Saturday, June 21, 2003

Like Butch said to Sundance - who are those guys?

How Appealing has this post and Southern Appeal has this post on the results of a survey asking Americans to name the nine members of the Supreme Court of the United States.

These stories bring to mind the joke told by Senator Wampler at the swearing-in of Judge Elizabeth McClanahan, something about the two brothers, one decided to become a missionary doctor in Africa and the other was elected Vice-President of the United States, and it was said of both when they left home to start their new jobs that they would never be heard from again. I'm not exactly sure what Senator Wampler was saying about the position of judge on the Virginia Court of Appeals, but he did say that he expected that Judge McClanahan would be heard from again.

Warner's moves to advance Virginia Tech may yield Republican votes in Virginia

This Daily Press story, via the Mercury News in California, has Professor Larry Sabato's explanation of the politics of Governor Warner's efforts on behalf of Virginia Tech, including the thesis that U.Va. people are all Democrats, already in Warner's base, but the Tech people are all rural and Republican, and Warner can make some new friends by coming through for the Hokies.

How Hampden-Sydney continues to thrive as an all-male college

Virginia's Hampden-Sydney College continues to operate as one of three all-male colleges in the United States, and its story is the subject of this profile in Sunday's Washington Post, which mentions the not insignificant fact that there are several all-female schools nearby.

Professor Whitebread weighs in on picking the jury in the Malvo case

University of Southern California law professor Charles Whitebread has this article in the Washington Post, expressing his views on what really is required in terms of a fair and impartial jury, against the backgrounds of the accused sniper Malvo's efforts to have his jury trial moved from Fairfax County.

In particular, he contends: "Most damaging to the criminal justice system and society, however, has been the effort by some courts in high-profile cases to sanitize the juries by excluding all prospective jurors who have any prior knowledge of the case. In the Rodney King police brutality case, for example, videotapes of the beating were aired on television for several months. Prospective jurors were excluded from being seated if they admitted that they had seen those tapes and had formed an opinion about them. It is difficult to imagine anyone not seeing those tapes in 1992 or, having seen them, not having an opinion. Even former President Bush said the tapes 'made me sick.' The exclusion of all 'tainted' jurors in the Rodney King case did nothing more than produce a jury totally unrepresentative of the nation and the community in which the beating took place."

Professor Whitebread is kind of a theatrical, bow-tie wearing character, or at least he was in the summer of 1989 as one of the bar review lecturers in Washington, D.C., when the assembled masses including myself laughed at his many wild tales delivered in between lectures on the criminal law (or whatever it was that he was teaching).

Jerry Falwell's explanation of how he got back

Jerry Falwell, the Baptist minister from Lynchburg, explains here the legal strategies he employed in an effort to wrest from one of his opponents the use of ""

Lynchburg attorney wins Legal Aid award at VSB conference

The Virginia State Bar met again in Virginia Beach this past week. It will be interesting to find out how many people were there. After last year's meeting, Virginia Lawyers Weekly wrote that fewer that 600 of Virginia's 30,000 lawyers attended in 2002, and the event was more likely than lot a financial loser for the Bar.

Two good things about the state bar's annual meeting are the awards for lawyers serving the poor and for the lawyers who have been members of the Bar for 50 years. This article profiles this year's winner as Virginia Legal Aid lawyer of the year, a woman practicing in Lynchburg.

Town of Pulaski down to one operable taxi cab

As reported here by the AP, the town of Pulaski in Southwest Virginia has only one working taxi cab, which is a big deal because many residents depend on taxis. Part of the problem is said to be that Medicaid-reimbursements are too law. There are more than a few cab drivers in Southwest Virginia who make their living off government money, driving the elderly to and from doctors' offices.

ACC still can't choose between Plans A, B, and C, some still like Plan D

The Richmond Times-Dispatch seems to be saying here that the members of the ACC should give up the whole idea of expansion and try to regain some of their lost dignity.

Meanwhile, ESPN has this story that no decisions were made today by the ACC presidents, who discussed three different scenarios - one adding only Miami, one adding three Big East schools (Miami and two others from among Tech, Syracuse, and B.C.), and one adding all four schools, including Virginia Tech.

This later story from the AP says that the ACC presidents had such a good meeting they might get something done by the end of the month, before the price of leaving the Big East goes up for any schools wishing to join the ACC.

Who made Congressman Goodlatte the engineer on this project?

This editorial in the Richmond Times-Dispatch points out correctly that the recent pronouncements by Congressman Bob Goodlatte about the expansion of Interstate 81 appear to be the Congressman's own layman's view of how to build a project that will cost billions, and that's no way to decide the issue.

Then again, recalling for example this editorial in the Virginian-Pilot, maybe we should let the politicians figure out the details of road projects, since that worked so well for VDOT in the 1990s.

I'm hoping that when they start all this expansion on the Interstate, they begin at Winchester and work their way south, so maybe I'll be too old to drive before the work reaches Southwest Virginia. After all, the work done widening Interstate 81 to six lanes around Bristol for less than ten miles above the Tennessee line only took about 5 years, as reported here, and it's 280 miles from here to Winchester. At the rate of two miles per year, if they started now, they might get as far south as Harrisonburg by the time I'm 80 years old.

Opponents of new gas pipeline in SW VA never quit

Perhaps inspired by Virginia Tech's (apparent) reversal of fortune, opponents of the gas pipeline that will cross the New River in Southwest Virginia continue to lobby Virginia government officials against it, even though the pipeline has been approved by the Federal Energy Regulatory Commission (FERC), as reported here and here in the Richmond paper and here in the Roanoke paper.

The gas-pump girl of Virginia

Every gas pump in Virginia bears a decal with a menacing young trooper and a picture of a driver's license, with the warning that driving off without paying for the case can result in losing your driver's license. The photograph on the fake driver's license is of an actual employee of the Virginia Department of Motor Vehicles, the same woman who put out this press release about the program, and she is known to her friends as "the gas-pump girl," as reported here in the Richmond Times-Dispatch.

$1.5 million awarded in medical malpractice case in Richmond

A jury in the Circuit Court for the City of Richmond awarded $1.5 million in a medical malpractice case involving the death of a 19 year-old man, where the issue was the defendant doctor's failure to give proper treatment to keep the young man breathing during a severe asthma attack. The Richmond Times-Dispatch has this report. Lawyers for the family were William Kilduff and Craig Davis.

State Corporation Commission orders liquidation of Reciprocal of America

On Friday, the Virginia State Corporation Commission ordered the liquidation of the Reciprocal of America, as reported here by the AP and here by the Daily Press. The SCC's order is available here, and provides among other things that all the direct insurance policies are cancelled.

Reciprocal of America provided malpractice liability insurance for hospitals in several states. It was also a reinsurer for Doctors' Insurance Reciprocal (DIR) and American National Lawyers' Insurance Reciprocal (ANLIR), which sold malpractice insurance for doctors and lawyers respectively. Earlier this month, a court approved the liquidation of ANLIR by officials of the Tennessee Department of Commerce. ANLIR provided malpractice for more than 14,000 attorneys, including several thousand in both Virginia and Tennessee.

What remains unresolved is how what assets remain in the Reciprocal of America and whether ANLIR (and DIR) will be allotted a portion of those assets based on the moneys paid in for lawyers and doctors, or whether those assets will go first to the hospital claims, which will leave nothing for the doctors and lawyers.

A class action lawsuit brought on behalf of ANLIR insured lawyers raising all kinds of claims has been filed in the United States District Court for the Western District of Tennessee at Memphis.

Declaring a winner in the Iced Tea Wars

A columnist in the Kingsport Times-News in this column declares Kingsport's own award-winning Pal's Sudden Service as the winner in the Tea Wars with McDonald's and Burger King.

