Another quarter heard from on the Claude Allen nomination

Via How Appealing, the Baltimore paper had this commentary from a law professor at the University of Maryland Law School on the Maryland senators' appearance at the Senate judiciary committee hearing on the nomination of Claude Allen to sit on the U.S. Court of Appeals for the Fourth Circuit. The professor wrote, among other things:

"IN AN electrifying hearing before the Senate Judiciary Committee last week, Maryland Sens. Barbara A. Mikulski and Paul S. Sarbanes exposed the ugly side of a long-standing and important battle over judicial nominations to the 4th U.S. Circuit Court of Appeals.

. . .

Mr. Bush's failure to nominate a Marylander to the open seat is emblematic of the way the Republicans have played fast and loose with geographic, racial and political diversity on the 4th Circuit for 10 years. Maryland has two judges on the court. Mr. Sarbanes says it should have three because of Maryland's population.

. . .

Without question, Ms. Mikulski and Mr. Sarbanes are fighting for geographic as well as ideological diversity on the 4th Circuit. Maryland's most prominent lawyers and jurists tend not to be conservative, at least not conservative enough for the Federalist Society lawyers that some say vet all of President Bush's potential nominees behind the scenes.

. . .

That the 4th Circuit is widely considered the most conservative in the nation makes the issue of what kind of judge will replace Mr. Murnaghan even more significant. We should be seeking ideological balance, not ideological domination on our circuit courts.

That Mr. Allen is black does not allay the concerns raised by Maryland's senators. In fact, the president's cynical use of race to undercut opposition to his conservative nominees even further debases the judicial nomination process.

Racial diversity is important -- indeed, essential -- to the legitimacy of our judiciary. But racial diversity used as a political wedge, as in the first President Bush's nomination of Clarence Thomas to the Supreme Court, creates long-lasting bitterness from which neither the public nor the nominee is likely to recover soon.

The lesson from Mr. Bush's successful nomination of Allyson K. Duncan as the first black woman to the 4th Circuit earlier this year is that when his nominees are distinguished, aren't extremists and are forthcoming with the Judiciary Committee about their records, the president receives remarkably little opposition from the Democrats.

. . . The administration would do well to withdraw Mr. Allen's nomination and return the Maryland seat to Marylanders."

Smyth County considers removing the word SHALL from its zoning ordinance

According to this report in the Smyth County paper, the county was considering removing the word "shall" from its zoning ordinance. The article says in part:

"The primary change, other than some new definitions for land use terms, appears to be the removal of the word "shall" from the entire approximately 50-page document. Although she was forbidden to speak, Smyth County Economic Development Director Sally Morgan quietly asked the commission why they would delete "shall" throughout the document. The planning commission did not clearly specify its reasoning. Morgan suggested the commission might want to develop a rationale for their choices before presenting the revisions to the supervisors.

"Oh, we’ll have a rationale," McClure assured Morgan, but he did not present it.

McClure and DeBord, the chairman and vice chairman of the planning commission, aggressively fought adoption of the county’s Zoning Ordinance. The two men were the self-appointed leaders of the anti-zoning citizens’ group. Now as leaders of the planning commission, they head the advisory body that recommends zoning decisions and ordinance revisions. Part of their job is to recommend actions to use and enforce the Zoning Ordinance they originally opposed.

County Attorney Tate said "shall" is a specific term used in legal language.

"In the law, there are two [language] terms you use. One is ‘shall’ and one is ‘may,’" he said "‘Shall’ is mandatory and ‘may’ is permissive. … If it says ‘shall,’ it is a requirement."

He used two items of law to illustrate his point. In the Code of Virginia 15.2-953, the law allows local governments to give money to fire departments, saying "localities … may" make gifts and donations to support charitable causes, fire departments and rescue squads. Financial support for emergency service organizations is not a requirement under the law. But in Article 10, Section 1 of the constitution, Tate said, the taxation and finance law says all property "shall" be taxed, and all taxes "shall" be uniform. The "shall" makes the tax law a requirement.

The difference, he said, is what makes an ordinance a requirement rather than an option. Removing the word "shall" from the entire Smyth County Zoning Ordinance effectively eliminates its enforceability."

