Friday, August 15, 2003

47 Virginia schools don't pass muster under federal guidelines

According to this report, 47 Virginia schools under the federal guidelines for recipients of Title I federal money.

Doctor who blamed guards for inmate death gets fired

The AP reports here and the Richmond Times reports here that a doctor who blamed prison guards at the Wallens Ridge facility for the death of an inmate has been fired from his position with a contractor for the Department of Corrections.

Judge Flannagan accepts controversial plea deal in child pornography case

The Bristol paper has this report on the acceptance by Circuit Court Judge Charles B. Flannagan II of the plea agreement in a Washington County child pornography case.

What makes the case interesting if not bizarre is that the No. 2 man in the Attorney General's office has publicly declared that the punishment under the plea deal is inadequate and the case should have been handled by federal prosecutors.

The incumbent Commonwealth's Attorney in Washington County was elected as a Democrat but is not seeking re-election. The AG's man, Joseph Carrico, was previously elected Commonwealth's Attorney in Wise County as a Republican. I would have thought, however, that the Commonwealth's attorneys and the Attorney General's office were supposed to be mostly on the same team, at least in public.

Blaster worm gets Tazewell school system

The Bluefield paper reports here that the computer systems of the Tazewell County, VA school systems were among the victims of the Blaster worm.

In this office, myself and a staffer are sort of amateur computer hobbyists, we find out sporadically about which MS updates are good and which are bad through such resources as Woody's (which I recommend completely), and when we get worried about something, we call our computer guys, who usually tell us to do whatever we have already decided to do, and we do it. So, last week we did the update to avoid Blaster. (This system does not strike me as exactly fool-proof.) Also, the two of us rule on all the virus hoaxes that someone in the firm hears about from somebody.

The message we sent around on Blaster was this:


Donna and I have decided it is necessary for every machine to install a Windows patch - the one that is touted by the Dept. of Homeland Security.

The story below (which I just received) is part of the reason why -

Worms shut down thousands of Windows PCs

By Brian Livingston

I reported in the last issue of Brian's Buzz on the "port 135" security hole that Microsoft recently described as critical. This flaw affects not only Windows XP, 2000, and NT 4.0, but also the much-hyped new Windows Server 2003. Microsoft has released a patch, but most people haven't installed it yet. Well, time's running out - worms that exploit the flaw started making attempts to hit every PC on the Internet just a couple of weeks after the vulnerability became publicly known.

As I write this, Stanford University has reported that 2,400 of its roughly 20,000 campus PCs were infected in a matter of days by worms that took advantage of this hole. Malicious "Trojan" code that was deposited onto the machines' disks may take weeks to clean out of the systems, said Cedric Bennett, Stanford's director of information security services in a statement.

Even worse, the University of California at Berkeley announced that, due to the same attacks, it was being forced to shut down all access from outside the campus to its Windows-based file sharing and Exchange servers for a period of four days.

If you haven't yet secured your own systems against this hole, jump to my July 24 issue and read about the steps you need to take. To send me more information about this, or to send me a tip on any other subject, visit

Lynchburg judge defers on recusal issue in cases where local lawyers may be witnesses

This story from the Lynchburg paper says that the circuit court judge was unprepared to determine that he and his peers from the 24th circuit were automatically disqualified from hearing the evidence in a case where one side claimed that two lawyers were likely to be witnesses. The opposing counsel in the case were identified as Wyatt Durrette and Bill Poff, which sounds like a clash of titans to me.

Construction contract claims against county fail as untimely

This article describes a circuit court ruling against a contractor on its claims related to the construction of a county water plant in Spotsylvania County.

Organized labor to focus campaign money on Southwest Virginia

"Virginia AFL-CIO President Daniel LeBlanc, who presented $10,000 checks Thursday to the Virginia Democratic Party and the Virginia Democratic Senate Caucus, said the labor movement will focus on races where it can have the most impact, including the coal-mining region of southwest Virginia," according to this news story from Channel 4 in D.C.

Thursday, August 14, 2003

What are those notations on the federal district court docket from PACER?

Inter Alia links to this new legal reference blog which links to this article on what those notations mean on the U.S. district court docket sheets - like whether when you are COR, you want to be LD NTC.

The impossibility of remanding a case that was never removed

In Payne v. Merrill Lynch, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Michael, and Gregory concluded that the trial court erred in "remanding" a case that was filed originally in federal court but had been consolidated with another case that was removed from state court.

