Friday, September 26, 2003

Wise County to seek rehearing from Va. Supreme Court on landfill fee case

The Bristol paper reported here that the Wise County Board of Supervisors decided to ask the lawyers to file a petition for rehearing in the landfill fee case.

I'm hoping that the Virginia Supreme Court grants rehearing in the landfill fee case, because their opinion leaves many, many unanswered questions - like what is the County supposed to do now? How can the ordinance be made constitutional? How should the County decide which fee-payers, if any, are entitled to refunds, and in what amount? What are fee-payers supposed to do under local and state law, are there procedures to be followed, remedies to be exhausted? Instead of making refunds, can the County charge more to the fee-payers who pay less, to even out the disparities in the rate to avoid the equal protection problem? Does this ruling apply only prospectively? There are some indications from the Virginia Supreme Court, like in the federal retiree taxation case, that the Supreme Court's declarations that a taxing scheme is unconstitutional apply only prospectively. See Harper v. Virginia Dept. of Taxation, 241 Va. 232, 241-42, 401 S.E.2d 868, 873-74 (1991). Even if that's true, and the same rule applies in "fee" cases, what does it mean? No refunds? A state law rule that says no refunds sounds like a sure-fire denial of due process to me - somehow, some way, the County needs to smooth out the disparities that gave rise to the equal protection, and partial refunds to the discriminatees could be one answer. Compare Fulton Corp. v. Faulkner 516 U.S. 325, 346-47 (1996) ("a State might refund the additional taxes imposed upon the victims of its discrimination or, to the extent consistent with other constitutional provisions (notably due process), retroactively impose equal burdens on the tax's former beneficiaries. A State may also combine these two approaches.").

I know that the Virginia Supreme Court is not in the business of giving advisory opinions, and maybe the Court will do nothing - which means that the County will have to gamble on what the Court's opinion means, until the next appeal.

Hearing begins on appeal of use permit for mining in agricultural zone

Landowners in Orange County are challenging the award of a special use permit to General Shale for the operation of a shale mine in an agricultural zone, as reported in this Daily Progress article, which says that the circuit court may grant the defendants' motion to strike the evidence.

Pass/fail grading for first two years at U.Va. med school

The Cavalier Daily reports here that the U.Va. medical school is moving to pass/fail grading for the first two years of medical school, beginning with the Class of 2007.

Tax reform dead?

Via Virginia Lawyers Weekly, the Richmond Times-Dispatch reports here that the prospects for sweeping tax reform in Virginia are already dead, including the prospect of a tax on services on including legal services.

Amazon negotiating endorsement of Internet sales tax

According to this story in the Washington Post, the world's largest online vendor,, is working on a deal for a Internet sales tax proposal that will have its approval. The srticle specualtes that by co-opting Amazon, the proponents of taxing Internet sales will steal a march on their many opponents.

Ban the charitable calls, too

To the federal court opinion from Colorado, holding that the do-not-call list of the FTC was unconstitutional because it does not bar calls soliciting charitable contributions, will Congress make the natural response and say, ok, we'll ban the charitable calls, too? Yet, I wondered about the part of the opinion that suggests there is a hierarchy of protected speech - the district court said the following:

"Despite the value of commercial speech, however, it is afforded lesser protection under the First Amendment than other types of speech, such as speech soliciting donations for political or charitable causes. Central Hudson, 447 U.S. at 562, 100 S. Ct. at 2349; Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632,100 S. Ct. 826, 834 (1980). Charitable solicitation of funds does more than inform private economic decisions because it involves the dissemination of views and the advocacy of political and social causes. Village of Schaumburg, 444 U.S. at 632, 100 S. Ct. at 834. It is, therefore, protected more highly than commercial speech. Commercial speech also receives lesser protection because, to require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with respect to the latter kind of speech. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S. Ct. 2371, 2375 (1995)."

So, if "charitable" speech gets more protection under the First Amendment than does commercial speech, then why is that not a sufficient justification for the do-not-call list to apply to commercial speech but not to charitable speech? On the other hand, it was my understanding that there is no such hierarchy of different kinds of speech that are more protected than others.

Augusta County Republican proposes cigarette tax

The Roanoke Times has this article on the latest discussions of the tax reformers, including a proposal from Sen. Emmett Hanger to impose a new tax on cigarettes.

Thursday, September 25, 2003

How Appealing rules

Via Southern Appeal, this post suggests that appeals court litigants every where will want to get their views posted on How Appealing, because the appeals court judges and law clerks all read it.

