On being No. 1

The Charlottesville paper has this article ("We're No. 1," 3/31/04) on the recognition of Charlottesville as the Best Place to Live in America.

Overtime class action against Bank of America filed in Roanoke

The Roanoke paper reports here ("Woman sues Bank of America for overtime pay," 3/31/04) on a class-action case brought seeking overtime compensation from the employer Bank of America.

Oral argument in Virginia Supreme Court on car searches

The Norfolk paper reports here ("In Norfolk case, Supreme Court considers rules for car searches," 3/31/04) on today's oral argument before the Virginia Supreme Court in a case involving "how much freedom law officers should have in searching vacant cars."

Molly Ivins does not like Haynes nomination

In this column, Molly Ivins says the Bush administration should not have nominated William Haynes, II, to the Fourth Circuit because of the DOD's bad environmental record.

Dotson fights off Batson challenge

This article from the Coalfield Progress reports that in an ongoing murder trial, the Wise County Circuit Court denied a defense lawyer's motion claiming that the use by the Commonwealth's attorney of his first peremptory challenge to strike the only black person from the jury pool was unconstitutional racial discrimination. The article quotes Judge Stump as saying: "It is unusual to have African-Americans on local jury panels."

The many bizarre happenings involving Richmond city politicans

The Richmond paper can't resist retelling the tale of the many odd things that have happened or been done by Richmond's council members and other city government officials, as in this account, which mentions, among other things:

"City Councilman Raymond D. Royall went out in his 17-foot motorboat and vanished in 1978. His family held a memorial service. But Royall hadn't died. He abandoned his boat, swum to shore and headed west. He resurfaced under a new identity in St. Louis later that year before returning to Richmond and pleading guilty to federal tax and bank-loan charges."

"the Virginia Supreme Court ruled that Councilman William I. Golding Sr. had to give up his council seat because he did not realize that felonies he committed as a teenager had disqualified him from serving."

"Evans pleaded guilty to mail fraud Dec. 30 after running a billing scam in City Hall. Authorities caught onto his scam after noticing his phony bills from two different companies had the word "debris" misspelled as "debre." Evans is among nine public employees and elected and appointed officials who have been indicted in Richmond in the past 13 months."

Death row inmate protests injustice of page limitations and lethal injections

The Richmond paper reports here ("Death-sentence appeals lodged," 3/30/04) that a Virginia inmate facing execution this week has filed papers claiming that the method of execution by lethal injection is cruel and unusual punishment in violation of the Eighth Amendment. He is also claiming that his rights were violated by the 50-page limit on his Virginia Supreme Court filings, which the Court refused to waive when he filed a 113-page paper.

Pigs killed, injured en route to packing plant

The Norfolk paper reports here ("25 pigs killed when truck overturns," 3/30/04) on the truck accident involving a load of 100 pigs headed for the Smithfield packing plant. The survivors, presumably, can look forward to the rest of the trip through the packing plant.

More t-shirt trouble-making at a Virginia high school

The Richmond paper reports here ("Rebel flag stirs unease," 3/30/04) that, mysteriously, a group of students came to school in Campbell County wearing rebel flags, for which 15 were suspended.

Perhaps there will be some litigation, but the prospects for the students are not so good as if they had been wearing NRA or anti-abortion t-shirts. The employee with the Confederate flag stickers lost the Coburg Dairy case before the Fourth Circuit, which apparently has since been vacated for reconsideration en banc. (I thought at the time that case was wrong on the removal issues, since there was no federal question, but the discussion there might have some bearing on a Confederate flag case with real Constitutional issues.)

Fourth Circuit denies habeas relief to Virginian who shot wife and son

In Bailey v. True, the Fourth Circuit rejected the petitioner's claims of ineffective assistance of counsel, one being the claim that counsel failed to get before the jury the fact that he was taking 900 mg lithium per day and that's why he appeared emotionless during the trial. The Court concluded the record did not support that the petitioner was taking lithium in such dosages during the trial.

Richmond doctor testifies in case challenging federal abortion statute

In federal court in Nebraska, a Richmond, Virginia, doctor testified that he would probably continue to perform abortions illegally, if need be, as reported here.

What's good or bad about an international baccalaureate program?

Today's Bristol paper ran an article lauding the International Baccalaureate program at Virginia High School.

Also recently, the IB program was booted from a high school in Fairfax County, for reasons described in this Washington Times article.

Who besides Virginia uses the legislature to pick judges?

According to this AP report, "South Carolina and Virginia are the only states that use legislators to elect trial and appellate judges, though there are differences in procedures, according to the National Center for State Courts. Most states, including North Carolina and Georgia, use a combination of appointment and popular election systems." The report goes on to say that the Rev. Jesse Jackson favors popular election of judges.

Constitutional challenge to the Commonwealth's sex laws

The Daily Press reports here ("State's law on sex act challenged," 3/30/04) and the AP reports here on a constitutional challenge to Virginia's sex laws brought by a woman arrested and charged with a felony for receiving oral sex in a parked car in Newport News.

William Pryor to deliver commencement address at Regent law school

I am informed by somebody that the recently-appointed Judge William Pryor, Jr., of the U.S. Court of Appeals for the Fifth Circuit, and formerly Attorney General for the State of Alabama, will be the commencement speaker for Regent in Virginia Beach on May 8, 2004, as stated in this press release.

Normally, the gentlemen at Southern Appeal are the best source for all things Pryor.

Plaintiff gets summary judgment reversed when appeals court says no diversity

Snatching victory from the jaws of the defeat, the plaintiff/appellant in American Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, got summary judgment on the merits reversed by arguing that when it amended the complaint to name a different defendant, the new defendant was not diverse and therefore the district court was without subject matter jurisdiction over the case the plaintiff filed before it.

Thanks to Construction law blog for pointing out this gem.

Inside baseball

As further evidence against myself, I must confess I laughed at all I saw on this parody of How Appealing, called How Appalling, which I discovered via this Denise Howell post.

Fourth Circuit affirms dismissal of claim for religious discrimination in chatroom

TechLawJournal has this interesting account of a case against AOL, in which the Fourth Circuit by summary disposition affirmed the District Court's ruling that AOL could not be liable under federal statutes for anti-Muslim chat.

Is a panel of Va. Ct. App. sitting in Bristol on April 13?

Apparently a writ panel for the Virginia Court of Appeals will be hearing arguments in Bristol on April 13, according to the docket for that day from the Virginia judiciary website.

Perhaps I'll go down and watch some of the proceedings, if this is true.

Environmentalists also mad about I-81

This AP report describes environmental opposition to the I-81 project.

Voodoo economics

The Washington Post reports here ("Va. Budget Stalemate Hamstrings Localities," 3/29/04) how local governments in Virginia are taking out their crystal balls and trying to read tea leaves to guess what to do with their budgets for next year.

Condemned man wants out of Wednesday night execution date

The Daily Press reports here on a convicted murderer in Virginia ("Condemned killer wants to live," 3/28/04) who doesn't want to be executed this week.

Deputies want more money

Only in America would it be necessary for a bunch of armed, uniformed men and women to come to the legislature to plead for more money, as was done by Virginia sheriffs' deputies over the weekend, as reported here ("Va. deputies descend on Richmond lawmakers," 3/28/04) in the Norfolk paper.

NYT shocked to find Republicans for high taxes in Virginia

The NY Times has this piece ("Virginia Political Shocker: Republicans for High Taxes," 3/28/04) on the tax and spending situation in Virginia.

Impact of I-81 tolls on tourism

The Richmond paper has this report ("I-81 plan makes Valley anxious," 3/29/04) on fears about the effect of tolls on the tourism business along Interstate 81.

More on upcoming S.Ct. sex harassment/constructive discharge case

George's employment blog has this post on the case soon to be argued before the U.S. Supreme Court on sexual harassment and constructive discharge, including the summaries of some articles and George's own conclusions.

More on 2005 Republican primary

The Roanoke paper has this report ("GOP to have open primary for '05," 3/28/04) on the Republicans' decision to have a primary for the statewide offices in 2005.

Tonight on A&E - the case of the Haysom murders

At 10 pm Eastern, A&E will broadcast a "City Confidential" episode, described as follows:

"On March 30, 1985, in Lynchburg, someone viciously murdered one of the state's FFV--First Families of Virginia--and her husband. Someone entered Derek and Nancy Haysom's home and attacked the couple--he was stabbed 39 times, she was nearly decapitated. The grisly murders of the socially prominent couple caused upper-crust residents to fear a possible serial killer--but police had another suspect, one much closer to home."

I've written a bit about the case on this blog, and since I was at U.Va. in those days, my views are about like those reflected in this post.

