In Roche v. Lincoln Property Co., the Fourth Circuit in an opinion by Judge Gregory, joined by Judge Widener and Senior Judge Beam (sitting by designation), held that the district court lacked subject matter jurisdiction because one of the defendants was a partnership with a Virginia partner.
So, the summary judgment entered on the merits for the defendants was vacated, and the district court's ruling on the jurisdiction issue were reversed.
Wednesday, June 30, 2004
Split panel reversed denial of preliminary injunction in public forum case brought by religious group
In the case of Child Evangelism Fellowship of Maryland, Inc. v. Montgomery County Public Schools, the Fourth Circuit in an opinion by Judge Motz, joined by Judge Shedd with Judge Michael dissenting, held that the district court erred in denying a preliminary injunction against a local school system where the plaintiffs sought access to the school's "take-home flyer forum." The majority thought that even though the plaintiffs were some sort of religious outfit, their use of the public forum would not violate the Establishment Clause. In dissent, Judge Michael disagreed on the Establishment Clause issue.
This is a very complicated question, and it would not surprise if the case was reheard en banc.
This is a very complicated question, and it would not surprise if the case was reheard en banc.
Southwest Virginia bikers' diary
Here is the the part of diary of some Baylor University students biking across America, for the week (June 24-29) they traveled through Southwest and Central Virginia - including Meadowview, Damascus, Sugar Grove, Cedar Springs, Rural Retreat, Wytheville, Radford, Christiansburg, Troutville, Lexington, Vesuvius, Afton, Charlottesville, Monticello, Tabscott, Mineral, Ashland.
Schools ponder what to do about coaches and overtime
The Norfolk paper has this article ("School officials to assess labor laws affecting coaches," 6/30/04) on how schools are trying to figure what to do about school employees who also work as coaches, with the result that they work more than 40 hours per week.
Exemptions from day of rest law wiped out by mistake
The Roanoke paper reports here ("Day-of-rest law may give some workers triple pay," 6/30/04) that a new law intended to eliminate the outdated and unconstitutional aspects of Virginia's blue laws also inadvertently wiped out provisions exempting most businesses from the statutory day of rest requirement, with as-yet unknown consequences.
The Act of Assembly is here. It says simply that sections 40.1-28.5 and 18.2-341 of the Virginia Code among others is repealed. These sections exempted many businesses from the day of rest requirements contained 40.1-28.1, 40.1-28.2, and 40.1-28.3.
The Act of Assembly is here. It says simply that sections 40.1-28.5 and 18.2-341 of the Virginia Code among others is repealed. These sections exempted many businesses from the day of rest requirements contained 40.1-28.1, 40.1-28.2, and 40.1-28.3.
Chief Judge Jones on the new sentencing confusion
Today's Roanoke paper has this article ("Court sentencings on hold while ruling is deciphered," 6/30/04) with comments from Chief Judge Jones over the confusion about whether the federal sentencing procedural is constitutional in the wake of the Supreme Court's ruling in Blakely v. Washington, which extends the rule of Apprendi to apparently prohibit any fact-finding by the judge and not the jury in support of sentencing.
Tuesday, June 29, 2004
No worker's comp for injuries caused by lightning strike
In VEC v. Hale, the Virginia Court of Appeals in an opinion by Judge Frank, joined by Judge Humphreys, with Judge Elder dissenting, concluded a woman injured when lightning struck the telephone system she operated was not entitled to workers' compensation for her injuries.
In dissent, Judge Elder declared, among other things, that judicial notice can be taken of certain facts about lightning.
In dissent, Judge Elder declared, among other things, that judicial notice can be taken of certain facts about lightning.
Judge Moon's opinions in the Earl Washington case
Pagan who stabbed another inmate 68 times to be executed on Thursday
The AP reports here on a Virginia inmate scheduled to be executed on Thursday for murdering another inmate four years ago.
Tech players might get to play while waiting for appeals in circuit court
The Roanoke paper reports here ("Vick might start season on the field," 6/29/04) that the Virginia Tech athletic department might not be able to suspend Marcus Vick and the others until after their appeals are resolved in circuit court, which may not happen until after the football season begins.
FEMA contract worker from Wise County one of Operation Big Coon Dog defendants
The Coalfield Progress explains here that one of the defendants in the Operation Big Coon Dog case was a fellow who was from Wise County and who had contracted to do work for the Federal Emergency Management Agency.
Monday, June 28, 2004
Rehearing en banc denied by Fourth Circuit in S.C. license plate case
In Planned Parenthood of South Carolina, Inc. v. Rose, the Fourth Circuit declined to rehear en banc the case in which the panel of the Court struck down a South Carolina law allowing state license plates to bear the phrase, "Choose Life."
The vote in the case was this: "On the poll requested by a member of the court on the petition for
rehearing en banc, Judge Widener, Judge Niemeyer, Judge Williams, Judge Traxler, and Judge Shedd voted to grant rehearing en banc. Chief Judge Wilkins, Judge Wilkinson, Judge Luttig, Judge Michael, Judge Motz, Judge King, Judge Gregory, and Judge Duncan voted to deny rehearing en banc." Judge Wilkinson wrote an opinion concurring in the denial of rehearing, emphasizing that this is a First Amendment case, not an abortion case. Judge Shedd wrote an opinion that said how odd that South Carolina could make Choose Life its state slogan (according to the majority) but could not take the lesser step of allowing the Choose Life license plate.
I'm not sure that I can recall a case where on any issue where Chief Judge Wilkins, Judge Wilkinson, Judge Widener, and Judge Williams, and 2 Ws went one way, and 2 Ws went the other - but I'm not keeping score.
The vote in the case was this: "On the poll requested by a member of the court on the petition for
rehearing en banc, Judge Widener, Judge Niemeyer, Judge Williams, Judge Traxler, and Judge Shedd voted to grant rehearing en banc. Chief Judge Wilkins, Judge Wilkinson, Judge Luttig, Judge Michael, Judge Motz, Judge King, Judge Gregory, and Judge Duncan voted to deny rehearing en banc." Judge Wilkinson wrote an opinion concurring in the denial of rehearing, emphasizing that this is a First Amendment case, not an abortion case. Judge Shedd wrote an opinion that said how odd that South Carolina could make Choose Life its state slogan (according to the majority) but could not take the lesser step of allowing the Choose Life license plate.
I'm not sure that I can recall a case where on any issue where Chief Judge Wilkins, Judge Wilkinson, Judge Widener, and Judge Williams, and 2 Ws went one way, and 2 Ws went the other - but I'm not keeping score.
Judge Wilson's ruling in student loan case affirmed by Fourth Circuit
In Educational Credit Management Corp. v. Doane, then Chief Judge Wilson reversed the bankruptcy court and held that the appellant's claim for repayment of the debtor's student loan survived the discharge mistakenly entered by the bankruptcy court using an outdated discharge form.
Today, in this opinion, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Williams, and Senior Judge Beezer from the Ninth Circuit, affirmed the ruling by Judge Wilson.
Today, in this opinion, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Williams, and Senior Judge Beezer from the Ninth Circuit, affirmed the ruling by Judge Wilson.
Logging opponent denies being a terrorist
In this column, an opponent of logging in the Jefferson National Forest explains why he is not a terrorist.
