CrimLaw has this post with a link to this article in the Daily Progress, which merits quoting at length:
"A cornered police fugitive tried to escape on a child’s pink bicycle he stole Wednesday from a yard in Charlottesville, authorities said.
'It was probably the smallest getaway vehicle I’ve seen in my 25 years,' said Lt. Gary Pleasants of the city police.
. . .
A few minutes later, the officer spotted the man in a yard on Park Lane West, off Jefferson Park Avenue.
Pleasants said the man snatched a tiny pink bike, mounted it and began pedaling.
With wheels only 8 inches in diameter, the bike didn’t make it far. The man went about 30 feet before police caught up with him.
'It was very comical looking,” the lieutenant said. 'Officer Mark Frazier, who could run faster than the bicycle could go, tackled him and knocked him off the bike.'
'I’ve seen some strange things,” he added, “but that was one of the better escape attempts I’ve seen.'"
Saturday, June 28, 2003
Birth-related Neurological Compensation Act leaves parents of short-lived infant with no rememdy
This Daily Press story describes the circumstances in which the Birth-related Neurological Compensation Act was applied to leave the parents of a child who lived only a short time after birth with no remedy for their claim of malpractice against the obstetrician.
Verizon sues Nextel claiming corporate espionage
Two of Virginia's telecom titans, Verizon and Nextel, have joined battle on a new front, as Verizon Wireless sued Nextel on Friday in the U.S. District Court for the Eastern District of Virginia, claiming that Nextel engaged in corporate espionage and other bad acts to get at Verizon's wireless technology, as reported here in this AP reports, which also notes that "[s]hares in Verizon fell 47 cents to $39.66 each in trading Friday on the New York Stock Exchange," while "Nextel shares rose 33 cents to $18.49 each on the Nasdaq Stock Market."
The effects of the Georgia redistricting case on redistricting in Virginia
Following the Supreme Court's decision on Thursday in the case of Georgia v. Ashcroft, which dealt with changes in the shape of state senate districts in another state like Virginia covered by the federal Voting Rights Act, the litigants challenging the make-up of the 4th congressional district in Southeastern Virginia are claiming their prospects for success in the case are improved, as reported here in the Richmond Times-Dispatch and here by the Daily Press.
Sneaking Suspicions has this interesting post and Election Law has this detailed post on the Georgia case.
Sneaking Suspicions has this interesting post and Election Law has this detailed post on the Georgia case.
The effects of the Texas sodomy case on Virginia law
In this post, I wrote:
Virginia likewise has criminalized sodomy, fornication, and lewd cohabitation. The most recent signs from the Virginia Supreme Court, oddly enough, are that some or all would uphold the constitutionality of these statutes. Justice Kinser cited them in her concurring opinion in the Arlington County "domestic partner" benefits case (in MS Word) from 2000. The majority cited the fornication and cohabitation statutes as the basis for the wrongful discharge claim in Mitchem v. Counts (in MS Word), also decided in 2000.
The viability of these criminal statutes is an element in a recurring issue in domestic relations cases, where one party may assert the constitutional privilege against self-incrimination to questions about sex acts other than with his or her spouse. The Virginia Court of Appeals' unpublished Goldmann case is one example of the self-incrimination issue.
Judge Merhige held that the fornication and cohabitation statutes were unconstitutional in Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985), but this opinion was vacated on appeal for lack of standing, 782 F.2d 1202 (4th Cir. 1986), in an opinion by Judge Wilkinson. Roanoke gay rights lawyers also lost a constitutional challenge for lack of standing in the Virginia Court of Appeals, as reported in this 2000 opinion.
This one post has generated quite a number of hits from Googlers searching for the Virginia law of fornication.
On Thursday and Friday, the Daily Press reported here and here, the Roanoke Times reported here, the Richmond Times-Dispatch reported here, the Virginian-Pilot reported here, and Attorney General Jerry Kilgore conceded in this press release that the Lawrence case will have some effect on the laws of Virginia.
The likely result of the Lawrence case applied in Virginia is that the sodomy law is unconstitutional as applied to same-sex or opposite-sex scenarios, and the fornication and co-habitation statutes are probably also invalid. In fact, I would argue, the next time I see something like Mitchem (or Zysk v. Zysk), that the public policy of these statutes is trumped by the Constitution, and therefore the plaintiff has no claim or the defendant has no defense based on the illegality of fornication. (The Zysk case is the one where the Virginia Supreme Court held that a woman could not sue for contracting a loathsome social disease from her boyfriend because her injuries were the result of her illegal conduct in having sex with him.)
Tim Sandefur has this interesting post comparing the Lawrence decision with the Loving case, which struck down Virginia's ban on interracial marriage.
Virginia likewise has criminalized sodomy, fornication, and lewd cohabitation. The most recent signs from the Virginia Supreme Court, oddly enough, are that some or all would uphold the constitutionality of these statutes. Justice Kinser cited them in her concurring opinion in the Arlington County "domestic partner" benefits case (in MS Word) from 2000. The majority cited the fornication and cohabitation statutes as the basis for the wrongful discharge claim in Mitchem v. Counts (in MS Word), also decided in 2000.
The viability of these criminal statutes is an element in a recurring issue in domestic relations cases, where one party may assert the constitutional privilege against self-incrimination to questions about sex acts other than with his or her spouse. The Virginia Court of Appeals' unpublished Goldmann case is one example of the self-incrimination issue.
Judge Merhige held that the fornication and cohabitation statutes were unconstitutional in Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985), but this opinion was vacated on appeal for lack of standing, 782 F.2d 1202 (4th Cir. 1986), in an opinion by Judge Wilkinson. Roanoke gay rights lawyers also lost a constitutional challenge for lack of standing in the Virginia Court of Appeals, as reported in this 2000 opinion.
This one post has generated quite a number of hits from Googlers searching for the Virginia law of fornication.
On Thursday and Friday, the Daily Press reported here and here, the Roanoke Times reported here, the Richmond Times-Dispatch reported here, the Virginian-Pilot reported here, and Attorney General Jerry Kilgore conceded in this press release that the Lawrence case will have some effect on the laws of Virginia.
The likely result of the Lawrence case applied in Virginia is that the sodomy law is unconstitutional as applied to same-sex or opposite-sex scenarios, and the fornication and co-habitation statutes are probably also invalid. In fact, I would argue, the next time I see something like Mitchem (or Zysk v. Zysk), that the public policy of these statutes is trumped by the Constitution, and therefore the plaintiff has no claim or the defendant has no defense based on the illegality of fornication. (The Zysk case is the one where the Virginia Supreme Court held that a woman could not sue for contracting a loathsome social disease from her boyfriend because her injuries were the result of her illegal conduct in having sex with him.)
Tim Sandefur has this interesting post comparing the Lawrence decision with the Loving case, which struck down Virginia's ban on interracial marriage.
