Saturday, May 24, 2003

Knocking Virginia Beach's No Bad Behavior rules

This article from the Washington Post seems to be mostly against Virginia Beach's No Bad Behavior campaign.

Tidewater attorney with lust for life

This article describes the bright life and the premature death of a Norfolk attorney.

SOL testing "irregularities" lead to principal's resignation

As reported here, an elementary school principal in York County resigned for reasons related to irregularities in the administration of the Standards of Learning tests.

DirecTV sues 130 Virginians in federal court

As reported here and here, DirecTV has filed 40 lawsuits in federal courts across Virginia against a total of 130 defendants, alleging that the defendants "either stole programming or sold pirate equipment that allows signal theft." Similar suits were brought in Minnesota as reported here and here, in Utah as reported here, and in Arkansas as reported here.

Looking on Pacer, cases filed on May 23 in the W.D. Va. include the following: in Abingdon, Case No. 1:03cv00061 with two defendants, Case No. 1:03cv00062 with two defendants, Case No. 1:03cv00063 with one defendant, and Case No. 1:03cv00064 with 8 named defendants plus 10 John Does; in Big Stone Gap, Case No. 2:03cv00074 with two defendants, and Case No. 2:03cv00075 with one defendant; in Danville, Case No. 4:03cv00047 with three defendants; and in Lynchburg, Case No. 6:03cv00038 with one defendant, Case No. 6:03cv00039 with three defendants, Case No. 6:03cv00040 with two defendants. (I suspect there are Roanoke cases not yet on the docket.)

DirecTV is represented in these cases by John H. Jamnback from Seattle and Benjamin J. Lambiotte, III, from Washington, D.C., and various lawyers from the Virginia Beach office of Williams Mullen, including Robert H. Burger, Stephen G. Test, Robert L. Samuel, Jr., and Adam Casagrande.

"Law & Order" actor from "Rocky Mount" not "Rocky Mountain"

As pointed out in this column on the success of "Law & Order," actor Jesse L. Martin is from Rocky Mount, Virginia, and not "Rocky Mountain" as shown on the program's official website.

According to the town's website, "[t]he Town of Rocky Mount, set in the beautiful rolling hills of the western Blue Ridge Mountains, has been the seat of Franklin County since its formation in 1786."

I'm a Law & Order fan, but it has not been the same for me since the departures of characters Claire Kincaid and Adam Schiff.

Montgomery County's own Donald Trump says Letterman off-camera is no fun

This report describes the experience of a Shawsville, Virginia man who was on the David Letterman show Friday night because he has the same name as Donald Trump.

Judge Williams to speak at dedication of Lee County war memorial

A memorial to honor the 197 Lee Countians who died fighting for the United States will be dedicated this weekend, as described in this report, which notes that federal judge Glen Williams, who served in the U.S. Navy during World War II, will be the guest speaker.

Judge Williams enlisted in the Navy and went to New York City for accelerated officer training, where one of his roommates in the dormitories at Columbia was the future author Herman Wouk (along with some others whose last names started with 'W'). Some of their experiences were retold in Wouk's novel The Caine Mutiny, which was made into the movie with Humphrey Bogart, Jose Ferrer, Van Johnson, and Fred MacMurray. (I think it was remade some time after that, but the original movie is still the best.)

Judge Williams tells stories about his experience in the Navy all the time, but in fits and starts, so I have probably heard part of 100 different stories from his war experiences. One of the most ridiculous and most easily retold is this one: in the officer training school, all of the cadet officers were from Yale, including Cyrus Vance, who was later Secretary of State under President Carter. Before the training was over, the enrollees did an amateur theatrical production, in which all of the officers admitted that they were not actually from Yale - Judge Williams' line that he was not from Yale, he was in jail, but it was in Sweden where they pronounced it like "yale."

Bristol's own "Blue Circle burger remains distinct"

Bristol, Tennessee is still home of the Blue Circle, an old-fashioned drive-in eatery, and the Blue Circle is well and truly described in this column in the Kingsport Times-News.

Tuition rising at Virginia's community colleges

As reported here, "the State Board for Community Colleges in Virginia has authorized a tuition increase of $6.89 per credit hour for in-state students."

SW VA is served well, in my view, by the Virginia Highlands Community College in Abingdon, the Southwest Virginia Community College near the border of Russell and Tazewell counties, and the Mountain Empire Community College in Big Stone Gap.

The Virginia Community College System was the result of the efforts of Governor Godwin and others, who passed Virginia's first sales tax in 1966 to provide funding for the system.

Bristol Virginia approves cable franchise for Bristol Virginia Utilities

As reported here, last night the City Council of Bristol, Virginia, approved a cable franchise for the Bristol Virginia Utilities to provide cable television service within the city.

July 1 marks perhaps the end of the beginning of the municipal telecommunications project in Virginia, as then BVU will be authorized by state law to provide cable services, in addition to high-bandwidth internet connections and telephone service.