I agree completely. Who can resist a place with a Hamburger Man like this?

Tri-Cities dissolved into three MSAs

The Northeast Tennessee/Southwest Virginia area that used to be one metropolitan statistical area of some 480,000 has been split into three MSAs by the federal government's Office of Management and Budget, with the result, as stated in this Kingsport Times-News article, that "[i]f the data continues to be published on an MSA basis, which is the tradition, we've disappeared," quoting a local economist.

What does an unopposed incumbent do in an election year?

The Kingsport Times-News has this article describing the plans of Delegate Terry Kilgore, who like Senator William Wampler, Jr., is unopposed in his re-election campaign this year.

Friday, June 20, 2003

Fairfax County judge rules for defendants in software trade secrets case

As reported here, Judge Langhorne Keith of the Circuit Court of Fairfax County decided in favor of the defendant Actuate and two individuals in a trade secrets case that was the subject of a five-week bench trial.

Virginia has adopted the Uniform Trade Secrets Act, which means that case law from all over is in play. I have tried to use a time or two when employees ran off with the "crown jewels" but had no non-compete/non-disclosure agreement with the company. The problem is, the crown jewels aren't always trade secrets, as defined under the Act.

Bigger than the Beatles - Tiger Woods loses IP case in Sixth Circuit

Citing cases involving Babe Ruth and Elvis Presley, the Sixth Circuit refused to conclude that Tiger Woods is a "walking, talking trademark," in the case of ETW Corp. v. Jireh Publishing, Inc., decided today.

Making no representations about web traffic

Wow, I would tell you how many people have come to my site today from Bill Hobbs Online (and thank you, Bill) but I wouldn't want anyone to actually rely on those figures, which is part of the reason why people are so mad about Worldcom, as reported in this article, which says of the consequences of Worldcom's overstatement of its Internet traffic that "[w]hile WorldCom reaped tremendous financial rewards from the investment community for its false reports of business growth, the entire industry and investing public were harmed as WorldCom’s false traffic numbers led to irrational and unjustified investments and the current fibre glut, claims AT&T, which estimates that the total bubble – and resulting bust – reached $1 trillion at its height."

Alternate Realities Conference - the truth on UFOs, Big Foot, etc., is out there at Roan Mountain next weekend

The Kingsport Times-News has this report on the upcoming Alternate Realities Conference to be held at Roan Mountain June 27-29, with the following on the agenda:

"Featured speakers will include Sherry Lee Malin, Adam Sorg, Michael McDonnough, Pat Fitzhugh, Constance Clear, Earle Benezet, Beth Rigby and Jeffrey Morgan Foss.

Malin will speak about her personal experiences with "the Tennessee bigfoot."

Sorg will present "Spook Lights: The Great Earth Lights Mystery."

McDonnough will present his ideas on "Advanced Alien Technologies."

Fitzhugh will discuss "the Bell Witch of Tennessee" and "the Bell Witch Haunting."

Clear will speak about her book, "Reaching For Reality: Seven Incredible True Stories of Alien Abduction."

Benezet will present a lecture on "UFOs - Past, Present and Future."

Rigby will teach the art of "Global Dance: Where Yoga Meets Dance."

Foss will elaborate on "The Road to Open Contact: An Experiencer's Life-Long Revelation."

Walton, who travels extensively throughout the United States, will share his story [about being abducted by aliens]."

Questioning the verdict forms in death penalty cases in Virginia

The Virginian-Pilot has this interesting article on whether the verdict forms used in death penalty cases are too confusing for jurors, to the point of legal error. The issue is one being raised by lawyers representing a man scheduled for execution on July 1. The AP has this report on the arguments of counsel trying to save death row inmate.

Caroline County lawsuit over racism in picking monuments dismissed

As reported here in the Richmond Times-Dispatch and here by the AP, a state court judge has dismissed the NAACP's lawsuit claiming racism in the selection of monuments on the courthouse lawn in Caroline County.

Where's the tobacco?

There might be no tobacco in West Virginia, at least none that Brian Peterson has seen, but what we have in Southwest Virginia is being overcome by all the rain, as reported here.

In Southwest Virginia, looking at the tobacco along the road is one of those ways you measure the drought, when there is a drought, as in "geez, the tobacco looks lousy, it must be really dry."

Going nuts in Blacksburg and Charlottesville

As reported here in the Roanoke Times and here in the Daily Press, the prospect of being invited to join the ACC has got them scratching their heads at Virginia Tech, but the thinking seems to be that they probably could live with a bit of egg on their faces (if it meant they ditch their friends in the Big East but get to stay in the BCS).

The Washington Post reports here that Virginia Tech will decide whether to go for it with the ACC, as soon as today. The Richmond Times-Dispatch reports here that Virginia Tech has already told the ACC it is willing to listen to whatever the ACC has to say. Times-Dispatch columnist Bob Lipper has this assessment of the pros and cons for Tech. The Roanoke Times' Doug Doughty also writes here that Tech should go for it.

The Virginian-Pilot has this excellent story on the role of Virginia Governor Mark Warner in making sure that U.Va. president John Casteen took care of Virginia Tech in his dealings with the ACC on expansion.

County clerk wins payroll dispute, attorney's fees top $150,000

On the Tennessee side, the Washington County clerk sued for more money for office staff, the case was litigated all the way to the Tennessee Supreme Court, the clerk won, and the county must pay the extra wages plus the attorneys' fees for both sides, which were $150,000, as reported here in the Kingsport paper.

On the recusal of judges

While the Eleventh Circuit ponders the strategic use of a judge's nephew to displace the judge, as Howard Bashman reports here, in Bristol, Circuit Court Judge Flannagan has recused himself, apparently on his own initiative, from a case involving the City because his new next-door neighbor is the mayor, as reported here.

The judges in Southwest Virginia, state and federal, are likely to recuse themselves before the litigants even ask, if they can see some way it might look unfair for them to decide a case, and that's a good thing, even though sometimes it's a bummer because I want the judge to stay on. I can't remember ever asking a judge to give up a case, except once in a criminal case where Judge Flannagan ruled that it was no grounds for recusal that he had sentenced my court-appointed client a time or two (or more) previously. In that particular case, I probably should have tried the argument attributed to Judge Birg Sergent, when he was practicing, who supposedly once said something like this: "Judge, you've sent the defendant to jail several times now, and that's not worked out too well, so isn't it time that you tried probation?"

The 130 Virginians sued by DirecTV part of 5,000 lawsuits filed nationwide

As reported here, the DirecTV lawsuits filed across America number roughly 5,000. In May, I put up this post on the Virginia cases, which involve 130 defendants in 40 different suits in federal courts across the state.

Since they are all in federal court, it wouldn't surprise me if DirecTV tried to have them all consolidated via the multi-district litigation statutes, and see whether consumers were willing to show to fight out pre-trial motions in some district hundreds or thousands of miles from home.

That's sort of what happened in the UMWA Funds evergreen litigation in 1993, the trustees sued coal companies all over then got the cases transferred for pre-trial proceedings to the District of Columbia (and none made it back to where they were filed originally).

Nobody in Europe ever won an NCAA title, plus no Blumenthal there

The ACC does have its Krzyzewski, but as Rule of Reason points out here, "it's apparently easier to add ten nations to the European Union than it is to add three (or four) colleges to the Atlantic Coast Conference." Rule of Reason also predicts that the lawsuit in Connecticut will not soon go away, so long as "Connecticut's rabid-dog attorney general, Richard Blumenthal" is driving the bus.