On the Microsoft preliminary injunction case
In Sun Microsystems, Inc. v. Microsoft Corp., the Fourth Circuit in an opinion by Judge Niemeyer joined by Judges Widener and Gregory affirmed in part and reversed in part the preliminary injunctive relief ordered in December 2002 by Judge Motz on the anti-trust and copyright claims concerning Microsoft's use of Sun's Java technology.
The market implications of this decision have been described elsewhere, but what is interesting to me is that the Court continues to apply the old Blackwelder test for preliminary injunctions, as noted in footnote 4, which says:
"Although this circuit’s emphasis on the balance of the hardships has been criticized as inconsistent with Supreme Court precedent "by over-valuing the inquiry into the relative equities of granting and denying a requested injunction to an extent that essentially denies any value whatsoever to the inquiry into the likelihood of success on the merits," see Safety-Kleen, 274 F.3d at 868 (Luttig, J., concurring), we remain bound by the test as it has been consistently articulated and applied by prior appeals. . . ."
A judge who has seen this blog once asked me about this concurring opinion by Judge Luttig. Among other things, Judge Luttig wrote: "In actual practice, even though not in formal doctrine, we have virtually without exception insisted upon a showing by the plaintiff of the likelihood of success on the merits of his claim before we have either entered an injunction in the trial court or affirmed the trial court's entry of an injunction on appeal--and we have required this showing not merely at the threshold but also regardless of whether the balance of harms decidedly favored the plaintiff. Relatedly, we have all but abandoned the instruction that the balancing of harms is the preeminent of the injunction inquiries. And for their part, and to their credit, litigants have not dared to argue their causes even principally, much less alone, on the strength of the equities at stake, whatever they were." Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 871 (4th Cir. 2001) (Luttig, J., concurring). I suppose the judge was telling that me that he thought I was trying (in opposing a motion for preliminary injunction) to do what Judge Luttig was crediting other litigants for not doing (daring to argue that the balance of harms alone was sufficient reason to deny the motion).
The market implications of this decision have been described elsewhere, but what is interesting to me is that the Court continues to apply the old Blackwelder test for preliminary injunctions, as noted in footnote 4, which says:
"Although this circuit’s emphasis on the balance of the hardships has been criticized as inconsistent with Supreme Court precedent "by over-valuing the inquiry into the relative equities of granting and denying a requested injunction to an extent that essentially denies any value whatsoever to the inquiry into the likelihood of success on the merits," see Safety-Kleen, 274 F.3d at 868 (Luttig, J., concurring), we remain bound by the test as it has been consistently articulated and applied by prior appeals. . . ."
A judge who has seen this blog once asked me about this concurring opinion by Judge Luttig. Among other things, Judge Luttig wrote: "In actual practice, even though not in formal doctrine, we have virtually without exception insisted upon a showing by the plaintiff of the likelihood of success on the merits of his claim before we have either entered an injunction in the trial court or affirmed the trial court's entry of an injunction on appeal--and we have required this showing not merely at the threshold but also regardless of whether the balance of harms decidedly favored the plaintiff. Relatedly, we have all but abandoned the instruction that the balancing of harms is the preeminent of the injunction inquiries. And for their part, and to their credit, litigants have not dared to argue their causes even principally, much less alone, on the strength of the equities at stake, whatever they were." Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 871 (4th Cir. 2001) (Luttig, J., concurring). I suppose the judge was telling that me that he thought I was trying (in opposing a motion for preliminary injunction) to do what Judge Luttig was crediting other litigants for not doing (daring to argue that the balance of harms alone was sufficient reason to deny the motion).
Fourth Circuit rejects liability theories in toxic shock syndrome case
In Murphy v. Playtex Family Products Corp., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Wilkinson and Motz rejected plaintiff's liability theories against a tampon manufacturer, concluding, among other things, that federal law preempted any claim based on faulty labeling.
Fourth Circuit strikes punitive damages in Title VII case
In Bryant v. Aiken Regional Medical Centers, Inc., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Niemeyer and King, struck the award of punitive damages in the plaintiff's Title VII retaliation and racial discrimination claims, while affirming the verdict on liability and compensatory damages.
On compensatory damages, the defendant argued, consistent with the Price v. City of Charlotte case, that the award of $50,000 for plaintiff's uncorroborated emotional distress claim was excessive. This leads me to conclude mainly that the judges did not think that $50,000 was very much money under the circumstances of the case. I think that the Price v. City of Charlotte opinion has to be part of the defendant's Rule 50 motion during and after trial in every case where the plaintiff does not present expert medical testimony in support of his or her emotional distress claim, particularly if the jury awards more than $25,000 (but maybe now the bar has been raised somewhat).
On punitive damages, the Court applied the Supreme Court's Kolstad case. Brian Peterson has this excellent post outlining the relevant factors of the Court's punitive damages analysis.
On compensatory damages, the defendant argued, consistent with the Price v. City of Charlotte case, that the award of $50,000 for plaintiff's uncorroborated emotional distress claim was excessive. This leads me to conclude mainly that the judges did not think that $50,000 was very much money under the circumstances of the case. I think that the Price v. City of Charlotte opinion has to be part of the defendant's Rule 50 motion during and after trial in every case where the plaintiff does not present expert medical testimony in support of his or her emotional distress claim, particularly if the jury awards more than $25,000 (but maybe now the bar has been raised somewhat).
On punitive damages, the Court applied the Supreme Court's Kolstad case. Brian Peterson has this excellent post outlining the relevant factors of the Court's punitive damages analysis.
U.S. Supreme Court grants cert in W.D. Va. privacy case involving social security numbers
SCOTUSblog has this post with a link to this article in Washington Post about the U.S. Supreme Court's decision to grant certiorari in Doe v. Chao, a case arising out of the Western District of Virginia. The issue is whether the use of Social Security numbers by the Department of Labor on the files of Black Lung claimants violates their rights under the federal Privacy Act, which regulates the use by government of Social Security numbers.
The case was brought by Norton attorney Joe Wolfe, with the aid of Jerry Kilgore, before he became Attorney General, and who argued the case unsuccessfuly before the Fourth Circuit, which issued this opinion written by Judge Karen Williams, who was joined by Judge Luttig, with Judge Michael dissenting.
I understand that one of usual suspects among the firms in D.C. who handle Supreme Court cases is associated with Joe Wolfe for the Supreme Court appeal. Joe told me about cert. order a couple of days ago, and of course he was delighted.
The issue in the case mainly has to do with the meaning of "actual damages" under the Privacy Act, since proving damages was apparently a problem for all but one of the plaintiffs in the district court, and on appeal the Fourth Circuit ruled out the claim of the one who prevailed before Judge (Glen) Williams in the district court.
The term "actual damages" appears in something like 62 different sections of the Virginia Code, so I have written a couple of briefs about the meaning of those words, particularly as they appear in Va Code § 65.2-308, the statute that provides a remedy for employees who are discharged for filing a claim for workers' compensation.