High schools with tobacco quotas
This article ("Growing Tobacco, and Controversy," 6/25/04) from the Washington Post includes the following:
"The kids in Damascus, a small town deep in Southwest Virginia, a few miles from the Tennessee border, have been growing tobacco since at least the 1960s, when the Washington County School District bought land for Holston High School. Holston and another Washington County school, Abingdon High, are the only high schools in Virginia that grow tobacco, the USDA said. They produced more than 4,900 pounds last year. But recently county and school administrators have started considering alternative crops because of a decline in the region's tobacco industry and because of concerns about the propriety of school tobacco farms. "
"The kids in Damascus, a small town deep in Southwest Virginia, a few miles from the Tennessee border, have been growing tobacco since at least the 1960s, when the Washington County School District bought land for Holston High School. Holston and another Washington County school, Abingdon High, are the only high schools in Virginia that grow tobacco, the USDA said. They produced more than 4,900 pounds last year. But recently county and school administrators have started considering alternative crops because of a decline in the region's tobacco industry and because of concerns about the propriety of school tobacco farms. "
Update on Liberty law school
This article ("Liberty adds 2 majors, 6/28/04) has an update on the upcoming start of the law school at Liberty University in Lynchburg. It says so far they have 40 acceptances for the incoming class, and expect to get more.
Sunday, June 27, 2004
Database with names and dollars for proposed tobacco buyout
An group called Environmental Working Group has posted this database on which you can look up all the tobacco growers you know in Southwest Virginia and see how much they would get.
There are 44 Minors on the list, 9 Miners, and 1,602 names (some corporate) from right here in Abingdon, 378 from Rose Hill where my sister lives, 19 from Norton, and so on.
You can just about see a tobacco patch out the window from this room here at the house, but the landowner over there is not on the list.
The Danville paper has this article profiling some of the would-be participants from that area, who explained how the money would not be much of a windfall.
There are 44 Minors on the list, 9 Miners, and 1,602 names (some corporate) from right here in Abingdon, 378 from Rose Hill where my sister lives, 19 from Norton, and so on.
You can just about see a tobacco patch out the window from this room here at the house, but the landowner over there is not on the list.
The Danville paper has this article profiling some of the would-be participants from that area, who explained how the money would not be much of a windfall.
More Coon Dog tales
The Bristol paper had this report ("'Coon Dog' furor continues," 6/37/04) this morning with more information on Operation Big Coon Dog, the federal bribery case out of Buchanan County.
Also, this from the Hotmail account, this interesting note:
"Thanks for your efforts in posting articles and opinions re: Operation Big Coon Dog. This is a service to many in the county since local papers are printed once a week and regional papers such as Bristol Herald Courier are hard to find as this scandal was revealed. There was much talk and gossip regarding these alleged crimes. Many of these stories may surface as truth (or not). Thanks for your efforts."
Also, this from the Hotmail account, this interesting note:
"Thanks for your efforts in posting articles and opinions re: Operation Big Coon Dog. This is a service to many in the county since local papers are printed once a week and regional papers such as Bristol Herald Courier are hard to find as this scandal was revealed. There was much talk and gossip regarding these alleged crimes. Many of these stories may surface as truth (or not). Thanks for your efforts."
More on the coming protests to protect the Jefferson National Forest
The AP has this story on protesters against logging in the Jefferson National Forest.The article says that "after losing a federal court fight against a plan to trim 618 acres in Jefferson National Forest, Southern environmentalists say it may be time to get more aggressive."
More on the anti-same-sex partnership law
The Roanoke paper has this story ("Gays fear new state law banning civil unions could go much further," 6/27/04) which attempts to provide real-world examples of what the opponents of Virginia's new law say are its potential bad consequences.
The Washington Times reports here ("Gay-rights advocates march on delegate's home," 6/27/04)that protesters have marched on the home in Fairfax County of the sponsor of the new law.
The Washington Times reports here ("Gay-rights advocates march on delegate's home," 6/27/04)that protesters have marched on the home in Fairfax County of the sponsor of the new law.
Prohibition in Staunton
The Staunton paper has this interesting article on the history of crime in Staunton related to Prohibition.
Virginia ahead of the curve on DUI laws
The AP has this story describing how, with the 2004 amendments, Virginia's DUI laws are among the toughest in the U.S.
The article does not mention how Virginia's laws compare with the DUI laws of Europe, but then again, I've said here I'm opposed to the citation to authorities from the Continent.
The article does not mention how Virginia's laws compare with the DUI laws of Europe, but then again, I've said here I'm opposed to the citation to authorities from the Continent.
Written materials from May 2004 Virginia judicial conference
Here are written presentations from the May 2004 judicial conference, including:
Review of Virginia Appellate Civil Cases
(The Hon. Jane Marum Roush, Judge, Fairfax Circuit Court)
Servicemembers Civil Relief Act of 2003
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)
2004 Legislation Affecting Circuit Courts
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)
Civil Commitment of Sexually Violent Predators
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)
Character Evidence
(Kent Sinclair, School of Law, University of Virginia)
Covenants Not To Compete and The Duty of Loyalty
(Harris D. Butler, II, Butler, Williams & Skilling, P.C.; Edward Lee Isler, Ray & Isler, P.C.)
Review of Virginia Appellate Criminal Cases
(Ronald J. Bacigal, T.C. Williams School of Law, University of Richmond)
Judicial Opinion Writing
(The Hon. Clifford R. Weckstein, Roanoke City Circuit Court)
Review of Virginia Appellate Civil Cases
(The Hon. Jane Marum Roush, Judge, Fairfax Circuit Court)
Servicemembers Civil Relief Act of 2003
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)
2004 Legislation Affecting Circuit Courts
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)
Civil Commitment of Sexually Violent Predators
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)
Character Evidence
(Kent Sinclair, School of Law, University of Virginia)
Covenants Not To Compete and The Duty of Loyalty
(Harris D. Butler, II, Butler, Williams & Skilling, P.C.; Edward Lee Isler, Ray & Isler, P.C.)
Review of Virginia Appellate Criminal Cases
(Ronald J. Bacigal, T.C. Williams School of Law, University of Richmond)
Judicial Opinion Writing
(The Hon. Clifford R. Weckstein, Roanoke City Circuit Court)
Saturday, June 26, 2004
The DOJ press release for Operation Big Coon Dog
Here is the press release from the government prosecutors on Operation Big Coon Dog, the Buchanan County bribery case.
Still more on Operation Big Coon Dog
More articles and comment on the federal bribery case from Buchanan County include:
Profiting from tragedy never right, Bristol Herald-Courier
Some in Buchanan County not suprised by latest scandal, Bristol Herald-Courier
Arrival of 'suits' surprise to small community, Bristol Herald-Courier
Earlier county board faced prosecution, Bristol Herald-Courier
Storm of 2002 left county in need of aid, Bristol Herald-Courier
A good coonhound good as gold to many in region, Bristol Herald-Courier
Buchanan scandal: More arrests anticipated, Bluefield Daily Telegraph
'Operation Big Coon Dog' buzz bemuses, angers Grundy folks, Roanoke Times;
For champion coon hounds,dollars come thick as ticks, Roanoke Times
Profiting from tragedy never right, Bristol Herald-Courier
Some in Buchanan County not suprised by latest scandal, Bristol Herald-Courier
Arrival of 'suits' surprise to small community, Bristol Herald-Courier
Earlier county board faced prosecution, Bristol Herald-Courier
Storm of 2002 left county in need of aid, Bristol Herald-Courier
A good coonhound good as gold to many in region, Bristol Herald-Courier
Buchanan scandal: More arrests anticipated, Bluefield Daily Telegraph
'Operation Big Coon Dog' buzz bemuses, angers Grundy folks, Roanoke Times;
For champion coon hounds,dollars come thick as ticks, Roanoke Times
Sabato: The most corrupt region is Southwest Virginia
Among the "Big Coon Dog" coverage in today's Bristol paper is this article ("Former special prosecutor, analyst cite past corruption," 6/26/04) with comments from U.Va. government professor Larry Sabato and from lawyer Gerald Gray about political corruption in Southwest Virginia.
