Saturday, July 19, 2003

Governor Warner and Bobby Wayne Swisher

This commentary in the Washington Post says that following the Virginia Supreme Court's recent ruling, Governor Warner can no longer avoid making a real decision about whether to stop the execution of Bobby Wayne Swisher, scheduled for Tuesday.

Cases solved by Virginia's DNA law

According to this report in Sunday's Washington Post, law enforcement officials are claiming that "Virginia's new law requiring people accused of violent crimes to submit DNA samples has generated clues to 21 unsolved criminal cases."

Profile of Circuit Court Judge LeRoy Millette, Jr., who has the Muhammad case

Sunday's Washington Post has this interesting article on Judge Millette, who will preside over the trial of the accused sniper John Muhammad.

Friday, July 18, 2003

Pro bono as condition precedent to legal work for the state?

My Shingle has this post about the idea in Massachusetts of requiring lawyers seeking to do legal work for the Commonwealth to show that they do some amount of pro bono work.

(And, how did Virginia, Pennsylvania, Kentucky, and Massachusetts get to be the only four Commonwealths in these United States?)

Litigating who must defend against claims of Fallen man (who fell down)

In Travelers Indemnity Co. of Illinois v. Liberty Mut. Ins. Co., the Fourth Circuit resolved a dispute over which of two insurers had to defend a lawsuit brought by a guy who fell down, where the fallen man's name was Fallen.

Fourth Circuit en banc reverses Ocheltree panel decision by vote of 10-2

In Ocheltree v. Scollon Productions, Inc., the Fourth Circuit sitting en banc upheld the liability for the plaintiff in a Title VII sexual harassment case but reversed the award of punitive damages. Judge Michael wrote the opinion for the majority, with Judge Niemeyer concurring in the result. Judge Williams dissented, joined by Judge Widener.

This is certainly a nasty enough case for me to say it is not obvious that there was not a jury question on the disputed elements. If I understand the history, without the punitive damages, the plaintiff was awarded compensatory damages of $7,280.

$7,280! Plus, I'm guessing, $400,000 to cover both sides attorneys' fees and litigation costs?

UPDATE - How Appealing has this post with many links about the decision in this case.

The judge was a history major

In this story from the Washington Post, the circuit court judge explained his decision to enjoin the demolition of a 200 year-old house, notwithstanding the express language of the promises of its owner, by saying, "Maybe it's because I'm a history major."

ACLU joins the fray over handling of report on mistreatment of mental patient

The American Civil Liberties Union is now looking to intervene on behalf of the patient in the federal court case between the Danville-Pittsylvania Community Services Agency and the Virginia Office for Protection and Advocacy - and as reported here, the ACLU is on the side favoring public disclosure of whatever there is to be disclosed publicly, other than the actual name of the ACLU's client.

Those rotten patches

This week came more news of newly-discovered security flaws in MS Windows and newly-offered patches available for download from MS. Whenever a new patch comes out, there is sort of an incubation period while the marketplace decides whether the cure is worse than the disease. In my little office, I can't begin to keep track of all that stuff, but this article from ZDNet says maybe I should not even try. The bottom line on the advice offered is - "Instead of spending time and money implementing every patch that Microsoft releases, stick to the service packs and bolster your security policy."

Well, I can do that.

New agenda for CIT - maximizing federal funds in Virginia

The Washington Post reports here that the priority for Virginia's Center for Innovative Technology is figuring out how to maximize federal grant money for projects in Virginia.

How Doug Wilder got elected by keeping Jesse Jackson out of Virginia

The Daily Progress has this great article about the campaign strategies of the Doug Wilder statewide campaign in 1989, which included rejecting every effort by Jesse Jackson to come to Virginia.

Va. Supreme Court denies last Swisher appeal, execution set for next week, Swisher appeals to Warner

The AP has this report and the Richmond paper has this report on the latest ruling from the Virginia Supreme Court denying the appeal of death-row inmate Bobby Wayne Swisher, who is scheduled to die on Tuesday.