Retiring Southwest Virginia judges

General District Court Judge Danny Bird from Wytheville is retiring, as reported here.

Also, the Bristol Bar has circulated a letter from Judge Charles B. Flannagan, II, indicating that he will retire as of February 1, 2004.

E.D. Va. judge allows class action in land use dispute over fiber-optic cable

Judge Payne of the E.D. Va. will allow plaintiffs to proceed in the form of a class action to seek relief against Dominion Resources on their claim that the power company ran its fiber-optic cable over their property without permission, as reported here in the Richmond paper.

More on the VMI prayer case

The Roanoke Times has this article and the Richmond Times-Dispatch has this article and the Washington Post this article on the denial of rehearing en banc by the Fourth Circuit in the VMI dinner prayer case.

Piping sewage straight into the creek in Wise County

The Coalfield Progress has articles here and here on the problem of homeowners in Wise County who pipe their sewage straight into the nearest creek.

Odd case filed against Lynchburg YMCA

As reported here, the Lynchburg YMCA has been sued on a theory that it was negligent in failing to provide adequate parking, and therefore it is responsible for the death of a woman run down in the street while en route to the YMCA.

Without any research, I don't see that there is any such duty (outside of maybe the zoning ordinance) and I don't see what the parking has to do with anything anyhow. Also, would the Y's charitable immunity extend to such a case? There are cases still where local YMCAs win on charitable immunity, but maybe that would not apply to matters of parking.

Solicitation case brings challenge to Virginia's sodomy statute

As reported here in the Virginian-Pilot, a defendant in a Virginia Beach solicitation case is trying to claim that the Virginia sodomy statute is unconstitutional. The case law, including the last round of cases from Roanoke, says he has no standing to raise the issue. The constitutional right of privacy, whatever its limits, does not extend to the men's room at Sears.

Wednesday, August 13, 2003

Fourth Circuit denies rehearing en banc in VMI supper prayer case

Here is the order by which the Fourth Circuit denied rehearing in the VMI prayer case, by a vote of 6-6, with opinions dissenting from the denial of rehearing by Judges Widener, Wilkinson, and Niemeyer.

Perhaps the Commonwealth will take the case on to the Supreme Court, where Mr. Hurd has had some luck in his last couple of cases arguing for Virginia.

Obenshain daughter a contender for state GOP post

The Winchester paper has this article on Kate Obenshain Griffin, the daughter of Richard Obenshain who died in 1978 plane crash after being nominated for the U.S. Senate, and a leading contender to replace the fellow who just quit as the head of the state Republican party in Virginia.

Nice work if you can get it?

According to this report, the State of Nevada has given a Virginia law firm a contract for up to $4 million to fight the location of a nuclear waste dump in that state. The hourly rate for the lead partner in the matter is said to be $450 per hour. The firm is Egan, Fitzpatrick & Malsch based in McLean, and has this website,

Landowners sue Virginia town challenging validity of historic district

As reported here, landowners in the Town of Washington (home of the Inn at Little Washington) in Rappahanock County are suing because the local historic district laws prohibit them from building a new house on their property.

The discovery requests, served with the complaint, include the following:

"In papers accompanying the lawsuit, the Worleys requested the issuance of subpoenas to Architectural Review Board member Susan Babcock, Town Council member Claudia Mitchell and the Inn at Little Washington seeking documents "relating" to the lawsuit.

Computers belonging to Babcock and Mitchell were also being sought "for inspection and analysis" and were to be delivered to the office of the Clerk of the Circuit Clerk, according to the subpoena request.

Babcock and Mitchell were also asked to provide documents relating to any visits to the Inn at Little Washington "as invitee, patron or guest" since July 26, 2002, the date when the Worleys first applied for approval for construction of their house.

The Inn at Little Washington was also asked to supply documents and receipts relating to any council members, ARB members or any other town official who has been "a customer, guest or patron" since July 26, 2002."

So, if you can beat them, really annoy them.

Why John Kerry will never win in Philadelphia

This delightful article in the Washington Post explains why John Kerry hasn't a clue when it comes to ordering and eating a Philly cheese steak.

The article says in part:

"If Sen. John F. Kerry's presidential aspirations melt like a dollop of Cheez Whiz in the sun, the trouble may well be traced to an incident in South Philadelphia on Monday.

There, the Massachusetts Democrat went to Pat's Steaks and ordered a cheesesteak -- with Swiss cheese. If that weren't bad enough, the candidate asked photographers not to take his picture while he ate the sandwich; shutters clicked anyway, and Kerry was caught nibbling daintily at his sandwich -- another serious faux pas.