Slashdot on the local telecom case

I read all the way through this collection of comments on the Slashdot forum regarding the Missouri municipal telecom case.

Paul Goldman offers mild rebuke to Governor Warner

In this Augusta Free Press column ("Strange political bedfellows," 3/26/04), longtime Democratic operative Paul Goldman is mildly critical of tactics used this week by Governor Warner in the ongoing budget debate, particularly in regard to the claim that the House will force a huge increase in local property taxes.

Hometown cable operator still going in Wythe County

The Wythe County paper has this article on the cable operator for Rural Retreat, a local outfit with 650 customers in business for 30 years.

Lynchburg adds goats to groundskeeping staff

According to this delightful article ("Goats helping to clear overgrown cemetery," 3/27/04) in the Lynchburg paper, city workers have used a gang of goats to clear the ground in a carefully-defined area of a city cemetery, with the result that an old boundary wall but no tombstones have been uncovered.

The article does not have any comment from the local chapter of PETA, particularly on whether the requirement that one goat wear an orange shirt in the manner of a common inmate was offensive to the goat's self-esteem, or that the placement of the goats has been offensive to the resident deer population.

Republicans will have primary to select statewide candidates for 2005

The AP reports here that the state Republicans have decided to use a primary vote as the means by which the party will select its nominees for governor, lieutenant governor, and attorney general in 2005.

According to VPAP, Bill Bolling has reported raising $398,619 (including $0 from Southwest Virginia) for his lieutenant governor campaign, Bob McDonnell has raised $472,289 (including $1,600 from Southwest Virginia) for his attorney general campaign, and Steve Baril has raised $440,158 (including $500 from Southwest Virginia) for his attorney general campaign.

Suspension becomes disbarment for Virginia lawyer

A Newport News lawyer has lost her license for failure to comply with the terms of a disciplinary suspension, according to this report ("Lawyer already on suspension loses license," 3/27/04) in the Daily Press.

Still more on the Fourth Circuit's internet ruling

The Washington Post (registration required) had this article ("Web Porn Law Struck Down," 3/27/04) and AVN has this article ("Virginia Net Porn Law Still Unconstitutional: Appeals Court," 3/26/04) on the Fourth Circuit's ruling in the PSINet case. IPTA Blog has this post.

Emu on the loose in Hanover County

The Richmond newspaper reports here that a big bird is running wild in Virginia.

More on why Northern Virginia delegates oppose tax increases

In this Washington Times article ("Callahan balks at increase in taxes," 3/26/04), Del. Callahan from Fairfax County said again that he is opposed to tax increases that would have the effect of taking from the rich in Northern Virginia and giving to the poor in the rest of the Commonwealth.

More on the Fourth Circuit's ruling in the internet case

People for the American Way had this press release about the Fourth Circuit's ruling in the PSINet case. The Richmond paper has this article and the AP has this report on the case. Corante Tech News has this post on the case.

New magistrate judgeship for W.D. Va.

Via VLW, the Richmond paper reports here ("Extra judge slated to help in northern part of valley," 3/26/04) that the government is planning to add a magistrate judge position for the northern end of the W.D. Va. Currently, there are three magistrate judges, one in Abingdon, one in Roanoke, and one in Charlottesville. The new magistrate judge would evidently sit in Harrisonburg.

Hasta la vista, Tony

Today is the last day of Tony Kornheiser's radio show on ESPN, which is very strange, since Tony is not retiring, and wants to keep doing the show just as it is. I join in the sentiment expressed in this column from the Lexington paper, which says in part:

"Here we pause for a favorite Kornheiser anecdote: He once told the story of how his wife, while eating lunch in a Washington restaurant, overheard someone at the next table talking about how much he despised Kornheiser's show.

When Tony asked his wife if she spoke up in defense, she replied that she was going to go over and give him a piece of her mind, until she remembered she wasn't wearing any makeup.

It was that kind of show."

Va. statute prohibiting online display of material harmful to minors unconstitutional

In PSINet, Inc. v. Chapman, the Fourth Circuit in an opinion by Judge Spencer of the E.D. Va., sitting by designation, affirmed the conclusion of Judge Michael of the W.D. Va. that Va. Code 18.2-391 is unconstitutional under the First Amendment and the Interstate Commerce clause. Judge Davis of the D.Md. wrote a concurring opinion, and Judge Niemeyer wrote a dissenting opinion.

Landfill fee suit filed in state court, after federal court dismissal

A group of Wise County businesses has filed suit in state court, after no luck in their efforts to get relief in federal court, according to this report in the Coalfield Progress.

The state court won't exactly be bound to provide a remedy, notwithstanding the federal court's conclusions that there might be one under state law.

To Pete or not to Pete

Doug Doughty of the Roanoke Times says here that U.Va. basketball coach Pete Gillen should be kept on, while David Teel of the Daily Press declares here (somewhat obscurely) that he would keep Pete but thinks the U.Va. sports department should let him go.

ACLU set to challenge new methadone legislature if signed into law

The Roanoke paper reports here ("ACLU set to battle clinic ban," 3/25/04) that the American Civil Liberties Union is contemplating a legal challenge to new laws affecting methadone clinics, that are awaiting the Governor's signature. The Senate version of the bill, SB 607 sponsored by Senator Wampler from Bristol, is here.

Bristol's own retired Judge Flannagan gets Carrico Award from State Judicial Council

As reported here on the Virginia judiciary website, the Judicial Council of Virginia selected retired Judge Charles B. Flannagan II of the 28th Judicial Circuit "as the first recipient of the Honorable Harry L. Carrico Outstanding Career Service Award."

Judge Flannagan has been the hometown judge in the courthouse up the street throughout my career, a good and pleasant fellow who did the job right, as about everyone who knows him would agree. At one time, Judge Flannagan gave a series of speeches to community service groups and the like about legal history in this circuit. He would take out the noose that was used for the last hanging. Another time he and I got to discussing the history of abortion laws in the United States, and I loaned him my copy of the Mohr book, Abortion in America: The Origins and Evolution of National Policy, 1800-1900. Judge Flannagan instituted or reinstituted portrait hangings of judges in the Bristol courthouse, mainly I think because he felt like some of his predecessors deserved more recognition, particularly Judge Joseph L. Cantwell, Jr., who served as Corporation Court judge for the Circuit of Bristol for roughly 30 years until the late 1960s. Judge Flannagan was also interested in the use of technology, an Internet and e-mail user.

You can't beat a judge who is friendly, capable, and interesting in learning about things old and new.

Habeas petition denied in Lynchburg rape and murder case

The opening paragraph of this opinion by Chief Judge Wilson describes the case:

"There is no dispute but that Brandon Wayne Hedrick and an accomplice robbed and had sex with Lisa Yvonne Alexander Crider, abducted her at gunpoint, drove her to a remote location near a river, dragged her to the riverbank as she cried and begged for mercy, shot her in the face at close range with a shotgun, and returned to their apartment and went to sleep. In fact, against the advice of counsel, whom Hedrick now disparages, Hedrick spoke with law enforcement officials and admitted as much. Hedrick, however, disputes evidence that he raped and forcibly sodomized Crider, and he contends he only intended to scare, not kill, her. He now brings this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 blaming his counsel for his conviction and death sentence. But from a thorough review of the record, the court cannot identify anything counsel did or did not do that prejudiced Hedrick and finds no other ground to grant Hedrick’s petition and accordingly dismisses it."

Sniper Malvo comes to Southwest Virginia

The Bristol paper reported here ("Lee Boyd Malvo at Red Onion State Prison," 3/24/04) that Lee Boyd Malvo is now in prison at the Red Onion facility in Southwest Virginia.

More on Northern Virginia versus the rest of the Commonwealth

Another Northern Virginia delegate is saying out loud that he opposes tax increases that would allow more money to flow from Northern Virginia to the rest of the state, according this report ("Lingering Budget Fight Hits Airwaves," 3/24/04) in the Washington Post.

Del. May to run for lieutenant governor

The Richmond paper reports here ("May plans to run for lieutenant governor," 3/24/04) on the efforts of Delegate Joe May from Leesburg to jumpstart his campaign for lieutenant governor in 2005.

More on Richmond stop and frisk case

The AP has this report on the Fourth Circuit's ruling in the City of Richmond stop and frisk case, U.S. v. Mayo.

The late Judge Honts from Botetourt County

The Roanoke paper has this profile ("Honts: judge, gentleman, scholar dies," 3/24/04) of the circuit court judge who died this week.

Liberty law school in Lynchburg has blog

Robert Ambrogi has this post on the coming law school at Liberty University in Lynchburg and the blog by its founding dean.