Virginia PAC for parents reaches Southwest Virginia

This article from the Connection newspapers tells of a political action committee for parents, with membership that reaches Southwest Virginia.

Southeast Virginia contractors swamped in wake of Isabel

People are literally throwing themselves at tree-removing contractors, according to this Daily Press report.

Motion to suppress granted where probable cause founded on illegal hotel room search

In U.S. v. Pope, Judge Jones of the W.D. Va. granted the defendant's motion to suppress evidence from the search of his vehicle by police, who were acting on knowledge they obtained from a search of the defendant's hotel room for which they had no consent and no warrant. The defendant was represented by David Scyphers of Abingdon.

Evidence of comp benefits not barred by collateral source rule in ADA employment case

In Riffey v. K-VA-T Food Stores, Inc., Judge Jones held that the employer-defendant was not barred from introducing evidence of the workers' compensation benefits the plaintiff received, distinguishing cases involving unemployment compensation and relying on a NLRA case from the Fourth Circuit.

Campaign Disclosure project gives Tennessee an F, Virginia a D+

This article in the Kingsport Times (registration required) says the campaign finance disclosure requirements for Virgina and Tennessee are rated as poor in a recent study.

I don't know, the information about campaign contributions in Virginia accessible by the Virginia Public Access project seems detailed and interesting to me.

More on the West Virginia coalbed methane case

The AP has this story on the coalbed methane ownership rights case argued this week before the Supreme Court of West Virginia.

Wise County court recognizes charitable immunity of Little League

According to this article in the Coalfield Progress, Judge Robert Stump for the Circuit Court of Wise County sustained the charitable immunity defense of the Coeburn Little League in a wrongful death case arising out of the death of a young man who was killed by a steel cable on the property of the baseball field while he was riding his ATV.

Suing legislators over judicial selection

Via Virginia Lawyers Weekly, the Richmond Times-Dispatch has this story about a lawsuit brought by a Richmond lawyer against a group of legislators for asking improper questions of candidates for judicial positions about actual cases from the past, present, or future.

The article includes this description of the petitioner's views:

"Baugh said he attended sessions at which judges who were up for reappointment were questioned by members of the House committee about decisions they had made.

Such questioning suggested that reappointment would be influenced by whether the judges' interpretation of the law matched that of the legislators, Baugh said in the suit.

Any effort to influence judicial discretion violates the state constitution and the right of the people "to be free from oppressive government, which arises when one branch of the government seeks to or actually dictates how that discretion should be applied," Baugh said.

Baugh alluded to the questioning of Judge Rosemarie Annunziata when she was up for reappointment this year to a second eight-year term on the Virginia Court of Appeals.

Several legislators challenged the reasoning in her dissent in favor of a lesbian mother in a child-custody case, but she ultimately was reappointed.

The questioning was improper because it was aimed at the exercise of Annunziata's judicial discretion, Baugh said. The only proper areas of inquiry are a judicial candidate's "good behavior, personal character and fitness for office," he wrote."

More on electronic filing in federal court

From this press release about the recent meeting of the Judicial Conference of the United States:

"In September 2001, the Conference adopted a policy for remote public electronic access to civil, bankruptcy, and appellate case files. But at that time it decided not to allow for similar access to criminal case files. In March 2002, the Conference established a pilot program for 10 district courts and one appellate court to allow Internet access to criminal case files.

The Federal Judicial Center has studied the experience of the pilot courts and found no evidence of harm to any individual and also found that a majority of those interviewed in the pilot courts —judges, court staff, and counsel — extolled the advantages of electronic access. The Conference Committees on Court Administration and Case Management, Criminal Law, and Defender Services will work together in drafting appropriate implementation guidance for the courts. The pilot program will continue access during the implementation period.

Once implemented, the policy requires that certain personal identifier information should be partially redacted by the filer of the document, whether it is filed electronically or in paper form. For example, Social Security and financial account numbers should be reported as the last four digits only and the names of minor children should be listed only by their initials. This is the policy currently in effect for civil cases.

Remote access to federal court files has been made possible by the Case Management/Electronic Case Files (CM/ECF) system, which is in the process of being implemented throughout the federal courts. As of September 1, 2003, 25 district courts and 60 bankruptcy courts are using the system. More than 10 million cases are on the CM/ECF system and more than 40,000 attorneys and others have filed documents over the Internet. Electronic access to these documents is available through the Public Access to Court Electronics Records (PACER) program."