Senator Allen used a similar analogy in this Virginian-Pilot article, in which he is quoted as saying: "I've found the process of bringing nations into NATO simpler and cleaner than the acrimonious process that we've been through with the ACC and the Big East."

Thursday, June 19, 2003

More on why I want to cite unpublished opinions

Having been discovered by Crescat Sententia, I discovered there another opinion against citation to "unpublished" case law. And so, notwithstanding my earlier post on this subject, here is another:

One of the points W. Baude makes is that allowing the use of unpublished cases favors the rich lawyers and the big firm lawyers. I disagree. My firm is small, I'm not rich, and I'm no research wizard, but I can find cases. The computer is a great equalizer as to all that is on Westlaw or Lexis or even footloose on the Internet. The difference between my research and that of some big firm (or the government, or big corporations) is that they have access to the really "unpublished" opinions and orders (from trial courts, mostly) not to be found in any public database, because they are litigating the same narrow issues everywhere. (For example, in one case years ago, in-house counsel with a big national organization sent me about a dozen preliminary injunction orders from similar cases the same client had litigated all over America.) Fortunately, courts like the W.D. Va. are making more opinions available online, even if they are not "published," and you can bet I read them all. It is my view that allowing citation to unpublished opinions, coupled with open access to those opinions, has a democratizing effect - I here in the hills can find that "golden" case from Alaska (for what good it might do in helping me convince some judge in Virginia).

One area in particular where I have tried to cite unpublished cases, over and over and over, is where the issue is qualified immunity in a section 1983 case, and the question before the Court is about the state of the law at the time the defendant acted, whether the plaintiff's constitutional rights were clearly established at that time. Unpublished opinions, even if they are wrong and ill-conceived, can be pretty good "evidence," in my view, that the law was not clearly-established - if appellate judges, even on a bad day, don't see the constitutional right at issue as clearly established, how can my client be on notice that their actions would violate this plaintiff's rights?

The late Judge Murnaghan (who made a great impression on me) wrote in the Wilson v. Layne case that unpublished opinions should not be considered on the issue of qualified immunity, because "it is well known that judges may put considerably less effort into opinions that they do not intend to publish." In particular, he expressed the concern that "[b]ecause these opinions will not be binding precedent in any court, a judge may be less careful about his legal analysis, especially when dealing with a novel issue of law." I can't disagree with what Judge Murnaghan says about about how judges work, although some say the primary function of the unpublished opinion is to allow judges and their staffs to devote more time and attention to the cases that require more intensive legal analysis, without depriving the litigants of an explanation for the decision. See POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM (1996) at page 169. An opinion dealing with a “novel issue of law” would seem to be of the very kind that requires "more intensive legal analysis," whether it gets published or not, and when qualified immunity is raised, the novelty of the constitutional issue is precisely what the defendant must argue in support of the defense.

More on Choose Life license plate in Tennessee

Bill Hobbs has got it figured here that "Gov. Bredesen, a Democrat, is pandering to the pro-abortion segment of his base, by fulminating against the 'Choose Life' license plate, while avoiding a veto that would anger pro-life Tennesseans who voted for him."

I agree with that, as in this earlier post comparing Bredesen with Governor Warner.

Before getting to that point, Bill Hobbs said also that a lawsuit over the "Choose Life" license plate "would fail - as it has in other states." One state where that kind of claim did not fail is South Carolina, where Judge Bertelsman (from Kentucky) ruled the license plate was unconstitutional in Planned Parenthood v. Rose, 236 F. Supp.2d 564 (D.S.C. 2002), and that is the case that Governor Warner cited here.

Man wanted in Stafford County may now be a woman

If law enforcement was not complicated enough, there is this story from the Free Lance-Star, about a man who committed some crimes but now that he is a fugitive has become a woman named Jennifer, who stands 6'4", which makes her the same height as Rebecca Lobo.

Bedford's D-Day Memorial gets out of bankruptcy court

The AP has this report on the conclusion of the bankruptcy case of the D-Day Memorial in Bedford, still one of my favorite things.

SW VA's own Jerry Falwell gets rights to without litigation

This press release describes how Jerry Falwell, the Baptist minister from Lynchburg, got the rights to, without litigation.

Fourth Circuit affirms dismissal of complaint about bizarrely-drawn Congressional district

In Duckworth v. State Administration Board of Election Laws, the Fourth Circuit in an opinion in an opinion by Judge Luttig joined by Judge Michael and District Court Judge Goodwin affirmed the dismissal of a claim about the bizarre shape of a new Congressional district in Maryland, concluding that the district court's reasoning was wrong but the outcome was right because the pleadings failed to sufficiently state the second element of a political gerrymandering claim, "actual discriminatory effect."

Having fun with the blogs I read

Curmudgeonly Clerk says here that the information on this site is "frighteningly detailed," which sounds like a judge commenting on some of my briefs. In particularly, when I told one judge that even my wife saw the contradiction in calling something 100 pages long a "brief," he replied, "did she also say what would be perfectly obvious to everyone else, that there's no way you can expect the judge to read all that?"

I thank you, and likewise state that I enjoy the work of the Clerk, although his (and anyone's) references to the work of Yale Professor Judith Resnik kind of freak me out, since the only Judith Resnik of whom I was previously aware was the astronaut.

As further evidence of my state of being unread in every sense of the word, Tim Sandefur's Nietzsche references make me think mostly of the philosophy of Ray Nitschke, as documented in this video called "Building the Perfect Beast."

Finally, on the theme of nonsense and sports, I was shocked, shocked, to learn that Howard Bashman is taking his son to the Vet in Philadelphia this afternoon (weather permitting - the game was in the third inning with no rain last I heard) and they are rooting for the Braves!

Former judge Askew seeks dismissal of bar ethics complaint brought by Sen. Stolle

As reported here, counsel for former Circuit Court Judge Verbena Askew has written to the State Bar seeking dismissal of the ethics charge against her on the grounds that she never lied when she said she had not been a party to the lawsuit, in the sense that the Title VII complaint of the woman who claims she was sexually harassed by Askew had only reached the stage of an administrative proceeding.

The Daily Press also has this transcript of the Courts of Justice hearing in the General Assembly on Judge Askew from earlier this year.

VEC cracks down on misuse of wage database to collect criminal fines

As reported here and here, the Virginia Employment Commission is prohibiting the disclosure of wage data to Commonwealth's attorneys who have been handing that information to private counsel to use in collecting fines.

Tidewater jury awards $785,000 in case of child injured by drunk driver

A jury has awarded $785,000, including $500,000, in the case of a child who suffered permanent brain injuries as the result of an automobile accident caused by a drunk driver, as reported here. The punitive damages will be reduced to the statutory cap, which is $350,000.

More on Smart Tags and privacy

Professor Robert O'Neil is among those weighing in this article on the continuing controversy over the exchange of information gleaned from the use of Smart Tags, electronic devices for payment of highway tolls, between the Department of Transportation and law enforcement officials.

State trooper found liable in state court sexual harassment suit

According to this report in the Richmond Times-Dispatch, a Richmond circuit court jury entered a verdict of $100,000 compensatory damages and $150,000 punitive damages against a Virginia state trooper for repeatedly sexually harassing a female motorist.

Lawsuit filed in E.D. Va. challenging new Virginia abortion law

The AP reports here that a lawsuit has been filed in U.S. District Court for the Eastern District of Virginia in Richmond challenging the constitutionality of the new Virginia abortion law, which takes effect on July 1.

Breaking the logjam - ACC offers to add Virginia Tech along with others

Apparently, a move is afoot for the Atlantic Coast Conference to include Virginia Tech in its expansion plans, which would allow U.Va. president John Casteen to support the expansion, give the ACC enough votes to move, eliminate one big player in the Big East lawsuit (and further dilute the money per school in the new ACC.)