The Bristol telecommunications effort began in 2000, with a lawsuit against the Attorney General of Virginia for a declaration that the Virginia law then in effect was preempted by the federal Telecommunications Act of 1996. Congressman Rick Boucher from SW VA, who was a significant contributor to the '96 Act, filed an amicus brief in support of the BVU's position in the case. Judge Jones in this opinion held that the Virginia law was prohibited, and that federal law prohibited state barriers to entry against "any" entity, which included municipalities. Judge Jones was the first to rule this way on the issue, rejecting precedents from the D.C. Circuit and some state appeals courts, but subsequent courts in the Eighth Circuit and Nebraska have agreed with Judge Jones' analysis. The Missouri municipal case out of the Eighth Circuit is now being appealed to the United States Supreme Court.

The result of the Bristol fiber case was a new law in the 2002 session of the General Assembly, authorizing localities in some circumstances to provide telecommunications. When BVU moved forward to provide fiber-to-the-home ("FTTH") for cable, telephone, and internet service, one of the city's cable franchisees, a subsidiary of Charter Communications, filed suit in November, 2002, challenging, among other things, whether the city had authority under Virginia law to provide cable television. The question had previously been considered in a series of official opinions by Virginia's Attorneys General, which arguably supported the conclusion that the City had authority to provide cable. Judge Jones in his December 2002 ruling held that the city did not have authority to provide cable, that such authority was not included in the new law of 2002 and was not expressly conferred within the city's charter.

Senator William Wampler, who lives in and represents the City of Bristol, introduced a second new law in 2003, which expressly authorizes cities in some circumstances to provide cable television, and Wampler bill passed the General Assembly, was signed by Governor Warner, and takes effect on July 1. The city dropped its appeal of Judge Jones' ruling on cable, and the judge entered an order terminating his injunction on the effective date of the new law.

Friday, May 23, 2003

Appalachia on public television

As described here, a new series of programs by Appalshop on Appalachia begins airing this month on West Virginia Public Broadcasting. This evening's program featured Dr. Ralph Stanley, summarized like this: "Ralph Stanley’s Story is a portrait of this Grammy award–winning bluegrass great and current star of the “O Brother, Where Art Thou?” soundtrack, the program explores Stanley’s musical roots in the Clinch Mountains of Virginia."

Virginia contractor gets suspended sentence for construction fraud

In this article about a builder found guilty of construction fraud, the most interesting tidbit is that the same man was involved with a venture to built an all-aluminum SUV to be sold in the Caribbean, a plan which somehow did not work out.

Governor Warner "committed a deed last week some federal judges might deem disgraceful"

So says this commentary, which notes that the governor of Virginia supports the Commonwealth's further appeal on the issue of whether VMI's dinner prayer violates the Establishment Clause of the First Amendment.

Speculation over Supreme Court includes Judge Luttig and Wilkinson

The UPI has this article guessing who might be nominated to the United States Supreme Court this year, and it discusses as possible candidates Judge Luttig and Wilkinson of the Fourth Circuit.

The flipside of this issue is that the elevation of one of these judges would lead to yet another change on the Fourth Circuit, which includes already two Bush appointees, Judges Gregory and Shedd, the nominating process for Allyson Duncan and Claude Allen is in the works, and Judge Emory Widener (from SW VA) is reportedly taking senior status in the fall - which could mean as many as six new judges in less than three years, all picked by President Bush. (Judge Gregory was also nominated by President Clinton.)

The year in review of the civil cases decided by the Virginia Supreme Court

From the Virginia judiciary website is this outline prepared by Circuit Court Judge Roush (becoming famous as the trial judge in the Malvo case) and others describing the civil cases decided by the Virginia Supreme Court between June 2002 and April 2003. It's 63 pages worth reading.

Appeal of Virginia's wine laws terminated based on new statutes

The Fourth Circuit in Bolick v. Danielson vacated the district court's ruling and remanded the case for reconsideration in light of the recent changes in Virginia's statutes governing wine sales. The AP has this report on the court's action.

Postal worker's fair representation claim against union rejected

In Martin v. Potter, the Fourth Circuit in a per curiam opinion for a panel of Judges Wilkinson, Michael, and Traxler rejected appellant's claims that his union did not fairly represent him in connection with the termination of his employment, where the union secured a "Last Chance Agreement" after the employee had been cited "for forty (40) unscheduled sick leave absences, for committing an unsafe act (striking a fellow employee with a forklift), and for sexual harassment," and the employee had breached that agreement.

What's a blank counterfeit check worth for purposes of federal sentencing?

In U.S. v. Goodson, the Fourth Circuit in a per curiam opinion for a panel of Judges Widener, Williams, and Michael, affirmed the sentence of the appellant who claimed that the trial court over-valued the blank counterfeit checks found in his position, where the trial court valued the 123 blank checks based on an average per check of 74 checks that were filled out.

