Prosecutors apply Virginia's lynch law to death case

This article in the Virginian-Pilot explains why prosecutors are using Virginia's "lynch law" in the prosecution over a death in Virginia Beach.

Fredericksburg sets up e-mail archive

This article describes the efforts by the City of Fredericksburg, VA to archive all the e-mail to and from the City Council. The woman in charge was quoted as saying, "This has been an absolute nightmare." I can believe it.

Support for UCITA erodes further

According to this article, support from the National Conference of Commissioners on Uniform State Laws for the Uniform Computer Information Transactions Act ("UCITA") is fading - while UCITA has been passed only in Maryland and right here in Virginia. The article notes that "four states--Vermont, Iowa, West Virginia and North Carolina--have passed anti-UCITA "bomb-shelter" provisions, which make UCITA laws in Maryland and Virginia inapplicable to residents of those states." The article says the following regarding NCCUSL's dropping of support for UCITA:

"The lack of acceptance has prompted NCCUSL to announce on Friday that it had pulled the plug on all efforts to help states introduce and enact the bill. Without that backing, UCITA is unlikely to gain further consideration from the states, according to Katie Robinson, a NCCUSL spokeswoman.

"Without the conference pushing UCITA, I don't see any other legislative activity happening on it," Robinson said.

NCCUSL, which concluded its annual meeting in Washington this week, also disbanded the special committee that oversees its UCITA activity. Robinson said politics had interfered with the group's efforts in support of the bill, adding that the group may revisit the subject of state laws that govern software contracts and digital information in the future."

NCCUSL's withdrawal of support for UCITA also caught the eye of this commentator, who asks "What's to be done with UCITA?".

Streaming video helps kids learn in rural Virginia

This interesting article says that a study of 1,400 elementary and middle school students in rural Virginia shows that their academic achievement improved by 12% after implementation of a program that included the use of streaming video as a teaching tool.

Summary judgment affirmed where plaintiffs failed to file a response to defense motion

In Wilson v. Dryvit Systems, Inc., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Gregory and Shedd affirmed summary judgment in a case where the plaintiffs (for reasons not stated in the opinion) failed to file anything in response to defendants' motion for summary judgment, though they did later file a motion for reconsideration.

Government accuses Lentz counsel of misconduct for talking to jurors

As reported here by the AP, federal prosecutors are accusing the defense lawyers for Jay Lentz of misconduct in talking to jurors about their deliberations in the case where Lentz was convicted of federal kidnapping but the verdict was overruled by the trial judge, Judge Lee. The defense is claiming that by some means, parts of exhibits that were not admitted into evidence were allowed into the jury room and considered by the jurors.

I often tell the story that after a trial, a juror called me at my office, and when we hung up, I panicked, wondering whether something was wrong with talking to the juror. Eventually I called someone who told me there was no problem ethically, and moreover, I should forget about it because it was his considered view that the jurors lie - the ones who say they were with you were actually the ones blackening your client's name back in the jury room, and the reason they talk to you is because they have a guilty conscience.

The ethics rule in Virginia says this, as reported here:

RULE 3.5 Impartiality And Decorum Of The Tribunal
(a) A lawyer shall not:
(1) before or during the trial of a case, directly or indirectly, communicate with a juror or anyone the lawyer knows to be a member of the venire from which the jury will be selected for the trial of the case, except as permitted by law;
(2) after discharge of the jury from further consideration of a case, ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence the juror’s actions in future jury service; or
(3) conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing investigation of either a juror or a member of a venire.

...

(c) A lawyer shall reveal promptly to the court improper conduct by a member of a venire or a juror, or by another
toward a venireman or a juror or a member of the juror’s family, of which the lawyer has knowledge.

The duties of a circuit court clerk in Virginia

The Supreme Court of Virginia has published these 106 pages describing the duties of a Virginia circuit court clerk.