I bet they never heard of Elizabeth Taylor or the old Redskins' coach, either

As reported here in the Daily Progress, "Virginia’s lack of civics education at school and at home has left 56 percent of the state’s high school students unable to name even one of the state’s two U.S. senators."

Charlottesville lawyer gives up license over settlement check

According to this story in the Daily Progress, a lawyer in Charlottesville who had been practicing since 1986 and was once listed in a survey among a group of people identified as "assets to the community" has given up her law license "after admitting she concocted an elaborate charade to pocket a client’s $13,500 settlement check."

Republicans offer course in lip-reading on taxes

This article in the Richmond paper ("GOP warns governor on taxes") and this article in the Washington Post ("Next Va. Campaign Is for New Tax Code") and this article in the Daily Press ("'Shortfalls as far as the eye can see") all say the Republican majority in the Virginia General Assembly will tolerate no tax increases, notwithstanding the slight gains by the Democrats in this week's elections.

Annexation case bares the financial prospects of Town of Big Stone Gap

The Coalfield Progress has reports here and here, and the Kingsport paper (registration required) has an article here, and the Bristol paper has articles here, here, and here on the trial of the Big Stone Gap annexation case.

The hearing got started late on Monday because two members of the three judge panel got lost on the way to the courthouse. As the Bristol paper explained: "What could be a three-day trial got off to a late start Monday morning when [Judges] Horne and Alexander got lost. The judges arrived two hours late and got some good-natured ribbing from [Judge] Roush before boarding a bus to tour the annexation area."

Professor Sabato says most boring election in 25 years

As retold here in the Cavalier Daily, a student who got to hang with Professor Larry Sabato as he provided election night commentary for a Richmond television station notes that Sabato said up front that "This is by far the most boring election I've ever covered in over 25 years."

Judge Lee blames prosecutors for bad evidence in jury room

This AP report says that Judge Gerald Bruce Lee of the E.D. Va. blames prosecutors for allowing two day planners into the jury room that were not introduced as evidence in the case.

Reaching the limits on the Republican majority?

According to this AP report, the number of Democrats elected to the House of Delegates in Virginia went up instead of down for the first time in 28 years.

Judge Wilson wants Knox retrial two weeks from now in Lynchburg

According to this report in the Roanoke paper, Chief Judge Wilson is moving the next trial of the Dr. Knox case to Lynchburg because of the publicity over the first trial in Roanoke, and he wants to seat the jury in two weeks.

What does it mean when your sister discovers your web log?

I was over at Duffield today and had lunch with my sister Joan, who says she has now seen my Blogger site. You can discover her firm's website at this link - she is in the business of helping people and firms apply for grants, among other things. She was telling me also about some concert in Clintwood where there was no dancing, maybe the rule there is like the ordinance in nearby Pound, about which Judge Williams wrote: "It has been said that life imitates art. In a scene more than slightly reminiscent of the 1984 Academy Award-nominated movie Footloose, in which a small town outlaws dancing, the Town of Pound, Virginia, enacted Chapter 22 of the Town of Pound Ordinance, §§ 127-138, . . . prohibiting the allowance of dancing in any place open to the general public without first obtaining a permit for the operation of such a place." Elam v. Bolling, 53 F. Supp. 2d 854, 855-56 (W.D. Va. 1999).

Who's Claude Allen?

Law.com has this profile on Claude Allen, who has been nominated by President Bush for appointment to sit on the U.S. Court of Appeals for the Fourth Circuit.

This month's Bashman interview

In this month's Twenty Questions, How Appealing interviews Judge Richard Arnold of the Eighth Circuit, the hero of unpublished opinion fans everywhere for his opinion in the Anastasoff case, to the effect that it was unconstitutional to prevent lawyers from citing unpublished opinions.

More on the politics of the Claude Allen nomination

Via How Appealing, this piece from the Baltimore Sun describes the politics of replacing a judge from Maryland with a lawyer from Virginia.

Judge Turk of W.D. Va. dismisses suit challenging one-year suspension from school

The AP has this article on the decision by Judge Turk of the W.D. Va. to dismiss a lawsuit challenging the decision by the Pulaski County School Board to suspend one of its students for one year "after school officials found her possessing medicine for insomnia." The article says that the student was accused "giving the medication or aspirin to another student."