This afternoon, Swisher filed for clemency again, as reported here.

Thursday, July 17, 2003

Liberals and Maryland senators oppose Claude Allen nomination

More was heard earlier this week from the opponents of President Bush's nomination of Claude Allen to fill the vacancy on the U.S. Court of Appeals for the Fourth Circuit left by the death of Judge Francis Murnaghan from Baltimore, as reported by the Richmond Times-Dispatch in this article, which quotes a letter from Senators Sarbanes and Mikulski as saying "We cannot accept the shifting of a seat away from Maryland, which has twenty percent of the Circuit's population and should be allocated three of its fifteen judges."

The articles below on Judge Duncan note that there has not been a single North Carolina judge on the Court in years.

Bath County judge dies in auto accident

Circuit Court Judge Duncan Byrd, Jr., of Bath County died on Wednesday night.

The AP report included this information about him:

"A seventh-generation native of Bath County, Byrd, 60, was a 1965 graduate of Virginia Military Institute. He earned his law degree in 1968 from the T.C. Williams School of Law at the University of Richmond.

After graduation from law school, Byrd served two years in the Army, including a year in Vietnam.

He returned to Bath County and operated a private law practice. In May 1971, he was appointed a judge of Bath County's Juvenile and Domestic Relations Court.

Byrd was the fourth member of his family to serve as a judge in Bath County, following his father, grandfather and great-great grandfather.

He was named a General District Court judge in 1973. In 1981 he was named judge of the 25th Judicial Circuit Court, which serves Bath, Highland, Alleghany, Craig, Augusta, Rockbridge and Botetourt counties. He was named chief judge in 1998."

U.S. Senate confirms Allyson Duncan to the Fourth Circuit

As reported here by the AP, the United States Senate voted 93-0 to confirm Allyson Duncan to the U.S. Court of Appeals for the Fourth Circuit.

Introducing her to the Senate Judiciary Committee back in June, Senator John Edwards of North Carolina gave this speech. The Independent Judiciary website had this page on Judge Duncan.

Roanoke kid with Crohn's goes for blood stem cell transplant

Today's Roanoke Times has this story about Jordan Fifer, age 13, who is about to travel to Chicago for an experimental Crohn's disease treatment involving a stem-cell transplant (using his own stem cells, not the controversial kind). The young man has a website, and a fund for his medical bills (and other necessaries), Good luck to you, Jordan.

There are almost a million people with Crohn's disease in the United States and I am one of them. Occasionally, I come across reported cases involving persons with Crohn's who are either claiming disability or discrimination. In one such case, the Sixth Circuit noted:

"Even if Kerwin were, as Ada Kerwin suggests, a lazy, financially unsuccessful trial attorney before his diagnosis, he nevertheless would be entitled to recovery under the Policy if Crohn's disease left him unable to perform the functions of a trial attorney."

Kerwin v. Paul Revere Life Ins. Co., 6 Fed. Appx. 233, 239 n.3, 2001 WL 223856, 4 n.3 (6th Cir. 2001). (And no, I did not file an amicus brief in the case.)

Judge Wilson says being in jail for 30 years is no excuse

Today's Roanoke Times reports here on the following exchange between Chief Judge Samuel Wilson of the W.D. Va. and counsel for a convicted murderer facing federal charges for sending threatening letters from prison:

"Defense attorney Christopher Tuck said his client was a model inmate at Bland before his current situation sent him to Red Onion State Prison. After nearly 30 years in prison, during which a co-defendant in his crime was released, Easter became frustrated and wrote things he didn't mean, Tuck told the judge.

That argument provoked the following exchange:

Tuck: "You can't imagine what it's like to be incarcerated for that kind of time. There are times of frustration and you lash out and you write letters."

Wilson: "Well, when you commit murder, you don't have any reason to lash out."

In the print edition (which I just read at my house), the story continued:

Tuck: "None of us has been in prison for 30 years."