Good dogs that bark

Continuing this week's theme, early on Monday morning, a dog in Spotsylvania County alerted a family of seven that their house was burning, as reported here, and on Wednesday afternoon, another dog in Elizabethton, TN woke its owner in time for him to jump out the living room window to escape the fire, as reported here.

Portsmouth lawyer loses license

The Virginian-Pilot has this short story on the revocation of a Virginia lawyer's license, for reasons including his failure to act on the embezzlement from his clients by his secretary.

Rape victim sues Gatlinburg for $22 million

A woman has filed suit in the E.D. Tennessee seeking $22 million from Gatlinburg, claiming that she was raped by a police officer and that the town should have prevented it from happening, as reported here.

Former Kingsport HRA employee sues in E.D. Tenn. claiming age discrimination

As reported here, a former employee of the Housing and Redevelopment Authority in Kingsport has filed suit in federal court claiming age discrimination.

Confirmation hearing on nominee to replace Judge Hull in Greeneville

The Judiciary Committee of the United States Senate held its confirmation hearings on the nomination of Greeneville attorney Ronnie Greer to the U.S. District Court for the Eastern District of Tennessee to replace Judge Thomas Hull, as reported here and here.

Cemetery fees may rise in Danville

Having decided against shallower graves as a cost-cutting measure, Danville city council is considering an increase in the cost of a grave in the city-operated cemetery, as reported here.

"Standards of Ludicrousness"

This column in the Daily Progess asks, "Are you as smart as an eighth grader?"

Some WV towns may get voted off the island

West Virginia is considering eliminating some towns in rural, flood-prone areas of the southern part of the state, as described here.

Roanoke Times likes SCHEV study

Continuing to bang the tax hike drum, the editorialists of the Roanoke Times comment here on the SCHEV's report on funding for higher education.

Thursday, May 22, 2003

Maybe golf is not as great as I thought

This article describes the hazards and liability potential of playing golf, and references a multi-million dollar verdict from Virginia on behalf of the estate of a man who ultimately died after he was struck by a golf ball.

Judge in Malvo case looking at other jurisdictions?

This Washington Post story notes that Judge Jane Roush has made inquiries about court facilities in Virginia Beach and other places.

From the mailbag - Larry Sabato's Crystal Ball newsletter

Someone forwarded to me today the latest edition of University of Virginia Professor Larry Sabato's "Crystal Ball" newsletter, more on which can be found here. I may have to become a subscriber. I have read several of his books, but he writes them faster than I can read them.

As I have said before, I was a student in Larry Sabato's "Campaigns and Elections" in the summer of 1985. If it had been during the regular school year, I would not have gotten in, because the class was supposed to be for politically-active people. That same summer Larry made his famous prediction that Doug Wilder would not be elected lieutenant governor, as described in this book. My big project for that class was to write a paper on the 1984 campaign of Congressman Rick Boucher, whose opponent was Jeff Stafford, a lawyer from Giles County. In 1984, Boucher was seeking re-election for the first time, and the other Republicans on the ballot were President Ronald Reagan and Senator John Warner, whose popularity was quite high. Boucher debated Stafford something like 13 times. I'm not sure if he has allowed 13 debates since then. My conclusion was that Boucher did many things wrong and had everything against him but won anyway. To that I would add, he'll never come that close to losing again.

Regarding Professor Sabato, I read somewhere recently in the blogosphere (commenting specifically on the word that Sabato thought Bredesen of Tennessee could be a dark-horse candidate for the Democrat nomination for vice-president in 2004) that the professor's opinions are like raffle tickets, and he hopes the more he has, the better his chances of a winner. No one would be more amused by this than Professor Sabato himself.

Two things that are good - golf and blogging

Thanks to Martha Burke and Annika Sorenstam, I got to see much more this year of the Masters (with no commercials, thanks to the protesters) and the Colonial (18-hole coverage on USA Network, thanks to Annika) than I would have otherwise. Nice work, ladies, do it again next year. Ms. Sorenstam might not make the cut at the Colonial but her play was pure today, as reported here and here. Maybe I'm wrong, but Ft. Worth strikes me as kind of "old school", the kind of place I'd like to go to see a golf tournament - an older course, an older tournament.

This blog - it's mostly about law, which is what I mostly think about day and night, but a few stray thoughts intrude here and there, and with the aid of the Sitemeter, I was much amused to deduce that somebody spent some time looking at this post on graduation speeches, and somebody else spent some time a while back looking at this post on Johnny Oates.

UPDATE - The Annika story must be really big, because even my wife knew that Ms. Sorenstam was not making the putts. I don't think my wife has paid much attention to the sports news since her favorite football player Thomas Jones graduated from U.Va. or maybe since Joe Gibbs stopped coaching the Redskins.

Richmond lawyer one step closer to becoming head of antitrust for Justice Department

The Washington Post has this report on the Senate confirmation hearing of Hewitt Pate, formerly of Hunton & Williams, now nominated to head the antitrust enforcement division of the United States Department of Justice.

