Saturday, May 31, 2003

First classes in August for new medical school in SW VA

As reported here in the Roanoke paper, a new medical school in Blacksburg will start classes this fall.

Part of the mission of the school is to provide opportunities for Appalachian students and ultimately provide doctors to a region which may be seeing a shortage of doctors as soon as 2010, by which time "30 percent of Southwest Virginia's doctors are expected to end their practices." Some of these goals sound familiar, like what I understand about the Appalachian School of Law in Grundy.

WMDs and terrorism in the Civil War

I don't know how this article found its way into the Washington Post rather than say, American Heritage, but here it is:

"But as the internecine conflict lengthened from months to years, and the casualties mounted from the thousands to the hundreds of thousands, the South's desperation spawned a largely untold story: a series of terrorist plots against Washington and New York that eerily foreshadowed September 11, 2001, and its aftermath.

Hatched by politicians, rogue scientists, saboteurs and foot soldiers fanatically loyal to the Confederacy, the plans included spreading yellow fever to Washington and the White House; burning New York City to the ground; poisoning New York's water supply; and attacking Northern ports with a newly developed chemical weapon. There was even a scheme in the war's waning days to blow up the White House, though Lincoln refused to take it seriously. "I cannot bring myself," he said when told of the threat, "to believe that any human being lives who would do me any harm."

While most of the plots failed, their intent was clear. Then as now, they were designed to kill, terrify and demoralize civilians."

Possible sanctions for adultery in West Virginia: $20 fine - and impeachment

In West Virginia, adultery is a criminal offense subject to a $20 - and is one of the statutorily-defined examples of "incompetence" that can be grounds for impeachment of an officer of the state, according to this report, reflecting on the marital woes of the state's governor.

W. Va. Code section 6-6-1 says, among other things, that "The term 'incompetence,' as used in this article, shall include the wasting or misappropriation of public funds by any officer, habitual drunkenness, habitual addiction to the use of narcotic drugs, adultery, neglect of duty, or gross immorality, on the part of any officer." Section 6-6-3 says "Any officer of the state or any judge may be impeached and removed from office for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor, in the manner prescribed in section nine of article four of the constitution of this state."

America's first marijuana law, passed in Virginia in 1619

This funny report in the New York Times contains one interesting sentence: "Oddly enough, the first American law about marijuana, passed by the Virginia Assembly in 1619, required every household to grow it."

The rest of it is mostly a history of "reefer madness," including the following:

"Popular fears of marijuana arose in the early 20th century, prompted by the use of the drug by Mexican immigrants. Rumors spread about the "killer weed" that incited violent crimes and drove its users insane.

Marijuana was linked not only to poor Mexicans, but also to poor blacks and the new music they played: jazz. Jazz was then regarded much as hip-hop is today in some circles, as a subversive and barbaric threat to the national morality. Not long after marijuana was outlawed in 1937, the Federal Bureau of Narcotics planned to stage a nationwide roundup of black jazz musicians who smoked pot. Harry J. Anslinger, head of the bureau, hated jazz and saw it as a corrupting influence in American life. The plan was thwarted, however, by the inability of its agents to infiltrate the jazz milieu."

I'm not sure what to make of this history; it seems kind of amusing but since it is in the New York Times, I question it. The funniest part is the image of J. Edgar Hoover's men trying "to infiltrate the jazz milieu."

As a footnote to this scientific article, from this article on the capture of the accused 1996 Olympics bomber, Eric Rudolph, is an excerpt about marijuana:

"Sister-in-law Deborah Rudolph, who helped develop a profile for investigators, has said the accused bomber hardly lived the lifestyle of a religious zealot. In 2001 she told the Southern Poverty Law Center's Intelligence Report magazine that Rudolph grew hydroponic marijuana and made as much as $60,000 a year selling it.

When he visited her Nashville, Tenn., home in the early 1990s, Rudolph would ``sleep all day, then stay up all night and eat pizza and smoke pot and watch movies by Cheech and Chong,'' Deborah Rudolph told the magazine.

Stone said Rudolph's marijuana growing made him more paranoid and fed his anti-government views."

Former Virginia Beach attorney sent to prison for bilking inmates' families of at least $74,950

As reported here in the Virginian-Pilot, a former Virginia Beach lawyer will be sentenced by Judge Payne of the E.D. Va. to serve some period in prison for cheating "at least 17 inmates' families out of $74,950." The article notes that the defendant also "was incarcerated for four years before a Florida court overturned his conviction for the 1991 slaying of his wife."

In a somewhat similar story, a former West Virginia lawyer was charged in South Carolina on Friday "with running an unlicensed James Island law firm that illegally solicited thousands of dollars worth of business from prison inmates and their families throughout the Southeast," according to this report.

Environmentalist concerns raised about pipeline, postpose Interstate 81 expansion

Separate stories in the Roanoke Times relate here that environmentalists are trying to stop the tunneling under the New River for a natural gas pipeline and here that the need for environmental studies will set back the schedule for expanding Interstate 81, the main road in Southwest Virginia. The Bristol paper has this report on the interstate news.