From the Roanoke Times: "Source: ACC opts to consider Virginia Tech"

From the Washington Post: "ACC Will Reconsider Hokies for Expansion - Adding Virginia Tech Would Make It a 13-Team League"

From the Daily Press: "Tech back in ACC expansion picture - School being reconsidered as a 13th member"

From the Charlottesville Daily Progress: "Lucky 13? ACC presidents discuss Tech"

From the Richmond Times-Dispatch: "Is Tech back in play for ACC?"

From the Atlanta Journal-Constitution: "Hokies back on ACC list"

From the Charlotte Observer: "ACC reconsiders Va. Tech - School president expected to speak with board before responding"

From the Durham Herald-Sun: "Expansion: More talk, no vote"

From the Duke Chronicle: "Report: ACC will invite V.T. to join"

From the Hartford Courant: "ACC After Va. Tech - Big East Facing 4-Team Exodus?"

From the Miami Herald: "Option play: ACC to add Va. Tech? - A 13-team conference now a possibility"

From the Pittsburgh Post-Gazette: "Virginia Tech key to solid Big East"

From the Charleston WV Daily Mail: "Virginia Tech ACC's next target"

Wednesday, June 18, 2003

Virginia State Bar rules against law firm ads using Man from U.N.C.L.E

According to this report in the Richmond Times-Dispatch, the Virginia State Bar has concluded that the television ads of the Richmond-area Marks & Harrison firm, featuring actor Robert Vaughn (who also starred as the client of lawyer Paul Newman in "The Young Philadelphians") are misleading "because they imply that cases are decided on something other than their merits." First Amendment expert and University of Richmond law professor Rodney Smolla is representing the law firm, and he said that "the First Amendment protects the use of humor and parody in the ads of law firms, just as it does in ads for other services."

In The Young Philadelphians, Vaughn is accused of murder, the butler among others testifies against him, and the Newman character tricks the butler on cross-examination into saying that gin is tap water, drawing a sputtering objection from the prosecutor. (I never saw anything like that the one time I was spectator in the Philadelphia courtroom of Judge Norma Shapiro.)

French horn player settles lawsuit against Roanoke Symphony

The Roanoke Times reported this morning on the settlement of the breach of contract claims of a French horn player who was discharged from her employment with the Roanoke Symphony Orchestra, apparently for "bad performance."

Reading earlier reports about the case made me wonder whether if the case was tried, the plaintiff would be allowed to bring her horn to court, play a few pieces, and have an expert opine on whether her playing was good. (I guess not, but when I was in high school, I spent a few days doing just that, under rules like these.)

Whose turn is it to say the Congress isn't supposed to do anything here?

Tim Sandefur's explanation of the limited role of the Senate with regard to the confirmation of judges sort of reminds me of the characterizations by others of the limited role of the Congress in the impeachment of presidents, basically that within pretty wide boundaries there is nothing for Congress to do.

In the recent case of the new judge in the E.D. Tenn., the Senate did nothing in record time, as he went from nomination to confirmation in about two months. I guess the Democrats have long since written off Eastern Tennessee.

Why would anyone want to cite unpublished decisions in Virginia

The Curmudgeonly Clerk says here that he (or she, for all I know, but can there be a female curmudgeon?) doesn't like the new rule in the works on citation to unpublished authority, cited here by How Appealing.

There must be 50 opinions put out by the Fourth Circuit so far this week, and I don't think it is much of a stretch to say that at least 40 of them could never be cited because they don't say anything, or they say almost the same exact thing as the other non-substantive per curiam opinions disposing of like cases for the same reason. It is also possible for the appeals court to write about the facts of a case at length without saying anything new about the law, as in this Cooper case (one of my personal favorites), which will never get cited other than for the fact of the outcome.

In Virginia, sadly, we need all the law we can get. The 200+ years of work of the Virginia Supreme Court fit into less than 300 tidy little volumes, and the publication of trial court opinions is better than ever but sporadic and erratic and unofficial. The federal court opinions are too often the only source of authority on a question of Virginia law which the Supreme Court has not addressed. (This is in contrast to, for example, Howard Bashman's Pennsylania, where there are collections of trial court opinions for almost every county, and some odd statewide collections of trial court opinons, and two intermediate appeals courts which together have much broader jurisdiction that does the Virginia Court of Appeals.)

Of course, the federal courts sometimes get it wrong, in their attempt to guess what the Virginia Supreme Court might do. In the last ten years, for example, district courts have guessed wrong about direct claims by minority shareholders, compare Byelick v. Vivadelli, 79 F. Supp.2d 610, 625 (E.D. Va. 1999) (minority shareholder “has a cognizable claim against an inside director for breach of fiduciary duty”), with Simmons v. Miller, 261 Va. 561, 576, 544 S.E.2d 666, 675 (2001) (no such claim); medical write-offs, compare Mitchell v. Hayes, 72 F. Supp.2d 635, 637 (W.D. Va. 1999) (write-offs “do not represent actual loss”), and Acuar v. Letourneau, 260 Va. 180, 192, 531 S.E.2d 316, 322 (2000) (write-offs are recoverable); negligent retention, compare, e.g., Frye v. Virginia Transformer, 1995 WL 810018 at *4 (W.D. Va.) (negligent retention “is not recognized in Virginia”), and Southeast Apartments Management, Inc. v. Jackman, 257 Va. 256, 260, 513 S.E.2d 395, 397 (1999) (recognizing negligent retention); and crashworthiness, compare Euler v. American Isuzu Motors, Inc., 807 F. Supp. 1232, 1236 (E.D. Va. 1992) (Supreme Court “would adopt the ‘crashworthiness’ doctrine”), and Slone v. General Motors Corp., 249 Va. 540, 525, 457 S.E.2d 51, 53 (1995) (“we reject this doctrine”). On issue after issue, as these examples demonstrate, the law builds up first in the federal courts, then the Virginia Supreme Court comes along and either agrees or not, but until that happens, those federal opinions (including opinions from the court of appeals) really hit the spot for lawyers litigating those unresolved issues.

Hearings for Fourth Circuit nominee Allyson Duncan next week

How Appealing links here to this article in the Raleigh paper which says that confirmation hearings for Allyson Duncan, nominated to the U.S. Court of Appeals for the Fourth Circuit by President Bush, will begin next week.

Next week is also the week of the Fourth Circuit judicial conference, perhaps the Senate will finish with Ms. Duncan in time to make her way to the Homestead.

Interesting appeals granted in the last month by the Virginia Supreme Court

Among the cases in which the Virginia Supreme Court has recently granted petitions for appeal are the following:

HARRISON-WYATT, LLC v. DONALD RATLIFF, ET AL. - this is the coalbed methane case from Buchanan County, in which the plaintiff landowners prevailed when Judge Keary Williams concluded that the rights to the methane in the coal were not conveyed with the coal rights

MERRY CHRISTINE PEASE v. COMMONWEALTH of VIRGINIA, this is the celebrated case of the wife accused of murdering her husband, now on appeal to the Supreme Court for the second or third time, with issues including the failure of the trial court to disqualify the special prosecutor, Tim McAfee

DOGWOOD VALLEY CITIZENS ASSOCIATION, INC. v. JEROME W. HATCHER, ET AL., where the issues have to do with the liability under Virginia law of directors of corporations

THOMAS W. DANA AND CONLEY J. HALL v. 313 FREEMASON, A CONDOMINIUM ASSOCIATION, INC., which appears to be about who can be liable for what in connection with the sale of condominium property

JAMES PAUL VENABLE, JR. v. COMMONWEALTH OF VIRGINIA, where one of the claimed errors is that "The Circuit Court erred by ordering a polygraph examination while the case was pending which required the petitioner to answer incriminating questions, the answers to which were to be forwarded to the Court"

THOMAS MICHAEL HOLSAPPLE v. COMMONWEALTH OF VIRGINIA, involving a conviction under Va. Code 18.2-200.1, which criminalizes fraud by construction contractors

BARTER FOUNDATION INC., ET AL. v. GORDON L. WIDENER, ET AL., which involves a dispute over ownership of property in downtown Abingdon, Virginia

VOLKSWAGEN OF AMERICA, INC. v. ASBURY W. QUILLIAN, AND MILLER AUTO SALES, INC. , which involves some kind of constitutional challenge to a statute regulating the auto sales industry

DANIEL E. HINES V. JOHN R. KUPLINSKI, ADMINISTRATOR, which has Bill Poff from Roanoke in some kind of habeas corpus proceeding arising out of an Eastern Virginia county, all of which makes me think the case is likely to be interesting, even if I can't figure out much from the website.

