Defense verdict in age case overturned for new trial against school board

In Kozlowski v. Hampton School Board, the Fourth Circuit in an unpublished opinion by District Judge Goodwin, joined by Judges Luttig and Michael, reversed the entry of judgment by the trial court on a defense verdict, concluding that "that the district court erred by excluding evidence of prior similar acts of age discrimination by Pearson, by admitting evidence of Kozlowski’s prior DUI arrests, and by refusing to sequester Pearson, a main defense fact witness," and also "erred by failing to instruct the jury that it could infer discrimination if it did not believe the proffered reasons for the nonrenewal," and that while "[a]ny one of these errors standing alone may have been harmless; considered collectively, however, the errors were substantially
prejudicial to Kozlowski’s case."

On other points, the Fourth Circuit concluded that the mixed-motive instruction offered by the court "satisfied Desert Palace even if that decision applies to the ADEA." Other discussion in the opinion seems to support the view that it is a waste to try to tell the jury all the details of the McDonnell-Douglas shifting burden proof scheme, as the Court observed: "Once the Board met its burden of production, the sole issue for the jury in this case was "the ultimate question [of] whether plaintiff has proved that the defendant intentionally discriminated against [him] because of his" age. . . . Because this was the only question for the jury, it would make no difference whether the jury understood this issue to be part of the plaintiff’s initial burden, the plaintiff’s ultimate burden, or both." Likewise, the Court noted, "Any
unnecessary confusion that the jury may have encountered in figuring out the interplay among the elements of the prima facie case, the defendant’s burden of production, and the plaintiff’s ultimate burden of proving discrimination is attributable primarily to the improper and needlessly complex jury instructions requested by the plaintiff in the first instance."

The Court agreed with the appellant's argument, based on the Reeves case, that the jury should have been instructed that "if it did not believe the reasons given by Pearson for the non-renewal, then it could infer, but need not infer, that age was the real reason for the decision." On this point, the Court said: "We do not suggest that a court in a pretext case must always instruct jurors that they may, but need not, infer discrimination from their disbelief of an employer’s stated reasons. Rather, we hold that when the evidence presented at trial creates some likelihood that the
jury might disbelieve the legitimate, non-discriminatory reasons given by the employer to justify its actions, then the jury should be instructed on this permissible inference." The Court refused to decide whether this error in itself would justify a new trial, in light of the other problems with the evidence and other instructions.

What are they teaching at Radford University?

This opinion piece by a philosophy professor from Radford University says that we are all blinded by patriotism into supporting on faith the actions of an unelected and obvious corrupt regime.

The professor says, among other things:

"Any informed person knows that Bush and his junta are utterly corrupt. They openly assign multi-billion dollar contracts to their former business partners without any competitive bidding. They openly represent the big oil companies in Alaska, Iraq, and Afghanistan. They openly oppose environmental regulations for their friends in big business. They openly lie. They openly defy world opinion and invade any country they please."

I don't believe that this is what the faculty had on its mind when my mom studied home economics at Radford around 1960.

Butterflies are free in Blacksburg

This article in the Roanoke Times says that a Virginia Tech garden has become a haven for butterflies - but there is no word on whether the more exotic specimens include the "pussycat swallowtail," as described in this Gilligan's Island script.

Woman who slept on a bench convicted of sleeping on a bench

According to this report in the Roanoke paper, a woman who hangs out on the streets of downtown Roanoke was convicted of sleeping on a bench outside Center in the Square. The article notes that "A judge in Roanoke General District Court fined her $10 for violating a city ordinance that is criticized by some as a way to criminalize homelessness and defended by others as a weapon against derelicts." The woman did not deny sleeping on the bench; she keeps her possessions in a shopping cart, and she explained, "I had been pushing that buggy and I tell you what, it wore me out." An ACLU representative the ordinance under which the woman was convicted is "the kind of ordinance that purports to be about sleeping on a bench but in fact is about trying to get a certain element of society out of the way."

When are religious leaflets also campaign literature?

Via VLW, the Washington Post has this story on a dispute in a county board of supervisors' campaign in Spotsylvania County over whether the "religious" leaflets distributed by one of the candidates should also be considered campaign literature, and therefore subject to the requirements of election laws.