USERRA suit in E.D. Tenn. settled, as 110 reservists return to SW VA, 500 others leave for training

As reported here in the Kingsport Times, a second lieutenant in the U.S. Army Reserves has settled her claim against her employer the Johnson City Board of Education for its refusal to reinstate her in violation of her rights under the Uniformed Services Employment and Re-employment Rights Act ("USERRA"). The city's position was that the position she was offered was sufficient to comply with the law.

I suspect that there will be more such claims filed locally in the coming months in this area of the law - the combination of many reservists being called up and tough economic times make it seem like that some employers through ignorance or poverty will not comply with the re-employment rights of soldiers returning from active duty. I've studied USERRA a bit and it looks like it is possibly the best-written employee rights statute in the U.S. Code - it eliminates some of the ambiguities of other statutes, although there are still plenty of issues that will be litigated, I'm sure.

As reported here in the Coalfield Progress, 110 soldiers from the Virginia Army National Guard's 189th Engineer Company were arriving back in Southwest Virginia on Friday, after being called up for possible service in the reconstruction of Iraq (before the powers that be decided they would not be needed after all). Also, as reported here in the Bluefield paper, 500+ members of the 1st Battalion, 150th Armor Regiment (1/150), West Virginia Army National Guard, whose members include some residents of SW VA, are headed to California for a period of military training.

Tennessee discriminates (inadvertently) against home schoolers in new lottery scholarship law

Bill Hobbs points to this article, which says the requirements for home-schooled children to qualify for the new lottery-funded scholarships are more rigorous than for public school students.

Now, I don't know if that is religious discrimination, more like a denial of equal protection, but apparently the legislators quoted in the article say it was inadvertent and will be fixed before the scholarship program begins. I'm sure Mike Farris and his group will be watching to make sure that is so. Their website notes here that a home schooler won the national geography bee and another was second in the national spelling bee.

Friday, May 30, 2003

Removal of case where state wrongful discharge statute incorporates "federal" rights

In Dixon v. Coburg Dairy, Inc., the Fourth Circuit in an opinion by Judge Gregory joined by Senior Judge Michael of the W.D. Va. sitting by designation held that the trial court erred in failing to remand a case, notwithstanding the allegations of a constitutional violation, where the defendant was not a state actor and therefore the federal question was too insubstantial to support removal. The third judge on the panel, Judge Goodwin, joined in this holding.

The majority also held that a state-law public policy wrongful discharge claim, where the public policy was federal law, could support federal jurisdiction. Plaintiff claimed that he was fired in violation of his constitutional right to have a rebel flag sticker on his toolbox. The majority went on to a lengthy analysis of whether this was protected speech. In dissent, District Judge Goodwin points out that this federal right is only to protection from state actors, so there cannot be federal jurisdiction over a public policy wrongful discharge claim based on an alleged First Amendment violation by a private employer.

Well, all I can is, if what Judge Gregory says about the South Carolina law of wrongful discharge is true, then it is a good thing as sort of a consolation prize that such claims when based on federal rights are removable, but I think that what he is saying is fundamentally wrong. A state can create a cause of action that copies the substance of federal law in every detail, but that will never "federalize" the claim in the sense that I understood would be necessary to support removal. There are many, many examples of state laws that are essentially "me, too" tag-alongs to federal law, but that does not make them removable; to the contrary, that's why plaintiffs' lawyers love these state human rights laws in places like Kentucky, West Virginia, and Tennessee, where the law copies Title VII, etc. - because the claims are not removable (when there is no diversity).

Now, there are creatures out there, like ERISA-pension plans, and collective bargaining agreements, that have special status under federal law, and so cases where their federally-protected status comes into play are removable, whether the state law cribs federal law or not. And, sometimes, those creatures just get treated like other creatures, when the federally-protected aspect is not affected by the state law claim (thus, cases like Franchise Tax Board). Claims to enforce state law rights against these special creatures are going to be removable where they infringe on the federally-protected status, notwithstanding the normal obstacles such as the well-pleaded complaint rule.

Here, though, the claim is a creation of state law, and to say that the statute involves "a substantial question of federal law" is just not true, or if is true, the federal right applies only to state actors. In Kentucky, KRS 344.040 "mirrors Title VII of the Civil Rights Act of 1964" and therefore all the courts applying it, both state and federal, literally "use the federal standards for evaluating race discrimination claims." Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000). Judge Goodwin (being from West Virginia) cites a similar West Virginia law in his dissent. By Judge Gregory's logic, all those claims are removable, but they're not. It might be good for employers if they were. Moreover, if there is some state law construct that applies the Bill of Rights to persons other than state actors, that's not federal law, whatever it is.

The South Carolina cases cited by the court are not all they're cracked up to be - the plaintiffs lost in Culler v. Blue Ridge Electric Co-op and Williams v. Strickland for lack of proof, and so the courts in those cases never really unraveled the state vs. federal aspect of rights protected by the South Carolina statute.

Finally, application of the First Amendment to private employers is a bad idea. As the majority notes, private employers can't afford to allow employees "free speech" that amounts to unlawful racial (or sexual) harassment of co-workers. As the dissent notes in a footnote, application of the First Amendment to private employers is likely at least in some circumstances to violate the First Amendment rights of the employers, in a way that could be actionable in federal court, I suspect.