The case was brought by Norton attorney Joe Wolfe, with the aid of Jerry Kilgore, before he became Attorney General, and who argued the case unsuccessfuly before the Fourth Circuit, which issued this opinion written by Judge Karen Williams, who was joined by Judge Luttig, with Judge Michael dissenting.
I understand that one of usual suspects among the firms in D.C. who handle Supreme Court cases is associated with Joe Wolfe for the Supreme Court appeal. Joe told me about cert. order a couple of days ago, and of course he was delighted.
The issue in the case mainly has to do with the meaning of "actual damages" under the Privacy Act, since proving damages was apparently a problem for all but one of the plaintiffs in the district court, and on appeal the Fourth Circuit ruled out the claim of the one who prevailed before Judge (Glen) Williams in the district court.
The term "actual damages" appears in something like 62 different sections of the Virginia Code, so I have written a couple of briefs about the meaning of those words, particularly as they appear in Va Code § 65.2-308, the statute that provides a remedy for employees who are discharged for filing a claim for workers' compensation.
Easy judiciary conference hearing for Fourth Circuit nominee Allyson Duncan
I see that How Appealing has this post with a link to this story in the Raleigh newspaper about how Fourth Circuit nominee Allyson Duncan enjoyed a stress-free hearing before the Senate Judiciary Committee earlier this week. The Richmond Times-Dispatch had this report on the hearing.
Who will watch the Fourth Circuit judicial conference on C-SPAN?
Having just come from there, I can tell you that the C-SPAN replay of this morning's session of the Fourth Circuit judicial conference will include the following:
Chief Justice Rehnquist, in his role as circuit justice, delivered his annual summary of the just-ended term's dark horse (or should I say dark flower?) decisions, including Illinois ex rel. Madigan v. Telemarketing Associates, Kentucky Ass'n of Health Plans v. Miller, Desert Palace v. Costa, Howsam v. Dean Witter, and Franchise Tax Board v. Hyatt. Of the Kentucky HMO case, the Chief Justice said something like ERISA was passed in 1974, and the Court has taken a couple of ERISA cases every year ever since, and all of them "are dreary."
The panel of analysts, moderated by Professor A.E. "Dick" Howard, included a presentation by Professor Susan Low Bloch of Georgetown on the affirmative action and privacy cases (or the "diversity and perversity" cases, as she called them), another by Dean John Jeffries from U.Va. on the term's First Amendment cases, another by Professor Akhil Amar from Yale on the term's criminal procedure cases, and another by Professor John McGinnis from Northwestern on the term's federalism cases.
UPDATE - As noted on How Appealing, the AP has this report on the Chief Justice's remarks this morning at the judicial conference.
Chief Justice Rehnquist, in his role as circuit justice, delivered his annual summary of the just-ended term's dark horse (or should I say dark flower?) decisions, including Illinois ex rel. Madigan v. Telemarketing Associates, Kentucky Ass'n of Health Plans v. Miller, Desert Palace v. Costa, Howsam v. Dean Witter, and Franchise Tax Board v. Hyatt. Of the Kentucky HMO case, the Chief Justice said something like ERISA was passed in 1974, and the Court has taken a couple of ERISA cases every year ever since, and all of them "are dreary."
The panel of analysts, moderated by Professor A.E. "Dick" Howard, included a presentation by Professor Susan Low Bloch of Georgetown on the affirmative action and privacy cases (or the "diversity and perversity" cases, as she called them), another by Dean John Jeffries from U.Va. on the term's First Amendment cases, another by Professor Akhil Amar from Yale on the term's criminal procedure cases, and another by Professor John McGinnis from Northwestern on the term's federalism cases.
UPDATE - As noted on How Appealing, the AP has this report on the Chief Justice's remarks this morning at the judicial conference.
Thursday, June 26, 2003
On to Hot Springs
Yes, I'm off to the Fourth Circuit Judicial Conference at the Homestead, and no, I won't be blogging from there.
I'm just hoping to find the place, never having been there before.
Back in a couple of days.
I'm just hoping to find the place, never having been there before.
Back in a couple of days.
Wednesday, June 25, 2003
U.S. Supreme Court takes on ADA suit re: accessibility of TN courthouses
This Reuters report indicates that the Supreme Court granted certiorari on Monday in a Tennessee case brought by two paraplegics who sued Tennessee claiming that county courthouses did not comply with the accessibility requirements for public facilities under the Americans with Disabilities Act.
Worldcom judgment against employee for unearned retention bonus affirmed
In Worldcom, Inc. v. Boyle, the Fourth Circuit in a per curiam for the panel of Judges Wilkinson, Niemeyer, and Traxler, upheld the judgment for the plaintiff on its claim for restitution of the retention bonus of $900,000 paid to a former employee, who had breached his promise to stay with the company for two years.
Applying Virginia law, the Court rejected the employee defendant's various arguments that the plaintiff's claim was barred by the doctrine of unclean hands, and affirmed the dismissal of his counterclaims, which included a claim of conversion for the employer's decision to freeze his stock options after he left the company.
Applying Virginia law, the Court rejected the employee defendant's various arguments that the plaintiff's claim was barred by the doctrine of unclean hands, and affirmed the dismissal of his counterclaims, which included a claim of conversion for the employer's decision to freeze his stock options after he left the company.
No sticker leads to police stop, search of car, search of passengers, finding of gun, finding of cocaine
In Slayton v. Commonwealth, the Virginia Court of Appeals in an opinion by Judge Kelsey joined by Judge Felton and Senior Judge Willis affirmed the denial of a motion to suppress, where the defendant's vehicle was pulled over for no county decal, then the policeman spotted bullets in the car and was given permission to search, then the officer noticed the passenger appeared to have a gun, then found the gun, then found the cocaine incident to the arrest for the gun.
When I was in law school, my car was registered in the Town of Abingdon, which used tags instead of window decals, with the result that I got a lot of tickets in Williamsburg and was sometimes pulled over in Virginia Beach for not having a sticker, even though none was required.
When I was in law school, my car was registered in the Town of Abingdon, which used tags instead of window decals, with the result that I got a lot of tickets in Williamsburg and was sometimes pulled over in Virginia Beach for not having a sticker, even though none was required.
Hearing officer in state employee case can reduce discipline for misconduct
In Tatum v. Va. Dept. of Agriculture and Consumer Services, the Virginia Court of Appeals in an opinion by Senior Judge Coleman joined by Judges Benton and Annunziate dealt with a state employee grievance case, where the hearing officer found the employee guilty of misconduct but reduced the punishment, and the Circuit Court held that the hearing officer had no authority to change the punishment for the misconduct. The Court concluded that the hearing officer is "is expressly authorized to reduce the discipline if the officer finds that the level or severity of discipline for the misconduct was too severe," and had acted within his authority under Va. Code 2.2-3005.