Robert E. Lee described as "a good man who, when hit by history's freight train, went the wrong way"

The Richmond area probably has more editorials about the Civil War than any place else, and here is another.

AG Kilgore's higher-ed council just another way "to pad future campaign brochures"

This editorial says that AG Kilgore's efforts to appear to be doing things that fall "beyond the scope of the Attorney General's purview" is inevitable because "it's how the game is played."

Chesterfield zoning case poses the question, how tough can sanctions be for violating zoning

As reported here, lawyers for a Chesterfield County business argued their petition for appeal in a case involving sanctions for the over-expansion of the business beyond the limits allowed under the county zoning law, including a contempt of court order which requires the company "to post a $250,000 letter of credit and face fines of $2,500 per day if it does not meet the June 6 deadline to scale back or move." The report indicates that Senior Justice Compton was nailing the counsel for the petitioner, which sounds familiar - in one of my (two) cases before the Virginia Supreme Court, Justice Compton told me that "what you're saying can't possibly be true."

SCHEV joins the fray on college funding in Virginia

Incredibly, the State Council on Higher Education in Virginia says there should be more spending on higher education in Virginia, as reported here.

(This gets about 10 Claudes, as defined by Sneaking Suspicions.)

81 bank robberies in Richmond has this account on efforts to reduce the number of bank robberies in the Richmond area.

New JC mayor runs off reporter, denies calling him "an ass"

As a preview of coming attractions, the new mayor of Johnson City apparently violated the open meeting laws of Tennessee by going with another board member to discuss fire department operations and shooing away the reporter who tried to see what was going on, as reported here and here and here.

Alpha gets off to union-free start

As reported here in the Coalfield Progress, the company's SW VA subsidiaries won the UMWA's first campaigns to become recognized as the representative of the work force. The article says that Alpha Natural Resources "now employs 2,100 people with operations in Virginia, West Virginia, Kentucky, Pennsylvania and Colorado." The election bar under the NLRA prevents the UMWA from trying again until next year.

More on how citizen reaction to threat of SLAPP suit determined election in Bristol, TN

One more story on the city council election in Bristol appears here, and everyone in it cites the citizen reaction to the council's threat to try to recover $2 million-plus in alleged damages from a citizen group that had opposed the location of a Wal-Mart as the main reason for the outcome of the election.

File your right-to-sue letter or else

In King v. Wal-Mart, the Fourth Circuit in a short per curiam opinion for a panel of Judges Luttig and King and Senior Judge Hamilton affirmed the dismissal of appellant's employment discrimination case after he failed to file with the court his right-to-sue letter after being ordered to do so.

Wednesday, May 21, 2003

Jost and Norment declare the other not fit to be senator

There were no holds barred in Tuesday's debate between the two candidates described here in the Daily Press.

Still more on the Verizon case

The Richmond Times-Dispatch has this article with reactions to the Fourth Circuit's ruling against Cavalier Communications on its antitrust claims against Verizon. The story notes that Cavalier is watching another case now making its way to the U.S. Supreme Court.

Also, the Rule of Reason blog has this post on the decision, and also mentions the Second Circuit case now pending before the Supreme Court.

Virginia's next death row inmate scheduled for execution said to be retarded and mentally ill

The inmate scheduled to be put to death on May 28 may be mentally retarded and mentally ill, as stated in this AP report, which says IQ testing on May 14 showed the man's IQ is 66.

"Warner the waiter"

This commentary from the Fredericksburg paper says that Governor Warner should not wait until after this year's elections to unveil his proposal for tax reform in Virginia.

ACLU may support leaflet ban challenge in Stafford County

As reported here in the Free Lance-Star and here in the Richmond Times-Dispatch, the American Civil Liberties Union in Virginia agrees that Stafford County's ban on political leafletting is a violation of the First Amendment.

U.S. gives Virginia $60 million for new voting machines

As stated in this AP report, the federal government is giving Virginia $60 million for new voting machines, including $4,000 each to replace over 2,000 mechanical lever machines (such as the ones used in this county).

More on the Fourth Circuit's "Casino de Monte Carlo" cybersquatting case

The iBusiness Law blog has this post on this week's cybersquatting opinion from the Fourth Circuit, with the headline, "The Fourth Circuit Uber Alles II: Trademarks as the Functional Equivalent of SARS."

Florida tobacco verdict goes up in smoke

The intermediate appeals court in Florida has thrown out the punitive damages verdict for $145 billion awarded in Miami-Dade County in 2000, as reported here and here and here. The opinion is here (via Findlaw). The next level is the notorious Florida Supreme Court, who could go off in any direction. I've always suspected that in some odd way, the majority of the Florida Supreme Court contributed to the Bush electoral victory in 2000 in spite of their intentions, sort of like the way the conduct of France may have hastened the attack on Iraq in 2003.