The consolation prize for employers is that the majority held the case is removable to federal court, which is probably the wrong conclusion, but at least puts the case where the application of federal law is likely for reasons of familiarity if nothing else to be more accurate. Some state court judges I know would often rather not wrestle unnecessarily with whole bodies of law that are outside of their normal sphere, which is complicated enough. In Virginia, famously, the courts have refused to import the concepts of proving Title VII claims into wrongful discharge claims - one lawyer who tried it had his arguments rejected and sanctions imposed by the trial court. (The sanctions were lifted on appeal, but the outcome on the merits stayed the same.)

Understanding Hibbs

Here are just a few posts or articles from Jack Balkin, Sugar Mr. Poon, Michael Kinsley, NYT's Linda Greenhouse, Tony Mauro, Southern Appeal, the AP, US Newswire, Anne Gearan, the Fourteenth Circuit, Robert Prather, the Federalism Project, and the consensus is nobody knows why Justice Rehnquist joined with the majority. The best reason I've read stated here is that he wanted to keep the opinion under control. The second worst reason I've read, suggested here , is that he was horse-trading with Justice O'Connor for votes on the forthcoming race in admissions cases, and the very worst is because "Hibbs was about a white man suing a state," as stated here.

Since I'm reading this book on Ken Starr, I'd guess that Starr would say that the case is in some ways like Miranda, where the Court generalized about police practices in the various states without much of an actual record, and the Chief Justice's more recent vote to uphold Miranda, which ran against the grain of Rehnquist's views in prior cases. (That's right, I read one book and I think I'm an expert.)

52 percent pass the Virginia bar exam given in February

Virginia Lawyers Weekly will publish on Monday the names of those who passed the bar exam in February - of course, the examinees in February are mostly people not taking their first turn at the exam.

On being a secret Republican among the elite and polite in Tennessee (and elsewhere)

Via Instapundit, Metro Pulse in Nashville has this mostly amusing confession of a reporter who says he is a Republican, and what he perceives as the bigotry and hypocrisy he sees directly towards Republicans among the educated crowd with whom he associates.

I thought everybody in Tennessee was a Republican, but I never go much in Tennessee beyond Knoxville - who knows what goes on in places like Nashville, Chattanooga, and Memphis.

Judge Jones says the bar of Heck does not apply to inmate's claim

In Bowman v. Large, Judge Jones of the W.D. Va. held that an inmate's lawsuit was not barred as a collateral attack on disciplinary proceedings against him in the prison. Based on Heck v. Humphreys, a criminal defendant is precluded from civil claims that would necessarily mean relitigation of the merits of his criminal case. Thus, for example, I had a case some years ago where a prisoner claimed that he was beaten up by jailers before he entered his guilty plea. He could claim that he was beaten, but he could not claim that his plea was coerced, under Heck. Heck has been extended by the Supreme Court's decision in Edwards v. Ballok to prison disciplinary proceedings. The defendant in Bowman argued that Bowman's claim involved an attack on his prison disciplinary proceedings. Judge Jones rejected this argument, concluding that the inmate's claim here (like in the case I had) was about the use of force, and not the outcome of the earlier disciplinary proceedings against the plaintiff.

No sanctions against litigant for third claim to own the beach at Virginia Beach

The Virginian-Pilot has this report on the judge's ruling denying a claim for sanctions against a man for his third lawsuit claiming to own the oceanfront at Virginia Beach.

Buchanan County hospital under federal investigation

There are no details, but the Bluefield paper is reporting here that the Buchanan General Hospital in Grundy is the subject of a federal investigation. A similar story (or non-story) was published earlier this week in the Virginia Mountaineer.

Mother bear has cubs in school lunch program in Wise County

A family of bears have been dining out at an elementary school in Wise County, as reported here.

"Iced tea - the house wine of the South"

This column from the Kingsport paper hits the spot -

"Tall glasses of the deep amber liquid, accented and flavored with lemon and mint and sweetened with white sugar, accompany checkered-cloth picnics on roadside tables, sit alongside plates of smoky pork barbecue in cinder-block restaurants, and slowly sweat on the wide arms of Adirondack chairs during late afternoon breaks from the garden."

Fiber optic connections a bigger deal than hearing the Grand Ol' Opry on the radio "all the way from Nashville"

The radio seemed like a great thing at one time, but now the world is coming to Russell County via fiber optic telecommunications, because the federal Economic Development Administration will provide over $1 million in funding that "would allow Cumberland Plateau and Bristol Virginia Utilities to build the fiber-optic system along 51 miles of American Electric Power lines in Russell and Tazewell counties," as reported here and here and here.

Thursday, May 29, 2003

Accessing the Virginia State Corporation Commission cases

An article in this newsletter from the Administrative Law section of the Virginia State Bar describes the new "case docket search" feature of the online access to the State Corporation Commission. The case information page, including the link for docket searches, is here.