Illegal use of foreign hardware nets $250,000 in fines for Virginia contractor
A building contractor in the Tidewater who had received millions of dollars in payments for his work on government contracts entered into a plea agreement regarding his violations of the Buy American Act, a federal law that mandates the use of American-made goods, and will have to pay $250,000 in fines for himself and his company, as reported here in the Virginian-Pilot.
The tax code too tough to tame
The Virginian-Pilot has this report on Virginia businessmen who are skeptical as to whether Governor Warner can deliver on reforming the tax laws of Virginia, figuring that the task is too great and the economy too poor for quick results to be possible.
Matrix killer in Fairfax County pleads guilty to murdering parents
Nothing like a scheme that involves sending bogus tax refunds to the penitentiary
The Richmond Times-Dispatch has this report on the sentencing of a couple of con men who worked up a new scheme to make money off bogus tax refund claims while they were sitting in prison.
The article explains:
"Authorities said Blankenship and Bobby Richardson, while at Buckingham, obtained the names of 33 inmates and their Social Security account numbers - apparently through a prison class that teaches inmates how to write resumes to use in job applications.
The two got the names and numbers to Lee Richardson of Petersburg, who used them to prepare the bogus returns.
The Internal Revenue Service picked up that the returns all listed the same occupation, correctional officer; reported the same income, $28,000; and asked for the same incorrect refund, $7,454. Had the returns been legitimate, the correct refund would have been $3,109, according to court papers.
Authorities said Blankenship, who has a record of tax fraud and financial misdoing, apparently obtained the IRS code number for correctional officer and was able to make bogus wage statements - W-2 forms - using that information and the convict's names.
Surprisingly, the returns all gave the same address for the tax refunds - Buckingham Correctional Center. Authorities said one refund check was sent as a test; the prison sent it back to the IRS with the explanation that it must be a mistake because the addressee was a prisoner."
The article explains:
"Authorities said Blankenship and Bobby Richardson, while at Buckingham, obtained the names of 33 inmates and their Social Security account numbers - apparently through a prison class that teaches inmates how to write resumes to use in job applications.
The two got the names and numbers to Lee Richardson of Petersburg, who used them to prepare the bogus returns.
The Internal Revenue Service picked up that the returns all listed the same occupation, correctional officer; reported the same income, $28,000; and asked for the same incorrect refund, $7,454. Had the returns been legitimate, the correct refund would have been $3,109, according to court papers.
Authorities said Blankenship, who has a record of tax fraud and financial misdoing, apparently obtained the IRS code number for correctional officer and was able to make bogus wage statements - W-2 forms - using that information and the convict's names.
Surprisingly, the returns all gave the same address for the tax refunds - Buckingham Correctional Center. Authorities said one refund check was sent as a test; the prison sent it back to the IRS with the explanation that it must be a mistake because the addressee was a prisoner."
Texas-like tactics used to stall vote on rezoning for Wal-Mart outside Front Royal
The lone opponent of rezoning in Front Royal to allow construction of a big new Wal-Mart has been avoiding the meetings so the town council has no quorum, since two of the members are not voting because of conflicts of interest, as reported here in the Richmond Times-Dispatch.
Bluefield-area librarians dismiss the efficacy of porn filters
The Bluefield Daily-Telegraph found skepticism among librarians in the Bluefield area about the merits of the Supreme Court's decision on library funding and whether software filters screen out more of the good than the bad.
The Richmond Times reports here that the State Library of Virginia will have to figure out how to complain with the federal statute to keep its federal funding of several million dollars.
The Richmond Times reports here that the State Library of Virginia will have to figure out how to complain with the federal statute to keep its federal funding of several million dollars.
Not quite the coming of Elizabeth Taylor, but still a big deal
In Adriana Trigiani's novel Big Stone Gap, she combines fact and fiction to retell the events of Elizabeth Taylor's infamous visit to Big Stone Gap during the first Senate campaign of her then husband John Warner, a visit cut short when Ms. Taylor nearly choked on a chicken bone. In the novel, a middle-aged Wise County woman looks at the middle-aged Ms. Taylor and says something like, "all my life I wanted to look like her, and now I do." In real life, one witness to these happenings was a lawyer named Brad Cavedo, now a Circuit Court judge in Richmond, whose name is in the acknowledgements section of "Big Stone Gap."
Ms. Trigiani herself will be back in Wise County over the weekend for Drama Days, as reported here in the Coalfield Progress, perhaps after signing a few books, she'll head over to Stringers for some fried chicken.
Ms. Trigiani herself will be back in Wise County over the weekend for Drama Days, as reported here in the Coalfield Progress, perhaps after signing a few books, she'll head over to Stringers for some fried chicken.
Unfair competition suit among tattoo artists in Roanoke gets settled
As reported here, two tattoo artists who worked the same corner in Roanoke have settled their grievances about an alleged breach of a covenant not to compete, and one of them is now commuting from California to finish up long-term tattoo projects in Southwest Virginia.
Marketing a knife to cut seatbelts
Ad makers sunk an SUV in the lake at Warrior Path State Park outside Kingsport over and over, making an advertisement for a Smith & Wesson knife that cuts seatbelts, as described in this article in the Kingsport Times-News.
More on Judge Jones' denial of severance in Pocahontas murder trials
The Bristol paper has this story on the ruling by Judge Jones of the W.D. Va. to deny separate trials to the remaining defendants in the Pocahontas murder cases, including the former mayor, Charles Gilmore.
Tuesday, June 24, 2003
ACC votes to take Virginia Tech and Miami
As reported here by the Washington Post, here by the New York Times, here by USAToday, and here on CNN/SI, the Atlantic Coast Conference presidents have voted to invite Virginia Tech and Miami to join the ACC, leaving Syracuse and Boston College out of their expansion.
In other words, the talk of 9, 10, 12, 13, and 14 teams has given way to an 11-team plan. Talk about making it up as you go along, but this result makes more sense than anything else I've heard. Miami was never made much sense in the Big East, and Tech is more than a logical fit for the ACC. Following the same logic, I wouldn't be surprised if the hype starts to build for adding one more team from elsewhere, specifically South Carolina, which seems like a much more natural rival for the ACC schools than for its current opponents in the SEC.
I would think also that this move will likely pull the rug out from under the lawsuit in Connecticut. In fact, the ACC might consider a counterclaim for unjust enrichment, for if the Big East retains its BCS membership but drops the added cost of trips to Florida, it might yet come out ahead in terms of dollars and cents. Of course, who knows how much longer there will even be a BCS, which is another reason why the ACC presidents had to be questioning themselves at every step.