That must have been some kind of elaborate conspiracy

The defendants in this case included "STEVE MCGRAW, Clerk, the Circuit Court of the County of Roanoke, sued in his individual and official capacity; DONNA SCHAFFER, Deputy Clerk, the Circuit Court of the County of Roanoke, sued in her individual and official capacity; JANICE MARTIN, Notary, the Circuit Court of the County of Roanoke, sued in her individual and official capacity; ROY B. WILLETT, Justice, the Circuit Court of the County of Roanoke, sued in his individual and official capacity; A. DOW OWENS, Justice, the Circuit Court of the County of Pulaski, sued in his individual and official capacity; FRANCIS WILLIAM BURKHART, III, Chief, Commonwealth Attorney of the County of Roanoke, sued in his individual and official capacity; JOHN RICHARD HENRY ALEXANDER, II, Assistant Commonwealth Attorney of the County of Roanoke, sued in his individual and official capacity; MARIAN FELIC KELLEY, Assistant Commonwealth Attorney of the County of Roanoke, sued in his individual and official capacity, J. RAY LAVINDER, Chief, the Police Department of the County of Roanoke, Virginia, sued in his individual and official capacity; MR. HOLBROOK, Assistant Chief, the Police Department of the County of Roanoke, Virginia, sued in his individual and official capacity; JOHN TURNER, Lieutenant, Director of Internal Affairs, the Police Department of the County of Roanoke, Virginia sued in his individual and official capacity; RICHARD MOORER, Detective, the Police Department of the County of Roanoke, Virginia, sued in his individual and official capacity; DEBBIE HOGAN, Detective, the Police Department of the County of Roanoke, Virginia, sued in her individual and official capacity; FRANCIS HAGGERTY, Sergeant, the Police Department of the County of Roanoke, Virginia, sued in his individual and official capacity; R. J. WYGAL, Road Unit Officer, the Police Department of the County of Roanoke, Virginia, sued in his individual and official capacity; JANET JANSCO, Road Unit Officer, the Police Department of the County of Roanoke, Virginia, sued in her individual and official capacity; BETTY R. MCCRARY, Director, the Roanoke County Department of Social Services, sued in her individual and official capacity; ELLEN GROFF, Social Worker, the Roanoke County Department of Social Services, sued in her individual and official capacity; GARY THOMPSON, Social Worker, the Roanoke County Department of Social Services, sued in his individual and official capacity; DONNA THOMPSON, Social Worker, the Roanoke County Department of Social Services, sued in her individual and official capacity; TRACEY E. PIRKEY, Hearings Officer, the Virginia State Department of Social Services, sued in her individual and official capacity; JOSEPH B. OBSENSHAIN, Attorney, County of Roanoke, Virginia, sued in his individual and official capacity; JEFFREY LAING DORSEY, Reverend, Attorney at Law, sued in his individual and official capacity; ROBERT C. HAGAN, Attorney at Law, sued in his individual and official capacity; MELISSA RATCLIFF, Registered Nurse, Carillion Community Hospital of Roanoke Valley, sued in her individual and official capacity; LEJEANNA SPINELLA, Agent, Palms & Associates, sued in her individual and official capacity; UNKNOWN PROPRIETORS, Palms & Associates, Incorporated, sued in their individual and official capacities; STEPHANIE ANN WOOD, sued in her individual and official capacity; WALTER LEE WOOD, Reverend, sued in his individual and official capacity; ANN MCKEEL WOOD, Reverend, sued in her individual and official capacity; RHONDA WOOD, a private citizen of the County of Roanoke, sued in her individual and official capacity; UNKNOWN COURTROOM DEPUTY, Sergeant, the Circuit Court of the County of Roanoke, sued in his individual and official capacity; ROSEMARIE ANUNNZIATA, Chief Justice, the Court of Appeals of Virginia, sued in her individual and official capacity," and every one is a winner. Maybe they should rent a hall to celebrate their joint victory.

Spending the tobacco settlement money on SW VA projects

As reported here, the tobacco commissioners announced another $2 million in projects for SW VA, with $1.7 million going to projects in Scott County, the home county of Delegate Terry Kilgore and Attorney General Jerry Kilgore.

One of the projects is to keep the building standing at the Carter Fold in Hiltons, which seems like a worthwhile project if ever there was one.

Just when you thought it was safe to go bear hunting in North Carolina. . .

This report says there is legislation pending to limit the number of non-resident bear hunters in North Carolina, which means I guess that you'd have to lure the bear across the state line to shoot him, if you were hunting some place like Mountain City near the boundary, or would that be some kind of federal offense?

Pro-SLAPP suit slate voted out in Bristol, TN

Contrary to my expectations, in Tuesday's municipal elections on the Tennessee side, the candidates who thought threatening a suit against citizens was a good idea were voted out by citizens who thought not, as reported here and here in the Bristol paper.

Tuesday, May 20, 2003

U.S. Supreme Court denies certiorari in internet jurisdiction case from W.D. Va.