No joy from Supreme Court in municipal telecom case

In Nixon v. Missouri Municipal League, the Supreme Court concluded by an 8-1 vote that the section 253 of the Telecommunications Act does not prohibit the states from barring their local governments from providing telecommunications services. Justice Souter wrote the opinion for the Court, Justice Scalia wrote a concurring opinion joined by Justice Thomas, and Justice Stevens was the lone dissenter.

More on the eavesdropping case

An alert reader sent me a link to this article which says the basis for federal jurisdiction in the Republican eavesdropping case is a federal wiretapping statute.

Perhaps then the statute is 18 U.S.C. 2520. I wonder where the requirement of actual damages in that case works the same way as in that Privacy Act case, the Joe Wolfe case, where the Supreme Court construed proof of some actual damages as a prerequisite to the minimum statutory damages amount of $1,000. I'd say the statutes are quite similar, and so I wonder, what are the actual damages in this case? I bet there are none, which means this case could go the same way as Joe Wolfe's case.

Only in America - where we blog in red, white, and blue

I write in this blog almost every day, and quite possibly no one reads it but Roy Jessee, Mitch Mobley, and perhaps John Ashcroft, but in China, the government would put a stop to this sort of nonsense, or so this AP report suggests.

On the Supreme Court's upcoming constructive discharge case

I thought this Findlaw article on a constructive discharge case before the U.S. Supreme Court was only somewhat off the mark.

NY Times opposes Haynes nomination to Fourth Circuit

Here in today's New York Times (registration required) is an editorial opposing the confirmation of William J. Haynes II to the U.S. Court of Appeals for the Fourth Circuit, primarily on the basis of objections to the legal positions taken by the government on war-related issues while Haynes was head lawyer for the Defense Department, along with what is said to be his lack of experience. (Of course, nobody who is chief counsel for anything gets to try very many cases.)

Same-sex couple plan to seek marriage licenses in Fredericksburg

According to this report ("Gay, lesbian couples to seek marriage licenses in the city," 3/23/04) in the Free Lance-Star, some same-sex couples plan to apply for marriage licenses in Fredericksburg this week. The article says the clerk of court does not plan to issue any such licenses to same-sex couples.

Perhaps they are just trying to keep up with their peers in West Virginia, who have litigation going, as described here in a post by Brian Peterson and here (with links to the briefs) in a post by Rory Perry.

More on yesterday's Fourth Circuit cases

The Richmond paper has this report ("Plan for gas pipeline advances," 3/23/04) on the Duke Energy pipeline case, while the AP has this report on the S.C. license plate case.

Two wahoos deny Monticello break-in

The AP reports here and the Cavalier Daily reports here and the Washington Post reports here ("U-Va. Students Charged in Monticello Break-In," 3/23/04) that two University of Virginia students have been arrested and are accused of breaking and entering Monticello. The report ends with the students' denial of the offense.

Well, we know from the Martha Stewart case that nothing good comes from protestations of innocence - and unlike Martha, U.Va. students are subject to the Honor Code, which might cover lying to the police. Ken Lammers says here he might have the message I get from the Martha case printed on little cards.

Virginia - home of dirty waters

The Norfolk paper has this report and the Richmond paper has this report on a new study released this week on pollution in the rivers of Virginia.

Suppression of evidence by Judge Payne overturned by Fourth Circuit

In U.S. v. Mayo, on the government's appeal, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judges Shedd and Duncan, overruled the decision by Judge Payne of the E.D. Va. to grant the defendant's motion to suppress evidence obtained in what the district court ruled was an illegal stop and frisk by City of Richmond police officers. The frisk revealed a handgun, leading to the defendant's arrest for carrying a concealed weapon, and a search incident to the arrest led to the discovery of some crack cocaine and marijuana in the defendant's possession.

Va. Ct. App. rejects claim of irregularity in jury pool selection

In Reeves v. Com., the Court of Appeals in an opinion by Judge Clements, joined by Judge Benton and Senior Judge Hodges, rejected claims that the manner in which the jury pool was selected violated the defendant's rights.

On one issue, the Court observed that the evidence was "in equipoise," which is always a bummer for whoever has the burden of proof.

Split panel of Fourth Circuit strikes down Choose Life plate statute in SC

In Planned Parenthood v. Rose, the panel of Judges Luttig, Michael, and Gregory issued three separate opinions, with all concurring in the result that the SC law allowing the "Choose Life" license plate was thrown out as unconstitutional as viewpoint discrimination, affirming the district court's rulings.

Interestingly, Judge Michael wrote: "Of course, South Carolina could abolish the Choose Life license plate Act that results in mixed speech and adopt "Choose Life" as its state motto. Then the State’s identity as speaker would be readily apparent, and the State would be accountable to the public for its support of a particular position. Residents displeased with the State’s position could register their displeasure through the electoral process. However, precisely because this is a case of mixed speech, and the identity of the speaker of the Choose Life message is likely to be unclear to viewers of the license plate, government accountability is diminished.

Fourth Circuit upholds pre-payment possession for gas pipeline in W.D. Va. case

In East Tennessee Natural Gas Co. v. Sage, the Fourth Circuit in an opinion by Judge Michael, joined by Judges Niemeyer and Motz, affirmed the rulings of Judge Kiser of the W.D. Va., that in a condemnation case, the plaintiff gas pipeline could and should obtain a preliminary injunction for immediate possession of the property.

No one can fill Hampton circuit court seat until General Assembly adjourns

The Daily Press explains here ("GA session could spell job trouble for judge," 3/22/04) that no one can fill the Hampton circuit court judgeship on which the Senate failed to act until after the adjournment of the General Assembly.

Think if he had gone to Harvard or Yale or Virginia Tech

One small question I had about this post on James Madison was whether the author was suggesting that part of the greatness of Madison was the result of the fact that he went to college at Princeton rather than the College of William & Mary.

Speaking of William & Mary, I got an e-mail last week that says there will be a reception for William & Mary law school alumni at Abingdon on April 30, with the law school dean in attendance and also Judge Glen Conrad from Roanoke. I am suspecting that this e-mail is part of some sort of a hoax, and making inquiries about it, particularly since I learned today that the lawyer down the hall did not get one. I also suspect that instead of the rented hall, the collected law school alumni would be adequately served by a good-sized table at Shoney's, as we are so few in this area.

Updating the blogroll

I've added a few to the list, and I will say that while I try to read them all, the ones that are likeliest to be read have an RSS feed that I can pick up on Bloglines, which is handy enough for me. For my downhome readers, this post sort of explains RSS.

Also, I made one correction, based on this post.

Could be a boon for sun-screen industry

Roanoke attorney Harvey Lutins had this letter published in today's Bristol paper, which concludes:

"Years ago, morality and respect caused our parents, teachers, clergy and mentors to develop some silly notions. For example, marriage was an honored commitment, having a child out of wedlock was shameful, unlawful cohabitation was illegal, taking a holy spirit’s name in vain was sacrilege, and if you said a dirty word to your elders, your mouth might be washed with soap.

There’s another restriction which we have outlived. The prohibition of public nudity must go. If one chooses to walk nude in the warm sunlight on a public street, no one is physically harmed. After all, whose business is it any way? No harm, no foul."

Business legislation before this year's General Assembly

The Richmond paper reports here on the mostly business-friendly outcomes of this year's legislative session, but the ongoing uncertainty over the budget remains a dark cloud for many businesses.

Let local governments raise your taxes

According to this column from the Charlottesville paper, one Republican House member from Northern Virginia told all when he said it was better for localities to raise taxes than for the state to raise taxes, because that way money from Northern Virginia won't flow to places like Southwest Virginia. It says:

"As Del. Richard H. Black, R-Sterling, said on the floor of the House last week, it is better for localities to raise taxes than for the state to do so.

If the state raises taxes, Northern Virginia localities, such as his Loudoun County, do not get to keep all the tax revenue raised because most of it floats to poorer localities downstate. If Loudoun raises its property tax, it gets to keep all of that revenue for its own use.

Black put his finger on the House GOP budget’s position, which is, bluntly and unstated for political reasons: Let local governments raise your taxes."

Why not to be a defense lawyer in the trial of a notorious murder case

The Post has this article ("Sniper Trial Took Toll on Attorneys," 3/21/04) on how the Muhammad trial affected the lawyers on his defense team.

The article quotes an experienced Richmond lawyer as saying this: "No single human being should be given the responsibility for preventing the deliberate killing of someone else by society. . . . It's enormous pressure. I can think of no more awful work in the world."