In other words, the talk of 9, 10, 12, 13, and 14 teams has given way to an 11-team plan. Talk about making it up as you go along, but this result makes more sense than anything else I've heard. Miami was never made much sense in the Big East, and Tech is more than a logical fit for the ACC. Following the same logic, I wouldn't be surprised if the hype starts to build for adding one more team from elsewhere, specifically South Carolina, which seems like a much more natural rival for the ACC schools than for its current opponents in the SEC.
I would think also that this move will likely pull the rug out from under the lawsuit in Connecticut. In fact, the ACC might consider a counterclaim for unjust enrichment, for if the Big East retains its BCS membership but drops the added cost of trips to Florida, it might yet come out ahead in terms of dollars and cents. Of course, who knows how much longer there will even be a BCS, which is another reason why the ACC presidents had to be questioning themselves at every step.
Dumb and dumber - why not to videotape a kid's molestation of your dog then give the tape to the police
So, there were these two guys, living an "alternative" lifestyle, and they let this underaged kid come over to their house and play with their computer and play with their dogs, and they get the idea to put a camera to watch what the kid is doing because they think he is stealing from them, and it turns out the kid is getting nasty with the dogs, and so the guys decide to videotape what the kid is doing, and eventually they give this tape to the police, and they get arrested for child pornography and other charges for what's on that video, and they lose their jobs, and they wind up pleading to some minor criminal charges, and then they sue everybody, claiming a violation of almost every particular in the Bill of Rights but the Second Amendment, and the district court judge throws out their case, and the Fourth Circuit affirms the dismissal on appeal, in this opinion, Bruette v. Montgomery County. It could almost be a movie, or at least a Twilight Zone episode.
Tobacco vs. tobacco - Fourth Circuit affirms summary judgment on antitrust claims against Philip Morris
In RJ Reynolds Tobacco Co. v. Philip Morris USA, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Widener and Michael and Senior District Judge Richard Williams from the E.D. Va. in Richmond affirmed a North Carolina court's entry of summary judgment for Philip Morris on state and federal law anti-trust claims related to the marketing of cigarettes. Interestingly, David Boies argued for Philip Morris, and on the other side of the case, among others, Boies' old firm, Cravath, Swaine & Moore.
The AP has this report on today's decision.
The AP has this report on today's decision.
Supreme Court's Internet filter ruling and the Abingdon library controversy of 1980s
In U.S. v. American Library Ass'n, Inc., the Supreme Court without a majority opinion upheld against a First Amendment challenge the constitutionality of the Children's Internet Protection Act, "which forbids public libraries to receive federal assistance for Internet access unless they install software to block obscene or pornographic images and to prevent minors from accessing material harmful to them."
The Richmond Times-Dispatch has this report, in which all Richmond-area localities claim that they are in compliance with the federal Act, an interesting fact if true.
The case makes me recall that right here in Washington County, more than 20 years ago, there was a great dispute over the books on the shelves in the county library (from which I've had a library card since I was 7). Former Washington County News columnist Lowry Bowman has this account of the library story:
"In March, 1980, three businessmen-two convenience store owners and one the owner of Abingdon's only book store-were arrested on charges of selling pornographic materials, largely such magazines as Playboy, Dude, Hustler, and the like. The Sheriff swore under oath that [the Rev. Tom] Williams originated the complaint, although Williams denies it. It ended in a mistrial when the jury could not agree. During the trial, however, the defense introduced as evidence several popular novels from the county's public library-novels by Sidney Sheldon, Phillip Roth, and others. It argued that the magazines in question were no more pornographic than these novels in popular demand and therefore could not have offended the public morality.
Williams, who sat through the trial, went immediately to the library and demanded from Librarian Kathy Russell White a list of all those who had checked these books out of the library. She refused. The library's Board of Trustees (all appointed by the Board of Supervisors) supported the librarian and condemned any attempt at censorship of library shelves.
The library has a standard procedure to be followed when anyone dislikes its selection of books. There is a complaint form to be filled out and presented to the Board of Trustees. Williams refused the form and went this time directly and immediately 'to the people.' [Supervisor Bobby] Sproles, citing 'egg-headed liberals,' vowed to cut off money for the library unless the books were removed.
But this time there was immediate reaction. Two opposition groups emerged immediately: the 'Friends of the Library' organized under the leadership of Jack Kestner, a retired newspaperman and author of several books for children, and the 'League of County Voters' organized under the chairmanship of Dr. G. A. Larsen, son of a Lutheran missionary.
Larsen called for reason instead of 'paranoia.' He said of Williams and Sproles: 'Despite their proclaimed religiosity they have proven themselves to be false prophets. The people now in power have accomplished a great deal by using methods that I find reprehensible.'
. . .
The public library case has attracted national attention. All three major television networks, city newspapers, and many free-lance writers have descended on a bewildered little Abingdon. Hollywood actor Ned Beatty, who started in Abingdon's Barter Theater and sang in the choir at St. Thomas Episcopal Church, came back to investigate the possibility of making a documentary movie on the subject. Williams has appeared on national TV talk shows - one a debate with author Sidney Sheldon that produced much beat and little light.
The tumult played a major role in Abingdon's municipal elections of May 4, 1982. Spokesmen for three incumbent town council members charged that spokesmen for three challengers were allied with Sproles and Williams. That charge resulted in a $1.7 million libel suit-yet to be tried.
It apparently helped re-elect the three incumbents who promptly began studying a plan to annex the suburbs surrounding Abingdon to raise the town's population above 5,000. Under Virginia law, a town with more than 5,000 population may declare itself a city and literally secede from the county in which it is located, taking its tax base with it. If successful, the move would cost the county government much of its tax revenue.
With a solid majority on the Board of Supervisors, Sproles hit back by hitting the library, the school board, and the sheriffs department where it hurts the most-in the pocketbook. He cut the school budget by $900,000 to eliminate a promised ten per cent pay raise for teachers. He cut the sheriffs budget by $109,000, and the sheriff said he may be forced to sue the county. (Earlier, Sproles called for creation of a 'county police force' under control of the Board of Supervisors.)
Sproles and his majority cut the library's 1982-83 fiscal budget $16,000 below its 1981-82 funding level. State Library officials said this will automatically cost the library $50,000 in state aid, all of which is earmarked for purchase of books and similar library materials. The immediate effect of the budget cut is that the library has had to curtail its hours of operation drastically."
I remember this story in part because the librarian had once been one of my babysitters when I was a wee lad, and I think her mother was the elementary school librarian at the place where I first went to school.
I'm not sure that I put the debate over Internet filters on the same level as that wild library episode in the bad old days of Washington County politics, but I guess some librarians see no difference in the federal government's threat to cut off money to libraries without some limited censorship of the Internet.
The Richmond Times-Dispatch has this report, in which all Richmond-area localities claim that they are in compliance with the federal Act, an interesting fact if true.