Valuing for sentencing purposes false statements made to a financial institution

In Elliott v. U.S., the Fourth Circuit in an opinion by Judge King joined by Senior Judge Hamilton and District Court Judge Payne from the E.D. Va. held, among other things, that in putting a dollar value for purposes of calculating the sentence of the defendant on her charges of making false statements to a financial institution, the measure of the loss was not limited to the loss of the financial institution (which was 0) but also included the loss of the individual bank customer on whose account the forged checks were drawn, in the face amount of the checks.

(Of course, I'm wondering whether the victim had a claim against the bank for honoring those forged checks.)

Appealability of issue of failure to give reasonable notice of seeking death penalty in federal criminal case

In U.S. v. Ferebe, the Fourth Circuit in an opinion by Judge Luttig joined by Judge Michael held that the defendant facing the federal death penalty could take a collateral order appeal of the timeliness of the notice in advance of trial from the U.S. Attorney's intention to seek the death penalty. The majority remanded the issue for reconsideration on the merits of the notice issue. Judge Niemeyer dissented, concluding that there was no appellate jurisdiction.

I guess I'm missing something here, but I would have thought that the question of appealability would be resolved much in the same way as appeals based on violations of the Speedy Trial Act, which the U.S. Supreme Court has apparently cannot be taken pre-trial because the prejudice cannot be measured in advance. Somewhat similarly, I would have thought that the reasonableness or unreasonableness of the pre-trial notice would best be measured after the fact, when the parties could point to what actually happened at trial in arguing whether the timeliness of the notice was reasonable or not in its effect on the ability of the defendant to prepare for trial. (In other words, I think I'm with Judge Niemeyer.)

SW Va's Congressman Boucher stops short of calling Senator Hatch an idiot

A widely-published AP report in today's newspapers describes how Senator Orrin Hatch has the notion that computers used for illegal downloads should be remotely destroyed, and the counterpoint cited is Congressman Rick Boucher from Southwest Virginia's Ninth District, who says that he urges the senator to reconsider because other people might think he is serious. An industry spokesman described Hatch's proposal as "metaphorical," perhaps as in the old joke, "Q: what's a metaphor? A: A place for cows to eat and sleep, etc. . . ."

Congressman Boucher and Senator Hatch were also in the news together earlier in the month, as Congressman Boucher (taking a different view than most House Democrats) is one of the co-sponsors of the House bill regarding class-action lawsuits, as reported here in the NY Times, and class-action suits may be a topic on which Hatch and Boucher are more likely to agree.

On tobacco's snuffing out at the race track

The Washington Post has this article on the replacement of R.J. Reynolds Tobacco with Nextel Communications as the principal sponsor of NASCAR.

I'm appalled that the deal between Reynolds and NASCAR is coming to an end. A sponsorship deal with a telecommunications firm usually means the sponsor is about to go broke - like Adelphia in Nashville or Enron in Houston. The words "Winston Cup" never made anyone want to light up a cigarette, but they might have inspired a few people to become race car drivers or go to the races.

Tennessee governor unlike his Virginia counterpart decides not to veto Choose Life license plates

Governor Phil Bredesen of Tennessee decided not to veto the new statute providing for "Choose Life" license plates in Tennessee, as reported here in the Kingsport Times-News and here by the Knoxville paper, which makes him either bolder or less bold, shrewder or less shrewd than Virginia's Governor Warner, who explained here his veto of similar legislation in Virginia - but of course Bredesen, unlike Warner, can run for re-election.

On the need for shorter complaints - from Findlaw

This article on why plaintiffs file too-long complaints is right on the money.

The longer I'm a lawyer, the more I think that less is more, in pleadings, briefs, and trials - which reminds me of a joke I heard about the lawyer who files his brief at the last minute and says, "I'm sorry, your Honor, I didn't have time to write a shorter brief."

I have a federal case going now where the other side is claiming fraud and the other is claiming defamation, so on the pleadings, I was arguing their fraud claim is no good because it was not stated with particularity under Rule 9, but on our defamation claim, the Virginia rule requiring pleading with particularity does not apply, and so our claim is good even if it is missing a few details which can be fleshed out in discovery.

Taxation and equal protection - Sixth Circuit upholds challenge to different treatment of money damages for physical injuries

In employment cases involving no personal injuries, one tricky element of every settlement is dealing with Uncle Sam - figuring out the role of the IRS. Contrary to the expectations of the plaintiff, he or she may have to pay taxes on the full amount of the settlement, and the employer may be required to withhold taxes from the settlement amount as if it was a paycheck. When plaintiffs realize this they sometimes throw a fit, or, as in the case of Young v. U.S., file a lawsuit. In the Young case, the plaintiff settled with his employer for $60,000, the employer withheld payroll taxes and paid the rest of the settlement to Young, who then "sought a tax refund from the Internal Revenue Service on the theory that the relevant tax statute, 26 U.S.C. § 104(a)(2), is unconstitutional." Section 104 "exempts from the calculation of gross income the amount of any damages received 'on account of personal physical injury or physical sickness' but does not exempt payments for non-physical injuries or non-physical sickness," and Mr. Young "argued that the distinction between physical and non-physical injury violates the equal protection component of the Fifth Amendment," and also that "because the money he received under the settlement cannot be considered 'income,' the statute creates a 'direct tax' in violation of Article I, § 9 of the United States Constitution." Unsurprisingly, the Sixth Circuit rejected these arguments without much discussion.

Railroad workers' walk-out enjoined by W.D. Va.

The Roanoke Times has this story on Norfolk Southern workers who walked off the job briefly on Tuesday before a federal judge from the W.D. Va. entered a temporary restraining order sending them back to work. The issue is whether the company can use non-union labor for certain work.

Tuesday, June 17, 2003

Fourth Circuit remands section 1981 claim, affirms dismissal of negligence claims, reverses on wrongful discharge claims

In McLean v. Patten Communities, Inc., the Fourth Circuit in a decision by Judge Widener joined by Judge Niemeyer reversed summary judgment on the employment discrimination claims of the plaintiff under 42 U.S.C. 1981, affirmed summary judgment on the plaintiff's claims of negligent retention and supervision under North Carolina law, and reversed summary judgment on the plaintiff's wrongful discharge claims under North Carolina law. Judge Traxler dissented in part, on the negligence claims.

On the section 1981 claim, the panel remanded the case for reconsideration of the claim in light of the Court's decision in Spriggs v. Diamond Auto Glass, 165 F.3d 015 (4th Cir. 1999). In Spriggs, the Court apparently held that an at-will employment relationship is enough of a contract to support a section 1981 claim.