2.3 million miles logged by Southwest Virginia unit in Iraq

The Washington Post (registration required) has this report on the men and women of the 1032nd Transportation Company of the Virginia National Guard, who drove stuff around Iraq for a year without a single fatality. The Post quotes a fellow from Lee County who said: "We get outside the gate, we keep it to the floor."

Virginia to appeal Judge Moon's order on release of documents in Washington case

The Richmond paper reports here ("Kilgore will appeal release of documents." 3/21/04) that Attorney General Jerry Kilgore has decided to appeal an order by Judge Moon of the W.D. Va. requiring the disclosure of documents about the Rebecca Williams murder case, for which Earl Washington was convicted then pardoned.

Down goes the Vet

This morning, Veterans Stadium in Philadelphia was demolished, as the AP reports here (with slideshow) and here. Most of the major league baseball games I've seen were there, in the 1980s.

Judge Haden of the S.D. W.Va. dies at age 66

Judge Charles Haden, most famous for his rulings against mountaintop mining, died on Saturday. The AP has this report, which notes that Haden was nominated at age 38 by President Ford in 1975. The Charleston Gazette has this report. Since he apparently had not taken senior status, President Bush will nominate a successor to Judge Haden.

The Charleston Gazette's series on the mountaintop mining decisions is online here. Interesting online articles about Judge Haden appear here, here, and here.

Can traffic stop last until drugs get found?

In this Roanoke paper article ("I-81 stop raises issue of rights violation," 3/21/04), defense lawyers question state police tactics in drawing traffic stops on Interstate 81, where a dangling object on a rearview mirror often sets off a chain of events ending in a drug arrest.

Republicans sue Governor Warner over tax increases

One element of the budget debate I never noticed before just now is that a group of Republican delegates has sued the governor, on some theory that the tax increases in his budget proposal are illegal, as reported at the end of this article ("House panel pushes for voters’ OK of higher taxes," 3/20/04) in the Norfolk paper, which says:

"Attaching the referendum to the budget is particularly controversial this year because seven Republican delegates are suing Gov. Mark R. Warner for trying to raise taxes through his budget proposal.

They argue that the state constitution prohibits the budget from being used for any purpose other than to spend revenues available through existing taxes. Their lawsuit suggests that a referendum also cannot be legally included in a state budget.

Del. John J. Welch III, R-Virginia Beach, is one of the lawmakers who has signed onto the lawsuit.

Senators followed Warner’s lead and wrote their tax increases into their own budget proposal.

House members, however, stripped all tax increases out of Warner’s budget proposal. They then erased some of the governor’s spending suggestions and adopted a separate bill that provides revenues from corporate taxes to balance their budget."

I guess the implication of the article is that somebody ought to file another lawsuit challenging a budget that comes with a referendum requirement attached.

High school gives up on opposition to anti-abortion t-shirt

As reported here, Denbigh H.S. in Newport News have backed down from its opposition to a student's pro-life t-shirt.

On Virginia's new anti-gay marriage or other arrangement legislation

Overlawyered has this post comparing Virginia to the Tennessee county that wanted to outlaw gay people.

The new Virginia law is HB 751. The final version, as amended, passed the Senate by a vote of 28-10 and the House by 77-21, and what it says is this: "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable."

The next step, I predict, would be for the legislature to make it a criminal offense, akin to fraud or false pretenses, to obtain (or attempt to obtain) money or property or anything of value in Virginia on the basis of a claim of same sex marriage, civil union, partnership contract or "other arrangement." Maybe that's being saved for next year.

Delegates Johnson and Phillips join with Republicans in House budget vote

Two of the three Democrats who joined with the Republicans in Saturday's renewal of the House budget vote were from Southwest Virginia, as shown here.

Virginia Beach firm acts to collect $75,000 in fees from Christian Coalition

The Norfolk paper reports here ("Law firm takes action to get Christian Coalition to pay bills," 3/20/04) on the collection efforts of a Virginia Beach law firm against its client, the Christian Coalition.

Democrats in General Assembly sue over eavesdropping?

As reported here ("Democrats file lawsuit over eavesdropping scandal," 3/19/04) in the Danville paper, "General Assembly Democrats have filed a lawsuit against the Republican Party of Virginia and several GOP operatives and elected officials in connection with the unresolved eavesdropping scandal." The AP's report is here. The suit was filed in federal court in Richmond. The lead lawyer is said to be Ken Smurzynski of Williams & Connolly, the famous firm that represented Oliver North and Bill Clinton, among others.

It is not apparent to me what is the theory of the case, or why there is federal jurisdiction.

Judge Moon wants to know about leaks in Rice case

As reported here ("Rice judge wants explanation of how sealed information was released," 3/20/04) in the Roanoke paper, Judge Moon of the W.D. Va. is investigating alleged leaks of confidential information in connection with the Shenandoah National Forest murder case.

Law school shooting plaintiffs seek recusal of all 29th and 30th Circuit judges

According to the latest on the suit against ASL brought by Mr. Yeary, plaintiffs are seeking a judge from out of the area, because nearly all of the local judges have some affiliation with the law school, as reported here ("Grundy school ties prompt request for outside judge in case," 3/20/04) in the Roanoke paper.

Discrimination plaintiff dismissed for failure to give discovery

The Kingsport paper (registration required) reports here ("Judge dismisses lawsuit against ETSU ," 3/20/04) on the dismissal of employment discrimination claims against ETSU, where Judge Greer based the dismissal on the plaintiff's failure to respond to written discovery requests.

On relief from default

In DirecTV, Inc. v. Aiken, Judge Michael granted the defendant relief from a default judgment under Rule 60(b).

The expendable man

Yesterday at the BLI meeting, the most interesting part was the provocative lecture by the author of An Expendable Man: The Near-Execution of Earl Washington, Jr. The author, Margaret Edds, was I think nervous yet determined in her remarks before a roomful of judges and lawyers, and her presentation was one I won't soon forget. I may have to buy the book.

The Richmond paper has this article ("Judge unseals files on rapist," 3/20/04) on the court-ordered release of law enforcement records about the man shown by DNA tests to be the likely perpetrator of some crime against Rebecca Williams, the woman Washington was convicted of murdering. The AP reports here on continued efforts to clear Washington's name finally and completely.

Wanted - new bunch from the old party

The Norfolk paper has this story ("Republican from Beach places ad to recruit prospective state leaders," 3/18/04) about an advertisement placed by a constitutional officer in the Tidewater who wants a different bunch of Republicans in Richmond.

Lots of good games to watch on TV today

The Norfolk paper reports here ("Delegates work 21 minutes, long enough to claim expenses," 3/18/04) that the House of Delegates got in 21 minutes of work before calling it a day - and it was a good day for it, with the start of the NCAA tournament.

This piece from the Richmond paper studies the similarities between the NCAA tournament and the General Assembly session.

Conjunction junction, what's your function?

As pointed out here by How Appealing, in the case of RCI Technology Corp. v. Sunterra Corp., the Fourth Circuit in an opinion by Judge King joined by Judges Widener and Luttig held that "or" does not mean "and" when construing 11 U.S.C. 365(c).

The words to the "Conjunction Junction'' song can be found here.

Magistrate judge rules against medicating inmate, who then threatens to kill her

In U.S. v. Evans, Judge Jones recites that after the Magistrate Judge ruled that it would not be right to medical the defendant to make him competent for trial, in part because his time behind bars had already exceeded the sentence he might get if convicted, the incompetent inmate threatened to kill the Magistrate Judge, adding the possibility of another 10 years in prison for that offense, and so now the judge concludes that the inmate should be made competent to stand trial.

I don't often think about the fact that these judges and magistrate judges - every one of them - get these kinds of threats throughout their careers.

Let Terry and William thrash it out

The Kingsport paper (registration required) submits in this story ("Wampler, Kilgore exemplify Senate, House impasse," 3/18/04) that the split within the outlooks of the Republicans in the General Assembly is personified in the differences between Senator William Wampler and Delegate Terry Kilgore, the head men of the local Republicans.

Those vacationing legislators

Governor Warner threw another log on the fire, recalling them into session with this speech, that accused the General Assembly of going off on vacation while there was work still to be done.

A conviction for brandishing a firearm not the same as a conviction for using it

The Norfolk paper has this article ("Ex-airport worker wins case against government," 3/17/04) on a fellow who defended on appeal the dismissal of criminal charges against him for making a false statement on an application to work at the Norfolk airport. The opinion from the Fourth Circuit was U.S. v. Baer. Even so, the man might never get his old job back, as the management at the airport has now learned the details of his criminal conviction in state court, and a member of management was quoted as saying, "I was somewhat concerned when I found out that he had fired a weapon into a vehicle with people in it."