Bleak House in Charlottesville

In Grover v. Comdial Corp., Judge Michael granted the plaintiff's motion to for a second remand of the case to state court, over the defendant's claim of ERISA preemption, in an opinion that begins: "The history of this case is long and tortured, evoking the well-known image of Mr. Dickens’ Jarndyce and Jarndyce, a case in equity dragging 'its dreary length before the court, perennially hopeless.'"

We had no Dickens references in the opinions that were published during my clerkship, years ago, but my fellow law clerk did manage to insert what to my knowledge is the only published reference to the plot of the movie "Body Heat." See U.S. v. Stapleton, 730 F. Supp. 1375, 1378 n.6 (W.D. Va. 1990) ("This motive for murdering the husband has been the subject of countless books and films, e.g., the recent motion picture entitled Body Heat."). Body Heat is well-known to law students (or it was in my day) as the film in which the Kathleen Turner character picks out the lawyer played by William Hurt to be her paramour and co-conspirator in the murder of her husband based on his prior history of flubbing the Rule Against Perpetuities, as discussed here, here, and here.

Summary judgment in public employee procedural due process case

In Franklin v. Hanson, Judge Michael of the W.D. Va. granted summary judgment on the plaintiff/public employee's pre- and post-termination procedural due process claims.

City of Roanoke settles brain injury case for $8 million

The Roanoke Times reports here that the City of Roanoke has settled for more than $8 million the case of a woman who was injured when a city utility truck struck the motorcyle she was riding. Brent Brown was one of the lawyers for the plaintiff.

Embezzler from the homeless in Harrisonburg

According to this report, "[t]he former executive director of shelters for families in need was sentenced to one year of probation for using money intended for the homeless to buy beer and groceries for himself and food and litter for his cats." The defendant's former employer, Mercy House, "owns 12 apartments in Harrisonburg that serve as temporary housing for homeless families."

Mansoor First Amendment case against Albemarle County settled

The Daily Progress has this report on the settlement of a county police officer's First Amendment case against his employers. The case was the subject of this opinion by Judge Michael of the W.D. Va., denying in part the employers' motion for summary judgment.

That time of the year

Twenty years ago this month, I rode down (from Pennsylvania) to Charlottesville with my dad and all my stuff and moved into the Emmet dorm, met another future lawyer who would be my roommate for the next three years, and starting saying "Grounds" and "first-year" instead of "campus" and "freshman." As this item from the Cavalier Daily describes, it's happening all over again for a new bunch (of whom few or none were born in 1983).

It's good not to be a securities lawyer

I don't even those who have to deal with the new catch-22 described in this Washington Post article between the federal law requiring lawyers to describe misconduct of publicly-traded companies and state law that might punish them for revealing client secrets.

Judge Young of D. Mass. on decline of jury trials

Via Jurist's Paper Chase, the Boston Herald has this article on an open letter from Judge Young of the D. Mass. to his fellow judges addressing what he calls "the withering away'' of the nation's jury system, a development that he believes to be the "most profound change in our jurisprudence in the history of the Republic," and more or less chastizing the other judges for not being more excited about the issue.

Virginia lawyer's campaign against wetlands rules

The Virginian-Pilot has this story on the efforts of lawyer Douglas Kahle to contest implementation of state and federal environmental law regulating wetlands.

Political phenomena least likely to be understood by the NY Times

In this item, the NYT writes about that group known as the "NASCAR dads" (as opposed to the "soccer moms").

The article says: "Political consultants have no end of ways to slice and dice the always desirable uncommitted voter. Last time, she was a waitress. This year, he's rooting for Jeff Gordon." Not Jeff Gordon. Last year he came in third in this poll, behind Wild Bill from Dawsonville and Earnhardt, Jr.

Three-judge panel sustains sufficiency of notice in Big Stone Gap annexation case

As reported here in the Kingsport paper and here in the Bristol paper and here in the Coalfield Progress, the three judge panel of Judge Roush, Judge Alexander, and Judge Horne, has ruled that the Town of Big Stone Gap gave legally sufficient notice to begin its annexation effort, and therefore the annexation case can go forward, with a trial scheduled in November.