On the eve of Election Day in Virginia

The Bluefield paper has this article on the race for sheriff in Tazewell County. On Sunday, the Bristol paper reported here all the dirt the Washington County Democrats have accumulated against the Republican candidate for Commonwealth's attorney, including reports that the fellow had some unpaid debts. (The part of the article I liked were the pictures - Congressman Boucher laughing with Fred Parker and Jack White, and in the print edition, Hope Reynolds with her son and nephew.) The Bristol paper endorsed the Democrat, saying that it is wrong for the Republican to promise no plea bargains if elected. The Coalfield Progress reported here on the expenditures of the candidates for Commonwealth's attorney. The Republican nominee, Chad Dotson, still gets the prize for the best (and only) constitutional officer candidate website I've ever seen. This article from the Kingsport paper (registration required) on the race for Commonwealth's attorney in Scott County notes that both candidates were standout football players (which maybe counts for a lot in Scott County).

More on the Merry Pease case

The Media General papers had this article on the case of Merry Pease, whose murder conviction from Wise County Circuit Court was affirmed by the Virginia Supreme Court on Friday.

Death penalty affirmed in Jackson case

On Friday, in the case of Kent Jermaine Jackson v. Commonwealth, the Virginia Supreme Court affirmed the death sentence imposed on the defendant, despite constitutional and other challenges, noting, among other things, that "Beulah Mae Kaiser suffered a brutal, vicious, and painful death at Kent Jermaine Jackson's hands. The record indicates that Jackson agreed to the plan to enter Mrs. Kaiser's apartment and rob her and that he kicked her and held her down while Dorsett punched, kicked, and stabbed her. Jackson stabbed Mrs. Kaiser and he handed Dorsett the cane that ultimately was shoved through her face." The AP had this report and the Richmond paper had this article on the Court's ruling.

The end of the trial of Dr. Knox, Round I

As reported here, here, here, and here, the long-running federal court trial of Dr. Cecil Knox ended with an acquittal on some counts and a mistrial on the others, where the jury was unable to reach a verdict. The U.S. Attorney for the W.D. Va. has indicated that his office will retry Dr. Knox on the remaining charges.

$647,000 verdict affirmed in slip-and-fall case from W.D. Va.

Last week, in the case of Richardson v. Boddie-Noell Enterprises, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Shedd and Senior Judge Hamilton affirmed the judgment where the plaintiff won a $647,000 verdict for a slip-and-fall case at a Hardee's restaurant in Louisa, Virginia. The case was tried before Judge Moon in the Charlottesville jury division of the W.D. Va. One of the issues on appeal was a constitutional challenge to the plaintiff's use of peremptory strikes, which were all used to strike men from the jury, and on this issue the appeals court noted that the only evidence was statistical, that only men were struck, and that the plaintiff was able to articulate at trial non-discriminatory reasons for the strikes.

Friday's Virginia Supreme Court cases

In Ryland v. Manor Care, Inc., the Court in an opinion by Justice Kinser affirmed a circuit court granting relief in equity from an earlier default judgment in a medical malpractice case. The court explained that the elements necessary for the equitable remedy from a default are these: "(1) a judgment which ought not, in equity and good
conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law." The Supreme Court noted that the trial court did not really explain its findings on these five elements, and for future reference, the Supreme Court wants "to stress that a trial court must articulate its findings with particularity regarding each of the five elements." The gist of the facts is that the insurance defense counsel was hired but failed to notify anyone in time for other counsel to be retained in time to avoid default. The Court makes a strangely fine point in its opinion, trying to distinguish the lawyer's conflict problems as something of different character as a lawyer simply missing a deadline.

In Montgomery Mut. Ins. Co. v. Riddle, the Court in an opinion by Justice Lemon held that Va. Code § 38.2-309 "requires proof of actual reliance by an insurance company on material misrepresentations made in an application for insurance before a policy of insurance can be declared void."

In Blake Construction Co., Inc. v. Upper Occoquan Sewage Authority, the Court applied for the first time the statutory prohibition against "no damages for delay" clauses in public construction contracts, now codified at subsection (A) of Va. Code § 2.2-4335, concluding, among other things, that the contract provisions at issue were prohibited under the statute.

In Williams v. Gloucester County Sheriff's Department, the Court held that the "contemporaneous objection" rule applies to proceedings to obtain worker's compensation benefits, barring the claimant from raising new issues on appeal.