Which town has the fewest rats and skunks in Virginia?

The word "skunks" appears only once in the Virginia Code, in Va. Code 15.2-2403(13), which specifically authorizes the service district for the Town of Front Royal "to construct, maintain and operate facilities, equipment and programs as may be necessary or desirable to control, eradicate and prevent the infestation of rats and removal of skunks and the conditions that harbor them."

I suppose in other localities, where the service districts lack these special powers, the rats and skunks are running wild.

Justice Scalia on planning ahead

In his speech at the College of William & Mary, as reported here ("Scalia: Little merit in 'living Constitution'," 3/17/04) in the Richmond paper, Justice Scalia commented that he never planned to be a Supreme Court justice. "I haven't calculated very much in my life," he said, "or I wouldn't have nine kids, would I?" As reported here ("Supreme Court is a political institution, Scalia says at W&M," 3/17/04) in the Norfolk paper, Justice Scalia explained that his originalist view of the Constitution leaves him with less room to maneuver to strike down things that he otherwise would not like, like flag-burning.

Woman loses excessive force trial, vows never to be arrested again

The Roanoke Times has this story ("Woman's claim of troopers using excessive force defeated in court," 3/17/04) on a jury trial that resulted in a defense verdict in a case brought by a woman who was driving around with pepper spray and cop-killer bullets in her car and claims the troopers who pulled her over used excessive force, and after the verdict she declared she would never be arrested again.

Start-up of electronic filing declared for W.D. Va.

According to this report ("Virginia courts begin electronic filing," 3/16/04) in the Kingsport paper (registration required), the clerk's office of the U.S. District Court for the Western District of Virginia has begun accepting papers filed electronically.

Unusual way to win cases on appeal

A few years back I went to a PLI seminar on section 1983 litigation and one of the speakers was a lawyer from Connecticut named John R. Williams, and he gave an effective presentation and I still have the written materials within arm's reach of my desk.

Today I read this opinion from the Second Circuit, which concludes with the following passage:

"Plaintiffs’ appellate briefs, much like their summary judgment submission to the district court, consists of an eleven-page primer on municipal liability doctrine with almost no application of the law to the facts of this case. Although the brief does assert that plaintiffs’ evidence is sufficient to satisfy one or another theory of municipal liability, it does so in a conclusory fashion, simply stating, without a single citation to the record, that plaintiffs have demonstrated the requisite legal elements of their claim. Moreover, although plaintiffs challenge the district court’s exclusion of numerous documents and affidavits, they utterly fail to provide citations to the pages of the appendix at which the documents at issue appear. Plaintiffs’ brief is therefore little more than “a doctrinal recapitulation masquerading as a legal argument,” “tantamount to an invitation [for us] to scour the record, research any legal theory that comes to mind, and serve generally as an advocate for appellant.” Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002) (per curiam) (internal quotation marks omitted) (alterations in original).

Plaintiffs’ appendix is also deficient. It contains roughly five hundred pages of affidavits and other documentary evidence that plaintiffs submitted to the district court in opposition to the Town’s summary judgment motion. There is no table of contents listing the page on which a particular affidavit may be found; the only way to find any one of the sixty submitted affidavits is to hunt through the sizable record page by page. Moreover, although some demonstrators submitted two or more affidavits, plaintiffs do not distinguish between them, and for no apparent reason, some affidavits are included twice in the appendix. Finally, as the district court noted, many of the affidavits themselves are handwritten, illegible, contain numerous hearsay statements, or lengthy religious exhortations that are irrelevant to the operative issues. While the Federal Rules do not require that affidavits be submitted in any particular form, we are of the opinion that plaintiffs’ presentation of their evidence is at best unprofessional, and at worst, detrimental to their chances of prevailing on their claims.

The deficiencies in plaintiffs’ submissions are all the more troubling because plaintiffs’ counsel, John R. Williams, has repeatedly disregarded the rules of both this Court and the district courts in which he practices. Indeed, we have repeatedly cited his utter failure to include legal argument in his briefs and his carelessness with his submissions and arguments. On occasion, we have gone so far as to decline consideration of the merits of his client’s appeal as a result. See, e.g., Sioson, 303 F.3d at 459-60 (stating that “[p]erhaps counsel for Appellant [Williams] intends that we form an argument for him . . . [b]ut that is simply not our job, at least in a counseled case,” and dismissing the appeal for failure to comply with Fed. R. App. P. 28); Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (noting “the several erroneous legal arguments advanced by [plaintiff’s] counsel in the district court and on this appeal”); see also Quoka v. City of West Haven, 64 Fed. App. 830, 832 (2d Cir. 2003) (unpublished decision) (noting that Williams failed “to comply with Local Rule 56(a)(3), which requires that each assertion in a Rule 56(a) statement be followed by a citation to an affidavit or admissible evidence supporting the assertion”); MacGovern v. Hamilton Sunstrand Corp., 50 Fed. App. 59, 60 (2d Cir. 2002) (unpublished decision) (deciding the appeal in spite of the fact that “[w]e rather doubt that the Appellant’s Brief meets the requirements of [Fed. R. App. P.] 28(a)” because “the brief barely applies that law to those facts”); Miner v. Sheridan, 199 F.3d 1322 (2d Cir. 1999) (unpublished decision) (affirming district court’s grant of summary judgment against plaintiff because of William’s failure to provide a statement of material facts in dispute).

Williams’s failure to comply with Rule 28 is sufficiently serious to convince us that we would be within our discretion to summarily dismiss this appeal. We opt, however, to consider the merits of this appeal because plaintiffs’ claims are substantial enough to merit a trial, and declining to consider this appeal would unfairly penalize plaintiffs for Williams’s failings as an advocate. See Fed. R. App. P. 2 (providing that this Court may suspend the operation of the Rules of Appellate Procedure in a particular case for good cause). Of course, plaintiffs have been, and continue to be, prejudiced by Williams’s unprofessional conduct of this lawsuit, since no small portion of the delay involved in the lawsuit’s twelve-year history is due to counsel’s continued failure to present his clients’ claims and evidence in a manner that is conducive to adjudication. More importantly, Williams has hardly acted as an effective advocate for his clients by presenting briefs so haphazardly prepared that they contain almost no legal argument.

Williams is now on notice that his continued failure to comply with Rule 28 or any other of the Rules of Appellate Procedure will result in discipline, up to and including suspension or disbarment from practice before this Court. See Fed. R. App. P. 46(b), (c) (providing for discipline or disbarment for attorneys who commit “conduct unbecoming a member of the bar” or who “fail[] to comply with any court rule”). While this Court has so far refrained from disciplining Williams, the sheer number of cases in which his unprofessional conduct has been cited indicates that judicial expressions of disapproval alone have not succeeded in convincing him to alter his behavior. If Williams continues to ignore this Court’s rules, however, the Court will not be so forbearing in the future, and will impose sanctions against him."

The Court added in a footnote: "We note that, at oral argument, Williams asserted that 'the brief that has been presented here . . . fully complies with' the requirements of Rule 28. Since Williams is apparently laboring under the false impression that this brief is an adequate and effective piece of advocacy, we suggest that Williams take advantage of the bar’s educational programs on brief writing."

How Appealing has this post about the opinion and Construction Law Blog has this post on the opinion.

Don't want this guy doing my taxes

Construction Law Blog has this post about this opinion in which the Eleventh Circuit affirmed the exclusion of expert testimony on damages that was limited to calculating gross revenues, without excluding any expenses, as the way to figure "lost profits."

EEOC reports decline in charges filed

This post from George's Employment blog has the details on the EEOC's announcement for the most recent period that number of charges of discrimination filed decreased 3.7%, which, as George notes quite correctly, is not evidence one way or the other about a change in the level of discrimination in the workplace. George makes reference to "the unfortunate WGUFWOD's ('White Guy Under Forty Without Disability'), who cannot use discrimination laws to attempt an end run around the harshness of employment at will (allowing termination for a good reason, bad reason or no reason at all)."

Still keeping score on Judge Widener?

How Appealing, without naming any names, points out here that this opinion written by Judge Widener of the Fourth Circuit was issued three years, four months, and 14 days after oral argument.

The more common reversal of fortune in a civil rights case

In Bankhead v. Knickrehm, the Eighth Circuit took a qualified immunity appeal, found the individuals on the merits, and ordered judgment also in favor of the government, which was not even a party to the appeal - now, that's the more common reversal of fortune I see in civil rights cases. The merits issue in Bankhead was racial discrimination, and the Court found not enough evidence of discrimination to create a jury question, and so it never go to the question of whether constitutional rights of the plaintiffs were clearly established.