Fourth Circuit affirms joint employer finding against Mingo Logan Coal Co., remands for more evidence on remedies

In Mingo Logan Coal Co. v. NLRB, a split panel of the Fourth Circuit in an opinion by Judge Gregory joined by Judge Widener affirmed the NLRB's finding that Mingo Logan was a "joint employer" with its contract coal operator at the Mountaineer mine, Mahon Enterprises, Inc., and therefore jointly liable for unfair labor practices found to have been committed by Mahon in connection with an organizing campaign by the United Mine Workers of America (UMWA). The NLRB's decision is online here.

Some of the evidence on the joint employer issue does not sound too convincing to me, since it is inevitable there will be close working relations on the mining of this huge property, but there was other evidence cited about Mingo Logan's involvement and control over employment issues between Mahon and its employees. Whether this evidence is enough in terms of quality and quantity to support the joint employer finding is harder to say, but maybe that's not the point when the case gets to the court of appeals.

On the remedy, the administrative law judge ordered that Mingo Logan offer jobs to the discharged Mahon employees, based on evidence that employment with Mahon sometimes led to employment with Mingo Logan. The Court remanded the case for a determination of whether Mingo ever would have hired those individuals.

Judge Niemeyer dissented on the joint employment issue, but agreed on the underlying unfair labor practices findings against Mahon and on the decision to remand the remedy issue.

In a footnote, the Court notes that the issue on appeal of the various discrimination charges under section 8(a)(1) of the NLRA "is a bit unusual because the Employers do not properly contest the ALJ’s findings in their brief. Rather than contesting these allegations, they include a footnote arguing that the findings are based upon faulty
credibility determinations. . . . They then indicate that they are unable to develop their position due to space constraints." Ain't that the truth - there is never enough space within the page or word count limitations of the rules of appellate procedure to debunk all the 8(a)(1) charges that arise out of a union campaign. The opinion does not say how many such charges there were but the workforce involved almost 400 people - there could have been dozens. The trial before the ALJ took three weeks.

The mandate rule and its exceptions in the Fourth Circuit

In U.S. v. Butler, the Fourth Circuit in an per curiam decision for the panel of Chief Judge Wilkins and Judges Wilkinson and Luttig concluded that the trial court had failed to comply with the Fourth Circuit's mandate on resentencing the defendant.

The opinion notes the following regarding the "mandate rule" and its exceptions:

"The mandate rule is a 'specific application of the law of the case doctrine,' and requires that a lower court 'carry the mandate of the upper court into execution and . . . not consider the questions which the mandate laid at rest.' United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). This rule 'compels compliance on remand with the dictates of a superior court.' Id. And 'except in rare circumstances' the district court must 'implement both the letter and spirit of the . . . mandate, taking into account our opinion and the circumstances it embraces.' Id. (internal quotation marks and brackets omitted). The mandate rule binds the lower court except in 'the following extraordinary circumstances: (1) a showing that controlling legal authority has changed dramatically; (2) that significant new evidence, not earlier obtainable in the exercise of due diligence, has come to light; or (3) that a blatant error in the prior decision will, if uncorrected, result in a serious injustice.' United States v. Aramony, 166 F.3d 655, 662 (4th Cir. 1999)."

The panel concluded that none of these exceptions applied.

What happens when the trial judge makes a misstatement in sentencing?

In U.S. v. Abdel-Aziz, the Fourth Circuit in a per curiam opinion for the panel of Judges Luttig, Michael, and Traxler affirmed the sentencing order issued by the trial, notwithstanding the judge's misstatement at the sentencing hearing of saying "Count 3" when he apparently meant to say "Count 1."

Rooker-Feldman doctrine bars consideration of state physician's employment claims in federal court

In Horner v. Department of Mental Health, Judge Michael of the W.D. Va. affirmed the magistrate judge's conclusion that plaintiff's claims regarding his employment as a physician at the Western State mental hospital were barred by the Rooker-Feldman doctrine, since he had filed a grievance challenging his discharge and appealed the decision of the hearing officer to the state circuit court, which also had ruled against him.

The Rooker-Feldman doctrine, to the extent I understand it, bars the use of the federal courts as a forum for appealing adverse rulings in state. Or, as Judge Michael wrote, "The Rooker-Feldman doctrine generally bars federal district
courts from 'sit[ting] in direct review of state court decisions.' District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-416 (1923). 'Rather, jurisdiction to review such decisions lies exclusively with superior state courts and, ultimately, the United States Supreme Court.' Phyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997)."

I'm not sure whether this ruling doesn't go a step beyond the law as I understood it, but it is a sort of catch-22 aspect to the relationship between filing a lawsuit and raising constitutional issues - the plaintiff can't waive available procedural remedies and then complain about the lack of due process, but also the plaintiff who pursues a grievance might not have access to the full panoply of remedies that are available in a section 1983, and the decisionmaker for the grievance hearing might not be as competent and unbiased.

The Fourth Circuit also applied the Rooker-Feldman doctrine today in Ford v. Georgetown County Water and Sewer District, a per curiam decision by the panel of Judges Niemeyer and Luttig and Senior Judge Hamilton, in which the Court concluded that the federal court claims clearly sought review of state court proceedings, and noted in a footnote, that to the extent they were not the same, the additional issues could have been raised in state court and were therefore barred by the doctrine of res judicata.

Let's go to the video tape - W.D. Va.'s Judge Michael dismisses excessive force claim based on police video

In Strother v. Metcalf, Senior Judge Michael of the W.D. Va. granted summary judgment on the defendant law enforcement's defense of qualified immunity to the plaintiff's excessive force claim, noting that "Fortunately, the incident giving rise to plaintiff Strother’s cause of action was captured on videotape," and notwithstanding the spin on the facts from each side of the case, "The video speaks for itself."

I do not recall reading other cases where the judge decided found the absence of a dispute of facts based on what is shown on a videotape, but it certainly makes sense, although I suspect that in many cases even a videotape might be ambiguous. It also makes sense that police videos will be a part of the evidence in civil and criminal cases involving the use of force or claims of illegal stops whenever they are available, for better and for worse.

Hibbs and Raygor applied in the W.D. Va. corrections officer case

In Fields v. Commonwealth of Virginia, Judge Jones of the W.D. Va. denied the Commonwealth's motion to dismiss plaintiff's claims for money damaged under the Family and Medical Leave Act, applying the Supreme Court's recent decision in Nevada Department of Human Resources v. Hibbs, but dismissed for lack of subject matter jurisdiction the plaintiff's state law claims, applying the Supreme Court's recent decision in Raygor v. Regents of the University of Minnesota, which held that the supplemental jurisdiction statute, 28 U.S.C. 1367, is unconstitutional as applied to claims against unconsenting states.

More on the Percy Walton death penalty case

The Richmond Times-Dispatch has this report on yesterday's hearing before Judge Samuel Wilson of the W.D. Va. on the issue of whether Percy Walton, sentenced to be executed, is mentally retarded.

Latest views of task force on reforming 21-day rule to allow after-acquired evidence in criminal cases

The final order rule in Virginia allows only 21 days from the date of the order for a criminal defendant to introduce new evidence of innocense, which is the shortest period of any state in the country, according to this report in the Richmond paper and this report in the Virginian-Pilot, which note that the group studying reform of the 21-day rule is considering new requirements for later evidence that "it must be shown that the evidence was not previously known or available at the time of conviction; that it could not have been discovered by 'diligence' before the conviction; and that it is so compelling that it 'will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'"

More on the Supreme Court's decision in Virginia v. Hicks

From today's Richmond Times-Dispatch, this story titled "Justices back RRHA policy - Unanimously refuse to invalidate trespassing rule in city housing" and a reprise of this column on the appellee, Kevin Hicks.