Apparently, the one candidate has been handing out these flyers for years, since long before the election; they are "titled 'Faith & Freedom,' a phrase used in books, lectures and study groups to talk about the relationship between religion and government and the intentions of the Founding Fathers. Dunn does not believe in separation of church and state."

Expert witness impeached by resume errors

In the trial of Dr. Cecil Knox in Roanoke federal court, one of the government's expert witnesses was forced on cross-examination "to confront what one defense attorney argued were discrepancies concerning his educational background, previous employment and military record," as reported here in the Roanoke Times.

Still more on the law schools vs. DOD

This article says more on the law schools suing Department of Defense over the threat that they will lose federal money if they discriminate against military recruiters. It notes that the lawyers for the law schools include David Rudovsky - I've heard him speak on section 1983 litigation.

One thing I wonder about - in my law school class, there were a few military people who were going on to serve in the JAG corps somewhere. I wonder what they think about their own services being discriminated against by the law schools. What is the nature and origin of the First Amendment rights of law schools anyhow? Who does the speaking - is it the faculty, or the administration, or the student body? I wonder whether any of those law school plaintiffs are state schools. What happened to the interest in diversity that justifies affirmative action? Shouldn't they want all kinds of employers represented and to attract students who are interested in all kinds of employers? The law schools' lawsuit sounds like nonsense and hypocrisy to me.

Federal vs. state sentencing in Virginia

Via Ken Lammers' Crim Law, this Daily Progress editorial compares the sentencing guidelines in the federal system with the Virginia sentencing guidelines.

Proposed amendments to Virginia legal ethics rules

Here is the proposal of the Virginia State Bar for amendments to Rule 3.5, regarding "impartiality and decorum of a tribunal," and Rule 5.3, regarding responsibility for non-lawyer assistants. In both instances, Virginia is not going with the ABA model rule.

Totally hacked

It just occurred to me that both books I have showing in the margin have titles with the word "hack." I'm re-reading the book on the Hack Smithdeal trial in Johnson City - it is interesting local history, as well as legal history, told by the defendant's daughter.

Twenty minutes too long for error on school web page

According to this Coalfield Progress article, a comment on the sports page of a Wise County school's website that the high school in Appalachia would be closed was just absolutely unauthorized and unfounded. The citizens of Appalachia have been lobbying against consolidation that would close the local high school, if implemented. The web page with the error was taken down within 20 minutes after it went up.

Religion in schools in Northeast Tennessee

According to this report in the Kingsport Times (registration required), a lawyer from the Tennessee Department of Education "says she wants to dispel the myth that there can be no mixing of church and state in schools." The article notes that "According to state code 49-6-2904, a student has the right to pray in public school vocally or silently, express religious viewpoints, speak to and attempt to share religious viewpoints with other students in school, and possess or distribute religious literature in public school subject to reasonable time, place and manner restrictions."

More on the prospects for Internet sales tax

The Washington Post has this worthwhile article on the prospects for elimination of the ban on Internet sales tax.

Even if states could authorize sales tax on Internet sales, it is an open question (so far as I know) whether such a "tax increase" would pass muster in Virginia with either the General Assembly or the current governor, an old telecom man of sorts.

Out of the frying pan

Via Virginia Lawyers Weekly, this Virginian-Pilot article reports speculation that the defense lawyers in the sniper cases who got a change of venue to the Tidewater will find themselves in an even more hostile forum.

No charges against defense attorney who interviewed victim

In the matter of the zealous representation of a criminal defendant by counsel who interviewed the victim in somewhat unusual circumstances, the assistant Commonwealth's attorney has declared that no charges will be filed against the lawyer, as reported here in the Coalfield Progress. Earlier reports generated some interest from my fellow blogger at ethicalEsq?

Kingsport homeowner sues over police claim that he lives in a crack house

The Kingsport paper (registration required) has this story about a Kingsport man who filed suit in the E.D. Tenn. claiming that police have been harassing him because they think he lives in a crack house. The article says the plaintiff seeks $250,000 punitive damages plus injunctive relief, and the defendants include the City of Kingsport and various individuals.

I doubt the man can get punitive damages against the City, and I wonder whether he is really claiming only punitive damages, as the article suggests - that's not allowed, is it - punitives without any claim for compensatory damages?

Pay your money, take your chances

Via Jurist, the filing fee for an appeal to one of the federal courts of appeals is being raised to $255, as reported here.