In Kappa Sigma Fraternity, Inc. v. Kappa Sigma Fraternity, the Court held that a challenge in equity to the validity of amendments to the articles of incorporation of non-stock corporation was subject to a defense of statute of limitations - either the statute applicable to claims for breach of written contracts, breach of fiduciary duty, or injury to property, citing, among other things, the "well-established principle uniformly acted upon by courts of equity, that in respect to the statute of limitations equity follows the law; and if a legal demand be asserted in equity which at law is barred by statute, it is equally barred in equity."

In Lewis, Adm'r v. C.J. Langenfelder & Son, Jr., Inc., the Court held in an opinion by Justice Kinser that the removal of the case to federal court left nothing in state court over which the Supreme Court could have jurisdiction on appeal, and therefore the appellant could not obtain review of rulings that were made in state court prior to removal.

In Chase v. DaimlerChrysler Corp., the Court in an opinion by Justice Lemons held that the plaintiff was not entitled to statutory attorneys' fees under the Virginia Motor Vehicle Warranty Enforcement Act, Va. Code 59.1-207.9 to -207.16:1, where the case settled out of court and there was no order or judgment in favor of the plaintiff. The Court concluded that "being 'successful'" within the meaning of the statute "by definition, means that the action terminates in favor of the claimant." This opinion will be likely to have some effect on how these cases get settled in the future, as the wary plaintiffs' counsel will want to do something to get a court order reflecting the "successful" outcome. Attorneys' fees are a big deal in these consumer protection cases.

In Klaber v. Freemason Associates, the Court in an opinion by Justice Koontz concluded among other things that the shareholders lacked standing to appeal the judgment against their corporation, and could only appeal the issue of whether or not the corporate veil was properly pierced by the trial court.

In Glazebrook v. Board of Supervisors of Spotsylvania County, the Court in an opinion by Justice Lemons held that the County failed to give the notice required by Va. Code § 15.2-2204 for certain amendments to its zoning ordinance.

In Wilkins v. Peninsula Motor Cars, Inc., the Court in an opinion by Justice Lemons held that the plaintiff having prevailed on both his fraud and Virginia Consumer Protection Act claims was not required to elect between the two remedies, but instead was entitled to: (1) his compensatory damages, (2) the $100,000 punitive damages on the fraud claim (but not the liquidated damages on the VCPA claim), and (3) his attorneys' fees under the VCPA. The misrepresentation at issue in the case was whether the car sold with 900+ miles on it was a "new" car, when in fact it had been previously owned. (Yes, it was a BMW, as in the famous punitive damages case decided by the U.S. Supreme Court out of Alabama, where the jury awarded $4 million to the fellow who found his car had been repaintedon account of predelivery damage.)

In Ford Motor Co. v. Jones, the Supreme Court in an opinion by Chief Justice Hassell held that the plaintiff was entitled to take a nonsuit following the remand of the case after an appeal. (In state court in Virginia, when things start to go bad for a plaintiff, the lawyers take their nonsuit, and there is nothing the defense lawyers can do about it, but often those same things stay bad and the case is never refiled. On the other hand, there are times when a nonsuit seems kind of like an abusive thing, like the story of the Southwest Virginia lawyer who took a nonsuit when a trial dragged on so he could attend the ACC basketball tournament.)

In Board of Supervisors of Fairfax County v. Robertson, the Court in an opinion by Justice Kinser affirmed the County's denial of a special exception from the setback requirements in the zoning ordinance, reversing the trial court on the issue of whether the county's decision was "fairly debatable."

In Herndon v. St. Mary's Hospital, a Wise County, the Court in an opinion by Justice Keenan held that the law as to how "infants" can file suit in Virginia is unchanged from the common law and that Circuit Court Judge Robert Stump held correctly that this case was not brought correctly. The suit was styled "Debbie Thompson Herndon, as mother and next friend of Matthew McNeil Herndon," and it was supposed to be styled, "Matthew McNeil Herndon, an infant, by Debbie Thompson Herndon, his next friend," if my form books have it right. (You can bet I'll be double-checking that point the next time I defend an infant case.)

In Pease v. Com., the Supreme Court summarily affirmed the murder conviction in Wise County of Merry Pease, after multiple trials and appeals.