From the Washington Post, this story titled "Ruling Called Critical to Protecting Tenants."

AG Kilgore's commentary on the ACC-Big East dispute

Published in today's Roanoke Times is this explanation by Attorney General Kilgore on his position in the dispute between the Atlantic Coast Conference and the Big East over whether Miami and others will leave for the ACC.

Kilgore is a graduate of what is now known as the University of Virginia College at Wise, and I've seen him at football games in Charlottesville, but he has signed onto the pleadings on behalf of Virginia Tech in the Big East lawsuit filed in Connecticut.

In the same paper, Doug Doughty, who covers U.Va. sports, notes here the irony that "You can't give a recruit $9 - and I'm not saying you should - but you can bribe a school, as the Big East did, in essence, with its $9 million guarantee to Miami."

Del. Bryant says someday, Republicans will learn that nothing good comes from cannibalizing your own

In this week's column by Delegate Bryant, he concludes that nothing much changed and nothing much good occurred as the result of the primary fights among Republicans that were decided last week. In particular, as someone with an interest in tax reform, he asserts that the prospects for rationalizing Virginia's "antiquated" tax system are no more worse than they were previously.

Facing budget shortfalls, TN sheriff may sue Sullivan County for more money

As reported here and here, the Sheriff of Sullivan County, Tennessee is contemplating suing the County for more money to operate his department.

I wonder how many Virginia school boards would like to do something similar.

Monday, June 16, 2003

Tidewater Virginia perspectives on affirmative action in college admissions

While the U.S. waits for the Supreme Court to rule in the University of Michigan cases, the Virginian-Pilot has this interesting compilation of viewpoints for and against the consideration of race in college admissions, including among others the views of those who have benefitted from affirmative action and the views of a niece of Barbara Grutter, one of the litigants in the cases before the Supreme Court.

Lynchburg jury recommends death sentence for first time since 1961

On Friday night, a jury in Lynchburg recommended the death penalty in the case of Leon Jermain Winston, who was found guilty of a double murder, the first such sentence in the city since 1961, as reported here in the News-Advance. The story notes that one of the victims "was pregnant at the time of the murder, and her 4- and 8-year-old daughters watched her die."

Virginia's existing gang database not much used

As reported here in the Lynchburg paper, notwithstanding Attorney General Kilgore's recent declaration of war on gangs, Virginia already has a statewide database of juveniles arrested for gang-realted activity, but it has been used only slightly.

Supreme Court overrules Fourth Circuit, upholds ban on campaign contributions by non-profits

In Federal Election Commission v. Beaumont, the Supreme Court in an opinion by Justice Souter, joined by Chief Justice Rehnquist and Justices Stevens, O'Connor, Ginsburg, and Breyer, upheld federal law banning campaign contributions by non-profit corporations, reversing the prior opinion by the U.S. Court of Appeals for the Fourth Circuit. Justice Kennedy wrote a separate opinion, concurring in the result, and Justice Thomas dissented, joined by Justice Scalia.

The Fourth Circuit's earlier opinion, written by then Chief Judge Wilkinson, with both Judge Widener and Judge Gregory concurring in part and dissenting in part, is available here.

Lawyers argue issue of mental retardation of inmate whose execution was stayed in May

Earlier today in Roanoke, lawyers for Percy Walton and for the Commonwealth argued before Chief Judge Samuel Wilson of the W.D. Va. the issue of whether Walton was mentally retarded and therefore not subject to execution under the rule of the Supreme Court's decision in Atkins v. Virginia, as reported here by the AP.

Fourth Circuit vacates injunction in fire truck trademark case

In Emergency One, Inc. v. American Fire Eagle Engine Co., Inc., the Fourth Circuit in an opinion by Judge Traxler, joined by Chief Judge Wilkins and Judge Michael, vacated a nationwide injunction issued in favor of the plaintiff in a trademark dispute, concluding that "any injunctive relief to which AFE was entitled was also limited to the
areas where AFE used the mark" because the mark was unregistered and therefore subject to the limitations of a trademark under common law.

Virginia Supreme Court reversed 9-0 on First Amendment implications of public housing trespass policy

In Virginia v. Hicks, issued today, the unanimous Supreme Court of the United States in an opinion by Justice Scalia reversed the Virginia Supreme Court in the Richmond public housing trespass case. Justice Scalia concluded that the enforcement of a "notice-barment" rule even against persons who unlike Hicks had some purpose of expression would not violate the First Amendment. Justice Souter wrote a concurring opinion, joined by Justice Breyer.

Gina Holland who covers the Supreme Court for the AP had this report on the case, and Bob Lewis who writes about Virginia for the AP had this report. The Richmond paper had this afternoon update on the case, the UPI has this report, and the Washington Post has this story.

This is a great victory for the housing authorities in particular, and for the Office of the Attorney General, while the 9-0 vote kind of makes the analyses by the Virginia Supreme Court and the Virginia Court of Appeals seem well off the mark.

Judge Jones dismisses claims against school principal in Dickenson County student case

In Rasnick v. Dickenson County School Board, Judge Jones of the W.D. Va. granted summary judgment for the defendant school principal, where the plaintiffs claimed that she should be held liable under 42 U.S.C. 1983 as a supervisor for failure to prevent a teacher's improper sexual acts toward them. The Court concluded in essence that the the plaintiffs could not avoid summary judgment without presenting any evidence at all, and that the principal's affidavit was enough to support her qualified immunity defense.

Counsel in Charlottesville TV defamation case used Jayson Blair stories

As reported here in the Washington Post, the lawyer for the plaintiff who won a $10 million dollar verdict against a Charlottesville television station cited the New York Times' apologia for the bad acts of Jayson Blair, and compared that to the conduct of the television station. A lawyer said the references to the handling of Blair's fabrications were inflammatory and inappropriate, because "'In the Blair case, there was admission of wrongdoing, of manufacturing of stories. We denied that we made anything up, and, in point of fact, we had a reliable source and had no reason to' make anything up."

Sunday, June 15, 2003

Victims of massive resistance in Virginia given honorary diplomas

In Virginia, some cities and counties closed the public schools rather than comply with federal court orders requiring integration in accordance with the Supreme Court's decision in Brown v. Board of Education. One county in particular remained without any public schools for years. Today, some of the black students who had no schools because of massive resistance were given honorary diplomas in Prince Edward County, as reported here.

In this article dated 1962 and reproduced on a Harvard website, a Lynchburg newspaper editor who opposed massive resistance tried to explain what closing the schools in Prince Edward County was all about - and it comes across as mostly balderdash, read today. The act of closing of the public schools to avoid integration seems so self-destructive and delusional, it is like a form of mass suicide to avoid surrender. Why did Prince Edward County do it? Not for any reason a sane, self-interested person can understand.

CSX railroading landowners with private crossings in SW VA?

CSX has been notifying landowners in Scott County and Southwest Virginia that their private railroad crossing are subject to being closed, according to this report in the Richmond Times-Dispatch, which notes that the Kingsport Times-News has ventilated public opinion against the railroad's actions (most notably in this editorial). A spokesman for the railroad declared that it would not close crossings that would have the effect of cutting off people's farms.

CSX would do well to pick its fights elsewhere, particularly since the parents of the Attorney General of Virginia (and his twin brother in the legislature) still live in Scott County.

Federal juries rejecting the death penalty

From the NY Times, Adam Liptak has this interesting report on how federal juries have refused to impose a death sentence in 15 of 16 cases (including at least one in Virginia) tried most recently in federal courts where the death penalty was sought.

One view of this statistic is that "recent results showed that federal defense lawyers were better financed and more competent than their state counterparts, particularly at presenting mitigating evidence in the penalty phase of the trial."