Environmentalists dissatisfied with strip-mining report

As stated here, environmentalists are not happy with the government's new report on strip mining. (Now, that's a news flash.) I noticed that the author of the story is a woman named Hodel. I believe that Donald Hodel was a named party when the Surface Mining and Reclamation Act went before the Supreme Court. Earlier, Judge Williams of the W.D. Va. declared the Act unconstitutional under the Tenth Amendment, which reasoning convinced none of the 9 justices when the case reached the Supreme Court (even before they decided Garcia v. SAMTA).

Ex-wife of railroad photographer Winston Link accused of selling photos she stole

This report in the New York Times and this AP report say that the ex-wife of photographer O. Winston Link is accused of selling photographs she stole from him.

Winston Link's train photos are exciting, and include many scenes from here in Southwest Virginia, including the famous "Old Maud" scene, which is where the Virginia Creeper now ends below Whitetop. (The Virginia Creeper Trail is a recreation trail made from a former railroad line that runs 30 some miles from downtown Abingdon across the South Holston through Damascus to Whitetop Mountain at the North Carolina border. Just about every lawyer or client who comes to Abingdon tells me he or she went out on the Creeper Trail.)

History of mixed-race marriage in the U.S.

This review of Race Mixing: Black-White Marriage in Postwar America by Renee Romano and Interracial Intimacies: Sex, Marriage, Identity, and Adoption by Randall Kennedy includes this passage regarding the litigants in the Loving v. Virginia case:

"But by 1967, when the Supreme Court struck down bans on interracial marriage in Loving v. Virginia, only sixteen states still had such laws. In Loving v. Virginia, a white man, Richard Loving, and his black wife, Mildred Jeter, were arrested in Virginia on the grounds that their marriage license from the District of Columbia was invalid and that they had violated the sinister-sounding Racial Integrity Act. They were given a choice of a one-year jail term or exile from Virginia for twenty-five years by the lower court judge, Leon Bazile, who declared: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.... The fact that he separated the races shows that he did not intend for the races to mix." (One wonders if conservative Virginia Christians noticed the judge's dismissal of the biblical story of the common origin of humanity in favor of the non-Christian Deist theory of "polygenesis.") In his majority opinion for the Supreme Court, Chief Justice Earl Warren ignored the Fourteenth Amendment and argued that the Virginia law violated the equal protection clause and fundamental privacy."

New software connects law enforcements from Bedford to Abingdon to Kingsport to Alabama

From a Birmingham paper comes this report on new law enforcement software that is being used to connect law enforcement offices from Alabama "along a corridor, roughly through Knoxville, Cleveland, and Kingsport in Tennessee on to Bedford County and Washington County in Virginia." (In other words, about the same story as that 500 mile-long yardsale.)

Last regularly scheduled arguments before summer in Richmond's appeals courts

This week is the last week before summer of regular arguments in the Virginia Supreme Court and the U.S. Court of Appeals for the Fourth Circuit. The Supreme Court's argument docket is here, and the Fourth Circuit's argument calendar is here.

An appeal in the Moussaoui case is being argued this in the Fourth Circuit this week, the outcome of which might be one more step towards determining whether Moussaoui will ever be tried in U.S. District Court.

Also this week in the Fourth Circuit is argument in the U.S. Cellular v. Montgomery County case, on appeal from the W.D. Va., concerning cellular tower siting, in that twilight zone where federal telecommunications law meets the state law of zoning.

In the Virginia Supreme Court, there are three cases from SW VA, including Estes Funeral Home v. Adkins from Wise County, with Carl McAfee arguing against Karen Mullins. The last time I saw Carl he was recovering from some kind of watersports injury, which says something, since he is at least 70. Carl McAfee is best-known as the lawyer for U2 pilot Francis Gary Powers (in 1961!).

Another Marylander for Marylanders protest against nomination of Claude Allen to the Fourth Circuit

As seen in How Appealing, the Baltimore Sun has this editorial protesting the nomination of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit to the seat formerly held by Baltimore's own Francis Murnaghan. The Sun opines that Allen's nomination is "an affront to the legacy of Francis D. Murnaghan Jr., whose seat on the bench Mr. Allen would fill. Judge Murnaghan, who died in 2000, was a liberal thinker, a progressive and a distinguished advocate of civil rights." The piece concludes that "Gov. Robert L. Ehrlich Jr., a Republican, should exercise whatever clout he has in the White House to put a Marylander in the Maryland seat."

I know some Maryland lawyers, but I don't know how many Republican Maryland lawyers there are, other than perhaps Judge Motz, whose wife the other Judge Motz is already on the Fourth Circuit.

Electric pole is "an improvement to real property" for purposes of Maryland's statute of repose

In Pippin v. Reilly Industries, Inc., the Fourth Circuit in a per curiam opinion for a panel including Chief Judge Wilkins, Judge Motz, and Judge C. Arlen Beam from the Eighth Circuit affirmed the trial court's ruling that an electric pole was an improvement to real property within the meaning of Maryland's statute of repose, which has language similar to Va. Code § 8.01-250.

Judge Jones orders jury trial in suit over interception, disclosure and use of telephone communications

In Quillen v. Quillen, where the case involved a husband's alleged illegal interception, disclosure, and use of the wife's telephone communications, Judge Jones of the W.D. Va. denied the parties' cross-motions for summary judgment, concluding that there should be a trial on plaintiffs' damages, and that the trial should be before a jury.