In the article, Professor Sabato is quoted as saying: "I have family in Southwest Virginia and I love Southwest Virginia, and it’s painful to accept one reality. . . . The most corrupt region is Southwest Virginia. Over the years, more indictments for political and public office corruption have happened in this region than all other parts of the state combined."
I think Professor Sabato is great, but this sounds like hyperbole from the most quotable of all Virginians. The examples he cited are spread pretty wide in time and space - Sheriff Honaker in Bristol, Sid Clower in Henry County, William Harris and others in Buchanan County in the 1990s, and some matter in Wise County. I would think that the City of Richmond has had more local government officials prosecuted per square mile, at least since 1980.
More painful were these words. "Sabato, the UVa professor, said he often encourages his students from Southwest Virginia to go back home to improve the quality of life. Incidents like Thursday's arrests don’t help make the case that they should, he said."
"What does this say to them? It says, 'Get the heck out of there.'"
These words also suggest to me the question - what are the former Sabato students who did come back to Southwest Virginia doing?
In the article, Professor Sabato is quoted as saying: "I have family in Southwest Virginia and I love Southwest Virginia, and it’s painful to accept one reality. . . . The most corrupt region is Southwest Virginia. Over the years, more indictments for political and public office corruption have happened in this region than all other parts of the state combined."
I think Professor Sabato is great, but this sounds like hyperbole from the most quotable of all Virginians. The examples he cited are spread pretty wide in time and space - Sheriff Honaker in Bristol, Sid Clower in Henry County, William Harris and others in Buchanan County in the 1990s, and some matter in Wise County. I would think that the City of Richmond has had more local government officials prosecuted per square mile, at least since 1980.
More painful were these words. "Sabato, the UVa professor, said he often encourages his students from Southwest Virginia to go back home to improve the quality of life. Incidents like Thursday's arrests don’t help make the case that they should, he said."
"What does this say to them? It says, 'Get the heck out of there.'"
These words also suggest to me the question - what are the former Sabato students who did come back to Southwest Virginia doing?
Friday, June 25, 2004
On Brown and Simple Justice
The New Republic Online has this article on Brown v. Board of Education and Richard Kluger's Simple Justice.
Regarding the latter, it says in part: "For those who wish to read in one volume a learned and enthralling narrative that features the key actors in the school desegregation cases, there is nothing like Richard Kluger's magisterial book."
Regarding the latter, it says in part: "For those who wish to read in one volume a learned and enthralling narrative that features the key actors in the school desegregation cases, there is nothing like Richard Kluger's magisterial book."
Suffolk winds up with $150,000 in attorneys' fees to pay in firefighter speech case
The Daily Press reports here ("Suffolk must pay in suit by firefighters," 6/26/04) that the City of Suffolk will have to pay $88,781 in attorneys' fees and costs to the plaintiff, in addition to the fees paid for its own counsel, in an federal case over the free speech rights of City firefighters.
William & Mary law professor testifies against stripping federal appeals courts of jurisdiction over gay marriage cases
The Washington Times reports here ("GOP eyes taking marriage from courts," 6/25/04) on a congressional hearing regarding proposed legislation that would tinker with the jurisdiction of the federal appeals courts in cases involving same-sex marriage. The hearing included testimony in opposition to the measure from William & Mary law professor Michael Gerhardt.
Perhaps some members of the Virginia General Assembly will respond with a measure seeking to deprive law professors at nominally state-funded institutions from jurisdiction to give testimony at legislative hearings about same-sex marriage matters.
Perhaps some members of the Virginia General Assembly will respond with a measure seeking to deprive law professors at nominally state-funded institutions from jurisdiction to give testimony at legislative hearings about same-sex marriage matters.
Kids at law camp get the word from former Va. Supreme Court Chief Justice Carrico
According to this wild article in the Leesburg paper, they've got something called "Law Camp" up in Loudoun County, a creation of Circuit Court Judge Thomas Horne, and former Chief Justice Carrico gave a speech for the campers this week.
School custodian in Chesapeake brings overtime case in E.D. Va.
The Norfolk paper reports here ("Chesapeake school custodian sues over overtime pay," 6/26/04) that a school custodian at a high school in Chesapeake has filed a class action under the Fair Labor Standards Act, claiming she and others similarly situated were not paid overtime for four to six hours per week for the last three years.
More on Operation Big Coon Dog
The Roanoke paper has this article ("Prosecutors: Buchanan County officials participated in scam," 6/25/04), the Richmond paper has this article ("County bribery scheme alleged," 6/25/04), and the Bluefield paper has this article ("Scandal in Buchanan: Officials accused of personal profit from flood funds," 6/24/04) on the federal bribery case out of Buchanan County.
Thursday, June 24, 2004
Winner of prize for e-mail from greatest distance
When you go to a show at the Barter Theater in Abingdon, the director comes out beforehand and repeats his standard monologue, including finding out who came to the show from the greatest distance. "Anyone from LA?" he says, meaning "lower Abingdon."
In today's Hotmail, I got a message from a fellow blogger, who is in tune and in uniform in Iraq. His blog is here. If he comes to hear some picking in Southwest Virginia, I'll buy the tickets, even if it is to hear the Joe Smiddy Band.
It has been a bluegrass day. I also got a CD from a lawyer in New York.
In today's Hotmail, I got a message from a fellow blogger, who is in tune and in uniform in Iraq. His blog is here. If he comes to hear some picking in Southwest Virginia, I'll buy the tickets, even if it is to hear the Joe Smiddy Band.
It has been a bluegrass day. I also got a CD from a lawyer in New York.
Federal grand jury issues indictments regarding Buchanan County contracts
The AP has this story that federal indictments were announced today by U.S. Attorney John Brownlee of the W.D. Va. against former Buchanan County officials and contractors for a bribery scheme related to contract work for flood disaster relief in the area of Hurley, Virginia.
The Bristol paper has this account, with this link to a copy of the indictment. The article notes that the investigation was called "Operation Big Coon Dog," because one of the bribes involved coon dogs.
The Bristol paper has this account, with this link to a copy of the indictment. The article notes that the investigation was called "Operation Big Coon Dog," because one of the bribes involved coon dogs.
Statement from Gate city election plaintiff
The Scott County paper has published this statement from one of the litigants in the Gate City election case.
Some history of Title VII of the Civil Rights Act
In this article on the decline of affirmative action, the following snippet of the history of the Civil Rights Act of 1964 is retold:
"AA began on June 19, 1963, when President John F. Kennedy sent a Civil Rights Act (CRA) to Congress to counter racial discrimination in the work place. The CRA, intended primarily for blacks, met stiff political opposition. On November 22, 1963, Kennedy was assassinated. His successor Lyndon B. Johnson proclaimed, "No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest passage of the civil rights bill for which he fought so long." But opposition was still stiff.