Wilson: "None of us has committed murder, either."

Experts now saying Grundy law school killer fit for trial

The man accused of murdering Dean Anthony Sutin and two others at the Appalachian School of Law last January may now be fit to stand trial, according to this report in the Roanoke paper.

I'm not a judge but I played one on TV?

In Ohio, a whole new Supreme Court has been convened to decide one case, whether a sitting justice violated the rules by appearing in campaign advertisements wearing a judicial robe, even though she was not and had not been a judge since 1995, as reported here in the Toledo paper, via Jurist's Paper Chase.

Can a lawyer's knowledge of his own malpractice be imputed to the firm? has this article on a case in New York where the court held that an individual lawyer's knowledge of his own malpractice was not imputable to his law firm for purpose of whether the firm itself gave timely notice of the claim to its malpractice carrier.

Somewhat to the contrary, however, the lawyer's knowledge of his own malpractice likewise voided the firm's coverage when he was the person authorized to reapply for coverage and in filling out the application he concealed what he knew about how he had been stealing from clients, or so Judge Jones of the W.D. Va. concluded in the Ron King case.

Blasting temporarily enjoined in Montgomery County neighborhood

Homeowners in a Blacksburg neighborhood were able to convince Judge Bobby Turk of the Montgomery County circuit court to enjoin temporarily blasting in the neighborhood while its potential effects are sorted out, as reported here in the Roanoke paper.

What is the hunting season for altria in Tennessee?

According this post on the Trademark Blog, an "Altria" is not at all like a some kind of South American rodent.

On the other hand, I learned just yesterday that in Tennessee (or some parts of it) it is open season all year long (with no limit) for the hunting of "Armadillo, Coyote, Groundhog, House Sparrow, Nutria, Starling, Striped Skunk," as stated here. (I guess this rule covers those who get a hankering to go out and shoot something, anything.)

New River segment of gas pipeline complete

The Roanoke paper has this report on the completion of the segment of the new Duke Energy pipeline that passes under the New River in Wythe County.

$50,000 settlement for teen's violent death at state mental hospital

The Roanoke Times has obtained and is reporting here the details of the settlement regarding the death of an 18 year old man from terrible injuries he sustained while he was an inmate receiving mental health services at the Western State Hospital in Staunton.

Hmm, is the RSS turned back on?

Thanks to Brian Peterson who points out that the RSS feed was turned off for this blog, but hopefully it is back on now.

Wednesday, July 16, 2003

How many cases does the Virginia Supreme Court take on per year?

It says here that the Virginia Supreme Court has been granting petitions or awarding appeals in about 300 cases per year from 1998 to 2002 - and the disposition of about half of those involved opinions.

Judge Millette's order in the Muhammad case

Here from Findlaw is Judge Millette's order transferring the Muhammad sniper case from Prince William County to Virginia Beach for trial.

The Muhammad case was a topic among the assembled lawyers at last night's reception in Abingdon for three justices of the Virginia Supreme Court. Justices Koontz, Lemons, and Agee were in town to hear a round of petitions for appeal. Somebody told me that Judge Millette's first case as a trial court judge was the Lorena Bobbitt case, which makes for a good story if true, but it may not be if this CNN story is correct. (CNN?)

Oops, we put our fiber in your yard by mistake

Level3 Communications is facing a dispute before the SCC over whether it should be allowed to use eminent domain to fix its mistakes in laying fiber optic cable on property in Eastern Virginia where it had no right to do so, as reported here and here.

State-wide class actions - the coming thing (but not in Virginia)?

In June, I read the Seventh Circuit's Bridgestone/Firestone decision, upholding the idea that a federal district court can issue an injunction to prevent the issue of nationwide class certification from being relitigated in state court, while leaving the door open for state-wide class certification in state court. This week, I read that in West Virginia, in this opinion, the state Supreme Court reversed the denial of class certification in state-wide Rezulin litigation. In Ohio, the 12th District Court of Appeals affirmed state-wide class certification regarding OxyContin, in this opinion. The latter two decisions seem to fly in the face of the bulk of the federal case which rejects class certification in personal injury cases.