As reported here, on Monday the Supreme Court issued an order refusing to hear the case of the Wise County, Virginia prison warden who sued a Connecticut newspaper in Virginia, claiming defamation. The Fourth Circuit held that the newspaper's web presence was not enough to support personal jurisdiction in Virginia, overturning the ruling of Judge Glen Williams of the W.D. Va.

Virginia Beach will be first in Virginia to allow for online payment of traffic tickets

The AP has this report on a pilot program in Virginia Beach that will allow for payment of traffic tickets over the Internet.

More on this week's Fourth Circuit opinion in the Verizon case

The AP has this report on the Fourth Circuit's ruling in the telephone antitrust case brought by Cavalier, a competitive local exchange carrier, against Verizon, one of the regional Bell operating companies, formerly known in Virginia as Bell Atlantic.

9,000 inmates released from Virginia prisons in 2002

The Washington Post has this report on the high numbers of former prisoners seek to find a way back into society.

"Andy Griffith" more popular than Oprah and all other shows combined weekdays in Roanoke

This story may be the best item about Roanoke I have ever read - Mayor Smith should see that it gets the widest possible distribution. Every day, 70,000 Roanokers watch re-runs of the Andy, Opie, and Barney.

Fourth Circuit affirms dismissal of CLEC's anti-trust claims against Verizon

In Cavalier Telephone LLC v. Verizon Virginia, Inc., the Fourth Circuit in a decision by Judge Niemeyer joined by Judge Widener upheld the dismissal of the competitive local exchange carrier Cavalier's antitrust claims against the ILEC, Verizon. Judge Greenberg of the Third Circuit, sitting by designation, dissented, based on the "essential facilities" doctrine.

Another dog story - dogs are "property" under Fourth Amendment, but shooting them was reasonable

In Altman v. City of High Point, the Fourth Circuit held in an opinion by Judge Luttig, joined by Judge Williams, that dogs are property protected by the Fourth Amendment, but in the circumstances of the case, the shooting of the dogs by an animal control officer was reasonable and did not violate the rights of their owners. Judge Gregory concurred on the dogs as property holding, but dissented on the majority's reading of the merits.

There is a lengthy dialogue about qualified immunity here, and I don't see how Judge Gregory can be right. He concludes that three cases from other circuits make the law so clear that the defendants were not entitled to qualified immunity. Judge Luttig says those cases are distinguishable, but more importantly, they are not from the Fourth Circuit, and still more importantly, this is not a case where the law is clear even without any cases - unlike the famous example from Judge Edith Jones from the Sixth(?) Circuit, who said that no case law is required for a reasonable social worker to know that he or she may not sell children into slavery.

Judge Luttig and Judge Gregory had pretty diverse views of what the Constitution required in this case, which should mean that Judge Gregory's side loses, because that ambiguity in the law is what makes the qualified immunity defense.

Judge Jones agrees to stay malpractice case against hospital insured by Reciprocal of America

In this opinion and order, Judge Jones of the W.D. Va. agreed to stay a malpractice case against a local hospital insured by the Reciprocal of America pending the outcome of the hearing on the receiver's petition to liquidate ROA, which is set for June 16.

Are there many overtime suits brought in state court?

The Supreme Court held this week in Breuer v. Jim's Concrete that suits brought under the Fair Labor Standards Act can be removed to federal court, which is a good thing, but I've not yet seen a FLSA case filed in state court, which may evidence a lack of imagination among the local bar, or perhaps I just don't get out enough.

Dog evades the law in Smithfield

Succumbing to my second dog story in a week, here is this report (with great pictures) from the Virginian-Pilot on a smart dog that cannot be caught in Smithfield.

Another Virginia death row inmate opts for electrocution over injection

As reported here, a Virginia death row inmate scheduled for execution on May 28 has chosen electrocution over lethal injection.

Virginia Supreme Court grants appeal in Pease murder case from Wise County

The Coalfield Progress reports here that the Supreme Court has acted without a hearing to grant the petition for appeal of Merry Pease, who has been tried and convicted more than once for murder in connection with the death of her husband.

Virginia Republicans suing county over leaflet ban

Virginia Republicans connected with Senator Chichester's opponent in the primary are suing Stafford County in the U.S. District Court for the E.D. Va. over its ban on leaving pamphlets on the windshields of parked cars, as reported here.

Today's opinions from the Virginia Court of Appeals

In Goad v. Virginia Board of Medicine, the court in an opinion by Judge Clements reversed for lack of evidence the circuit court's determination that the doctor was guilty of unprofessional conduct, where the evidence showed the doctor had sexually harassed various medical students and co-workers but the Commonwealth did not show how this was prohibited under any applicable standard of the Board of Medicine. (I suspect there will be some new rules put out shortly to remedy this gap.)

In Samudio-Perez v. Commonwealth, the court in an opinion by Judge Annunziata held that the trial court did not err in denying the defendant's mid-trial motion for mistrial based on evidence that one of the investigators in the case had also investigated a case where the victim was the daughter of one of the jurors.