On February 8, 1964, Congressman Howard W. Smith of Virginia made a colossal miscalculation in the House of Representatives. In an attempt to block the CRA, he suggested inserting the word 'sex' after the word 'religion' whenever it appeared in Title VII, which guaranteed 'fair' employment practices. By tying it to the then controversial women's movement, Smith hoped to kill the CRA.
In his book "Freedom Will Conquer Racism and Sexism", J. Edward Pawlick, comments on reaction in the House."[T]he laughter became too great... and Congressman Smith had to stop." Disingenuously, Smith assured the House that he was serious. The bluff backfired. The CRA passed.
Within decades, government had imposed de facto quotas and fair practice standards for women (and minorities) throughout the work place and academia. That had not been Kennedy's intention."
"AA began on June 19, 1963, when President John F. Kennedy sent a Civil Rights Act (CRA) to Congress to counter racial discrimination in the work place. The CRA, intended primarily for blacks, met stiff political opposition. On November 22, 1963, Kennedy was assassinated. His successor Lyndon B. Johnson proclaimed, "No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest passage of the civil rights bill for which he fought so long." But opposition was still stiff.
On February 8, 1964, Congressman Howard W. Smith of Virginia made a colossal miscalculation in the House of Representatives. In an attempt to block the CRA, he suggested inserting the word 'sex' after the word 'religion' whenever it appeared in Title VII, which guaranteed 'fair' employment practices. By tying it to the then controversial women's movement, Smith hoped to kill the CRA.
In his book "Freedom Will Conquer Racism and Sexism", J. Edward Pawlick, comments on reaction in the House."[T]he laughter became too great... and Congressman Smith had to stop." Disingenuously, Smith assured the House that he was serious. The bluff backfired. The CRA passed.
Within decades, government had imposed de facto quotas and fair practice standards for women (and minorities) throughout the work place and academia. That had not been Kennedy's intention."
Senate confirms Kelley for E.D. Va. judgeship
As a beneficiary of the peace pact over non-controversial judicial nominations, the E.D. Va.'s Walter Kelley was unanimously approved by a Senate vote this week, as reported here ("Norfolk lawyer confirmed as federal court judge," 6/24/04) by the Daily Press.
Of Venus, Johnny, Andy, Bailey, Herb, Mr. Carlson, Les, and Jennifer, who should run for Mayor of Richmond?
A group of Richmond citizens are thinking they and actor Tim Reid, formerly of "WKRP in Cincinnati," were always meant to be, and they are promoting him as a candidate to be the next mayor of Richmond, according to this report ("Richmond group urges actor Reid to run for mayor," 6/24/04) in the Richmond paper.
This page describes the greatest WKRP episode ever, in which Mr. Carlson says, "As God is my witness, I thought turkeys could fly!!!"
This page describes the greatest WKRP episode ever, in which Mr. Carlson says, "As God is my witness, I thought turkeys could fly!!!"
Roanoke lawyer sues Army Secretary Brownlee, claiming unlawful policy limiting reservist lawyers
Via JSW, the Roanoke paper has this article ("Reservist lawyer files federal suit over practice rule," 6/24/04) about a legal challenge brought by a Roanoke lawyer who is a U.S. Army reservist against a government policy prohibiting private practice of reservists who have been called up. The article notes that the current secretary of the Army is coincidentally the father of the W.D. Va.'s U.S. Attorney, John Brownlee, himself a reservist.
Wednesday, June 23, 2004
ACLU may challenge new Virginia law against teen nudist camps
The Washington Times reports here ("Teen nudist law faces challenge," 6/22/04) that the American Civil Liberties Union may bring a legal challenge against a new Virginia statute which outlaws teen nudist camps, in some circumstances.
Eavesdropping case can proceed, with damages limited to $10,000
The AP reports here on rulings by Judge Spencer of the E.D. Va., who denied in part the motions to dismiss of the defendants in the lawsuit brought by a group of Democrats regarding ilegal eavesdropping on their political strategy meetings in march of 2002.
Judge Moon rules the confession of Earl Washington was not coerced
The AP reports here that Judge Moon of the W.D. Va. has ruled that the confession of Earl Washington was not coerced.
Depositions in the Gate City mayor's race case
The Kingsport paper has this article ("Depositions begin in lawsuit challenging Gate City election results," 6/23/04) on the discovery in the litigation regarding the mayor's race in Gate City.
WV Supreme Court of Appeals justice to be featured in Bashman's 20 Questions
As shown in this post, Justice Starcher of West Virginia is going to be part of Howard Bashman's "20 questions" series.
Issue of improper ruling in impeachment waived when the impeachment did not occur
In Smith v. Com., the Virginia Court of Appeals in an opinion by Judge Annunziata, joined by Judges Bumgardner and Clements, held that the defendant had failed to preserve his objection to the trial court's ruling that if the defendant called witnesses to testify about his truthfulness, the Commonwealth could introduce evidence to the contrary, when the defendant was scared off by the ruling and never put on the testimony of his witnesses.
4th circuit reversed summary judgment for retailer in section 1981 case brought by consumers
In Williams v. Staples, Inc., the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Michael with Judge Widener concurring, reversed the entry of summary judgment by Judge Wilson of the W.D. Va. in a case brought under 42 U.S.C. 1981 by an African-American who claimed that he was discriminated against on account of his race when a Staples store in Winchester refused to take his personal check.
The AP has this report on the opinion.
In this post, Howard Bashman juxtaposed Judge Shedd's opinion against an op-ed written by Professor Chemerinsky, who claimed that Judge Shedd was no good on civil rights issues.
The AP has this report on the opinion.
In this post, Howard Bashman juxtaposed Judge Shedd's opinion against an op-ed written by Professor Chemerinsky, who claimed that Judge Shedd was no good on civil rights issues.
Judge Wilson denies motion to dismiss rescission claim under Truth in Lending Act
In Cook v. Aames Funding Corp., Judge Wilson refused to grant the defedants' motion to dismiss the plaintiffs' claim for rescission based on the Truth in Lending Act.
Virginia schools take conservative approach on issues of racial preferences
The Roanoke paper has this report ("Race fades as factor in academic community," 6/23/04) which says that Virginia's public colleges and universities are being cautious about racial preferences following last year's Supreme Court rulings in the University of Michigan cases.
Tuesday, June 22, 2004
More on SW Virginia's Congressman Boucher and the DMCA
This CNet interview with Congressman Boucher about his fight to reform the Digital Millenium Copyright Act asks the question: "You represent a rural district in the corner of southwest Virginia near Tennessee. What's turned you into a technology activist?"
To which Boucher replied:
"I see the use of advanced information technology as a way to build a bridge between parts of the nation where development is a priority and economic growth, and job creation is a priority in my district and in the American economic mainstream. It is a fact that businesses get a bargain when they locate in rural areas.
Historically, a lot of businesses simply could not do that, because they had to be physically proximate to their clients and their suppliers and their customers. That is not true with the Internet. Now a company can operate portions of its business just as effectively from the most rural place in the United States as it can from the building next to its corporate headquarters."
To which Boucher replied:
"I see the use of advanced information technology as a way to build a bridge between parts of the nation where development is a priority and economic growth, and job creation is a priority in my district and in the American economic mainstream. It is a fact that businesses get a bargain when they locate in rural areas.