These cases make me think that plaintiffs' counsel will continue to avoid federal court while seeking state-wide classes in state court - except, that is, for in states like Virginia, which has no state law procedure for class actions (and until recently would not even let a group of mass tort victims join together in one case). See Heirs of Roberts v. Coal Processing Corporation, 235 Va. 556, 559, 369 S.E.2d 188, 189 (1988) (trial court concluded “class actions are impermissible in actions at law in Virginia”); Almeter v. Virginia Dept. of Taxation, 53 Va. Cir. 429, 2000 WL 1687589 at *1 n.1 (City of Richmond Cir. Ct.) (“Class actions are not generally allowed”); In re American Dollar Exchange, Inc., 27 Va. Cir. 428, 430, 1992 WL 197040 at *3 (Campbell County Cir. Ct.) (“no class action procedure”); Skeen v. Indian Acres Club of Thornburgh, Inc., 27 Va. Cir. 167, 172-73, 1992 Va. Cir. LEXIS 166 at *12 (Spotsylvania County Cir. Ct.) (law against class actions is “unmistakably clear”); Pendergraph v. Woodlawn County Club, Inc., 22 Va. Cir. 203, 204, 1990 Va. Cir. LEXIS 338 at *2 (Fairfax County Cir. Ct.) (“plaintiff may not proceed ‘on behalf of others similarly situated’”); King v. Virginia Birth-Related Neurological Injury Compensation Program, 22 Va. Cir. 156, 159, 1990 WL 751353 at *3 (City of Richmond Cir. Ct.), aff’d, 242 Va. 404, 410 S.E.2d 656 (1991) (“no provision in Virginia law which allows class actions”); Evitt v. Lake Holiday Country Club, Inc., 13 Va. Cir. 360, 362, 1988 WL 619347 at *2 (Frederick County Cir. Ct.) (“no class action procedure”); Miller v. Nat’l Wildlife Federation, 1987 WL 488717 at *1 (Loudon County Cir. Ct.) (“no class action statute or rule similar to Rule 23”); Bracey v. City of Richmond, 1985 WL 306797 at *2 (City of Richmond Cir. Ct.) (“we do not have class action suits”); Kuhn v. West Alexandria Properties, Inc., 22 Va. Cir. 439, 444, 1980 Va. Cir. LEXIS 63 at *10-11 (City of Alexandria Cir. Ct.) (no “Virginia case law, rule of court or provision in title 8.01 of the Virginia Code which would authorize the maintenance of a class action at law”); compare SINCLAIR & MIDDLEDITCH, VIRGINIA CIVIL PROCEDURE 178, 304 (3d ed. 1998) (no class actions comparable to Rule 23); BRYSON, BRYSON ON VIRGINIA CIVIL PROCEDURE 193 (3d ed. 1997) (same); Revisers’ Note to Code § 8.01-281 (“This section does not provide for class actions”); Revisers’ Note to Code § 8.01-364 (“the section . . . is not intended to authorize the bringing of ‘class actions’”).

Tennessee lawyer gets judge recused with claim to have ex parte contact on tape

A Tennessee lawyer who has filed 200 motions on behalf of his client in a capital murder case in Tennessee got the judge to recuse himself when he claimed that a message left on his answering machine was evidence of ex parte communication between the judge and the prosecutor, as reported here in the Knoxville paper.

Testimony in the Richmond tax assessor criminal case

The Richmond paper has this report on the arguments and testimony in the criminal trial of Richmond's tax assessor, for ordering the reduction of the tax value of his own property.

TN inmate released by mistake calls in from California

The once and future Tennessee inmate from Greeneville who was released by mistake got the word in California that Tennessee authorities were looking for him and gave them a call about what to do, as reported here.

