Boston College and Virginia Tech, which more than likely speaks to the politics of the Commonwealth of Virginia than it does the relative merits of the two schools." (BC again?)
from the Roanoke Times, which says the FSU president said "there are some things to work out, the alignment of the teams, whether Syracuse is in or Virginia Tech is in." (Syracuse?)
elsewhere in the Roanoke Times, it says "For Miami, the absence of Boston College would be a deal breaker." (BC?)
from a Pittsburgh columnist, who says "Pitt must begin doing what it has to do to become the 12th member of the Big Ten Conference."
from the Miami Herald, which says that "[t]here is some support, spearheaded by Virginia, to invite Virginia Tech instead of Syracuse."
from Shelby, NC, "You know it’s a momentous occasion when rivals Duke and North Carolina — the league’s most storied basketball powers — supposedly banded together to provide the main opposition to the vote results."
from the Morris News Service, which notes that "Hurricanes officials have said they won't move from the Big East without Syracuse and Boston College. Meanwhile, Virginia voted for expansion but requested Virginia Tech instead of Boston College." (Why pick on BC? Because of Coach O'Brien?)
from the South Florida Sentinel, which says that "a representative from Virginia offered an amendment replacing Syracuse with Virginia Tech." (Syracuse? I thought it was BC?)
from the Washington Post, which quotes one insider as saying "Virginia Tech is located in a good spot, but there are others that say they have no media market and can't bring anything to the table. . . Then there are others who look at them and say, 'They look more like us.' But nobody really knows what will happen until we get to the day."
from the Atlanta Journal-Constitution, which says that "Virginia just had to make the effort to support Virginia Tech in order to satisfy the politicians who had gotten involved"
from the Daily Press columnist David Tell, who says "Yes, I know formal invitations were not extended Tuesday and that Virginia prefers Virginia Tech to Syracuse. But that's cover-Virginia's-butt politics." (Syracuse again?)
from the AP on the West Virginia perspective, quoting Coach Rodriguez as saying that "I don't think anybody at our school thought this thing would materialize this quickly"
from the Charlotte Observer, where one source was quoted as "saying the disagreement over the ACC's 12th team - apparently down to Syracuse or Virginia Tech - wasn't serious enough to scuttle expansion."
a commentary from the Sporting News, which says "It was as if the Wake Forest athletic program stood on the ledge and everyone below screamed, "Jump!" And the Demon Deacons obeyed."
a commentary from the Orlando Sentinel, which says that "The University of Miami is on the verge of making one of the biggest football blunders in its history."
from ESPN's Ivan Maisel, who says "The ACC presidents couldn't decide between Boston College and Virginia Tech, which more than likely speaks to the politics of the Commonwealth of Virginia than it does the relative merits of the two schools." (BC again?)
from the Roanoke Times, which says the FSU president said "there are some things to work out, the alignment of the teams, whether Syracuse is in or Virginia Tech is in." (Syracuse?)
elsewhere in the Roanoke Times, it says "For Miami, the absence of Boston College would be a deal breaker." (BC?)
from a Pittsburgh columnist, who says "Pitt must begin doing what it has to do to become the 12th member of the Big Ten Conference."
from the Miami Herald, which says that "[t]here is some support, spearheaded by Virginia, to invite Virginia Tech instead of Syracuse."
from Shelby, NC, "You know it’s a momentous occasion when rivals Duke and North Carolina — the league’s most storied basketball powers — supposedly banded together to provide the main opposition to the vote results."
Tuesday, May 13, 2003
Today's opinions from Virginia Court of Appeals
In Craddock v. Commonwealth, the Court of Appeals in an opinion by Judge D. Arthur Kelsey rejected the appellant's claim that the strip search of the appellant as a pretrial detainee was unreasonable and in violation of the Fourth Amendment.
In Edwards v. Commonwealth, the Court of Appeals in an opinion by Judge Robert Frank agreed with the defendant's argument that assault on a law enforcement officer is not a lesser-included offense of attempted capital murder of a law enforcement officer, and therefore reversed and dismissed the assault conviction.
The panel was sympathetic to the view that the defendant had defaulted on this issue by failure to raise it before the trial court, but it was obliged by prior case law to consider the lesser-included offense issue. Perhaps if Edwards keeps fighting the case, the Commonwealth will seek reversal of Lowe v. Commonwealth, 33 Va. App. 583, 535 S.E.2d 689 (2000), which the Edwards panel felt obliged to follow, despite their misgivings.