Historically, a lot of businesses simply could not do that, because they had to be physically proximate to their clients and their suppliers and their customers. That is not true with the Internet. Now a company can operate portions of its business just as effectively from the most rural place in the United States as it can from the building next to its corporate headquarters."
Appeal granted in accessory use case
In the case of Capelle v. Orange County, the Virginia Supreme Court has granted the petition for appeal on the following issue:
"The Orange County Board of Supervisors, without legal authority and in violation of Virginia law and local zoning ordinances, illegally burdened a designated limited residential zoning district with mining and trucking uses of an adjacent agricultural zone by accepting, as an accessory use, the use of a private road through such limited residential district to serve the mining truck hauling uses of the agriculturally zoned parcel."
Ah, now, I thought an accessory use typically would be a use that is otherwise unlawful but for its character as accessory to a lawful use - if it has to be a lawful use in the first place, then what difference does it make whether it is "accessory" to another lawful use?
"The Orange County Board of Supervisors, without legal authority and in violation of Virginia law and local zoning ordinances, illegally burdened a designated limited residential zoning district with mining and trucking uses of an adjacent agricultural zone by accepting, as an accessory use, the use of a private road through such limited residential district to serve the mining truck hauling uses of the agriculturally zoned parcel."
Ah, now, I thought an accessory use typically would be a use that is otherwise unlawful but for its character as accessory to a lawful use - if it has to be a lawful use in the first place, then what difference does it make whether it is "accessory" to another lawful use?
Fourth Circuit affirms Chief Judge Jones in Grundy condemnation case
In U.S. v. 100.01 Acres of Land in Buchanan County, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Niemeyer, and Traxler affirmed the rulings of Chief Judge Jones in a federal condemnation case related to the Army Corps of Engineers' project which is ongoing at Grundy.
Tom Mullins from the Street firm argued the case for the appellant.
Tom Mullins from the Street firm argued the case for the appellant.
Review of new rule on citation to unpublished authority leads to further review
Certification of class action against Wal-Mart for sex discrimination
George's has this post with links and Jurist has this post with more links (including the order) about the certification of a class action against Wal-Mart for sex discrimination on behalf of 1.5 million women.
Geez, that's awful, 1.5 million - awful if there was so much discrimination, and also awful to deal with such a case - sex discrimination as mass tort.
Heck, around here, I get excited if there are two plaintiffs in a case (or at least, more than 1 and less than 6).
Geez, that's awful, 1.5 million - awful if there was so much discrimination, and also awful to deal with such a case - sex discrimination as mass tort.
Heck, around here, I get excited if there are two plaintiffs in a case (or at least, more than 1 and less than 6).
Outspoken Mass. federal judge declares sentencing guidelines unconstitutional
Why the Supreme Court shouldn't cite foreign law
Via this post from Instapundit, here is a piece by Judge Posner on why the courts should not use foreign law.
Strangely, Judge Posner almost said in one of his points the same thing I did, why cite foreign cases when you can't even cite all the U.S. of A. cases (i.e., the unpublished ones).
Strangely, Judge Posner almost said in one of his points the same thing I did, why cite foreign cases when you can't even cite all the U.S. of A. cases (i.e., the unpublished ones).
Ethics charge against former Judge Askew dismissed on the merits
Via VLW, the Richmond paper reports here ("Complaint against judge dismissed," 6/22/04) that the ethics charge against former Circuit Court Judge Verbena Askew has been dismissed, for lack of clear and convincing evidence of misconduct. The charge was brought by Senator Stolle in connection with the sufficiency of Judge Askew's disclosures to committees of the General Assembly.
Monday, June 21, 2004
Alumna of Virginia Tech, George Mason becomes member of NTSB
The AP has this report on the newest member of the National Transportation Safety Board, a woman named Deborah Hersman, who has degrees from Virginia Tech and George Mason.
US DOJ says OK to citywide election for mayor of Richmond
The AP reports here that the U.S. Department of Justice has approved the plan for the citywide election of a "strong" mayor for the City of Richmond, "rejecting claims that it would dilute the political might of the city's largely black electorate."
Internet service provider not directly liable for copyright infringement
In CoStar Group, Inc. v. Loopnet, Inc., the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Michael with Judge Gregory dissenting, held that an internet service provider is not directly liable for copyright violations of its subscribers, who used the service to violate plaintiff's copyrights.
In his dissent, Judge Gregory was of the view, in essence, that the ISP was not passive enough to avoid liability.
This seems like one of those opinions that you will eventually read about Denise Howell's blog or Donna Wentworth's blog. The only professional commentary I can offer is that I did notice that appellant's counsel was a Hacker (actually, J. Hacker of O'Melveny & Myers in D.C.).
In his dissent, Judge Gregory was of the view, in essence, that the ISP was not passive enough to avoid liability.
This seems like one of those opinions that you will eventually read about Denise Howell's blog or Donna Wentworth's blog. The only professional commentary I can offer is that I did notice that appellant's counsel was a Hacker (actually, J. Hacker of O'Melveny & Myers in D.C.).
ERISA defendant in default must pay pension benefits prospectively
In Jackson v. Coyne & Delany Co., an ERISA case, Senior Judge Michael found the defendant in default, and entered judgment which, among other things, requires the defendant to pay pension benefits to the plaintiff for the rest of his life.
24,000 home schooled children in Virginia
This article ("Home is where the lesson is," 6/21/04) in the Norfolk paper says the percentage of school-aged Virginians who are home-schooled is about 2%.
More on the state-federal struggle over whether AEP can join regional power group
The Roanoke paper has this article ("U.S. says it can force AEP to join regional company," 6/19/04) with the latest salvo fired between state and federal energy regulators over who controls whether American Electric Power can join the PJM regional power distribution group, which AEP wants to do, but Virginia regulators have not yet approved.
More on Chief Judge Jones' damages ruling in the DirecTV cases
The Roanoke paper has this article ("DirecTV's legal strategies raise eyebrows," 6/19/04) about the DirecTV litigation in the W.D. Va. and elsewhere.
Sunday, June 20, 2004
On probation violations in Virginia
The Richmond paper has this article ("Prison terms to be reviewed," 6/20/04) on the attempt in Virginia to reduce the number of Virginians sent to prison for violating the terms of their probation or parole.
Judges appear in re-enactment of Brown v. Board of Education arguments documentary
In this piece ("OMBUDSMAN: Readers quick to complain about any 'sins' of omission," 6/20/04) in the Richmond paper, it is reported:
"For the Brown v. Board of Education film documentary, produced by New Millennium Studios in Petersburg, the paper in fact did publish two short items on the production, on May 1 and May 14. One announced the studio was seeking extras to appear in the film, sponsored by the Martin Luther King Commission, and the other announced the film would be shown at the Carpenter Center on May 16.
However, the items did not include names of the judicial "actors," and the T-D published no follow-up account or review. The film was shown the one time to an invited audience, but it was free and open to the public.
A Virginia Supreme Court spokeswoman provided a rundown on the cast. Judge Roger L. Gregory of the 4th U.S. Circuit Court of Appeals portrayed Thurgood Marshall, and Judge James W. Benton Jr. of the Virginia Court of Appeals played Spottswood Robinson.
Nine retired circuit or district court judges, including Turlington, participated. Other retired judges in the cast, she said, were Donald Hall Kent, William R. Shelton and William B. Wimbish, of Richmond; W. Park Lemmond Jr., Petersburg; Marc Jacobson, Norfolk; Alfred D. Swersky, Alexandria; Paul F. Sheridan, Arlington, and Tristram T. Hyde IV, Heathsville."