Discussion on ideology and judicial nominations

I read this transcript of a discussion sponsored by the Federal Society about the role of ideology in judicial selection.

Part of what makes it amusing is that everyone has said something stupid at one time or another - liberals and conservatives have both guessed wrong time after time about judges, so far wrong to make it look like they either have no idea and/or don't care whether what they are saying is true.

Wednesday, September 24, 2003

More on the really big tech conference in Roanoke

The Washington Post has this article on the efforts of Governor Warner to sell the possibilities of tech commerce in the Commonwealth at the fancy meeting in Roanoke that features former British Prime Minister John Major and Retired General Norman Schwartzkopf as speakers.

Virginia Supreme Court calendar for 2004

This revised schedule for the Virginia Supreme Court shows when the writ panels will be held next year - that's a new bit of information that I don't think was published on the website in the past.

Judge Jones grants consolidation in Charles Gilmore murder case

In Gilmore v. U.S., Judge Jones granted the United States' motion for the consolidation of the perjury case against a witness from an earlier trial against Walter Lefight Church with the murder case against Church and former mayor of Pocahontas, Virginia, Charles Gilmore.

Some parts of NC election law unconstitutional

On Monday, in the case of North Carolina Right to Life, Inc. v. Leake, the Fourth Circuit in an opinion by District Judge Bullock, joined by Judge Widener, with Judge Michael dissenting in part, upheld part and reversed part of the district court decision that some parts of a North Carolina election law are unconstitutional. This case is more one for Rick Hasen's blog, and in fact he had this post about it.

U.Va. beats football team, steals band director

The Roanoke Times has this story on how University of Virginia trounced the Western Michigan football team and hired away its marching band director to organize the all-new marching band at Virginia, paid for by Carl Smith.

WV home-schooled wrestler wins in court

One of the Charleston, WV papers reports here that a 12 year-old home schooler has successfully challenged a school rule that barred him from wrestling on his local junior high team, since he is not a student at the school. The article says the boy was represented by a lawyer named Minor (no relation, s'far as I know).

Peace week at Radford

Radford University, my mom's alma mater, is having "War on Peace" week, as described here.

Wireless in Dickenson County

The Dickenson County wireless internet project, which is the product of 2003 legislation introduced by Delegate Bud Phillips, is described in this Coalfield Progress article, which says there will be a big showcase event in Clintwood on October 13.

More on Triplett for Congress

The Coalfield Progress has this story on the brand new congressional campaign of Republican Kevin Triplett.

Tuesday, September 23, 2003

What happens if the same prosecutors have charges pending against your lawyer

In Washington v. U.S., Judge Jones of the W.D. Va. concludes that the defendant is not entitled to a new trial, even though he had some colorable points to raise about tactics his counsel did not pursue, and the counsel with Rickey Young, the Martinsville lawyer who was himself prosecuted at about the same time as the defendant.

I'm wondering how the moving party managed to file such a detailed and substantive motion post-judgment, but could not manage to do better at preserving the same issues during the trial - maybe he has some help from prison writing his court papers these days.

More on the case of the unconstitutional landfill fee

Now that the Virginia Supreme Court declared the landfill fee in Wise County unconstitutional , there is the mess of figuring out what to do about it, and the Coalfield Progress has this article on the County's effort to decide on a game plan and this article on the effort on federal court litigation brought by some fee-payers seeking refunds.

I've been thinking about the Virginia Supreme Court's opinion, but I have so many ideas about how terrible the opinion is and what might be ways around it that I don't have time enough to figure out whether any of them are worthwhile. I think that I mostly agree with the analysis of the county attorney, to the extent that I understand from the paper what she is saying.

Ex-chief of Republicans tells all about listening in on Democrats' call

According to Ed Matricardi, the former executive director of the Virginia Republicans, his eavesdropping on Democratic leaders' conference calls was approved by former Senator Wilkins and others, as reported here in the Washington Post. The testimony came before a disciplinary panel for the Virginia State Bar, which concluded that Matricardi should lose his law license for 2 years.

NASCAR dad running for Congress

Former NASCAR official Kevin Triplett has officially launced his campaign to run as a Republican for the 9th District Congressional seat held by Rep. Rick Boucher, as reported here in the Roanoke Times and here in the Kingsport Times (registration required).

Judge Conrad of W.D. Va. flies through Senate, 89-0

The Roanoke Times has this article on the 89-0 vote of the U.S. Senate in favor of the nomination of Judge Glen Conrad to succeed Judge Turk as United States District Court Judge for the Western District of Virginia.