Virginia teacher blasts SOLs as too easy

This very interesting article in the Washington Post by a public school teacher in Northern Virginia makes the point that the degree of difficulty of the Virginia Standards of Learning tests is, if anything, too low, and that passing the SOLs is nothing for the kids or the school systems to brag about.

These conclusions seem credible as statements against interest, in the language of the rules of evidence. Teachers and school administrators (and newspapers who want to make trouble or side with the teachers' unions) have some incentive to complain that the SOL tests are too tough.

I've heard a similar discussion in connection with the degree to which law school students should be prepared for the bar exam during law school, which prompted one fellow to say that if they learn what's on the bar exam, at least they will have learned something. The same can be said of students who pass the SOLs - at least they learned something.

EPA agents raid SW VA water treatment plant

In the category of strange headline typos, the headline for this story says "EPennsylvania agents raid Abingdon water plan, seize records."

I think they were "EPA" agents, and it was a water treatment "plant", the very same water treatment plant not far from my house. I wonder why those EPennsylvanians felt such dramatics were required. The Town Council is always happy to welcome visitors from out-of-town.

Judge Moon will admit identification made by witness 5 years after the fact in national park murder case

The AP has this report on the decision by Judge Moon of the W.D. Va. to allow in the trial of the man accused of murdering two women in the Shenandoah National Park the identification made by a witness who picked out the defendant from photographs he was shown in 2001 as the man he saw in the park on the night of the killings in 1996.

Virginia conservatives vow to keep trying

As described in this Richmond Times-Dispatch story, titled "Primary results were 'humbling' - But bid to push GOP rightward will continue," the social conservative element in Virginia's Republican Party will keep trying, despite their losses in primary campaigns against Senators Chichester, Norment, and Potts.

The Times-Dispatch has this editorial on the Republican primaries, which says in part: "The post-primary analysis, braggadocio, and - among the defeated - whines likely will include references to crossovers. Virginia's open primaries allow Democrats and independents to vote in GOP contests (and Republicans and independents to vote in Democratic ones). Defeated candidates sometimes claim they won among the party faithful but lost only because crossovers voted for the other guy. Factions purporting to represent "real" Republicans, for instance, scorn candidates whose appeal crosses party lines. Pass the hankies, please! Open primaries may distort the nomination process, but until cynical politicians stop drawing district lines to ensure specific partisan outcomes they will remain necessary to protect the integrity of the franchise. Gerrymandering transforms primaries into de facto general elections. If activists do not like open primaries, then they can demand - and work for - an end to the gerrymander."

At a Virginia Republican party gathering on Friday night, as reported here, Attorney General Kilgore urged the faithful to overcome their differences and rally behind the party's candidates (himself included). Kilgore also declared, "It is time to give the death penalty to the death tax in Virginia," which almost sounds like "No car tax."

Appalachian League baseball superlatives include the W.D. Va.'s best-ever baseball case

The appeal of baseball in the Appalachian League, a short-season rookie league at the lowest rung of the minor league ladder, is explained in this commentary from the Bluefield newspaper.

The Bluefield Orioles were once the subject of a lawsuit in federal court in the W.D. Va., which resulted in a published opinion by Judge Williams, a huge baseball fan, with this memorable statement of the facts:

"Simmons, along with a friend, attended the Fourth of July, 1988 game between the Martinsville Phillies and the Bluefield Orioles, a Baltimore farm team, at Bluefield, Virginia. Bluefield was not having a good year, and whether for this or some other reason Simmons moved down to the third baseline along about the eighth inning, and started to heckle the Oriole players sitting in the bullpen. Champ stated in his deposition that Simmons was accusing the ballplayers of stealing the local women, and that he (Simmons) would show the Orioles what West Virginia manhood was like by blowing the players' heads off. Whatever was precisely said, the pitching coach then asked Simmons to leave.
After the game (Bluefield lost, 9-8, stranding three runners in the bottom of the ninth), Champ encountered Simmons in the parking lot. Simmons, in his complaint, offers no details of what ensued other than that he was punched and kicked by Champ and then hit in the jaw by a baseball bat wielded by Hicks, causing his jaw to be broken in two places. Champ's version was that Simmons saw him carrying a bat, made a gesture as if he were shooting Champ with his finger, and said "Oh, so you need a bat, huh?" Champ said "No, I don't," and threw his bat down. Simmons gestured toward his car and said, "Let's go over to my car, and I'll blow your head off." Another player tried to intervene, and Champ said "Just get out of here." Simmons then advanced threateningly upon him, and Champ hit Simmons in the face. Simmons was unfazed, and Champ kicked him in the chest, causing Simmons to stagger back. According to Champ he then smiled and said "I'm drunk. I didn't feel that." Champ turned to walk away, and at that point defendant Hicks hit Simmons. Simmons says Hicks hit him with a bat, but Hicks says that he used only his fist. Hicks had not been near any of the heckling and says he intervened because he was afraid Simmons was about to pull a gun on Champ."

Simmons v. Baltimore Orioles, Inc., 712 F. Supp. 79, 80 (W.D. Va. 1989).

The Bristol franchise is now the Bristol White Sox. One of the great feats in professional baseball involved a minor league team from Bristol, when Ron Necciai struck out 27 in a game in 1952, as described in this story.

Kingsport vs. Dollywood over the use of Fun Fest

Kingsport lawyer Bill Bovender has written this open letter to Dolly Parton about the trademark dispute between Kingsport and Dollywood over the use of the term "Fun Fest."

I note that Google returned something like 13,700 hits for "Fun Fest."

Virginia Republicans still trying to corner Warner into a tax plan before November

This Roanoke Times article, titled "GOP urges Warner to lay out tax reform plan - Governor says he wants to avoid making it an election issue," describes the latest round in the gamesmanship between the Democratic governor and the Republican leaders of the legislature over whether Governor Warner should put forth his "tax reform" plan in time for the Republicans to use it against him in this fall's elections.

At the same time, this article in the same paper, titled "GOP likely to maintain grip on both chambers," concludes that the Republicans are almost certain to retain their majorities in both houses of the legislature.

On the same theme, the Washington Post has this article by R.H. Melton, titled "Tax Issues May Cut Two Ways As Va. Looks to November," which notes that "Despite Republican pressure for an early preview of his tax bill, Warner said he plans to wait before releasing the details, largely because of the potential backlash against fellow Democrats running for seats in the 140-member assembly."

Candidates set for constitutional office elections in SW VA

They're back. Not the cicadas (they're back, too) - the county politicians, with elections this fall for the constitutional offices, boards of supervisors, and school boards in almost every Southwest Virginia jurisdiction. Mike Still has this summary of the candidates.

The races that are most interesting to me, obviously, are those for Commonwealth's attorney, with contested races in Lee County, Scott County, Wise County, Dickenson County, and Washington County. Some of the lawyers running are good friends of mine, some I've never met. Many of the other candidates are people I've met, or even represented. The Democratic candidate for my district on the Board of Supervisors has been a friend of my family for over 30 years.

The only prediction I am willing to make is that Terry Rohr will be elected Clerk of Court in Bristol (she is unopposed.)

Bristol's Mendota trail project bogged down in litigation

On the model of the wildly popular Virginia Creeper Trail between Abingdon and Damascus, the City of Bristol, Virginia has been pursuing a rails-to-trails project called the Mendota trail. The City has sued all the landowners who won't cooperate. The landowners (who number 180 or more) have two legal arguments, as reported here: (1) that the railroad's title contained a reversionary clause, revesting title in the landowners when the use of the property as a railroad ceased, and (2) adverse possession, since the railroad stopped using the property in the 1970s.