"For the Brown v. Board of Education film documentary, produced by New Millennium Studios in Petersburg, the paper in fact did publish two short items on the production, on May 1 and May 14. One announced the studio was seeking extras to appear in the film, sponsored by the Martin Luther King Commission, and the other announced the film would be shown at the Carpenter Center on May 16.
However, the items did not include names of the judicial "actors," and the T-D published no follow-up account or review. The film was shown the one time to an invited audience, but it was free and open to the public.
A Virginia Supreme Court spokeswoman provided a rundown on the cast. Judge Roger L. Gregory of the 4th U.S. Circuit Court of Appeals portrayed Thurgood Marshall, and Judge James W. Benton Jr. of the Virginia Court of Appeals played Spottswood Robinson.
Nine retired circuit or district court judges, including Turlington, participated. Other retired judges in the cast, she said, were Donald Hall Kent, William R. Shelton and William B. Wimbish, of Richmond; W. Park Lemmond Jr., Petersburg; Marc Jacobson, Norfolk; Alfred D. Swersky, Alexandria; Paul F. Sheridan, Arlington, and Tristram T. Hyde IV, Heathsville."
LA Times' take on new Virginia law dealing with same-sex contracts
The LA Times (registration required) has this article ("Major Reversal in Gay Rights Looms in Virginia," 6/20/04) which begins:
"When it comes to adapting state laws to reflect social change — such as women's suffrage, school desegregation and gay rights — Virginia has always been a laggard."
Regarding the new statute, the article says:
"Critics say the law — which takes effect July 1 and reaffirms the state's ban on gay and lesbian marriage — could negate powers of attorney, wills, leases, child-custody arrangements, joint bank accounts and health insurance granted by companies that recognize domestic partnerships."
The article doesn't say what are the other interpretations of the new law, which goes into effect July 1.
"When it comes to adapting state laws to reflect social change — such as women's suffrage, school desegregation and gay rights — Virginia has always been a laggard."
Regarding the new statute, the article says:
"Critics say the law — which takes effect July 1 and reaffirms the state's ban on gay and lesbian marriage — could negate powers of attorney, wills, leases, child-custody arrangements, joint bank accounts and health insurance granted by companies that recognize domestic partnerships."
The article doesn't say what are the other interpretations of the new law, which goes into effect July 1.
Mike Vick's Virginia Beach lawyer for marketing deals
The Daily Press has this article ("Keeping business close to home," 6/20/04) on the Virginia Beach lawyer who represents Atlanta Falcons (and former Virginia Tech) quarterback Mike Vick in his marketing deals.
Some (mostly Southwest) Virginia webcams
I read an article in today's Roanoke paper protesting the installation of a webcam at Radford University.
Already there are other webcams on Virginia campuses and elsewhere: the RotundaCam, looking up the Law at the University of Virginia in Charlottesville; the webcam with a view of the Drill Field at Virignia Tech; this view of Lexington from VMI; this view of W&L; the Channel7 cam in Roanoke; this cam in Botetourt County; this cam showing the Walling park in Bristol; this cam at Honaker; this cam at Lebanon; and, from over in Tennessee, this cam from the WCYB transmitter; and this cam from Lynchburg.
Already there are other webcams on Virginia campuses and elsewhere: the RotundaCam, looking up the Law at the University of Virginia in Charlottesville; the webcam with a view of the Drill Field at Virignia Tech; this view of Lexington from VMI; this view of W&L; the Channel7 cam in Roanoke; this cam in Botetourt County; this cam showing the Walling park in Bristol; this cam at Honaker; this cam at Lebanon; and, from over in Tennessee, this cam from the WCYB transmitter; and this cam from Lynchburg.
Saturday, June 19, 2004
Malvo jurors recollect their ordeal over sentencing
The Norfolk paper has this article ("Malvo trial jurors recall rancor during sentencing," 6/19/04) about the recollections of the jurors from the Malvo case tried in Chesapeake, in which the young sniper was not given the death sentence.
Friday, June 18, 2004
Professor Elzinga's testimony in the Oracle case
InformationWeek has InformationWeek > Oracle Antitrust Trial >this article on the testimony of Professor Elzinga in the Oracle case.
This week, Professor Elzinga may be the most high-profile U.Va. professor in the news, giving a temporary respite to Professor Sabato (and to Julian Bond of the History Department).
This week, Professor Elzinga may be the most high-profile U.Va. professor in the news, giving a temporary respite to Professor Sabato (and to Julian Bond of the History Department).
Spending Virginia's tobacco money on telecommunications
This press release explains Virginia's plans to use tobacco money to invest in telecommunications with the goal of economic development in rural and not so rural Southside and Southwest Virginia.
Denial of qualified immunity reversed for officers in case of detainee who suffocated
In Parish v. Cleveland, the Fourth Circuit reversed the district court's denial of the individual defendants' motion for summary judgment based on qualified immunity.
The panel included Judge Williams, Judge King, and Judge Luttig, each of whom wrote separately, with Judge Luttig dissenting. Judge King, in his concurrence, opined that the case was a close one, but he felt the evidence did not show deliberate indifference, only negligence.
In his dissent, Judge Luttig began with his view that the Circuit's qualified immunity cases have become erratic:
"With today’s decision, this court completes the turn of both the deliberate indifference and qualified immunity doctrines on their heads, so confounding these two important doctrines that it is literally impossible in the first instance to make principled predictions as to what conduct will and will not be considered to constitute "deliberate
indifference," and, upon a finding of such, to make like predictions as to the availability of qualified immunity."
Judge Williams' opinion, commenting on the dissent, notes that Judge Luttig's discontent with some of these precedents has been expressed more than once in his earlier dissents.
The panel included Judge Williams, Judge King, and Judge Luttig, each of whom wrote separately, with Judge Luttig dissenting. Judge King, in his concurrence, opined that the case was a close one, but he felt the evidence did not show deliberate indifference, only negligence.
In his dissent, Judge Luttig began with his view that the Circuit's qualified immunity cases have become erratic:
"With today’s decision, this court completes the turn of both the deliberate indifference and qualified immunity doctrines on their heads, so confounding these two important doctrines that it is literally impossible in the first instance to make principled predictions as to what conduct will and will not be considered to constitute "deliberate
indifference," and, upon a finding of such, to make like predictions as to the availability of qualified immunity."
Judge Williams' opinion, commenting on the dissent, notes that Judge Luttig's discontent with some of these precedents has been expressed more than once in his earlier dissents.
President Sullivan stepping down after 12 years leading William & Mary
Today I received this message that the president of the College of William & Mary is stepping down after 12 years.
Who reads this blog? Paul Goldman and 24,996 others
Paul Goldman actually quotes this post from SW Virginia law blog (which in turn refers to this earlier post) in his latest column online at the Augusta Free Press site.
Sometime this afternoon, the numbers on the SiteMeter will roll past 25,000 visits and 40,000 page views.
P.S. Another reader is Lee County lawyer Rick Callahan, who pointed out this latest Goldman article to me.
Sometime this afternoon, the numbers on the SiteMeter will roll past 25,000 visits and 40,000 page views.
P.S. Another reader is Lee County lawyer Rick Callahan, who pointed out this latest Goldman article to me.