The lawyers in the case are Henry Keuling-Stout and Tim McAfee, two very strong advocates.

Gangs or no gangs, AG Kilgore declares war on them

As reported splendidly in this Roanoke Times article, "Attorney General Jerry Kilgore vowed Wednesday to 'wage war on gang activity' in communities throughout Virginia, including those that refuse to acknowledge they have a problem with gang-related crime." The Attorney General cited Roanoke as one place with gangs, but Roanoke's "police and prosecutors have consistently disputed assertions that gang activity has penetrated the city."

Two employment discrimination suits filed against the University of Tennessee

Two lawsuits against the University of Tennessee in Knoxville have been filed in state court, according to this report, one involves a professor's claim that she was denied tenure and promotion to a full professorship because she is a woman born in India, and the other involves the claim of the former Dean of the College Education that his application to serve as interim dean of College of Human Ecology was denied because of his age.

SW VA boasts of nation's best surface mine reclamation site

As reported here, SW VA's Wise County has the nation's best reclaimed surface mining site, as determined by the Interstate Mining Compact Commission.

Virginia's lieutenant governor visits SW VA outhouses

The Lieutenant Governor of Virginia, Tim Kaine, came to SW VA yesteday, as reported here, and campaigned on the need to provide indoor plumbing to all.

SOL tests to be retaken at one Wise County school

The Bristol Herald-Courier has this report on one school in Wise County where one of the Standards of Learning tests must be regiven because of some teacher error in administering the first test.

Wednesday, May 28, 2003

CSM calls Fourth Circuit "[a] court of civility and controversial conservatism"

The Christian Science Monitor has this profile on the influence of the United States Court of Appeals for the Fourth Circuit, and notes one of my favorite things about oral argument there, which is that the judges come down off the bench and shake your hand and say something friendly when the argument is over (then go back up and here the next case.) It doesn't sound like much of a thing, but I like it. Maybe Howard Bashman knows whether this is done in any of the other courts of appeals.

Judge Waymack, William & Mary Law Class of '89

As reported here, Jacqueline Waymack of Prince George's County is becoming a juvenile & domestic relations district court judge, the first woman to hold that position in her area. Ms. Waymack and a fellow from Newport News named Bryant Snapp were both appointed to judgeships this year, and both were members of my law school class.

Moonshine is bad for you

According to this report, moonshine is bad for your health. (This is not to perpetuate stereotypes and suggest there is any connection between this part of SW VA and moonshine - everyone knows that the moonshine cases are prosecuted 120 miles up the road in Roanoke.)

From Findlaw, the 22-page special interrogatory verdict form from the eBay trial

Available here from Findlaw is the verdict form from the patent infringement trial against eBay in the E.D. Va. - it is 22 pages. (I can't imagine how that would have worked around here, where 2 pages is a lot for an interrogatory verdict form.)

Yesterday's Virginia Court of Appeals opinions

In Hardesty v. Hardesty, the Court of Appeals sitting en banc in an opinion by Judge Humphreys affirmed a ruling that the wife's spousal support would terminate on her remarriage.

In Watts v. Watts, the Court of Appeals in an opinion by Judge Willis affirmed the trial court's finding of adultery, despite the assertion of the husband and his alleged paramour of their Fifth Amendment rights against self-incrimination, but reversed for recalculation of equitable distribution of the property.

More on the eBay verdict

The Virginian-Pilot has this report on the possible effects of the $35 million verdict in the E.D. Va. against eBay for patent infringement on how eBay does business.

Other articles on the case can be found here, here, here, here, here, and here.

W.D. Va.'s Judge Moon rules out evidence of phone call to gay support center in case of the murder of lesbian couple in national park

As reported here and here, Judge Norman Moon of the W.D. Va. is excluding evidence of a telephone call made by the defendant to a gay support center shortly after he allegedly murdered a lesbian couple in the Shenandoah National Park, for lack of a proper foundation that the victims had this telephone number in their possession, where the defense lawyers were calling that the defendant just dialed the wrong number.

More on the stay of execution in the Walton case

Here are additional stories in the Richmond and the Danville papers, on the stay of execution upheld by the U.S. Supreme Court of a Virginia man who was scheduled to die last night for killing three people.

Fourth Circuit remands transsexual's case back to W.D. Va.

In De'Lonta v. Angelone, the Fourth Circuit in an opinion by Chief Judge Wilkins joined by Judges Motz and King reversed the dismissal for failure to state a claim of an inmate's lawsuit for medical care, where the inmate's hormone treatment was discontinued, causing her to develop "an uncontrollable urge to mutilate her genitals." The AP has this report on the case, which will now go back before Judge James Turk of the W.D. Va.

I have to laugh thinking about Judge Turk and this case. My guess is that Judge Turk if he ever meets this plaintiff will do for her the same he would do for me or anyone else he meets, offer a handshake and say "it's good to see you." There ought to be a book about Judge Turk, a delightful man.

UPDATE - here's the Roanoke Times' take on the story.