Plaintiff states a retaliation claim based on his successful defense of harassment charges

In Deravin v. Kerik, the Second Circuit held that the plaintiff had stated a cause of action for retaliation, where the "protected activity" on which his claim was based was his testimony defending himself against the sexual harassment charge brought under Title VII by a female co-worker.

Virginia's own Dr. Pat Robertson prays for liberals on Supreme Court to hang it up

As reported here and here, Pat Robertson is hoping to change the Supreme Court through prayer. I wonder that the author of Ninomania and his colleagues think of that plan.

Virginia tax debate pits Republican vs Republican before the job begins

As reported here, here, here, and here, some Republican legislators in Virginia are criticizing their peers who have already panned the tax reform effort as a scam to raise taxes in Virginia.

The members of the legislative committee and its staff, along with their schedule, are posted on this website.

Muhammad case moved not to Abingdon but to Virginia Beach

As reported here, here, and here, the trial of the accused sniper John Muhammad will be moved to Virginia Beach, and not Southwest Virginia, as was strangely suggested by the prosecutor in a way that excited the local press.

Attorney Zane Dale Christian leads citizens' group in Bluefield

Bluefield, Va., attorney Zane Dale Christian is leading a group of citizens protesting the ways of the town government in Bluefield, according to this report.

Unrelated to any of this, Mr. Christian used to be a U.Va. football sponsor - when the Cavaliers scored a field goal, the public address announcer would declare, "for that Cavalier field goal, attorney Zane Dale Christian will donate $500 to the Virginia Student Aid Foundation." He is surely the biggest Wahoo fan alive, and has a trophy case full of Wahoo stuff in his very interesting house in Bluefield.

Tuesday, July 15, 2003

Fourth Circuit still holds that Child Support Recovery Act is valid against commerce clause challenge

In U.S. v. Rich, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins, Judge Widener, and Senior Judge Beezer from the Ninth Circuit upheld the constitutionality of the federal Child Support Recovery Act, notwithstanding defendant's claims that it was beyond the power of Congress to regulate interstate commerce.

Oops, your house is in a special flood zone

In Lukosus v. First Tennessee Bank, N.A., Judge Jones dismissed for failure to state a claim the landowner's claim against her lender, claiming that she would not have bought the property if the Bank had told her that it was in a special flood zone.

Judge Jones rules assignee of debtor gets right to extension

In Double K Properties, LLC, v. Aaron Rents, Inc., Judge Jones of the W.D. Va. ruled that under bankruptcy law, the assignee of a debtor was entitled to the benefit of an extension option, notwithstanding language in the lease agreement that the option was personal to the original debtor.

Rape shield law upheld by Virginia Court of Appeals

In Pilcher v. Com., the Court of Appeals in an opinion by Judge Bumgardner and retired Circuit Court Judge Charles H. Smith, Jr., held that the rape shield law, Va. Code § 18.2-67.7, is not void as an "ex post facto" law under the Constitutions of the United States and Virginia, even when applied in cases where the crime was committed a long, long time ago.

Fighting the death penalty in Charlottesville

The Daily Progress has this report on defense lawyers trying to avoid the death penalty in a case involving the murder of a drug dealer.

Put up a parking lot

The egg people in Abingdon have got the Town suing itself over the Board of Zoning Appeals' decision to allow Dutt & Wagner to use its non-conforming parking lot, as reported here.

The article makes it appear that the landowner, the town planner, and the board of zoning of appeals are all in the wrong.

Monday, July 14, 2003

Trial of accused sniper Muhammad could be moved to Southwest Virginia?

In what is surely the most bizarre thing in the stack of newspapers that accumulated while I was out of town, the Bristol paper has this article about the possibility that the John Allen Muhammad trial could be moved to Abingdon, which is just plain stupid, for the reasons pointed out in the article. One of the bizarre aspects is the suggestion that the trial would be held in the federal courthouse, which is surely not under the control of Virginia's state courts, and which is not a big place.