Verizon chief says networks would expand like crazy but for sharing requirements

In comments at the COVITS meeting in Roanoke, Verizon chief Ivan Seidenberg declared that the big obstacle to the improvement of Verizon's network in Virginia is government rules that require Verizon to share with CLECs, according to this article. Apart from this, the Roanoke Times quotes Seidenberg as saying that "Verizon plans to roll out fiber-optic connections to every home and business in its 29-state territory over the next 10 to 15 years."

I wonder what that means exactly.

Anyhow, Verizon is the regional Bell operating carrier in Virginia - the largest incumbent carrier in the state, by far (but not the ILEC in many parts of Southwest Virginia).

Judge Kiser calls for exercise of prosecutorial discretion

The criminal prosecution of an unsuccessful plaintiff for intimidating a federal marshall was dropped after Judge Kiser suggested the prosecution was too much, according to this report in the Roanoke Times.

Sunday, September 21, 2003

On the history of progressive taxation

This Taxing Blog post recollects some history regarding the views of the Founders on progressive taxation.

Law schools sue over law barring funding for schools barring military recruiters

Via Politics and Law, the NY Times (registration required) has this article about a group of law schools having filed suit for a injunction against the enforcement of the federal law which provides for the cut-off of some federal money from schools that discriminate against military recruiters.

I would think that this suit would go the way of challenges to Title IX - federal money comes with all the strings attached, and the schools are free to do without if they choose not to do what is necessary to get the money.

First thing let's kill all the law clerks

The Curmudgeonly Clerk points out here, and Southern Appeal seems to agree (if only his permalinks worked), that it is absurd to blame the content of too-liberal opinions on the law clerks.

I don't know what it's like to be a clerk for an appellate judge, or for any but one district court judge, and inasmuch as he was 68 and I was 25, I don't believe I influenced him one bit.

To the contrary (and on the other hand, etc.), I once gave a speech about my judge and finished with a paraphrased version of a snippet from a Scott Turow book, The Laws of Our Fathers, where the actual quote is this:

"Law clerks spend their first year or two as lawyers, an intesely formative period, at a judge's side, seeing firsthand how the flesh of real life hangs on the raw bones of law-school learning. Much as racehorses are always identified by sire and dam, clerks are forever known by their judges, and it is perhaps my proudest heritage in the law that to be a 'Ringler' clerk."

Judge "Ringler" is fictional, but those were my sentiments, exactly.

More on Virginia schools and guns - state law vs. local rules

The Lynchburg paper says here that local rules ought to trump state law on the issue of unloaded guns in locked containers on school property.

Goldman strategy - 100% on schools before 100% on car tax

This column from the Daily Progress says that Democratic strategist Paul Goldman wants his partisans to propose that there be no further implementation of car-tax reduction before there is full funding for the state's education programs.

James J. Kilpatrick on the Suzuki vs. Consumers Union case

Commentator James J. Kilpatrick has this commentary on the Suzuki roll-over case against the publishers of Consumer Reports magazine, now before the U.S. Supreme Court. The column provides, in part: "What began 15 years ago as a test of an automobile's stability is now in the Supreme Court. There the case offers a test of the stability of the First Amendment" and concludes "Did Consumer Reports, that pillar of rectitude, publish a rigged report for financial gain? I don't believe this gossamer speculation, and I don't believe a jury will swallow the allegation if the Supreme Court lets it go to trial."

Chief Justice Hassell on judicial freedom

Last week, the Richmond Times-Dispatch published this commentary by Chief Justice Leroy Hassell of the Virginia Supreme Court, about the judiciary. Among other things, he said:

"Every litigant has an absolute right to have his or her case decided by an impartial judge who will not be influenced by political, social, or economic considerations."

"We must always remember that the lack of judicial independence and the king's obstruction of the administration of justice, along with his failure to accord the colonists basic legal rights such as the right of trial by jury, were important factors that our nation's Founders relied on to justify their separation from Great Britain and their decision to embark on a new form of government that provided the basis of our democracy."

"The General Assembly, in the discharge of its constitutional obligation to elect judges, should elect only individuals to serve as judges who understand both the importance of judicial independence and the proper role of each branch of government. When electing judges, the legislature must assess the candidate's ability, experience, integrity, judicial philosophy, judicial temperament, and view of the role of the judiciary. However, when the General Assembly discharges this constitutional responsibility, it must be careful to avoid any actions that diminish the independence of the judiciary."