Tuesday, May 27, 2003

Rhode Island sends a big raspberry to Duke Law Professor Walter Dellinger

As reported here, Duke Law Professor and former Solicitor General Walter Dellinger has incurred the wrath of the Rhode Island legislature, for his comments on Rhode Island's place in history.

IT director of Roanoke's Woods Rogers law firm describes firm's solution for e-mail encryption

The information technology director for Southwest Virginia's largest law firm, Woods Rogers in Roanoke, offers this case study of how the firm satisfied its need for e-mail encryption.

eBay ordered to pay $35 million in the E.D. Va. patent suit

As reported here and here and here and here and here, a jury in the E.D. Va. awarded $35 million to the plaintiff in the patent infringement lawsuit against eBay.

Former VMI superintendent Bunting named to review panel for sex harassment in the Air Force Academy

The AP reports here that Retired Army Maj. Gen. Josiah Bunting, the former superintendent of the Virginia Military Institute in Lexington, has been named along with others to a review panel that will look into sex abuse at the United States Air Force Academy.

Fourth Circuit upholds part of North Carolina's video poker law

In Helton v. Good, the Fourth Circuit upheld part and struck part of a North Carolina statute dealing with video poker machines, in an opinion by Judge Wilkinson, joined by Judge Williams. Judge Niemeyer wrote a separate opinion, concurring in part and dissenting as to the decision to strike part of the law as violating due process. The district court had found both parts of the law to be unconstitutional.

The AP has this report on the case, under the headline "Federal Appeals Court Restores Video Poker Law."

U.Va. funding to be more private than public beginning next year

According to this story in the Washington Post, the University of Virginia will reach the milestone next year where more of its funding comes from private sources than from public sources, a reflection of "the booming success of U-Va.'s private fundraising and a sharp decline in state support."

Supreme Court declines to intervene on stay of execution for Virginia inmate

As reported here in the Washington Post and here by the AP, the U.S. Supreme Court refused on Tuesday to remove the stay of execution ordered by Chief Judge Samuel Wilson of the W.D. Va. and affirmed by the Fourth Circuit in the case of Commonwealth v. Percy Walton, who was scheduled to be put to death Wednesday night. Virginia Attorney General Kilgore had asked the Supreme Court to lift the stay, arguing that "'Walton's newly-contrived, frivolous claim of mental retardation' was the first such claim and came just five days before his scheduled execution." The Post quoted Prince William County Commonwealth's attorney Paul Ebert as saying that "You're going to see this raised time and time again."

Updates on Virginia criminal procedure and domestic relations law now online

This outline by Professor Ronald Bacigal on current developments in the Virginia law of criminal procedure has been posted on the Virginia judiciary website. Professor Bacigal literally wrote the book on Virginia criminal procedure.

Also posted was this outline on recent developments in the Virginia law of domestic relations, by attorney Robert Shoun of Virginia Beach.

Considering Nevada Department of Human Resources v. Hibbs

I am puzzled by the outcome in today's decision by the Supreme Court in Nevada Department of Human Resources v. Hibbs.

The idea that Congress was acting to remedy discrimination by "the States" seems like a scam, first because certainly not all of them were engaged in such "discrimination," and second because it would not be discrimination for them to provide no leave at all. It makes sense to me that Congress has the power to prohibit discrimination by the states, but not that the Congress can require that they all should provide family and medical leave, much less than they can all be sued in federal court simply for not providing leave (without discrimination). Could the Congress require "the States" to provide day care, health insurance for specific health problems, scholarships for the children of single parents, disability and death benefits for their employees, all in the name of fighting gender discrimination? Maybe so, but I would not have thought it.

Ruby the elephant leaving LA for Knoxville despite lawsuit

The Knoxville News-Sentinel has this AP story that Ruby the elephant is en route from Los Angeles to the Knoxville Zoo, in spite of a lawsuit claiming that she should not be separated from her elephant friend in California. LA zoo officials said the environment in Knoxville would actually be better for Ruby.

Ruby the elephant in Knoxville should not be confused with Ruby the tiger, the "star" of Roanoke's Mill Mountain Zoo.

"No Child Left Behind" will cause problems for schools in Greene County, TN

A school official reported to the Greene County School Board that the new federal "No Child Left Behind" requirements will create problems for the local system, as reported here.

More on scheduled execution of Percy Walton from Danville, now stayed by the federal courts

The scheduled execution of Danville's Percy Walton was stayed by Judge Sam Wilson of the W.D. Va. on Sunday and the stay was affirmed by the Fourth Circuit on Monday, as reported here in the Richmond Times-Dispatch. The AP has this report on the stay. The Washington Post in this editorial says the execution should be stopped.

The case has drawn some national attention because Walton's lawyers are claiming he is retarded, and that his case falls within the Supreme Court's recent prohibition on the execution of the retarded.

The Danville Register-Bee has these background stories here and here and here.

Republican supremacy in Southside Virginia

In Virginia, there is the Southwest, and then there is the Southside, which in my mind is from Martinsville in the west to maybe Emporia in the east, and as this article in the Danville paper reports, like many areas in the South, it has become a Republican stronghold, after many years of supporting Democrats.