Judge Roush is best-known these days as the judge in the Malvo sniper case, while Judge Alexander has gotten some publicity for overruling the jury's death penalty verdict in a case without, in the view of some members of the public, offering a sufficient public statement of his reasons.

Fine-tuning employees' Weingarten rights

In Anheuser-Busch, Inc. v. NLRB, the Fourth Circuit in an opinion by Judge King, joined by Judge Widener, denied the employer's petition to review and granted the NLRB's petition for enforcement on a series of discrimination charges under section 8(a)(1) of the NLRA. Judge Shedd dissented in part, on the issue of whether the employee is entitled to a specific union representative in investigative interviews.

Senators Allen and Warner suggest 3 names to fill Judge Morgan's seat in E.D. Va.

Via Lawyer's Weekly, this story in the Richmond paper says that Senators Allen and Warner have submitted three names to President Buch for the vacancy in the Eastern District of Virginia: "James L. Chapman IV, who ran twice in the 1990s for the House of Representatives; Patricia L. West of Virginia Beach, whom Allen named secretary of public safety when he was governor; and Walter DeKalb Kelley Jr., a commissioner in chancery for the Norfolk Circuit Court."

More on filing Judge Murnaghan's seat on the 4th Circuit

Something else interesting from How Appealing was a link to this letter to the editor, published in the Washington Post, about how "Maryland and Virginia are about to go to war again" over the nomination of Claude Allen (who is not from Maryland) to fill the appeals court seat vacated by the death of Baltimore's own Francis Murnaghan.

The letter notes that President Bush chose well in his two district court nominees for Maryland, Richard Bennett and William Quarles, and suggests that the White House ought to find another Maryland Republican, but I thought that had already been tried and the Democrat senators refused to accept the names put forward.

What does a 4th Circuit panel do when prior panel decisions go both ways?

Judge Niemeyer's dissenting opinion in McMellon v. U.S. on how a later panel is to resolve apparent conflict between two earlier panel decisions has drawn some criticism from here from How Appealing and here from its readers.

The gist is whether the later panel can pick whichever rule it likes best, or must go with the first one. Howard Bashman thinks the best outcome would be for the case to be reheard en banc, which seems likely enough since the government was the loser in the case and the majority opinion by Judge Traxler might well be wrong on the merits of the "duty to warn" issue, regardless of how the sovereign immunity issue plays out.

More on constitutional offices

It came to my attention today, strangely enough, that there is a statutory procedure for a jurisdiction to abolish constitutional offices by referendum, Va. Code § 24.2-685.

More on judicial selection and the vacancy in Alexandria

This Lessig & Scanlon column in the Daily Press says that "Republicans from Southwest Virginia and Hampton Roads are trying to pick [Alexandria's] next circuit court judge. And, naturally, Democrats are upset," and quotes a Democrat delegate from Alexandria as saying "I would not presume to go to Virginia Beach or Smyth County to select judges."

The writers suggest that "[t]raditionally, judges are selected by local lawmakers. When Republicans took control they said they were keeping that system of local selection in place."

Apparently, the authors think it is an odd thing for Terry Kilgore, whom they describe as representing "a district that's wedged between Tennessee and Kentucky," to be involved in the selection of a state circuit court judge for an office so far away from the Cumberland Gap. I would think that this is no more odd than that Senator Schumer of New York or Senator Leahy from Vermont is involved in opposing federal circuit court judge nominees for courts in D.C. or Alabama or Texas.

Does Virginia still have too many constitutional offices?

In Virginia, each county and city has its own independently elected commonwealth's attorney, clerk of court, commissioner of revenue, treasurer, and sheriff. This commentary in the Daily Press says that's a waste.

My understanding is that when the Constitution of Virginia was last rewritten, about 20 years ago, there was an effort made to reduce further the number of constitutional officers but there was too much political resistance. (Some offices, like that of "constable," were eliminated.)

Could your dog do this?

