Telecommuting during Isabel

The Post has this article on people who got the job done from home during the hurricane. Remote connection is a good thing, of course, and I do something like it myself, connecting from the house to the office (via GoToMyPC), but the important variable that many in Virginia lacked from Thursday night until maybe now and later is electricity. (Among the powerless - my in-laws, who were supposed to fly from Richmond en route to Italy today but their flight was cancelled and so they bagged the whole trip and are now maybe planning a big barbecue, since they can't keep anything very well refrigerated.)

Prejudging the Pledge case?

Howard Bashman has this post about a speech given by Justice Scalia in Fredericksburg that is being cited as basis for arguing that he should not sit on the appeal of the case involving the constitutionality of the Pledge of Allegiance in schools.

On the death penalty and teenagers

The Washington Post says here that Virginia should change the law that allows giving the death penalty to teenagers. I'd say the Supreme Court will sooner declare the practice unconstitutional than the General Assembly will act to diminish the application and scope of the death penalty in Virginia.

Televise oral argument in the California recall rehearing

Sometimes, somehow, C-SPAN gets permission to broadcast video of oral arguments before the en banc 9th Circuit, which is not the whole banc, but sort of like 40% of the banc. And, I think I remember seeing (or maybe reading) that they sit in three or four rows, sort of like a mini-bleacher section of judges (or the Hollywood Squares?), and not like the big semi-circle of judges in the 4th Circuit. And, Howard Bashman's various posts indicate that Judge Alex Kozinski is on the panel - and the handicappers are already counting the votes. Shoot, I'd watch that argument if it was on TV - even if I had to flip back and forth between it and Monday Night Football (as I did for the BCRA argument audio replay on a Monday night not long ago).

Radford police officers sue under FLSA

The Roanoke paper has this story on the suit by Radford police officers claiming the city has not paid them in compliance with the Fair Labor Standards Act.

Does Wise County have to pay back the money received under invalid landfill fee ordinance?

In the wake of the Virginia Supreme Court's decision on Friday that Wise County's landfill fee ordinance was invalid, lawsuits have been filed seeking a return of the fees paid and challenging criminal prosecutions for failure to pay the fee, as reported here and here in the Coalfield Progress, here in the Bristol paper, and here in the Kingsport paper (registration required).

On the end of tobacco quotas

The NY Times (registration required) editorializes here against paying tobacco farmers to give up their tobacco allotments. It might be easier to agree with this, except that the Times doesn't care about free markets and is not opposed to government spending, and the people who have tobacco allotments don't read the Times, so this editorial is not likely to be based on any worthwhile principle.

Decision to strike $125,000 verdict against employer for fraud in hiring upheld

In Cohn v. Knowledge Connections, Inc., the Virginia Supreme Court in an opinion by Justice Agee agreed with the trial court that the plaintiff had failed to prove fraud in her suit claiming that she was induced to quit her old job in order to go work for the defendant, which then refused to hire her.

This is an interesting opinion, and it is interesting that the opinion never makes any mention of Sea-Land v. O'Neal, 224 Va. 343, 355, 297 S.E.2d 647 (1982), which is the only case where a plaintiff was somehow able to when on one of these fraudulent inducement to leave the old job theories, all the rest were losers. The Sea-Land case is easy to remember because it is one of the few of the "name" cases where the employer is the appellant, the first name in the style of the case. (O'Neal also got $125,000.)

Argument crosses the line, $60 M verdict out

In Velocity Express Mid-Atlantic, Inc. v. Hugen, The Virginia Supreme Court in an opinion by Chief Justice Hassell threw out a $60 million verdict in a personal injury case because of the improper argument of plaintiff's counsel.

The Insurance Defense blog has this post on the decision.

No loss-of-use damages where excess capacity prevented loss in fiber optic cable case

In MCI Worldcom Network Services, Inc. v. OSP Consultants, Inc., the Virginia Supreme Court in an opinion by Senior Justice Stephenson concluded in an answer to a certified question from the Fourth Circuit that a telecommunications company was not entitled to damages for loss of use where redundancy in its fiber optic network allowed it to avoid actual losses when one cable was damaged.

Wise County landfill ordinance void

In the spirit of Lawrence v. Texas, the Virginia Supreme Court applied the rational basis test to the Wise County landfill fee ordinance in the case of Estes Funeral Home v. Adkins, and struck down the ordinance as irrational, in an opinion written by Justice Kinser, reversing a decision by Judge Quillen. I'd say this is a bad decision that will be cited by litigants many, many times, and distinguished by future courts many, many times - the county ought to get the benefit of the doubt when drawing lines in nebulous areas, which is exactly what that case is about.