More on Judge Jones' dismissal of the wrongful death suit concerning a Wallens Ridge inmate from Connecticut

O'Donna Ramsey wrote this article on the dismissal of a wrongful death case filed in the W.D. Va. concerning the death of an inmate from Connecticut at the Wallens Ridge prison in Wise County.

Recollecting the 30 years of the tunnels on Interstate 77

One of the great civil engineering projects in Southwest Virginia was the construction of two tunnels to allow the interstate to pass through the mountains to reach West Virginia; the history of those tunnels is recalled in this account from the Bluefield newspaper.

Monday, May 26, 2003

Shifted Librarian cites Congressman Boucher

The Shifted Librarian has this post on the Digital Millenium Copyright Act, concluding that what America needs on this statute is to listen to the proposal of SW VA's Congressman Rick Boucher to amend the DMCA to restore the "traditional" right of fair use.

Justice Thomas boots question on Bush v. Gore? has this interesting post (which I picked up via the Daily Whirl) describing how Supreme Court Justice Clarence Thomas did not answer as he might have in explaining how it is that the Constitution does not guarantee citizens the right to vote in a presidential election.

The last book I read about the Bush v. Gore case was a collection of entertaining and mostly accessible essays by Judge Posner, Professor Tribe, and others called "A Badly Flawed Election: Debating Bush v. Gore, the Supreme Court, and American Democracy." I followed the Bush v. Gore case rather closely, read the appellate opinions (and some others), watched the hearings, read the transcripts (or some of them), but sometimes I come across "academic" treatments of the case that are just unreadable, either because they are so absurd or they are so obscure - perhaps my understanding is no greater than that of Justice Thomas' interlocutor, who appears to have been more on the ball than he was.

Washington Post on Bedford's D-Day memorial

The Washington Post has this story on the D-Day memorial in Bedford, and somehow it is infinitely better than the lousy article from the New York Times a few weeks ago.

Va. Tech professor suggests flashing lights that say 'please' and 'thank you' to end road rage

In case your wondering what research is being done at Virginia Tech, this report indicates a psychology professor there is working on a study of using flashing signs on automobiles saying "please" and "thank you" as a means of combatting road rage.

Struggle for Republican nomination for Senate seat in Winchester area

The toughest race of the three Senate seats for which the Republicans will have primaries is said to involve the seat of Senator Russell Potts from Winchester, whose opponent is Mark Tate, a restaurant owner from Middleburg, as reported here.

FCC rulings may come to roost in Richmond

The Richmond Times-Dispatch has this report, of all things, on the owner of the Richmond Times-Dispatch, and its desire to own a television station in Richmond, which may be allowed if the FCC changes media ownership rules.

In our area, Media General owns the Bristol newspaper and the Johnson City television station.

New book on Bedford's D-Day heroes

The Roanoke Times has this report on a new book called "The Bedford Boys: One American Town's Ultimate D-Day Sacrifice" written about the young men from the area of Bedford, Virginia, who died on D-Day.

When lower federal courts disobey the U.S. Supreme Court

Howard Bashman of How Appealing has been looking at "what could be regarded as judicial insubordination -- when a lower federal court judge asserts that his or her conscience prevents him or her from applying directly on point authority from a higher court," as in
this post.

One example, perhaps, I just read about this morning. In 1940, the Supreme Court held in Minersvile v. Gobitis that the First Amendment rights of a family of Jehovah's Witnesses were not violated when the children in school were compelled to salute and plede allegiance to the U.S. flag. In the subsequent case of West Virginia State Board of Education v. Barnette, three years later, the district court ruled against the school board - of which ruling Judge Starr in his book writes: "This was extraordinary. Federal district courts are duty-bound to obey the Supreme Court, whether they agree or not. Otherwise the system would break down. But this proved to be harmless error. For on appeal, the Supreme Court, by a vote 6-3, agreed with the contrarian district court . . . and overruled it own decision." Maybe that's what the liberal judges are hoping for in the Ninth Circuit.

Tennessee at least to be a state of which it could be said here in 1997 that "death penalty cases have largely bogged down in federal district courts for sometimes nearly a decade." The federal courts, for whatever reason, contributed to the fact that there were no executions in Tennessee for more than 20 years after the Tennessee legislature revised its laws to allow for reinstatement of the death penalty consistent with the decisions of the U.S. Supreme Court. Protesters claimed, as stated here, that the "personal bias against the death penalty" of one federal judge in Tennessee "makes him unfit to hear cases in which it is a factor." At one time, as stated here, the Tennessee Senate "passed a resolution supporting the impeachment" of the same judge because of his perceived obstructionism in death penalty cases. In 2002, Tennessee's Attorney General offered this explanation of the delay in executions in the state, explaining that apart from the role of individual judges and lawyers, "Tennessee has one of the most lengthy criminal appeals processes for death penalty cases in the United States."

Only in SW VA? Former Chapter 7 debtor running for county treasurer

Reading today's Kingsport paper, I see that one of the candidates for nomination to the office of country treasurer in Scott County is a fellow whom I believe filed for bankruptcy under Chapter 7 last September. Does it violate the Bankruptcy Code to vote against someone because of his bankruptcy?