The case makes me recall that right here in Washington County, more than 20 years ago, there was a great dispute over the books on the shelves in the county library (from which I've had a library card since I was 7). Former Washington County News columnist Lowry Bowman has this account of the library story:
"In March, 1980, three businessmen-two convenience store owners and one the owner of Abingdon's only book store-were arrested on charges of selling pornographic materials, largely such magazines as Playboy, Dude, Hustler, and the like. The Sheriff swore under oath that [the Rev. Tom] Williams originated the complaint, although Williams denies it. It ended in a mistrial when the jury could not agree. During the trial, however, the defense introduced as evidence several popular novels from the county's public library-novels by Sidney Sheldon, Phillip Roth, and others. It argued that the magazines in question were no more pornographic than these novels in popular demand and therefore could not have offended the public morality.
Williams, who sat through the trial, went immediately to the library and demanded from Librarian Kathy Russell White a list of all those who had checked these books out of the library. She refused. The library's Board of Trustees (all appointed by the Board of Supervisors) supported the librarian and condemned any attempt at censorship of library shelves.
The library has a standard procedure to be followed when anyone dislikes its selection of books. There is a complaint form to be filled out and presented to the Board of Trustees. Williams refused the form and went this time directly and immediately 'to the people.' [Supervisor Bobby] Sproles, citing 'egg-headed liberals,' vowed to cut off money for the library unless the books were removed.
But this time there was immediate reaction. Two opposition groups emerged immediately: the 'Friends of the Library' organized under the leadership of Jack Kestner, a retired newspaperman and author of several books for children, and the 'League of County Voters' organized under the chairmanship of Dr. G. A. Larsen, son of a Lutheran missionary.
Larsen called for reason instead of 'paranoia.' He said of Williams and Sproles: 'Despite their proclaimed religiosity they have proven themselves to be false prophets. The people now in power have accomplished a great deal by using methods that I find reprehensible.'
. . .
The public library case has attracted national attention. All three major television networks, city newspapers, and many free-lance writers have descended on a bewildered little Abingdon. Hollywood actor Ned Beatty, who started in Abingdon's Barter Theater and sang in the choir at St. Thomas Episcopal Church, came back to investigate the possibility of making a documentary movie on the subject. Williams has appeared on national TV talk shows - one a debate with author Sidney Sheldon that produced much beat and little light.
The tumult played a major role in Abingdon's municipal elections of May 4, 1982. Spokesmen for three incumbent town council members charged that spokesmen for three challengers were allied with Sproles and Williams. That charge resulted in a $1.7 million libel suit-yet to be tried.
It apparently helped re-elect the three incumbents who promptly began studying a plan to annex the suburbs surrounding Abingdon to raise the town's population above 5,000. Under Virginia law, a town with more than 5,000 population may declare itself a city and literally secede from the county in which it is located, taking its tax base with it. If successful, the move would cost the county government much of its tax revenue.
With a solid majority on the Board of Supervisors, Sproles hit back by hitting the library, the school board, and the sheriffs department where it hurts the most-in the pocketbook. He cut the school budget by $900,000 to eliminate a promised ten per cent pay raise for teachers. He cut the sheriffs budget by $109,000, and the sheriff said he may be forced to sue the county. (Earlier, Sproles called for creation of a 'county police force' under control of the Board of Supervisors.)
Sproles and his majority cut the library's 1982-83 fiscal budget $16,000 below its 1981-82 funding level. State Library officials said this will automatically cost the library $50,000 in state aid, all of which is earmarked for purchase of books and similar library materials. The immediate effect of the budget cut is that the library has had to curtail its hours of operation drastically."
I remember this story in part because the librarian had once been one of my babysitters when I was a wee lad, and I think her mother was the elementary school librarian at the place where I first went to school.
I'm not sure that I put the debate over Internet filters on the same level as that wild library episode in the bad old days of Washington County politics, but I guess some librarians see no difference in the federal government's threat to cut off money to libraries without some limited censorship of the Internet.
More on Virginia schools' reactions to Michigan cases
The Roanoke Times has this article, which says that nobody knows what yesterday's Supreme Court's decisions on race in admissions mean for the public schools and universities in Virginia. The Daily Press reports here that it is "too early" to know the impact of the Michigan cases.
The Richmond Times-Dispatch has this article, which suggests all Virginia schools are already in compliance with yesterday's Supreme Court decisions. The Daily Progess in Charlottesville reports here that "UVa likely unaffected by affirmative action ruling." Similarly, the Virginian-Pilot reports here that no changes were likely to result from the Court's decisions.
Attorney General Kilgore's news release on the Michigan cases is here. In it, he says that his advice has been that "the easiest course of action is to remove race or gender from consideration at all" and nothing the Supreme Court said changes that stance. Governor Warner's press release is here. In it, he said "I believe race should continue to be considered as one factor among many."
The Times-Dispatch also has this item on how the balancing act of Richmond's own, the late Justice Lewis Powell, still influenced the Court in yesterday's rulings.
The Richmond Times-Dispatch has this article, which suggests all Virginia schools are already in compliance with yesterday's Supreme Court decisions. The Daily Progess in Charlottesville reports here that "UVa likely unaffected by affirmative action ruling." Similarly, the Virginian-Pilot reports here that no changes were likely to result from the Court's decisions.
Attorney General Kilgore's news release on the Michigan cases is here. In it, he says that his advice has been that "the easiest course of action is to remove race or gender from consideration at all" and nothing the Supreme Court said changes that stance. Governor Warner's press release is here. In it, he said "I believe race should continue to be considered as one factor among many."
The Times-Dispatch also has this item on how the balancing act of Richmond's own, the late Justice Lewis Powell, still influenced the Court in yesterday's rulings.
Monday, June 23, 2003
First court appearance on Thursday in Big East lawsuit, as Miami-only concept gets some ink
As reported here by the AP, the first pre-trial conference will be held somewhere in Connecticut on Thursday in the lawsuit brought by the Big East to stop the departure of Miami and Boston College to the Atlantic Coast conference, amid talk that some Big East members that the suit might be dropped if the ACC takes only Miami, which might be the plan preferred by North Carolina, as reported here. The New York Times expects the ACC to vote finally on Tuesday, going for either the Miami-only plan or the 12-team plan, with or without Virginia Tech, as reported here.
Virginia Supreme Court goes 0-for-2 before U.S. Supreme Court this term
This report in the Washington Times discusses the fact that two decisions by the Virginia Supreme Court - both involving First Amendment issues, the public housing trespass case and the cross-burning case - were reversed in this term of the United States Supreme Court. Since 1995. Virginia is "tied with Washington for the most reversals in direct appeals of top state court rulings," but as Professor Rod Smolla and former Attorney General William Broaddus explained in the article, that doesn't mean much of anything.
Outhouses in America
That's right, this article is about Great American outhouses, including the ones at Monticello, home of Thomas Jefferson, where "archaeologists recently discovered a 30-foot tunnel that used to ventilate his outhouse."