In Johnson v. Commonwealth, the court in an opinion by Judge Fitzpatrick affirmed the constitutionality of Va. Code § 18.2-67.9, which allows child victims to testify via closed circuit television.

In Smith v. Commonwealth, the court in an opinion by Judge Frank reversed the defendant's rape and other convictions, because of the trial court's failure to issue curative instructions regarding the improper comments of the Commonwealth's attorney during voir dire.

In Dugger v. Commonwealth, the court in an opinion by Judge Kelsey upheld the DUI conviction of a passenger who momentarily seized the steering wheel, causing a wreck.

In Wolfe v. Virginia Birth-related Neurological Injury Compensation Program, the court in an opinion by Judge Elder held that the Worker's Compensation Commission should reconsider the evidence on whether claimant's claim was within the program.

In City of Newport News D.S.S. v. Winslow, the court in an opinion by Judge Humphreys held that the trial court in its assessment of the sufficiency of the social services department's evidence in support of a petition to terminate residual parental rights of a mother with bi-polar and obsessive-compulsive disorders.

In Thomas v. Thomas, the court in an opinion by Judge Annunziata held that the trial court in concluding that payment of court-ordered spousal support was "waste" of marital assets.

The real "Casino de Monte Carlo" wins over online gambling firms in cybersquatting case before Fourth Circuit

In International Bancorp, LLC v. Societe des Bains de Mer et du Circle des Etrangers a Monaco, the Fourth Circuit in an opinion by Judge Luttig joined by Judge Niemeyer sided with the Casino of Monte Carlo in a cybersquatting case over 50+ websites with names such as and, even though the marks were not registered in the United States. Judge Motz dissented, claiming that "majority reaches the unprecedented conclusion that an entity’s use of its foreign trademark solely to sell services in a foreign country entitles it to trademark protection under United States law, even though the foreign mark holder has never used or registered its mark in the United States."

Sending the jury into overtime

In U.S. v. Lowery, the Fourth Circuit in a per curiam opinion for the panel including Judges Niemeyer and Michael and Senior Judge Hamilton held, among other things, that the trial court committed no error in discharging then recalling the jury when it was apparent that their verdict was incomplete.

Monday, May 19, 2003

Fourth Circuit nominee Allen listed with Pryor as "enemies of gay rights"

The New York Times has this opinion (registration required) about the remarks of Senator Santorum, and it lists appeals court nominees Bill Pryor and Claude Allen as enemies of gay rights.

The Times may be so thoroughly discredited that a criticism of this kind will be seen in some circles as a badge of merit.

Lawyer blogger's spam case tossed on motion to strike in Fairfax County circuit court

A cover story in this week's Virginia Lawyers Weekly describes a lawsuit brought on behalf of a blogger against an Ohio firm, claiming that the company's spam used the blog's domain name. Plaintiff brought suit under the civil remedy provisions of the Virginia Computer Crimes Act. The defendant convinced the trial court to grant its motion to strike the evidence, by showing that the spam originated from some Russian company that does bulk e-mail, as to which the U.S. defendant had no knowledge or control. The blogger had these posts about the trial here, here, and here.

SW VA librarians worried over USA Patriot Act

This report in the Roanoke Times quotes librarians worried over the requirements of the USA Patriot Act, which allows federal investigators in some circumstances to access computer and book circulation records at public libraries.

When the FBI gets the list of books my wife and I check out from the Washington County public library, they will mainly be appalled at how common and ordinary our selections have been - cookbooks, gardening books, biographies, and books by and about lawyers.

"Norman" the beagle goes on walkabout from Kansas to Alabama

A chunky beagle named after Norm from Cheers made it from near Topeka to the campus of Auburn University, as reported here. (I can't resist a story with both dogs and Cheers.)

Maybe someone he knew was graduating over the weekend. Maybe it was some kind of protest. Maybe he just found a warm place to sleep in someone's vehicle and when he woke up, suddenly realized he was not in Kansas any more.

Another post-conviction petition denied in the Lillelid murders

As reported here, another post-conviction petition has been denied in Tennessee regarding the Lillelid murders.

The Lillelid family were European immigrants, returning home from a Jehovah's Witness conference, the defendants were a group of miscreants from Kentucky out looking for trouble, they met at a rest stop in Interstate 81 near Greeneville, the Lillelid parents and the daughter were killed and the son wounded, and the 6 Kentuckians all entered guilty pleas, but having avoided the death penalty they are one by one trying to get out from under their plea bargains.

SLAPP suit over Wal-mart location is at issue in Bristol, TN city election

As reported here, issue no. 1 in tomorrow's city council election in Bristol, Tennessee is the council's reaction to a citizen lawsuit seeking to prevent the location of Wal-Mart on Volunteer Parkway near Bristol Motor Speedway. The lawsuit enraged some council members, who threatened to come after the plaintiffs for $2 million damages if they proceeded with their appeal, which threat had the desired effect of coaxing the plaintiffs to drop the appeal.