I imagine that all it takes for the County to "fix" its ordinance is to get a better witness to explain whatever the next ordinance says, evidently the members of the Court could not get their minds around the meaning of the testimony of the fellow who used to be interim county administrator, a decent guy I always thought, who went to college with my aunt Lois at Clinch Valley way back when.

The Kingsport Times-News (registration required) had this article and the Coalfield Progress has this article on the decision.

We had a case recently where we sued over the validity of a county ordinance, but in that case the issue was whether the ordinance was ultra vires and ran afoul of the Dillon Rule, not whether the substance was within the discretion of the county board acting as a legislature in an area where it had authority to act.

The cat can't get any flatter

In the Fifth Circuit case of Doe v. Pryor, the Court held that there was nothing left to litigate over the anti-sodomy law of Alabama, in the light of the United State Supreme Court's decision in Lawrence v. Texas.

In particular, the Court observed:

"The only federal court whose decisions bind state courts is the United States Supreme Court. See Glassroth v. Moore, 335 F.3d 1282, 1302 n.6 (11th Cir. 20 03) (“[S]tate courts when acting judicially, which they do when deciding cases brought before them by litigants, are not bound to agree with or apply the decisions of federal district courts and courts of appeal.”) (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11, 1 17 S. Ct. 1055, 1064 n.11 (1997); Powell v. Powell, 80 F.3d 464, 467 (11th Cir. 1996)); see also State v. Dwyer, 332 So. 2d 333, 334-35 (Fla. 1976) (Florida courts were bound by the Florida Supreme Court’s decision that a statute of that state is constitutional even though the Fifth Circuit had since declared the same statute unconstitutional). And the Supreme Court has already spoken on the subject in the Lawrence case. If J.B. has a reason for believing that the Alabama courts would pay more attention to a decision from a district court or this Court – both of which are “inferior Courts” of the federal system, see U.S. Const. Art. III, § 1 – than to one from the United States Supreme Court, she has not shared it with us."

When 11 is not enough

Last week, in U.S. v. Curbelo, the Fourth Circuit in an opinion by Judge King joined by Motz with Chief Judge Wilkins dissenting overruled the defendant's conviction, concluding that the trial judge was in error to proceed with 11 jurors. The Government and the Chief Judge were of the view that it was (or at least could have been) harmless error, but the majority concluded that "[e]very court to have addressed the question has held to the contrary, and we decline to deviate from this consensus."

Drunken-driving conviction, a bankruptcy filing and a child-support dispute

Running on a record of a drunken-driving conviction, a bankruptcy filing and a child-support dispute, a Republican candidate for the Virginia Senate has decided to withdraw from the race, according to this report.

Protesting the helmet laws for bikers in Virginia

This article describes a group of Southwest Virginia bikers, who had an event last weekend protesting the Virginia law requiring riders to wear a helmet.

I guess I'm with Neal Boortz on these helmet laws - if you don't want to wear one, that's fine, as long as you also agree that no public money will ever be spent to pay for the grievous personal injuries you will sustain when your head hits the road and that you have fully and fairly disclosed to your private health insurer that you will be riding helmetless.

On the need for notice on those internet-subscriber subpoenas

This statement made to a Senate committee this week suggests that federal law ought to provide for subpoenas to internet service providers to give notice to the subscriber before responding to the subpoena, and cites as an example the Virginia statute, Va. Code § 8.01-407.1.

Anonymity questioned in immigrant suit against colleges

Judge Ellis of the E.D. Va. is apparently leaning toward making the plaintiffs identify themselves, in the case against the public colleges and universities of Virginia on the issue of illegal immigrant admissions, as reported here.

Years ago, we filed a case on behalf of some plaintiffs and named them initially as John Does. When we asked leave of court to add a couple of more John Does, the judge asked us to tell him in chambers what were their real names. We couldn't remember them. The judge said, "you can't remember their names?" Opposing counsel said, "they must be long-time clients." (We had affidavits from them, but they were sitting in a brief case in the courtroom.) Ultimately, the judge refused to keep their names secret, and the lead plaintiff eventually testified in open court. What I think the judge wanted to make sure was true, and opposing counsel likewise, and the litigants in this college admissions case likewise, was that the plaintiffs were really knowing and willing participants in the litigation, rather than made-up people.

County wins tower siting case

As reported here in the Roanoke Times, Montgomery County was the winner in this opinion by the Fourth Circuit in a case involving tower siting issues.

Back to the future of picking state court judges

In Mississippi, where some lawyers and judges have been indicted, there are many proponents of abolishing elected judges and have the judges appointed by some means, as reported here.