The office of treasurer along with commissioner of revenue, commonwealth's attorney, clerk of court, and sheriff are the constitutional offices, which represent the counties but are elected separately and financed (at least in rural areas) mostly by the Commonwealth. I've always understood that when the Virginia Constitution was redone, finishing in 1971, an effort was made to reduce the number of constitutional offices, but the effort was only partly successful. A problem with these elections is that when a new sheriff is elected, for example, he can replace everybody in the office, but often the only real changes are at the top because the new sheriff needs qualified and experienced people.

Sunday, May 25, 2003

Barney Day and Patrick McSweeney both excited about the Attorney General's "morning-after" pill ruling

Or so it would appear from this commentary and this commentary, both of which suggest that Attorney General Kilgore lost some of his standing with the social conservatives among Virginia's Republicans as the result of his office's opinion regarding the dispensation of the "morning-after" pill at Virginia's public colleges and universities.

It sounds like a small matter to me. Unless I'm mistaken, there's not a Republican in Virginia who could abide Tim Kaine as governor, excepting those he is related to by marriage, which makes me think that Attorney General Kilgore will not lack for support among the faithful.

Does it take a lawyer to be a better legislator?

Former circuit court judge Verbena Askew has staked out the position in her campaign that she is the better candidate because she is a lawyer and former judge, as stated here.

Chichester-Rothfeld senate race profiled

I'm not the only one in Southwest Virginia watching these Senate races on the other side of the state, as evidenced by this Roanoke Times report on the primary contest between Senator John Chichester and his opponent, political consultant Mike Rothfeld.

Virginia FREE ratings embarrassment to Republican legislators

According to this week's column by Jeff Schapiro, Republican legislators might be embarrassed that Democrats received higher ratings from a pro-business group in Virginia.

Virginia plaintiff wins $10 million verdict against television station for defamation

As reported here, "[a] jury has awarded $10 million to a Greene County man who said Charlottesville television station WVIR defamed him in its reporting of a federal drug case." The case was tried in the Circuit Court for the City of Charlottesville. Matthew Murray represented the plaintiff, Thomas Albro represented the defendant, which plans to seek to have the verdict set aside. The AP also has this report.

President Bush's energy plan and "clean coal"

The Louisville paper has this report, headlined "Senate prepares to weigh plan that could boost coal industry," on legislation pending before the U.S. Senate that will impact the future of coal mining in the East.

Women's football in Southwest Virginia

The Richmond Times-Dispatch has this report on the Lee County Predators, a woman's football team in Southwest Virginia now playing its second season. The players are described like this:

"Among the more than two dozen players are several students and a number of teachers. One is a corrections officer, another works in juvenile probation. Others paint houses, work at fitness centers or operate their own businesses. Most are mothers, including the quarterback, a bar waitress with two children who played the first season only months after giving birth, and a florist who toils at offensive guard and has seven kids - three who are adopted and four who are foster children.

Some . . . have tattoos, others wear mascara beneath their helmets and at least three ride Harleys. But it's OK; the motorcyclists are all over 40, including Carlene Sanders, a fifth-grade teacher at Jonesville Middle School, who at 56 is the eldest of the players and the bikers."

On writing a memoir of life in Southwest Virginia

Stars Scattered Like Seeds, a woman's memoir of growing up in Southwest Virginia, is one of the books described in this article on writing about one's life.

Hunting down "old growth" trees in Southwest Virginia

The Washington Post has this report on the hunt for old growth trees in Southwest Virginia and elsewhere, and efforts to preserve them.

Evaluating drug courts

According to this report, officials in Kansas cited the success of one drug court in Virginia, in considering a similar program.

Issues surrounding prosecution of Charles Gilmore in W.D. Va.

As reported here, federal prosecutors are trying to decide whether to pursue the death penalty in the prosecution in the case of Charles Gilmore, age 72, who is charged with "masterminding a triple murder 14 years ago."

Defending the indigent in Virginia

The Daily Press has this interesting article on the problems with financing the criminal defense of the poor in Virginia. The article notes that "[t]hree separate studies are in the works, all set for release in November or December, which should give state lawmakers plenty to chew on before the General Assembly convenes in January." It also notes that "Virginia limits how much an attorney can receive for representing an indigent defendant, except in capital cases. The maximum for a serious felony charge - one with a possible sentence of more than 20 years - is $1,096. For a misdemeanor in Circuit Court that carries potential jail time, the maximum is $132."

The only way to make money on these cases is volume business, particularly when your client is charged with multiple counts, which is absurd. Anyone who thinks that Virginia lawyers should do more for the poor has never been a court-appointed criminal defense lawyer - I'd like to know how many thousands of hours go uncompensated.

SC to study race relations 50 years after Briggs v. Elliott

One of the cases which became known as Brown v. Board of Education was Briggs v. Elliott, arising out of Clarendon County, SC, and the subject of the first chapter of Simple Justice. The state of South Carolina has just announced that the University of South Carolina "will produce a $100,000 research project aimed at examining race relations in South Carolina and the status of blacks," as reported here.