Tenant's family member does not inherit tenant's rights to subsidized apartment
In Carter v. Meadowgreen Associates, the Virginia Supreme Court in an opinion by Senior Justice Russell held that a family member of a tenant who died did not inherit the tenant's right to occupy an apartment, where the lease was subsidized by the government under the section 8 housing program.
Due diligence and checking the circuit court's website
In Rose v. Jaques, the Virginia Supreme Court in an opinion by Justice Agee held that the defendant got extra time for its notice of appeal under Va. Code 8.01-428(c), where the defendant claimed lack of notice. One of the factors the defendant argued in support of its diligence was that its counsel regularly checked the circuit's website online.
Section 8.01-428(c) provides:
"Failure to notify party or counsel of final order. - If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to file an appeal therefrom, the circuit court may, within sixty days of the entry of such order, grant the party leave to appeal. The computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect."
Section 8.01-428(c) provides:
"Failure to notify party or counsel of final order. - If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to file an appeal therefrom, the circuit court may, within sixty days of the entry of such order, grant the party leave to appeal. The computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect."
Henrico drug court graduates first class
Richmond.com has this article on the first graduating class of the Henrico County drug court.
Judges move out, order courthouse cleaned and fixed
The Daily Press reports here ("Judges order courthouse cleanup," 6/18/04) that circuit court judges have moved Surry County cases to Sussex County while the courthouse in Surry is fixed.
More on the Gate City mayor's election
The Richmond paper has this article ("Disputed vote reviewed," 6/18/04) on the ongoing dispute over the handling of the mayor's race in Gate City.
Thursday, June 17, 2004
Various state appeals court opinions used to show law not clear for purposes of qualified immunity
In Owens v. Lott, earlier this week, the Fourth Circuit in an opinion by Judge Traxler, joined by Judges Michael and Shedd, concluded that the conduct of the defendants in a case under 42 U.S.C. 1983 violated the Fourth Amendment but that the defendants were entitled to qualified immunity.
One thing that is interesting about the case is how the Court went about the analysis of figuring whether the plaintiff's constitutional rights were clearly established. The Court took into account appellate court decisions from a number of state courts, noting that "these decisions provide no clear view, let alone a consensus, regarding what factors are most significant in deciding whether sufficient probable cause exists to support the search of 'all persons' found in a private residence being searched for drugs."
I think this is an interesting and useful opinion for defendants asserting the qualified immunity defense.
One thing that is interesting about the case is how the Court went about the analysis of figuring whether the plaintiff's constitutional rights were clearly established. The Court took into account appellate court decisions from a number of state courts, noting that "these decisions provide no clear view, let alone a consensus, regarding what factors are most significant in deciding whether sufficient probable cause exists to support the search of 'all persons' found in a private residence being searched for drugs."
I think this is an interesting and useful opinion for defendants asserting the qualified immunity defense.
Suppression order by Judge Hudson of E.D. Va. overruled
In U.S. Humphries, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Williams, and with Judge Gregory concurring, held that Judge Hudson of the E.D. Va. erred in suppressing evidence for lack of probable cause.
Judge Hudson is the former U.S. attorney for the E.D. Va.
Judge Hudson is the former U.S. attorney for the E.D. Va.
Virginia med mal case dismissed on limitations, E.R. visits are not continuing treatment
In Castillo v. Emergency Medical Associates, P.A., the Fourth Circuit in an opinion by Judge Duncan, joined by Judge Motz with Judge Gregory dissenting, held that the plaintiff's medical malpractice claim was untimely under Virginia law, as there was no "continuing treatment" to bring the alleged acts of negligence within the two-year period.
Interestingly, both the majority and the dissent relied extensively on Virginia circuit court opinions.
I suspect that the med mal lawyers around the state will be studying this opinion for years to come.
Interestingly, both the majority and the dissent relied extensively on Virginia circuit court opinions.
I suspect that the med mal lawyers around the state will be studying this opinion for years to come.
More on the Boucher bill to liberalize copyright law
Wired News has this story ("DMCA Foes Find Allies in House," 6/17/04) on the legislation proposed by Congressman Boucher of Southwest Virginia to fix the Digital Millenium Copyright Act.
Bush administration lawyers turned radioactive as judicial nominees
Balkin has this post about how some Bush judicial nominees who were involved in legal representation of the government in connection with Iraq and the war on terror are now "radioactive." The post would seem to apply to but does not mention by name William J. Haynes, nominated to the Fourth Circuit to succeed Judge Widener.
More on Daubert in the Fourth Circuit
Blog 702 has this post about the Fourth Circuit's ruling in the case of O'Neill v. Windshire-Copeland Assoc., LP, which was a per curiam opinion for the panel of Judges Michael and King and District Judge Wooten from South Carolina, and in which the exclusion of expert testimony was affirmed.
More on learning how to protest logging
The Coalfield Progress has this report on the training of some opponents of logging in the Jefferson National Forest.
NRV fiber network could cost $10.5 million
The Roanoke paper reprts here ("Broadband network could cost $10.5 million," 6/17/04) on the estimated cost of a proposed fiber optic network for the New River Valley area.
Wednesday, June 16, 2004
Legislators grouse about the $300 million surplus
"Had we stayed a few more days and learned of this extra $300 million, we could have built some roads," is what one Republican delegate said today, according to this AP report on today's General Assembly session dealing with Governor Warner's budget amendments.
Editor with Lynchburg paper edits stories for journalism contest, apologizes and quits
The AP has this story ("Lynchburg editor who altered contest entries apologizes, quits," 6/16/04) about a newspaper editor who resigned after he was found to have altered entries for submission on behalf of the Lynchburg paper to the contest for statewide journalism awards.
Bear wanders into Southwest Virginia hospital, gets shot and killed
The AP has this report on the killing of a 300-pound black bear found wandering about a hospital in Franklin County.
More on the constructive discharge case
Brian Peterson has this post applauding the Supreme Court's decision in Pennsylvania State Police v. Suders as a sensible clarification of the law in an area on which the U.S. Supreme Court had not previously spoken.
DirecTV news
This post from Law Meme describes the narrowing of DirecTV's anti-piracy efforts, while this article from law.com describes the 11th circuit's ruling against DirecTV in one of the first of the cases to go up on appeal.
The Eleventh Circuit's opinion in DirecTV, Inc. v. Treworgy is here.
In DirecTV v. Adkins, Judge Jones of the W.D. Va. did not need to reach the issue decided by the Eleventh Circuit regarding a private cause of action under the Electronic Communications Privacy Act, granting relief instead under the Federal Communications Act, 47 U.S.C. 605.
The Eleventh Circuit's opinion in DirecTV, Inc. v. Treworgy is here.
In DirecTV v. Adkins, Judge Jones of the W.D. Va. did not need to reach the issue decided by the Eleventh Circuit regarding a private cause of action under the Electronic Communications Privacy Act, granting relief instead under the Federal Communications Act, 47 U.S.C. 605.
Buchanan County minister wants to outlaw law school's Gay-Straight Alliance
The Virginia Mountaineer has this story ("ASL Says It Can't Discriminate Against Gay-Straight Club," 6/10/04) about the appearance before the county board of supervisors of a Buchanan County resident who wanted the board to take action against the Gay-Straight Alliance of the Appalachian School of Law. The president of the law school was there to explain the school's position.