In Bazemore v. Commonwealth, a curiously unpublished decision, the Court of Appeals affirmed in part and reversed in part, with Senior Judge Coleman dissenting in part. The point in contention was the trial court's failure to correct the jury instruction to say "willful and wanton" instead of "willful or wanton," following a change in the law which apparently was undetected by either the prosecution or the defense, with regard to the charge of feloniously eluding the police. (I think this opinion should have been published because (1) a conviction was reversed, and (2) the court was not unanimous, (3) the issue involved a change in the substantive law, and (4) the real issue as revealed by Judge Coleman's dissent is how to preserve issues for appellate review.)
In Edwards v. Commonwealth, the Court of Appeals in an opinion by Judge Robert Frank agreed with the defendant's argument that assault on a law enforcement officer is not a lesser-included offense of attempted capital murder of a law enforcement officer, and therefore reversed and dismissed the assault conviction.
The panel was sympathetic to the view that the defendant had defaulted on this issue by failure to raise it before the trial court, but it was obliged by prior case law to consider the lesser-included offense issue. Perhaps if Edwards keeps fighting the case, the Commonwealth will seek reversal of Lowe v. Commonwealth, 33 Va. App. 583, 535 S.E.2d 689 (2000), which the Edwards panel felt obliged to follow, despite their misgivings.
In Bazemore v. Commonwealth, a curiously unpublished decision, the Court of Appeals affirmed in part and reversed in part, with Senior Judge Coleman dissenting in part. The point in contention was the trial court's failure to correct the jury instruction to say "willful and wanton" instead of "willful or wanton," following a change in the law which apparently was undetected by either the prosecution or the defense, with regard to the charge of feloniously eluding the police. (I think this opinion should have been published because (1) a conviction was reversed, and (2) the court was not unanimous, (3) the issue involved a change in the substantive law, and (4) the real issue as revealed by Judge Coleman's dissent is how to preserve issues for appellate review.)
Howard Bashman predicts Judge Wilkinson will be nominated as Chief Justice
If you've got an office pool going on this, the maestro of How Appealing mentions in this post his reckoning that J. Harvie Wilkinson III of the Fourth Circuit will someday be nominated to the position of Chief Justice of the U.S. Supreme Court by the Bush administration.
It certainly could not be said that Judge Wilkinson would be a stealth nominee, although the one time I appeared before him and I thought for sure he would like my case, he voted against my side, who'd have thunk it?
It certainly could not be said that Judge Wilkinson would be a stealth nominee, although the one time I appeared before him and I thought for sure he would like my case, he voted against my side, who'd have thunk it?
Weekend developments make likely the continuation of Republican majority in the Virginia senate
The decision of one Democrat not to run, and the selection of some electable Republicans over their less well-known opponents, all but ensures that the Republicans will retain their majority in the Virginia Senate, according to this report in the Richmond Times-Dispatch.
Still more on the prospects for revising the 21-day rule in criminal cases
The Richmond Times-Dispatch has this update on the efforts to reform the 21-day rule in criminal cases, which currently limits the ability of criminal defendants to present after-acquired evidence of innocence more than 21 days after the entry of the final order in a criminal case.
More on petition for rehearing in the VMI dinner prayer case
The Roanoke Times has this report and the AP has this report on Attorney General Kilgore's decision to seek rehearing en banc in the Fourth Circuit of its ruling in the VMI dinner prayer case.
No compromise on SOL requirements, Governor Warner declares
As reported here by the AP and here by the Roanoke Times, Governor Warner declared to a group of school superintendents on Monday that there would be no exceptions made next year when students who have not passed Virginia's Standards of Learning are denied graduation.
Separately, the Daily Press has this account of a Mathews county teacher who weaves SOL elements into story-telling.
Separately, the Daily Press has this account of a Mathews county teacher who weaves SOL elements into story-telling.
Monday, May 12, 2003
Two guns, two counts, one punishment
In U.S. v. Shorter, released today, a panel of the Fourth Circuit in an opinion by Chief Judge Wilkins upheld the convictions of defendant in the E.D. Va., rejecting, among other arguments, that the District Court mishandled duplicative charges that the defendant was a felon in possession of two different firearms in interstate commerce. Judge Michael dissented.
Commentary on the remedies sought in a Danville police shooting lawsuit
In this editorial, the Register-Bee takes note that the plaintiffs seek "an order requiring the reform of the Danville, Virginia Police Department’s practices and procedures regarding the use of force and the procedures for handling persons with mental illness," in addition to compensatory and punitive damages, in a recently-filed suit in the W.D. Va. over a police shooting.
TN BOPR confidentiality rule affirmed by state appeals court
A rule in Tennessee which "says that all information relating to proceedings against an attorney must be kept confidential unless and until the [Board of Professional Responsibility] makes it public" has been upheld as constitutional, according to this report.