"As judges, we must be ever mindful that we are stewards of the public trust. We must discharge our constitutional and statutorily prescribed responsibilities with diligence, humility, compassion, and competence. We always must exhibit respect and courtesy to the thousands of persons who appear each day in the courtrooms of this Commonwealth."

Robert E. Lee tree done in by Isabel

The Richmond Times-Dispatch reports here that one casualty of Hurricane Isabel was a 450 year-old oak tree in Hanover County, "said to have provided shade to Gen. Robert E. Lee and his staff while they camped in the area during the Civil War."

$2.55 million settlement in W.D. Va. fraud case

The Roanoke paper has this account of a $2.55 million settlement in a case brought by a whistleblower against a health care company.

On the flock of Byrds

The Kingsport paper (registration required), saying here that the Senator Byrd is not one to cast the first stone on wasteful government spending, cites the following edifices in West Virginia:

"Over the years, Sen. Byrd's home state of West Virginia has become the repository of the Robert C. Byrd Federal Building, The Robert C. Byrd Locks and Dam, the Robert C. Byrd Health Sciences Center, the Robert C. Byrd Library, The Robert C. Byrd Technology Center, The Robert C. Byrd Hardwood Technologies Center, The Robert C. Byrd Community Center at the Sugar Grove Naval Station, the Robert C. Byrd Green Bank Telescope, the Robert C. Byrd Expressway, the Robert C. Byrd Visitor Center at Harpers Ferry National Park, the Robert C. Byrd Clinic at the VA in Huntingon, the Robert C. Byrd Industrial Park, the Robert C. Byrd Learning Resource Center, the Robert C. Byrd Cancer Research Center, the Robert C. Byrd Hilltop Office Complex, the Robert C. Byrd Rural Health Center, the Robert C. Byrd United Technical Center, the Robert C. Byrd Community Center in Pine Grove, the Robert C. Byrd Institute for Advanced Flexible Manufacturing, the Robert C. Byrd Federal Courthouse, the Robert C. Byrd addition to the Oglebay Park lodge, the Robert C. Byrd Institute in Charleston, the Robert C. Byrd Academic and Technology Center, the Robert C. Byrd Bridge, the Robert C. Byrd Honors Scholarships ... well, we could go on, but space is limited."

More on nudity at the Barter Theatre

The Barter Theatre in Abingdon is the "state theater" of Virginia. Right now its offerings include a play that involves some degree of onstage nudity by the male and female leads. The Bristol paper published this collection of letters to the editor covering the spectrum of opinion about whether this was good or bad.

Notwithstanding the daily repetition at the Barter of the founder's words, "If you like us, talk about us; if not, then keep your mouth shut," this development strikes me mostly as a publicity stunt by which Barter has successfully gotten a lot of press coverage and attention.

On the need for an academic bill of rights

This David Limbaugh column about the David Horowitz proposal for an "Academic Bill of Rights" that would preclude firing professors for their political views includes the following statement:

"The University of Virginia offers a course in Marxism, which posits that the work of the godfather of Communism is the 'standard against which all subsequent social thought must be judged. … It’s worth devoting an entire semester to it.'"

I wonder where the Marxists hang out at the University these days, since the Cave in Old Cabell is no longer there. I never studied Marxism at Virginia, but I did get assigned to read "In Defense of Anarchism," about which I recall nothing but the title.

Anyhow, I thought there already was sort of an academic bill of rights adopted by most schools, promulgated by the American Association of University Professors, called the "1940 Statement of Principles on Academic Freedom and Tenure."

More on the trial of Dr. Knox

This Roanoke Times article on the trial of Dr. Cecil Knox shows that his office was a strange place.

West Virginia to decide coalbed methane ownership case

This article decribes the pending case before the West Virginia Supreme Court on the question of whether ownership rights to coalbed methane pass with the right to mine the coal. Oral argument in the case is scheduled for this week. A similar case is now pending before the Virginia Supreme Court, on appeal from Buchanan County - see this post.

Searching for Bigfoot in Virginia

This article describes a Manassas man's search for Bigfoot in Virginia. The article notes that "[f]rom his research, he believes there may be as many as 900 Bigfoot creatures statewide."

Cruzan case comes to Virginia

The Roanoke paper reports here that the lawyer from the Nancy Cruzan case will be in Roanoke this week to talk about the case. The Supreme Court's Cruzan opinion is here.