Sunday, July 13, 2003

Jens Soering and Elizabeth Haysom back in the news

During my undergraduate and law school days, I read with interest the press accounts of the Bedford County murder cases against Jens Soering and Elizabeth Haysom, who are about my age, both started at U.Va. while I was there, and the cases involved teenagers who thought they were just way too smart to ever be punished by down-home law enforcement officers.

They are back in the news this week as Soering will soon be up for parole for the first time - the Richmond Times has stories here and here.

On the lack of wireless coverage on Southern West Virginia

This article from the Bluefield paper highlights why some West Virginia legislators are looking for ways to improve cellular phone coverage in southern West Virginia.

On requiring whole school board for vote on consolidation

Wise County school board attorney Scott Mullins has opined that the school board may not impose a requirement on itself that it will not consider a motion on consolidation of high schools without all eight members present, because Virginia state law says the board can act so long as a quorum is present, according to this report in the Coalfield Progress.

I suppose the thinking behind this proposal was to keep some board members from avoiding the political fall-out from having to vote on the consolidation of the high school in Appalachia, which may be inevitable despite the vocal opposition from many residents of the Town of Appalachia.

Nobody from Southwest Virginia on tax commission

The Roanoke Times reports here that there is no one from Southwest Virginia in the 10-member legislative group that will work with Governor Warner on tax reform, which might be a blessing for the quality of life of Southwest Virginia's legislators, but the Roanoke paper editorializes here that it is a bad thing for Southwest Virginians, because that sucking sound you here is money going from "low-tax, low-service" rural areas to high-tax areas, particularly under the inequity and iniquity of the no car tax funding scheme.

Citing one boy's story against federal med mal caps

The Roanoke Times suggests in this article that one Southwest Virginia's boy's experience weighs against the proposed caps on non-economic damages in medical malpractice cases.

Woman with prior conviction pleads guilty to embezzling $60,000 from Comcast

The Johnson City Press reports here (registration required) that a woman entered a plea of guilty to embezzling $60,000 from Comcast in Northeast Tennessee, and the article also notes that this was the woman's second embezzlement conviction, as she "was placed on four years of probation in federal court for stealing from Dawn of Hope for which she worked as an accounting assistant from 1977-81."

This makes me wonder what if anything the defendant said on her job application with Comcast about her prior experiences.

Johnson City judge to reconsider sentence in cat cruelty case

As reported here in the Johnson City Press (registration required), a General Sessions Court judge will entertain a motion to reconsider the sentence he imposed on an elderly couple found "guilty of 33 counts of cruelty to animals and 14 counts of violating the rabies law." The earlier sentence was "100 days in jail and 10 years of probation," with the proviso that if they are "found to have cats during their probation, the couple could end up spending 7 ½ years behind bars."

Southwest Virginia tobacco growers to get cash in anti-trust settlement

The Kingsport paper reports here that area tobacco growers are able to participate in the settlement proceeds of an anti-trust lawsuit against tobacco buyers for price-fixing, which may be a good thing since mold is threatening this year's tobacco, as reported here.

Opposing OMB's move to split the Tri-Cities

Southwest Virginians including Lenowisco Planning District and Congressman Rick Boucher are joining the chorus in opposition to the incredible decision by the federal Office of Management Budget to split the Tri-Cities TN/VA area into three separate metropolitan statistical areas, which has the effect, among other things, of separating Bristol, Virginia, and Bristol, Tennessee, as reported here in the Kingsport paper.

The OMB's justification is that the numbers of commuters between Bristol Virginia and the Tennessee counties was not high enough, as reported here. But what was wrong with the old rules?

Local cases of prosecutorial misconduct?

The Bristol paper reports here and here on the local cases that made a recent report on "prosecutorial misconduct," and the descriptions of these local cases make me think the whole study is suspect.

The Virginia section of the Center for Public Integrity's report can be found here.