The outhouses were still there (but not in use) when I was old enough to look around at the farms where my grandparents lived. One was known as my grandpa Conrad's "office."
Unfortunately, there are too many outhouses still in use by necessity in Southwest Virginia - Lenowisco is bringing water, sewer, and fiber-optic cable to some places all at the same time.
The outhouses were still there (but not in use) when I was old enough to look around at the farms where my grandparents lived. One was known as my grandpa Conrad's "office."
Unfortunately, there are too many outhouses still in use by necessity in Southwest Virginia - Lenowisco is bringing water, sewer, and fiber-optic cable to some places all at the same time.
AG Kilgore declares Supreme Court rulings on race will not alter his advice to Virginia schools
As reported here by the Daily Press, Virginia Attorney General Jerry Kilgore said earlier today that the Supreme Court's split decisions in the University of Michigan cases would not change his advice to Virginia's public colleges and universities as his offices continues to examine their policies regarding race.
Supreme Court grants certiorari in municipal telecom case from Missouri
As reported here by the AP, today the Supreme Court granted cert in the Missouri Municipals case, in which the Eighth Circuit joined Judge Jones of the W.D. Va., in this opinion, and others, in the conclusion that local governments are within the phrase "any entity" against which states may not under the Telecommunications Act provide barriers to entry into the business of providing telecommunications. The D.C. Circuit took a different view in an earlier case. Jim Baller is one of the counsel for the local government side.
In Southwest Virginia, the City of Bristol, the Town of Abingdon, Dickenson County, and Lenowisco Planning District Commission are among the local government bodies that are providing, have provided, or will provide telecommunications services. Other communities like Bedford, Manassas, Lynchburg, and Blacksburg have fiber networks that involved some combination of public and private efforts.
In Southwest Virginia, the City of Bristol, the Town of Abingdon, Dickenson County, and Lenowisco Planning District Commission are among the local government bodies that are providing, have provided, or will provide telecommunications services. Other communities like Bedford, Manassas, Lynchburg, and Blacksburg have fiber networks that involved some combination of public and private efforts.
Utility customer has no procedural due process claim where service not mandatory and not yet cut off
In Southside Trust v. Town of Fuquay-Varina, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Michael and District Judge Wooten affirmed summary judgment on a utility customer's procedural due process challenge to the municipal utility's actions in charging higher rates. The Court held that plaintiff was not entitled to any procedural due process, because the town was not required to show "cause" to deny service under state law, and that there could be no denial of procedural due process where the plaintiff's service had not been terminated.
Even a sick old man not entitled to downward departure from guidelines
In U.S. v. Hayes, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael, Motz, and Traxler affirmed the defendants' sentences, even as to one defendant in particular who claimed the following:
"Greeson was 82 years old when he was sentenced. Two months earlier, in May 2002, he had a cancerous tumor removed from his colon. A letter to the probation officer from his doctor stated that he suffered from chronic obstructive pulmonary disease, degenerative disc disease, and diabetes which was controlled by diet. The district court was plainly troubled about Greeson’s age and health and mentioned the reversal of the downward departure in Coble, adding, 'I don’t find any separation between this case and Mr. Coble’s case. If I could, I would, but I simply can’t find any, and I think that I’m bound to follow what the Court has said.' After Greeson further alleged that he suffered from skin cancer on his head and arms, had been treated by surgery for glaucoma on his left eye, and needed the same surgery on his right eye, the court stated, 'This is a very, very difficult case. . . . I think that judges ought to have some grounds, and if I had any, I would depart downward. I don’t see any basis to do that here.' Greeson argues that the district court mistakenly believed that it was bound by the outcome in Coble and thus without authority to depart downward."
Of this argument, the appeals court said:
"We note that the sentencing court’s authority to depart based on any factor that is not forbidden is well established. The policy statements that deal with age and physical condition as potential factors for departure each state that these factors are 'not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range,' thus leaving open the possibility that a departure may be warranted in an unusual case. USSG §§ 5H1.1, p.s. (Age), 5H1.4, p.s. (Physical Condition). These factors are 'discouraged' bases for departure, but may be the basis of a departure in an exceptional case. United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996). Because the law is settled in this area, we interpret the court’s comments in this case to mean that the court was unable to find that Greeson’s case was an exceptional one which justified departure. We cannot conclude from the court’s statement that it would prefer a wider latitude to depart that it mistakenly believed it lacked authority to depart. Therefore, we conclude that the court understood its authority to depart and exercised its discretion not to depart."
Mr. Greeson was sentenced to 46 months in prison.
"Greeson was 82 years old when he was sentenced. Two months earlier, in May 2002, he had a cancerous tumor removed from his colon. A letter to the probation officer from his doctor stated that he suffered from chronic obstructive pulmonary disease, degenerative disc disease, and diabetes which was controlled by diet. The district court was plainly troubled about Greeson’s age and health and mentioned the reversal of the downward departure in Coble, adding, 'I don’t find any separation between this case and Mr. Coble’s case. If I could, I would, but I simply can’t find any, and I think that I’m bound to follow what the Court has said.' After Greeson further alleged that he suffered from skin cancer on his head and arms, had been treated by surgery for glaucoma on his left eye, and needed the same surgery on his right eye, the court stated, 'This is a very, very difficult case. . . . I think that judges ought to have some grounds, and if I had any, I would depart downward. I don’t see any basis to do that here.' Greeson argues that the district court mistakenly believed that it was bound by the outcome in Coble and thus without authority to depart downward."
Of this argument, the appeals court said:
"We note that the sentencing court’s authority to depart based on any factor that is not forbidden is well established. The policy statements that deal with age and physical condition as potential factors for departure each state that these factors are 'not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range,' thus leaving open the possibility that a departure may be warranted in an unusual case. USSG §§ 5H1.1, p.s. (Age), 5H1.4, p.s. (Physical Condition). These factors are 'discouraged' bases for departure, but may be the basis of a departure in an exceptional case. United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996). Because the law is settled in this area, we interpret the court’s comments in this case to mean that the court was unable to find that Greeson’s case was an exceptional one which justified departure. We cannot conclude from the court’s statement that it would prefer a wider latitude to depart that it mistakenly believed it lacked authority to depart. Therefore, we conclude that the court understood its authority to depart and exercised its discretion not to depart."
Mr. Greeson was sentenced to 46 months in prison.
Is there a bankruptcy stay when petition is invalid and does stay continue when case is dismissed then converted?
In Shaw v. Ehrlich, involving the claims between former members of the Audubon Quarter, which was once an artist-in-residence group at Virginia Tech, Judge Turk of the W.D. Va. wrestled with the thorny questions under bankruptcy law of whether there is an automatic stay when the bankruptcy petition is invalid (answering yes), and secondly, whether the stay was continued when the case was dismissed then converted to Chapter 11.