AG Kilgore files for rehearing en banc in VMI prayer case
As reported here, Virginia's Attorney General Jerry Kilgore has filed for rehearing en banc of the decision by the Fourth Circuit affirming the holding of Judge Moon of the W.D. Va. that VMI's dinner prayer violates the Establishment Clause of the First Amendment.
"School drug tests overstep privacy bounds"
In this commentary, the Virginian-Pilot expresses the view that Virginia schools should not use the new law which takes effect July 1 to test students for drugs, opining that "[t]reating all students as potential law-breakers may do as much to foster contempt and evasion as it does to contain illegal drugs."
The statute is Acts of Assembly, c. 899, located here. The U.S. Supreme Court approved student drug testing last year in Board of Education of Independent School District 92 of Pottawatomie County v. Earls.
The statute is Acts of Assembly, c. 899, located here. The U.S. Supreme Court approved student drug testing last year in Board of Education of Independent School District 92 of Pottawatomie County v. Earls.
More profiles on Delegate Marshall
The Virginian-Pilot has this profile and the Daily Progress published this profile on Delegate Robert Marshall, the fervent anti-abortion legislator from Prince William County, who commutes 90 miles each way every day during the General Assembly session, and has a surprising sense of humor along with a determination to express his views of what is right.
Profile of Kevin Hicks, U.S. Supreme Court litigant
Kevin Lamont Hicks, the appellee in the case of Virginia v. Hicks concerning the First Amendment implications of a public housing project's trespassing policy, is the subject of this mostly sympathetic profile in the Richmond paper.
Earlier in the week, the same paper published this commentary on the Hicks case, titled "Public housing case pits freedoms vs. fear."
Earlier in the week, the same paper published this commentary on the Hicks case, titled "Public housing case pits freedoms vs. fear."
Senate candidate Jost makes the list of all-time greats
So says columnist Jeff Schapiro in this commentary titled "Foot meets mouth again in Va. politics", which places Jost alongside other notables in the recent history of Virginia politics.
Also on the Jost campaign, the Washington Post has this report, titled "In Va. Primaries, GOP Fiercely Fights the Enemy Within," and the Daily Press had this commentary, titled "Some in GOP aren't keen on keeping Jost out forever," and this commentary, titled "Norment, Jost campaign far from over."
Also on the Jost campaign, the Washington Post has this report, titled "In Va. Primaries, GOP Fiercely Fights the Enemy Within," and the Daily Press had this commentary, titled "Some in GOP aren't keen on keeping Jost out forever," and this commentary, titled "Norment, Jost campaign far from over."
More on lawsuits brought by Mexican laborers in Virginia
The Richmond paper has this report on litigation brought by migrant farm workers claiming inhumane working and living conditions in Virginia.
More Virginia Democrats willing to vent anti-Gilmore sentiment in connection with nomination of Claude Allen
Regarding the nomination of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit, the Richmond Times-Dispatch has this report, which mostly quotes opponents of former Governor James Gilmore, under whom Allen served as secretary of health and human resources.
Janet Reno speaks in Grundy
As reported here, former Attorney General of the United States Janet Reno was the commencement speaker this past weekend at the Appalachian School of Law in Grundy, and she told the new graduates to "seek the truth."
WV coal - 311 years to go
In this article from the Bluefield paper, Bill Raney, the president of the West Virginia Coal Association, declared that "there's still a lot of coal to be mined" in West Virginia, specifically 53 million tons of "recoverable" reserves.
Will Virginia's future "remain on a downward slope toward tag-along Third World status?"
Probably not, but the Roanoke Times is worried in this commentary.
"[I]n Tennessee, as in most states, most methadone patients continue treatment indefinitely"
So says this Times-News editorial, commenting on the recent defeat of a proposed methadone center in Johnson City.
Blogs "have become more widespread than Saddam's relatives or smog over the Smokies"
So says this column in the Kingsport paper.
IHOP settles sexual harassment suit in E.D. Tenn.
As reported here, the International House of Pancakes has settled claims of sexual harassment arising out of the restaurant in Johnson City.
Back in the saddle but not much missed
I was gone from Friday afternoon until Monday evening.
Nevertheless, Friday was the all-time greatest hit day for this blog, thanks to this link from The Bitch Girls commenting on this post on the "Matrix" murder defense. This is not the first time the ladies (I can't say "bitches") have seen something that caught their interest on this site.
Nevertheless, Friday was the all-time greatest hit day for this blog, thanks to this link from The Bitch Girls commenting on this post on the "Matrix" murder defense. This is not the first time the ladies (I can't say "bitches") have seen something that caught their interest on this site.
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