Tax consequences of settlement of section 1981, 1983, and Title VII claims

Applying the federal tax law in effect prior to the 1996 amendments to section 104(a) of the Internal Revenue Code, the Sixth Circuit held in Banks v. CIR that the proceeds from the settlement of plaintiff's claims under 42 U.S.C. 1981, 42 U.S.C. 1983, and Title VII were taxable income (and not for personal injuries), but that the contingent fee part of the settlement was excludable from plaintiff's gross income, in a case settled in California.

The opinion notes that unlike the Sixth Circuit, the Fourth Circuit says contingent fees are not excludable from gross income, citing Young v. Comm’r, 240 F.3d 369 (4th Cir. 2001). This looks like a good case for the Supreme Court, because the issue comes up every day - what are the tax consequences of settling a case?

UMWA reorganized

This AP article says the United Mine Workers of America has reorganized its organization, including the elimination of districts as separate entities from the international union.

The ability of the districts to conspire with the international was a bone of contention in a case we litigated long ago, called Ramar v. UMWA, 814 F. Supp. 502 (W.D. Va. 1993), In that opinion, on the defendants' post-trial motions, Judge Wilson ruled that they had waived the issue of whether it was legally impossible for the different unions to conspire, for purposes of a claim under the Virginia Business Conspiracy statutes, Va. Code 18.2-499 and 18.2-500.

(I call them the Virginia Business Conspiracy statutes - there is however an interesting law review article by Professor Ulrich of Washington & Lee explaining that this statute was passed during the age of the civil rights movement to create a civil (and criminal) remedy for sit-ins seeking the integration of lunch counters and the like.)

Supreme Court to decide immunity of states in bankruptcy suits

This Reuters article and this article from the NY Times (registration required) and this article in the Washington Post describe the case in which the Supreme Court decided to take on the issue of immunity of the states in bankruptcy cases.

Forum clause requiring suit "within the state" where owner located includes federal court

In Ferri Contracting Co., Inc. v. Town of Masontown, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, King, and Shedd, reversed the district court's conclusion that a forum selection clause required suit in state court. The language of the clause at issue was this: "The contract provided that any litigation with respect to the contract 'will be decided [ ] in a court of competent jurisdiction within the state in which the OWNER is located.'"

Denying use of public building to homeschoolers does not violate First Amendment

In Goulart v. Meadows, the Fourth Circuit in an opinion by District Court Judge Goodwin, joined by Judge Motz, with Judge Niemeyer dissenting in part but concurring in the result, held that a Maryland county did not violate the plaintiff homeschoolers' First Amendment rights by denying them use of a community center pursuant to a county policy against use of the buildings for private educational instruction intended to meet state educational requirements. Judge Niemeyer agreed with the District Court that the First Amendment was not implicated at all by the county's policy, and would not have engaged in the lengthy discussion of whether the county's intrusion on speech rights was justified.

More on the law school suit against DOD

In this Findlaw column, the author explains why my argument that the government should be allowed to deprive law schools that discriminate against military recruiters of federal funds is all wrong, citing among other things the Supreme Court case striking down federal limitations on the use of legal aid money.

In this Findlaw column, another author says the government is right and the law schools are wrong.

AG Kilgore files civil commitment petition against 9th sex offender

The AP reports here that Attorney General Jerry Kilgore has now filed for civil commitment of nine sex offenders, pursuant to a new Virginia law. The article notes that the first hearing on one of these petitions will be held on October 7.

9th Circuit Tosses 'Duffield' in Dustbin

That's the law.com headline for this article on the 9th Circuit decision this week, which is not about a town in Scott County, Virginia, but rather upholds the arbitrability of employment discrimination claims in some circumstances.

Haynes nominated for Fourth Circuit

Howard Bashman notes here that President Bush has nominated William J. Haynes, II, to serve on the U.S. Court of Appeals for the Fourth Circuit. Haynes currently serves as general counsel for the Department of Defense and is a graduate of Davidson College and Harvard Law and clerked for Judge James McMillan of the W.D.N.C.

There's been a "perfect storm" of events - some very good, some very bad - that has kept me from blogging this week, but I'll be back at it shortly.

Worth reading - ideological judging

Via this post from How Appealing, this article rebuts the study of a University of Chicago law professor who claims that ideology has a substantial effect on the outcome of appellate cases.