Qualified immunity and a consensus of medical opinion
The opinion of Judge Easterbrook for the Seventh Circuit in the case of West v. Schwebke seems to have turned the qualified immunity standard upside down, in concluding that there was a triable question of fact when medical experts disagreed on the propriety of the conditions of plaintiff's confinement. The issue is whether a reasonable official in the defendant's position could have thought that those conditions were medically justified, based on the state of available knowledge at that time, not whether that was the right conclusion or even the best conclusion.
What to do when plaintiff in a civil case pleads the Fifth Amendment?
It has happened to me a time or two that plaintiffs try to avoid discovery of embarrassing if not incriminating evidence about themselves by taking the Fifth Amendment in depositions. In McMullen v. Bay Ship Management, the Third Circuit dealt with a case in which the plaintiff was actually indicted while the civil case was pending. The court of appeals concluded that outright dismissal of the plaintiff's case was too severe a sanction against the plaintiff, including this memorable paragraph which caught the eye of How Appealing:
"The only virtue in dismissing the case here was clearing the court’s docket. Although promptness in judicial administration is highly desirable, delay may sometimes be necessary to the mission of doing justice. We are all too often reminded that 'justice delayed is justice denied.' But, it is equally true that in some situations 'justice rushed is justice crushed.'"
"The only virtue in dismissing the case here was clearing the court’s docket. Although promptness in judicial administration is highly desirable, delay may sometimes be necessary to the mission of doing justice. We are all too often reminded that 'justice delayed is justice denied.' But, it is equally true that in some situations 'justice rushed is justice crushed.'"
Sunday, June 22, 2003
What happens when a woman from Southwest Virginia moves to California?
In "The Land Between," a novel by Cathryn Hankla of Hollins University outside Roanoke, part of the plot involves the experiences of a Southwest Virginia woman who moves to California, but none of it captured the fancy of this reviewer in the Richmond Times.
Bad economy hits racing
A Bristol, Virginia business that made toys and sponsored a NASCAR Busch series racing team filed for bankruptcy earlier this month, as reported here in the Bristol paper, while the racing world in general is suffering because of the economy, as reported here in Sports Business News.
The popularity of the NASCAR Winston/Nextel Cup races at Bristol Motor Speedway remains unaffected - in particular, seats for the night race in August are still the toughest tickets in sports, at a venue that seats more than 150,000. (It is an amazing thing when the races come to town.)
The popularity of the NASCAR Winston/Nextel Cup races at Bristol Motor Speedway remains unaffected - in particular, seats for the night race in August are still the toughest tickets in sports, at a venue that seats more than 150,000. (It is an amazing thing when the races come to town.)
Forest service fires back at whistleblower, dispute could bog down forest plans
As reported here in the Roanoke Times, the United States Forest Service is disputing the allegations by an archaeologist employer by the service, that the Southern Appalachian forests, including the Jefferson National forest in Southwest Virginia, have been mismanaged. As reported here in the Gainesville GA Times, the dispute may delay implementation of recently-declared plans for the management of the Southern Appalachian forests.
Hot litigation area for the 21st century - mold
Litigation over mold in buildings has become a growth area of the law, but that does not mean that affected homeowners are able to obtain easy remedies, as explained in this Daily Press article detailing the travails of a family in Williamsburg.
Some Virginia schools can't wait a week, changing policies for fear of personal liability
This AP report details that Virginia Tech has been making changes in some of its programs to avoid racial preferences, motivated in part by the board members' fear of personal liability, even though the Supreme Court will almost surely issue its opinion(s) in the University of Michigan cases before the end of this week (in time for Chief Justice Rehnquist to attend the Fourth Circuit judicial conference, as reported here in the New York Times, which says the unofficial end of the Supreme Court term these days "is the annual conference of the United States Court of Appeals for the Fourth Circuit, for which Chief Justice William H. Rehnquist serves as the circuit justice. He never misses it, and is to go to the Homestead Resort in Hot Springs, Va., on June 26.").
Whoever is telling the board members that they can be liable didn't pay much attention to all that has been written about the ambiguity of the Bakke decision, the fundamental inability among lawyers and judges to know the law of affirmative action, which is what makes the Michigan cases such big news - that ambiguity in the law is what would seem likely to guarantee a qualified immunity defense for any state actor sued in his or her individual capacity regarding racial preferences in admissions.
Whoever is telling the board members that they can be liable didn't pay much attention to all that has been written about the ambiguity of the Bakke decision, the fundamental inability among lawyers and judges to know the law of affirmative action, which is what makes the Michigan cases such big news - that ambiguity in the law is what would seem likely to guarantee a qualified immunity defense for any state actor sued in his or her individual capacity regarding racial preferences in admissions.
Fourth Circuit nominee Allyson Duncan sworn in as president of the N.C. bar
The AP has this report on the installation of Allyson Duncan as the new president of the North Carolina Bar Association, the first black lawyer to hold that post. The article notes that "A Senate Judiciary Committee hearing on her nomination is slated for this week. If the full Senate approves, Duncan could become the first North Carolinian on the court in four years." Also, it says that if it becomes too much work being bar president and Fourth Circuit judge, Ms. Duncan would resign from the bar position.
Virginia Democrats focusing on 10 raises in this year's General Assembly elections
The Daily Press has this column with commentary on the role of former Democratic Attorney General nominee and Richmond attorney Donald McEachin, who is now representing former Judge Verbena Askew on the ethics charge brought by Senator Stolle. Apparently, Stolle did not go to law school but read the law, as is still sometimes done in Virginia. Some law readers are sensitive to any aspersion being cast on the fact that they did not attend law school.
McEachin is now seeking dismissal of the ethics charge, on the basis that Judge Askew was asked only about court cases, not administrative proceedings (like the sexual harassment charges before the EEOC, and in so doing, twisted the knife a bit when he declared that "Nobody that's gone to law school is going to confuse an administrative process with a civil process. You just don't think that way."
Ouch. The columnists conclude that "[g]iven Stolle's position, [McEachin] must not be interested in ever becoming a judge."
In addition, the columnists explain that with all the seats in both the Senate and the House of Delegates up for election this fall, the Virginia Democratic Party will focus its efforts on (only) 10 seats in particular.
McEachin is now seeking dismissal of the ethics charge, on the basis that Judge Askew was asked only about court cases, not administrative proceedings (like the sexual harassment charges before the EEOC, and in so doing, twisted the knife a bit when he declared that "Nobody that's gone to law school is going to confuse an administrative process with a civil process. You just don't think that way."
Ouch. The columnists conclude that "[g]iven Stolle's position, [McEachin] must not be interested in ever becoming a judge."
In addition, the columnists explain that with all the seats in both the Senate and the House of Delegates up for election this fall, the Virginia Democratic Party will focus its efforts on (only) 10 seats in particular.
Time magazine writes of how Rehnquist changed America
I've just read this Time magazine article on Chief Justice Rehnquist. It seems pretty fair, for a Time magazine article.
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