The old dog at our house is part border collie, but I think she might get spooked by geese. This report has trained border collies keeping the geese on the run at a pond in Northern Virginia, and it makes me wonder what would Highland County's Donald McCaig think? (McCaig is the author of such books as Eminent Dogs, Dangerous Men.)

Speaker Howell as fund-raiser, tax reformer, commentator on the role of courts

Today's Washington Post has this story on the successful fundraising efforts of Delegate William Howell, the Speaker of the House of Delegates.

This week's Jeff Schapiro column in the Richmond paper focuses on the limitations on Howell and Governor Warner to make things happen on tax reform.

This article describing a conference of legislators says that Howell agreed that courts are infringing on the prerogatives of the legislatures, with the following quotes:

"It is 'one of the most fundamental concerns that we as legislators should have,' and it amounts to 'the taking away of our legislative powers,' said Virginia Delegate William J. Howell, speaker of the state House of Delegates. He addressed fellow lawmakers at the annual meeting of the American Legislative Exchange Council (ALEC) in Washington, D.C.

'We are finding more and more, in states all over the country, legislative actions are being overruled by the courts,' said Howell. 'As a result, we're seeing an explosion of litigation all across the country that is costing untold billions of dollars and is causing all sorts of havoc with...state budgets.'"

Congressman Goodlatte responds to criticism of his class action bill

Congressman Bob Goodlatte wrote this defense in Saturday's Roanoke paper of the class action reform bill he has sponsored, which would, among other things, expand federal jurisdiction over class actions involving non-diverse parties.

More on the reassignment of psychiatrist who tested Walton

The Roanoke Times has this article with more news on the state-employed psychiatrist who was reassigned after some dispute over the IQ testing of deathrow inmate Percy Walton, whose case is now pending before Chief Judge Samuel Wilson of the W.D. Va., who will decide whether Walton is fit to be executed.

The article notes the following: "Assistant Attorney General Robert Harris admitted in a federal court hearing last week in Roanoke that he was angry that General ordered the test so close to Walton's scheduled execution. And one of Walton's lawyers, Nash Bilisoly of Norfolk, suggested at the same hearing that Harris may have had something to do with General's reassignment."

Nothing like checking the charter

In Johnson City, the mayor got into a tiff with fellow members of city council over who can be on the city's Power Board, but now the advice of counsel after reading the City's Charter (as the Johnson City paper did) is that the city manager, rather than the mayor, gets to put forward names for the Power Board, according to this article in the Johnson City Press, which says:

"Citing Tennessee Code Annotated Section 7-52-108 — which says, “such chief executive officer shall also, with the consent of the governing body of the municipality, designate a member of such governing body,” — McKee [the lawyer] wrote in the letter that the mayor was the CEO of the city and was thus the only person who could bring up names for nomination to the Power Board.

But after an inquiry from the Press with the results revealed to the attorney, McKee said he has changed his opinion over who is actually the CEO of the city.

“I was clearly wrong,” McKee said this week of his declaration that the mayor was the CEO. “I did not review the (City) Charter.”

During a review of the City Code section of the charter outlining administration, the Press found the city manager is actually listed as the city’s CEO.

“The city manager shall be the chief executive officer of the city,” Section 2-60 of the city code reads."

First amendment rights of fortune tellers

The Kingsport paper argues here that the ACLU has "gone round the bend" in its lawsuit on behalf of a tarot card reader in Tennessee, claiming that a Tennessee town violated her First Amendment rights by putting her out of business.

The more things change . . .

In the last paragraph of The American Inquisition, the author notes that "[i]n ancien regime France, Cardinal Richelieu argued that for reasons of state 'urgent conjecture' must sometimes take the place of assured truth."

This struck me as quite like the much-ballyhooed reference by Paul Wolfowitz to "murky" intelligence about terrorism, in this Fox News interview.

More on Fourth Circuit ruling in child porn case where defendant was hacked

Via How Appealing, c|net has this article on the Fourth Circuit's ruling in the case of the child pornography defendant discovered and turned in by the Turkish hacker.