Seventh Circuit reverses and orders summary judgment for plaintiff in speech case

In Gazarkiewicz v. Town of Kingspot Heights, the Seventh Circuit not only reversed the district court's granting summary judgment in favor of the Town on the plaintiff's First Amendment retaliation claims, the Court ordered that summary judgment be granted to the plaintiff, a former Town employee who had held a low-ranking position as a laborer in the utility department.

I can't say that I've seen too many reversals of fortune like this one - it is surely a rare thing for a plaintiff to win on summary judgment in an illegal motive case, absent unimpeachable direct evidence.

Legislators get no pay for overtime, Republicans take Democrats at basketball

The members of the General Assembly are not getting paid to stay in Richmond past Saturday, according to this report ("Lawmakers not receiving extra pay," 3/15/04) in the Lynchburg paper.

In an unrelated story, the Washington Times reported here ("GOP, Democrat hoopsters score little, foul a lot," 3/15/04) that Del. Terry Kilgore and other Republicans took the Democrats in the annual legislative basketball game.

Summary of the other bills from the 2004 General Assembly session

Sunday's Norfolk paper had this summary of the output of the mostly-concluded legislative session.

The Tennessee town that executed a circus elephant

The Kingsport paper (registration required) has this story on the famous hanging at Erwin in 1916 of a circus elephant which had gone on a rampage in Kingsport.

Judge Andrews as future Willie Horton?

This column from the Daily Press speculates that if Governor Warner reappoints Judge Andrews in Hampton over the objections of the Republican delegate who objects to Andrews' record on DUI appeals, Warner will be dogged in future campaigns with the issue of being soft on drunk drivers.

Overtime in Richmond

Bringing new meaning to the term, "March Madness," the Virginia General Assembly got to the end of regulation with no budget in sight, and so decided to stick it out at least until Tuesday. Here are reports from the Roanoke paper ("Legislators extend session," 3/14/04), the Richmond paper ("Budget epic becoming farce," 3/14/04), the Norfolk paper ("Budget debate to get three days longer," 3/13/04), the Washington Post (registration required) ("Lacking Accord, Va. Lawmakers Extend Session," 3/14/04), the Daily Press ("GA session extended by 3 days," 3/14/04), the Washington Times ("Budget impasse extends session," 3/14/04), the Danville paper ("Budget deadlock continues," 3/13/04), and the Lynchburg paper ("Budget talks remain stalled," 3/14/04).

The House vote to extend the legislative session was 97-2. Southwest Virginia Democrats Joe Johnson and Jackie Stump voted against prolonging the session, with Stump quoted as saying, "All they're doing is playing a game, and all we're going to do is sit here looking at each other." When offered the use of a state plane for a trip home and back, Stump replied, "I don't want a state airplane, I want a budget." (You know things are getting rough when Del. Stump starts to sound like Jay Leno.)

What price drug-testing?

Today's Bristol paper includes this feature on whether the city school system on the Virginia side can afford its new drug-testing policy.

On accrual date for legal malpractice claims

Insurance Defense blog has this post on the Virginia Supreme Court's recent ruling in Shipman v. Kruck, which changed the law as to when the clock starts to run on claims for legal malpractice that results in a judgment against the client.

Jury to detemine whether Atkins can be executed?

Talk Left has this post on the proceedings in Virginia over the case of the Atkins who was involved in the Supreme Court case which held that the mentally retarded cannot be executed.

Commentary on the Virginia cross-burning case

The Richmond paper has this commentary on the decision of the Virginia Supreme Court in the cross-burning cases remanded from the U.S. Supreme Court.

The commentary begins: "The Virginia Supreme Court struck just the right balance in its ruling on the state's cross-burning law. While ratifying the constitutionality of the prohibition against burning crosses with the intent to intimidate, the Court also made it clear that burning a cross is a form of symbolic speech that should not be banned automatically and everywhere."

FERC judge rules that AEP should be allowed to join PJM power distribution group

The Richmond paper reports here ("Law judge rules for AEP plan," 3/13/04) that an administrative law judge of the Federal Energy Regulatory Commission has rejected Virginia's arguments and ruled that American Electric Power should be allowed to join the PJM regional power grid, which covers the mid-Atlantic states. The articles notes that Virginia and Kentucky have passed state laws to prevent AEP from joining the multi-state group.

Cavalier Daily column stirs protest

The Washington Times reports here on the protest against a column published in the student newspaper at the University of Virginia. The protest concerned the use of Jewish stereotypes.

Unruly commentary on why there was no resolution commending Judge Askew

The Daily Press has this commentary on how a resolution honoring the late Judge Byrd passed the General Assembly, while a similar resolution honoring former Judge Askew was withdrawn.

More on 21-day rule and tougher DUI penalties

The AP has this report on the criminal law changes wrought by this year's General Assembly, now awaiting the signature of Governor Warner, and including a provision for the forfeiture of vehicles used by drunk drivers guilty of multiple DUIs.

Williamsburg adopts new limits on outdoor parties

The Daily Press reports here on new limits adopted in Williamsburg on the size of outdoor parties.

The biggest outdoor party I remember from when I was a student in Williamsburg was actually held across the river over in Gloucester (but then I was a graduate student, so I didn't get out much).

More on the costs of the sniper trials

Earlier this week, Judge Jones of the W.D. Va. avoided for now the prospect of starting over in the month-long retrial in the Church and Gilmore murder cases.

Today, the Washington Post (reigistration required) has this article ("Trying Snipers Cost Va. $3 Million," 3/13/04) on the costs to Virginia and local government of the sniper cases, discussing the question of whether there should be further trials of Malvo and Muhammad.

A constitutional amendment on who votes fill vacancies in reconfigured districts

The Roanoke Times has this article ("Who votes on vacancy when districts change? Voters to say," 3/13/04) on the progress of an amendment to the Virginia Constitution that would answer the question who gets to vote to fill a vacancy when a legislative seat gets redistricted.

Newport News high school takes on student's anti-abortion t-shirt

Having learned nothing in particular from the NRA t-shirt case up in Charlottesville, officials at a high school in Newport News are claiming a "pro-life" t-shirt violates the school's policies, according to this report, which is the subject of this Volokh post.

Ah, now, a good friend of mine from college and law school days is a woman who is Catholic, went to Denbigh H.S., I would guess she is somewhat liberal in her politics (meaning less conservative than I), and she is or was a lawyer (I've lost track). I wonder what she would have to say about this - and I have no idea.

Do social conservatives really say this?

I read this post from Freespace and wondered what would it mean if none of the First Amendment applied to the states. One thing it might mean is that there would be a lot more litigation under state constitutions.

Now, the Virginia Constitution (adopted in 1971) contains the following regarding freedom of religion, in language some of which probably wouldn't be allowed to hang on a courthouse wall:

"That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities. And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please."

UPDATE: Then again, people will say anything; in fact, some people might argue that not only does the Fourteenth Amendment not incorporate the First, but also there is no Fourteenth Amendment at all.

Bloggers take on Fairfax County politics

Via this post from Bill Hobbs, I read this article on the blogging of Fairfax County politics. One of the bloggers, Commonwealth Commonsense, yesterday had this entertaining postwith Virginia news, including the quote about the delegate from Fairfax County who complained that all the high-earners that would be affected by a tax-the-rich proposal live in his district. I may have to add this one to my own list.

Check this book spotted by Ken Lammers

Read this post from CrimLaw about the book Hail to the Dragon Slayer by Arthur Lemann III.

Mailbox rule proposed for post-conviction inmate filings

The Virginia Supreme Court is seeking comments on proposed Rule 3A:25, which would make inmate filings when properly put into the prison's mail system in accordance with the Rule.

The rule is limited to petitions brought under Va. Code 8.01-654 and does not apply to other kinds of civil suits brought by inmates.

General Assembly votes $1.2 million for innocent man imprisoned for 21 years

The AP reports here that the General Assembly has approved a record payment to a former inmate who was imprisoned for 21 years for a rape he did not commit.

No mistrial in the Gilmore and Church cases

Judge Jones of the W.D. Va. declined for now to rule that the hearsay evidence made inadmissible by the Supreme Court's latest Confrontation Clause opinion has tainted the trial that has been going on for several weeks in Abingdon, as reported here ("No mistrial in Pocahontas triple slaying case," 3/12/04) in the Bristol paper and here ("No mistrial in triple slayings," 3/12/04) in the Roanoke paper.