Tomorrow is the first chance to measure at the polls whether the advocates of punishing citizens will be punished by the citizens. II suspect that they will not - most people want the Wal-Mart, and the citizen suit probably was a loser, so there was "no harm done" that most people can see.

A "SLAPP" is "a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern," according to this site.

Sunday, May 18, 2003

Old-fashioned tax laws of Virginia described

This Daily Press article asks how it is that while some Virginians must pay sales tax on baby food, others pay no taxes for plastic surgery. That seems like a pretty odd comparison to me, but what is true as the article explains is that the tax laws of the Commonwealth were made a little here and little there like an Amish farmhouse, and there has never been a comprehensive effort to rationalize Virginia's revenue laws.

The proponents of tax reform talk about how nowadays the sale of goods is less of the economy compared to the sale of services and information, which makes me think that some of those people think that lawyers and other like service providers ought to be collecting sales taxes, which would be a real drag.

Perhaps the tax reformers will notice this Reuters article (via Corp Law Blog and A Taxing Blog) that says: "With the German economy on the brink of recession, cash-strapped cities are resorting to slapping a 'pleasure tax' on brothels to help balance budgets."

Sabato says in Virginia "politics has gotten a lot nastier"

The Virginia professor whose motto is "politics is a good thing" says the level of discourse has deteriorated in Virginia as elsewhere, in this update on the highly-charged primary campaigns of Paul Jost v. Thomas Norment and others in Eastern Virginia. In one Republican primary fight, one of the candidates is accusing the other of "consorting with known Democrats."

A second article in the Daily Press explains how the Jost/Norment conflict has its origins in Senator Norment's opposition to the implementation of former Governor Gilmore's beloved car tax repeal plan.

UNC Chancellor - "Virginia has never done a very good job of supporting its colleges"

In this commentary in the Virginian-Pilot, the comments of the chancellor of the University of North Carolina at Chapel Hill are cited as further evidence that the Virginia legislature is asleep on the job of providing for higher education in the Commonwealth, and that other states are profiting as a result.

Another commentary in the same paper says funding education is a key obstacle to the success of AG Kilgore and other Virginia Republicans.

On the same theme, Governor Warner spoke about education funding in his commencement address at George Mason University, as reported here in the Washington Post.

This Washington Times article indicates that Delegate Robert Marshall has resolved that what's really important is to get Virginia colleges and universities to stop providing sex education.

Earlier in the week, long-time U.Va. sports beat reporter of the Daily Progress Jerry Radcliffe explained here that Governor Warner and the General Assembly had no standing to intrude on U.Va.'s response to expansion of the Atlantic Coast Conference, "when they don’t spend a dime on collegiate sports."

Schapiro concludes that Kilgore is no Giuliani

In this week's column, Jeff Schapiro notes the many policy differences between Attorney General/gubernatorial candidate Jerry Kilgore and former NYC mayor Giuliani, the star of Kilgore's recent fund-raiser.

Verizon strike on the horizon?

This article in the Richmond Times-Dispatch and this AP report say that officials of the Communications Workers are telling union members to start saving their money. The article notes that there are more than 12,000 Verizon employees in Virginia. Their collective bargaining agreement expires August 2.

Verizon is the incumbent local exchange carrier in some parts of Southwest Virginia, in the areas formerly served by C&P.

"False publication" a crime in Virginia

Commenting on the Jayson Blair/New York Times fiasco, Mark Holmberg of the Richmond Times-Dispatch has this column, which notes that "false publication" is a crime in Virginia under Va. Code § 18.2-209 - "Any person who knowingly and willfully states, delivers or transmits by any means whatever to any publisher, or employee of a publisher, of any newspaper, magazine, or other publication or to any owner, or employee of an owner, of any radio station, television station, news service or cable service, any false and untrue statement, knowing the same to be false or untrue, concerning any person or corporation, with intent that the same shall be published, broadcast or otherwise disseminated, shall be guilty of a Class 3 misdemeanor." (Presumably this statute does not apply to the Internet, since "cable service" does not mean the same thing as the Internet, or so one might guess from Judge Jones' ruling in the Bristol cable case.)

Williamsburg area hotel covered Civil War art to host D.C. judicial conference

As reported here in the Daily Press on May 10, the Fort Magruder Radisson outside of Williamsburg covered paintings of Civil War scenes in the hotel lobby with sheets for a D.C. courts conference held at the hotel. A court spokesman said that "[a]s part of the contract, we asked that there wouldn't be any Confederate-flag images in the main area," and the hotel agreed, according to the report.

Shortage of vicious criminals in Virginia?

As detailed in this interesting report by Laurence Hammack of the Roanoke Times, Virginia has quietly reduced its capacity for "supermax" inmates. The article notes that "[c]ritics of the supermax philosophy have said Virginia grossly overestimated its number of violent and predatory inmates when it spent $147 million on two prisons to isolate them under the tightest of security." The article focuses on the Red Onion and Wallens Ridge prisons, both built in the 1990s in Southwest Virginia.