'It will doom his candidacy in Philadelphia,' predicted Craig LaBan, food critic for the Philadelphia Inquirer, which broke the Sandwich Scandal. After all, Philly cheesesteaks come with Cheez Whiz, or occasionally American or provolone. But Swiss cheese? 'In Philadelphia, that's an alternative lifestyle,' LaBan explained.

And don't even mention Kerry's dainty bites. 'Obviously, Kerry's a high-class candidate, and he misread the etiquette,' LaBan said. 'Throwing fistfuls of steak into the gaping maw, fingers dripping -- that's the proper way.'"

The last summer I lived in PA I ate steak sandwiches every night, but they are harder to find in Southwest Virginia - the best places are out toward S. Holston Lake on U.S 421, far from the office but worth the trip.

Waiver and limitations bar claim for death in charity bike ride

The Washington Post has this article on the ruling by D.D.C. Judge Rosemary Collyer against the claims of the representatives of a woman who died as the result of her participation in a bike ride, because she had signed a written waiver as to some claims and others were barred by the Virginia statute of limitations.

When I was a law clerk, Judge Collyer, then a lawyer with Crowell & Moring, appeared in a case in Big Stone Gap, on the interesting issue of whether the special commissioners who were attempting to collect the contempt fines imposed by Judge McGlothlin of the Circuit Court of Russell County in enforcement of his injunction against strike misconduct by the United Mine Workers could garnish the dues collected by employers for union members under pursuant to the check off requirement in their collective bargaining agreements with the Mine Workers. (Judge Jones was representing the special commissioners, Ms. Collyer and some other lawyer were there for the employers, opposing the garnishment.) So far as I recall, Judge Williams never ruled on this issue, which was a good idea, since the state court contempt fines were ultimately thrown out by the Supreme Court of the United States.

More on the schism within the Sixth Circuit

The NY Times (registration required) has this article on the split within the Sixth Circuit, and it says, among other things:

"In an extraordinary breach of judicial etiquette, the judges on the federal appeals court there have repeatedly accused each other of lying and underhanded conduct in important cases involving the death penalty and affirmative action. The public airing of these internal battles in decisions of such social importance has been the talk of appellate specialists nationwide."

Tuesday, August 12, 2003

Judge Turk reversed for refusing mixed-motive instruction in W.D. Va. Title VII case

In Rowland v. American General Finance, Inc., the Fourth Circuit in an opinion by Judge Motz joined by Chief Judge Wilkins and Judge Wilkinson held that Judge Turk of the W.D. Va. erred in refusing to give the plaintiff's requested jury instruction regarding "mixed motive," applying the Supreme Court's decision from this term in the case of Desert Palace, Inc. v. Costa.

In the opinion, Judge Motz says, "there is no question that without the mixed-motive
instruction, Rowland had almost no chance of prevailing." That seems like a strange thing to say, and I'm not sure that I agree with it, as either necessary or even true.

The court went on to say that Judge Turk abused his discretion in admitting hearsay evidence, but concluded that there was no error in allowing the defendant to use exhibits and witnesses that were not disclosed in full compliance with the pre-trial disclosure requirements of Rule 26.

South Carolina rules no negligence claim against banks for issuing credit card to impostors has this article about a recent decision by the Supreme Court of South Carolina on a certified question from the D.S.C., in which the Court held that banks could not be liable for negligence in issuing credit cards to impostors.

The question certified was this: "Does South Carolina law recognize the tort of Negligent Enablement of Impostor Fraud? If so, what are the elements of the tort and does plaintiff's complaint state an actionable claim for the tort?" Man, that's a weird question. Negligence in negligence. I would have guessed the question was more like, do banks have a duty to exercise reasonable care to prevent impostors from causing harm to others by obtaining credit cards in their names - or something like that.

The Court ruled on the basis that the connection between the credit card issuers and the consumers is too attenuated.

Monday, August 11, 2003

The bear was just looking around

According to this report, authorities in NC south of Danville are charging a man for shooting a black bear, discounting his story that the bear was chasing his children, and concluding with this comment:

"'This is black bear,' said Joyce of the bear that was recently shot. 'It’s not a grizzly bear or anything that people see in the movies and all. (The bear) was just looking around. We ask that people not shoot them.'"