I had expected that the judge would rule the other way, but then again, he's sitting through this case for the second time, and the prospect of scrapping all the work that has gone into the current trial might be viewed as a colossal waste if there is some way to salvage the proceedings without denying the rights of the defendants. I'm not sure that I understand what the Court is going to do to make sure the bad evidence is not or was not considered.

Justice Scalia to speak at William & Mary law school

How Appealing has a link to this press release on the upcoming appearance by Justice Scalia at the law school of the College of William & Mary.

One thing about going to law school in Virginia - the justices can get to your school much easier than if you were almost any place else. Justice Breyer was in Charlottesville at the University of Virginia not long ago, as reported here.

More on the Haynes nomination

From this How Appealing post is a link to this statement by two Republican Senators (from outside the Fourth Circuit) in support of the President's nomination of William Haynes to the Fourth Circuit.

More on the U.S. Supreme Court's use of foreign-law precedents

As reported here ("A flap over foreign matter at the Supreme Court," 3/11/04) by MSNBC, Congressman Bob Goodlatte is one of the sponsors of a Congressional resolution telling the Supreme Court that they are wrong to be citing foreign law as if that could provide any basis for the interpretation of the U.S. Constitution. That would be almost as bad as citing case law from the Ninth Circuit.

Why we won't be taking depositions in Baghdad

TalkLeft has this post about a young woman lawyer who went to Iraq and was murdered. The comments question whether she was murdered because she was an advocate for women's rights - I would be interested to know the answer.

Haynes nomination to Fourth Circuit moves forward

Howard Bashman has this post noting among other things that the nomination of William Haynes is proceeding to the full Senate, and a link to this statement by Senator Kennedy from Massachusetts in opposition to the committee action on the Haynes' nomination at this time. In particular, Senator Kennedy notes that "[i]n response to the Senate Questionnaire's request for the 'ten most significant litigated matters which [he] personally handled,' he was able to list only three cases that he litigated himself." Mr. Haynes has been employed as general counsel for the Department of Defense, as reported here by the AP.

Votes on state court judgeships

Yesterday, the House agreed on its choices for circuit court judgeships, which included Sherrie Capotosto over Judge Andrews for Hampton and Tim Battle for Alexandria. The Senate measure, as amended, did nothing on these two positions. According to this report ("Andrews decision left to governor," 3/11/04) in the Daily Press, the Senate's side-stepping leaves it to the Governor to decide those positions.

The Bristol paper reports here on the selection of Bristol's Commonwealth's Attorney Larry Kirksey for the 28th Circuit.

The Roanoke paper has this report on the selection of Radford's Commonwealth's Attorney to a general district court judgeship, to fill the seat of retired Judge Danny Bird from Wytheville.

More on the motion for mistrial in the Gilmore and Church trial

The Roanoke paper has this report ("High Court ruling complicates Gilmore, Church murder trials," 3/11/04) on the upcoming hearing today on a motion for mistrial in the federal trial of accused murderers Gilmore and Church, a motion that might well be granted because the Supreme Court changed the law on Monday in a way that affects the admissibility of evidence that was admitted earlier in the ongoing trial in Abingdon.

Fourth Circuit affirms denial of spoliation sanction against Wal-Mart

In Hodge v. Wal-Mart Stores, Inc., the Fourth Circuit, applying Virginia law, in an opinion by Judge Luttig joined by Judges Wilkinson and Traxler, affirmed the District Court's summary judgment ruling, in which the Court refused to sanction Wal-Mart for spoliation of the evidence in a personal injury case.

Fourth Circuit affirms denial of spoliation sanction against Wal-Mart

In Hodge v. Wal-Mart Stores, Inc., the Fourth Circuit, applying Virginia law, in an opinion by Judge Luttig joined by Judges Wilkinson and Traxler, affirmed the District Court's summary judgment ruling, in which the Court refused to sanction Wal-Mart for spoliation of the evidence in a personal injury case.

Worth reading - The Case against Courtroom E-lecterns

Technolawyer has this worthwhile article on courtroom presentations and the merits of using laptops over document cameras.

Judging the judge-making process in Virginia

The Richmond paper has this article ("Review of judges is examined," 3/10/04) on the judicial selection process for the state courts in Virginia.

New ruling on Confrontation Clause may bust up Gilmore and Church trial

On Monday, in Crawford v. Washington, the Supreme Court overruled a fairly recent precedent, concluding that the Confrontation Clause precluded the prosecution's use of recorded testimony from an earlier trial by an unavailable witness. For some comment on the case from one of the law professors cited in the opinion, see this page from the University of Michigan law school.

That ruling seems likely to cause a mistrial in the ongoing Church and Gilmore federal murder cases that have been on trial in Abingdon since February, according to this report ("Defense lawyers ask for mistrial in Pocahontas case," 3/10/04) in the Bristol paper.

They still burn flags, don't they?

Howard Bashman and others are asking whether people still burn American flags (within the United States). The last episode I know about was ended by Cubs' centerfielder Rick Monday when he snatched the flag away from the protester in the outfield at Dodger Stadium in 1976.

Judge Widener dissents from denial of rehearing in qualified immunity case

In Bailey v. Kennedy, the Fourth Circuit denied rehearing en banc, and Judge Widener wrote an opinion dissenting from the denial of rehearing, on the issue of qualified immunity.

Court of appeals rejects claim that embezzler wrote 142 checks on a single impulse

In Bragg v. Commonwealth, the Court of Appeals in an opinion by Judge Frank, joined by Judges Benton and Felton, held that the defendant, a former church treasurer, was properly charged with 5 counts, rather than one count, of embezzlement, over the defendant's argument that he wrote all the checks from the church account on "one impulse" over time because he was broke.

Add Hampton to Alexandria on the list of judgeships with House, Senate splits

The Daily Press has this story ("Andrews gets nod from House panel," 3/9/04) on the continuing struggle in the House of Delegates over the reappointment of the circuit court judge for Hampton, which is opposed by the only Republican in the House from that area.

Lawyers sued for bad research in gun case

As reported here ("Man sues his former attorneys," 3/9/04) in the Roanoke paper, a former inmate is suing his Roanoke lawyers for millions after he got his case dismissed based on his own criminal law research, uncovering a point his lawyers had allegedly missed.

Prosecutors planned to use a bunch of bad act evidence in Rice case

The Roanoke Times reports here ("Documents cast new light on Rice case," 3/9/04) on all the other bad act evidence the prosecutors planned to use in the case in the case against the accused killer in the Shenandoah National Park murders, whose case has been dropped.

What's in Louisville on the Second Saturday in May?

Answer: the closing session of 64th Conference of the Sixth Judicial Circuit of the United States. As I understand it, in some years such as this year, admission to the Sixth Circuit judicial conference is open to everybody who practices in the courts that make up the Circuit, no judicial invitation required.

Fun with movies

Ernie the Attorney added my response to this post with his quiz about the movie that demonstrates to every law student the pitfalls of misapplying the Rule Against Perpetuities, namely that you might wind up going to jail for murder in place of Kathleen Turner.

Pendent or pendant?

How do you spell "pendent," with an "a" or an "e"? And, have you ever used the "head count" method of resolving spelling disputes? I'm afraid to say that I have done, many a time - for example, get on Westlaw, pull up the SCT database, stick in "pendent /s jurisdiction" as the query (78 cases), stick in "pendant /s jurisdiction" (1 case), draw your own conclusions.

I won't mention our in-house dispute over the correct spelling and usage of the term, "kitten kaboodle," except to say that in many notes to my assistant I tell her I want the "whole kitten."

College in Virginia for home schoolers

The NY Times (registration required) has this story on Patrick Henry College in Virginia, a college mostly for people who were home-schooled. The article notes "the increasing influence that Christian home-schooling families are building within the conservative movement."

Wasn't "Patrick Henry University" the name of the school in Atlas Shrugged? Maybe Tim Sandefur can refresh my recollection.

Former Henry County administrator pleads guilty on tax charges

The former Henry County administrator who embezzled about $800,000 from the county evidently did not report it as income to the IRS, and so he entered a plea of guilty to tax charges today before the W.D. Va., as reported here in the Richmond paper ("Clower Pleads Guilty to Federal Charges," 3/8/04).

Advisory committee on rules proposes single action for Virginia

Here is a proposal for a single action for legal and equitable claims in Virginia, from the advisory committee on rules.

I can't imagine who would be opposed to this change. Lawyers my age and perhaps a good bit older learned the federal rules in law school and have to unlearn and relearn a lot of strange stuff to pass the Virginia bar and practice in state court. The limited nature of this procedural reform is demonstrated by the following, taken straight off the website:

WHAT THE PROPOSAL WOULD NOT DO:

1. Law and Equity Would not be "Merged". The proposal creates a single procedure system for civil cases in the Commonwealth, while preserving in all respects the distinctions between law and equity, as noted below, concerning the substance of equitable claims and defenses, rights of action, limitations principles, and the powers and limits on the courts in entertaining such actions.