Retiring legislator eyes Western Virginia circuit court judgeship

The Roanoke Times reports here that retiring Senator Bo Trumbo is seeking the judgeship left vacant by the untimely death of Judge Duncan Byrd.

Struck employer as "state actor" for section 1983 claims of arrested picketers

In Rodriguez v. Smithfield Packing Co., Inc., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Motz and Senior Judge Beezer of the Ninth Circuit, held that (1) release-dismissal agreements were enforceable and were a valid defense to the plaintiffs' constitutional claims against law enforcement officials, and (2) the employer, Smithfield Packing, was not liable under section 1983 municipal liability standards for the alleged bad acts of the law enforcement officers it had hired to police a strike.

This last point seems kind of garbled to me, they say Smithfield could be considered a state actor because it had these police officers there, but then that "Smithfield Packing could not have delegated any policymaking authority over arrests to Priest, because the company had no authority over county law enforcement policies that it could have delegated." Why not just say that Smithfield was not a state actor and could not be sued at all under section 1983?

One drug conspirator drives through Virginia, the rest can be tried in Virginia

In U.S. v. Mitchell, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer and Shedd and District Judge Wooten affirmed the defendant's conviction over his objection to venue, among other things, of which the Court said that the "acts of Mitchell and his co-conspirators in the Eastern District of Virginia were essential in fur-thering the drug conspiracy and were sufficient to establish venue on the drug conspiracy count. Mitchell engaged in a drug conspiracy that involved the sale of drugs in Washington, D.C., the transportation of those drugs through Virginia, and the distribution of the drugs in North Carolina. The transportation of the drugs through Virginia was an act in furtherance of the conspiracy and was essential to the distribution of those drugs in North Carolina."

ERISA does not preempt employer's suit against health plan administrator

In Sonoco Products Co. v. Physicians Health Plan, Inc., the Fourth Circuit in an opinion by Judge King joined by Judge Shedd and District Judge Bullock held that the breach of contract claim of an employer against its health plan administrator were not preempted by ERISA and therefore the trial court erred in denying the employer's motion to remand the case to state court.

Judge King's opinion says the district court was looking in the wrong direction on the removal question: "In denying Sonoco's motion to remand, the district court concluded that the breach of contract claims in the Complaint 'relate[ ] to ERISA,' and that they were thus 'preempted' pursuant to § 514. Order at 2. On the basis of this conclusion, the court justified its denial of the motion to remand and its assertion of federal jurisdiction over Sonoco's state law claims. Contrary to this reasoning, however, conflict preemption under § 514 does not provide a basis for federal jurisdiction. Rather, it provides a defense to a state law claim that may be asserted in state court. Instead of focusing on § 514 conflict pre-emption, the court should have assessed whether Sonoco's state law claims were, as PHP asserted, completely preempted by ERISA's § 502(a). In other words, the court should have inquired into whether the breach of contract claims 'fit within the scope of ERISA's § 502(a) civil enforcement provision," and as such, whether they were properly 'converted into federal claims.' Darcangelo, 292 F.3d at 187."

The decision goes on to conclude "that Sonoco lacks standing to pursue its breach of contract claims under § 502(a)," and therefore the remedies statute did not provide a basis for removal and the case should have been remanded.

Measure of damages for anticipatory breach of natural gas sales contract

Yesterday, the Fourth Circuit in Hess Energy, Inc. v. Lightning Oil Co., Ltd., in an opinion by Judge Niemeyer joined by Judges Traxler and Wilkinson, held that the proper measure under Virginia's UCC for the anticipatory breach of a contract to sell natural gas, was the difference between the contract price and the time when the gas was to be delivered, rather than the difference between the contract price and the time when the buyer learned of the breach, applying Va. Code 8.2-713 and citing, among other things, Corbin on Contracts, which says in part "When the seller of goods has promised delivery at a future time and prior thereto repudiates his contract, the buyer is not required to go into the market at once and make another
contract for future delivery . . . ."