Sunday, August 10, 2003

More on Allyson Duncan, newest member of the Fourth Circuit

The Virginian-Pilot has this interesting story on Judge Allyson Duncan, who was nominated to the U.S. Court of Appeals for the Fourth Circuit by President Bush and has been confirmed by the U.S. Senate.

Richmond paper tells on Lynchburg paper for AG fundraising story

In this editorial, the Richmond paper says the Lynchburg paper messed up in pointing the finger at Virginia Attorney General Jerry Kilgore for fund-raising that was done by Mark Earley.

The editorial concludes: "Pesky little facts sometimes get in the way. And the attempted smear was a tad tawdry."

The construction on Interstate 81

The Richmond Times-Dispatch has this article on the impact of the proposed widening of Interstate 81 on its view of the surrounding countryside.

Roanoke Times says extend 21-day rule for people who plead guilty

The Roanoke Times has this editorial saying the proposed revision of the 21-day rule allowing post-conviction evidence of innocence should be extended to include those who enter guilty pleas.

More on prayer at Chesterfield County board of supervisors' meetings

This opinion piece recites the following:

"Officials in Chesterfield County still don’t get it. So a few weeks ago a priestess of the Wiccan religion took them to court, challenging the “prayer policy” as a violation of religious freedom. It seems that the Chesterfield Board of Supervisors has decreed that “Judeo-Christian” prayers are constitutional – apparently because they are part of something called “American civil religion.” And since they worship one God, Muslims have been added to the list. Other faiths with deities that don’t pass muster – including Wiccans, Hindus and Buddhists – need not apply."

The piece concludes that "The day a court orders Chesterfield County to add a Wiccan priestess to the prayer list will be the last day of prayer at a board meeting."

Don Beyer is a Howard Dean man

Just in case you were wondering, former Virginia lieutenant government Don Beyer is supporting presidential hopeful Howard Dean, as reported here. (I wonder what kind of car Dean drives.)

Hunton & Williams lawyer becomes president-elect of ABA

The Richmond Times-Dispatch has this report on the selection of Robert Grey as president-elect of the American Bar Association.

Judge Turk and Judge Jones of the W.D. Va. comment on sentencing restrictions

In this Roanoke Times article, Judge Turk and Judge Jones offer their perspectives on the federal law limiting their discretion in imposing criminal sentences.

Judge Turk noted that he has been reversed four times for downward departures from the federal guidelines. Judge Jones said he would be undeterred by the Justice Department's monitoring in deciding which cases are appropriate for downward departures.

Last week, as reported here, a federal judge in North Carolina "issued an unusual order declaring he would no longer accept plea agreements negotiated by federal prosecutors and defense attorneys in which defendants waived and the government retained rights to appeal the sentence."

Apparently, however, the judges of the W.D. Va. are more restrained than many of their colleagues, if these statistics from the article are correct:

"Federal judges in the Western District departed in only 1.8 percent of the cases in fiscal year 2001, the last year for which figures were available. That figure does not include instances in which judges have sentenced defendants to less time based on recommendations from federal prosecutors, which happened 30.1 percent of the time in fiscal year 2001.

In the 4th Circuit as a whole, federal judges sentenced defendants to less than the guidelines called for in 5.2 percent of the cases during fiscal year 2001, according to the U.S. Sentencing Commission.

By contrast, in the 9th Circuit, which is widely considered the most liberal circuit in the country, federal judges in Arizona departed below the guidelines in more than 62 percent of the cases."

4th Circuit nominee Allen described as "hard to pin down"

The Virginian-Pilot has this story on those with varying views about Claude Allen, who has been nominated by President Bush to a vacancy on the U.S. Court of Appeals for the Fourth Circuit.

The article includes this paragraph regarding Allen's rating from the ABA:

"Those concerns were highlighted late last month when the American Bar Association rated Allen as 'qualified' for the bench, but withheld the organization's top evaluation of 'well qualified.' The ABA panel did not explain its rating, although the criteria it uses suggests that a nominee to federal court should have been admitted to the bar for at least 12 years. Allen spent 7 1/2 years as a judicial clerk, as a private attorney and working for the Virginia Attorney General's Office."

The article also notes:

"The Senate Judiciary Committee has not yet scheduled a hearing to consider Allen's nomination. Although the Republican's beliefs on reproduction, immigration and other topics are likely to be scrutinized closely, it is unclear how many organizations will formally oppose the nomination."

Inaccuracies in online directories about health providers

The Washington Post has this story on inaccuracies in online directories on health care providers, including those in Virginia.