2. Subject matter Competence, and Powers, of the Courts would not be altered. Apart from creating a single "side" at the circuit court level, no expansion or contraction of powers of any court, or of the claims properly heard therein, would result. (Nor would venue, forum non conveniens, or service of process rules be affected in any way.)

3. What is a Legal Claim, and what is Equitable, would not be changed. The proposal would make no changes m the historic characterization of causes of action as legal or equitable in nature.

4. Jury Trial Rights would not be affected. The proposal would not alter the historic rules for availability of a jury. Jury trial rights in those actions at law in which a jury is available would be preserved. Actions sounding in equity would be heard by the court without a jury. Virginia's well-articulated rules for jury consideration of dispositive factual matters arising in Pleas in equity, and for advisory jury verdicts on issues out of chancery, would also be maintained. In mixed claims, it is expected that claims triable to a jury will be heard before judgment is entered on claims tried to the court.

5. The Law applicable to Equitable Claims would not change. The proposal would also not affect the established law of Virginia on the elements or requirements for equitable causes of action, e.g., partition of real property.

6. The Law applicable to Claims or Defenses at Law would not change. Similarly, no change would be effected in the nature or application of law governing claims heretofore brought on the law side of the court, or defenses applicable to such claims. See Rules 1:4(k), 3:8, Code § 8.01-422.

7. Pleading and Motion Practice would not be affected . No change would be worked in the philosophy of Virginia toward the broad goals of "notice pleading", expressed in rules and practices governing sufficiency and particularity of pleadings, or such considerations as variance between pleading and proof. Similarly, motions, pleas, demurrers and related procedures would not be affected.

8. Requirements for Equitable Relief would not be altered. The proposal would not affect the requirements for obtaining an injunction, specific performance, or other forms of equitable relief. The showings required under existing law would continue to apply.

9. Equitable Defenses would not be applied differently . Defenses of an equitable nature (such as unclean hands) would be applied to equitable claims as they have in the past, and the proposal would not enlarge the range or use of defenses in legal claims.

10. The rules governing Joinder of Claims would not be altered. The proposal would not alter the rules permitting joinder of claims or defenses under alternative factual or legal theories, arising out of the same transaction or occurrence. See Rule 1:4(k) and Code § 8.01-272 (contract and tort claims). The trial court would retain discretion to determine the propriety of conjoined causes of action, for pretrial and trial purposes. Similarly, multifarious equitable claims would also be subject to the power of the court, and it is not intended that any greater freedom be created to bring, for example, independent and unrelated claims in a single suit.

11. Joinder of Parties would not be changed. The proposal will neither expand nor contract existing provisions for joinder of parties plaintiff or defendant under the Code, the Rules, or case law. See, e.g., Fox v. Deese 234 Va. 412, 362 S.E.2d 699 (1987). (Likewise, the law of joint tortfeasors, contribution and indemnity would not be affected.)

12. The law of Standing would not be altered . The proposal would not affect the established rules in Virginia concerning who has standing to maintain action, whether controlled by statute (see, e.g., Code §55-22) or case law. See, e.g., Wells v. Lorcom House Condominiums' Council of Co-Owners, 237 Va. 247, 377 S.E.2d 381 (1989).

13. Collateral Estoppel and Res Judicata principles are not affected. The proposal would not seek to alter the doctrines or res judicata or collateral estoppel, or the requirement of mutuality of estoppel articulated in the Virginia cases.

14. Statute of Limitations and Laches law would not be changed. The proposal, by preserving the distinction between legal and equitable claims, would work no alteration in the limitations principles found in the Code and Supreme Court decisions, nor would it affect the law of laches. Limitations principles would continue to apply to legal claims, and laches would apply as in the past for equitable claims. Any overlap would be handled as it has historically been dealt with. See, e.g., Belcher v. Kirkwood, 238 Va. 430, 383 S.E.2d 729 (1989).

15. The practices for use of Commissioners in Chancery would not be altered . In equitable actions the trial court would remain free to use Commissioners in accord with the Code and local practice.

16. The role of the General District Court and the J&DR Court would not change. This proposal would not confer on the General District Court, or the J&DR Court, any greater power to issue injunctions or other equitable relief than the court has at present. Rather, the focus of the proposal is to harmonize the two sides of the circuit court.

More on taxes in Virginia

Here is anti-tax commentary from Paul Jacob, a term-limits supporter.

The Richmond paper had this article, the Norfolk paper had this article, and the Daily Press had this article on last night's budget talks. Somehow, I think the Senate group is doing a bad job of explaining what the extra $4 billion in their deal, over and above what the governor proposed, does for Virginia. The Times-Dispatch article quotes one senator as saying, "At least give us a chance to convince you." They need to convince a lot of people.

The Norfolk paper has this interview ("Gilmore defends his legacy," 3/8/04) with former Governor Gilmore, who says, among other things, "I don’t know why the public should believe politicians at this point"

What pain and suffering can be inferred from the dollar amount of medical bills

In Barkley v. Wallace, decided on Friday, the majority of the Virginia Supreme Court in an opinion by Justice Keenan held that it was reversible for the trial court in a personal injury case to exclude evidence of the amount of plaintiff's medical bills, where the plaintiff claimed the dollar number would be introduced for the limited purpose of confirming the plaintiff's pain and suffering. The Court split 4-3 on the question of whether the trial court's error was harmless, with Justices Lacy and Agee joining the dissent of Justice Kinser, who concluded the error was harmless because the plaintiff introduced other evidence on the issue and the exclusion of the cumulate evidence could not have affected the verdict.

It is not that clear to me that there is much of a connection between what medical services cost (as opposed to other facts about the medical services) and the amount of pain and suffering. That's sort of like trying to guess how far did you go on a commercial flight based on the cost of the plane ticket - there might be a connection, but then again, there might not. (The flight to Philadelphia last month cost almost $800!)

Split between House and Senate on how to pick judges

According to this report from the Washington Post, a Circuit Court vacancy in Alexandria has brought the differences between the House of Delegates and the Senate over the method of selecting judges. The Senate would defer to the local legislators, of whatever party, while the House leadership says no deference is due to Democratic legislators. Stated in such bald terms, it's hard to get excited about either method, except to say that either one beats what they've got in WV, KY, and TN.

More on Friday's Supreme Court opinions

The Richmond paper has this article ("Coal, methane ruled separate," 3/6/04) on the coalbed methane case.

The Richmond paper has this article ("Va. court rules on intent of cross-burnings," 3/6/04), the Roanoke paper has this article ("High court clarifies law on burning crosses in Va.," 3/6/04), the Norfolk paper has this article ("Va. Supreme Court upholds cross burning convictions," 3/06/04), the Washington Post (registration required) has this article ("Convictions Stand In Cross Burning," 3/6/04), and the AP reports here on the cross-burning cases.

One young woman's account - prison is a nightmare

"A young woman convicted of involuntary manslaughter last year went before a Roanoke County judge Friday to complain that prison is 'like a nightmare,'" according to this report ("18-year-old gets no sympathy in complaints about prison," 3/6/04) in the Roanoke paper.

Former county supervisor may plead guilty in forgery case

The Roanoke paper has this story ("Bedford County ex-supervisor may plead guilty," 3/6/04) on an ex-supervisor from Bedford County charged with 82 felony counts of forgery in connection with a scheme to get approval for a road project.

More on the military lawyer recruiters and Professor Chemerinsky

I just read the amicus brief for the military law students at UCLA, William & Mary, and other law schools, filed in the constitutional challenge to the Solomon Amendment brought by some law professors in New Jersey, and I noticed that one of the plaintiffs is Professor Chemerinsky, whom I understand to be leaving the law school at the University of Southern California to join the faculty at Duke. IsThatLegal has this post about the lack of "ideological diversity" at Duke.

At one of the seminars I've attended on section 1983 litigation, Professor Chemerinsky was one of the speakers and he told a joke about a spelling contest between Bill Clinton, Clarence Thomas, and Dan Quayle. A court reporter in Bristol liked the joke so much she asked me to retell it every time I saw from about 1996 until she died last year.

One William & Mary student wins the vote in Williamsburg

Via this post from Votelaw, this story in the Daily Press reports that one but not all of the William & Mary students seeking the vote in Williamsburg were found to be qualified, in proceedings before the Circuit Court of Williamsburg-James City County.