Possible alliance in the works for Radford and Virginia Tech
The Roanoke paper reports here ("Long-separated universities seek to rebuild relationship," 6/16/04) that Virginia Tech and Radford might start hiring faculty to teach at both schools.
City of Radford settles overtime dispute with 40 police officers
The Roanoke Times has this report on the City of Radford's settlement with 40 police officers of their overtime claims.
What threatens the Blue Ridge Parkway
According to this report, a recent survey shows that Virginians fear real estate development, while North Carolinians fear air pollution, as the biggest threats to the enjoyment of Blue Ridge Parkway.
High-tech virtual visitation
The Washington Post has this article ("Visitation Rights Are Becoming High-Tech," 6/15/2004) about the use of virtual visitation (court-ordered or court-approved) to improve communications between parents and children separated by distance.
News coverage of this week's sex harassment decision
George's has this post with the good and the bad of coverage of Pennsylvania State Police v. Suders.
The AP's Gina Holland had this account of the decision.
The AP's Gina Holland had this account of the decision.
Jerry Wolfe wins Commonwealth's attorney race in Bristol
The Bristol paper reports here ("Jerry Wolfe wins chief prosecutor's post," 6/13/04) on the outcome of the special election for Commonwealth's attorney in Bristol, with a voter turnout of about 16%.
Out-of-court statement can be used as admission but not for impeachment
In Gray v. Rhoads, the Virginia Supreme Court in an opinion by Justice Kinser concluded that trial court erred in excluding the prior statements of the defendants pursuant to Va. Code 8.01-404, which says: "This section is subject to the qualification, that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording of the voice of such witness, or reproduction or transcript thereof, as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case." The Court reasoned that a plaintiff can use the defendant's statements as substantive admissions, without running afoul of the prohibition against the use of the statements to "contradict" the defendant "as a witness."
Senior Justice Stephenson dissented, joined by Justice Koontz. The dissent makes the reasonable point that the plaintiff's purpose in using the defendants' statements was to contradict their testimony.
The outcome of this case seems correct but strange. The majority notes that it is appropriate for a trial court to offer a limiting instruction when admitting impeachment evidence, that the evidence should not be considered proof of what happened but is admitted only as it affects credibility. Perhaps, from the letter of the statute, on remand the trial court should instruct the jury that the statements of the officers are offered as proof of what happened, but should not be considered as evidence that they are not telling the truth in their testimony as witnesses at the trial.
Senior Justice Stephenson dissented, joined by Justice Koontz. The dissent makes the reasonable point that the plaintiff's purpose in using the defendants' statements was to contradict their testimony.
The outcome of this case seems correct but strange. The majority notes that it is appropriate for a trial court to offer a limiting instruction when admitting impeachment evidence, that the evidence should not be considered proof of what happened but is admitted only as it affects credibility. Perhaps, from the letter of the statute, on remand the trial court should instruct the jury that the statements of the officers are offered as proof of what happened, but should not be considered as evidence that they are not telling the truth in their testimony as witnesses at the trial.
Tuesday, June 15, 2004
Pro se litigant's pleading, sent to court by lawyer not representing her, was not improperly signed
In Walker v. American Assn. of Professional Eye Care Specialists, P.C., the Virginia Supreme Court in an opinion by Justice Lemons held that the delivery by a lawyer of a pro se litigant's pleading did not make the lawyer counsel of record, and the paper was not improperly signed under Rule 1:4.
Arguing absurdity fails again, in case regarding jurisdiction of juvenile court after nolle prose in circuit court
In Cook v. Com., the appellant argued that the construction given by the trial court and the Court of Appeals to Va. Code 16.1-271 was "absurd." The Virginia Supreme Court, in an opinion by Justice Lemons, concluded otherwise.
Evidently, appeals directed to the justices' sense of the absurd are unlikely to be successful.
Evidently, appeals directed to the justices' sense of the absurd are unlikely to be successful.
Rescission of lease for undue influence reversed
In Friendly Ice Cream Corp. v. Beckner, the Virginia Supreme Court in an opinion by Justice Lacy reversed the chancellor's determination that a commercial lease should be rescinded, concluding there was no presumption of undue influence because neither a confidential relationship nor the combination of weakness of mind and grossly inadequate consideration were shown.
No error in excluding evidence of malpractice defendant's prior negligence and misconduct
In Stottlemey v. Ghramm, the Virginia Supreme Court in an opinion by Chief Justice Hassell held that in a medical malpractice case against the treating physician and the hospital, the trial court did not err in refusing to admit evidence of the physician's "prior bad acts." The Court noted, "In this Commonwealth, the rule is well established that a litigant may not cross-examine a witness about collateral independent facts irrelevant to the issues before the trier of fact," citing cases. The Court concluded that "[t]he subjects of testimony upon which the plaintiff sought to cross-examine [the defendant] were collateral, and such testimony would have certainly injected non-probative prejudicial evidence before the jury." The Court also noted, "Generally, specific acts of bad conduct or prior acts of negligence are not relevant or admissible to show that a defendant was negligent and that such negligence was a proximate cause of a plaintiff's injuries. Evidence that a defendant was negligent on a prior occasion simply has no
relevance or bearing upon whether the defendant was negligent during the occasion that is the subject of the litigation."
relevance or bearing upon whether the defendant was negligent during the occasion that is the subject of the litigation."
Exclusion of expert testimony by physician reversed
In Christian v. Surgical Specialists of Richmond, Ltd., the Virginia Supreme Court in an opinion by Justice Koontz concluded that the trial court erred by excluding the testimony of a physician called by the plaintiff, under Va. Code 8.01-581.20. The witness was a practicing physician from New York. The statute allows that "[a]n expert witness who is familiar with the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this Commonwealth." On appeal, the Supreme Court noted that the witness "affirmatively testified that he had gained his knowledge of the Virginia standard of care through discussions with physicians in Virginia, and while attending seminars and meetings in Virginia concerning laparoscopic surgery."
Re-sentencing required because Commonwealth used probation revocation in sentencing phase
In Jaccard v. Com., the Virginia Supreme Court in an opinion by Justice Koontz reversed the Court of Appeals and ordered the re-sentencing of a Wythe County defendant, where in the sentencing phase the trial court admitted evidence of the defendant's prior violation of the terms of his probation.
Plain meaning rule slavishly applied to state grievance statute, since amended
In Horner v. Dept. of Mental Health, Mental Retardation and Substance Abuse Services, the Virginia Supreme Court in an opinion by Senior Justice Compton reversed the Court of Appeals, rejected the arguments of the Attorney General, and applied former Va. Code 2.2-3003 in a manner the Attorney General's office argued was "absurd." Va. Code 2.2-3003, apparently to avoid the outcome of this case, was amended in 2003, c. 252.
Sunday, June 13, 2004
DMV cracks down on vans hauling bikes for Creeper Trail rides
Incredibly, the DMV is cracking down on the outfits that take bicyclists up to White Top to ride down the Virginia Creeper Trail to Damascus, according to this report ("Damascus' bike shuttles 'tagged' out," 6/11/04), which says DMV is claiming the shuttles need special plates and liability insurance.
Even more incredibly, the article puts the blame on the police chief in Damascus.
Even more incredibly, the article puts the blame on the police chief in Damascus.
ECON 101 maestro and mystery writer meets the Oracle anti-trust trial
As reported here by ZDNet, a federal judge in California denied a defense motion to exclude the expert testimony of, among others, Professor Kenneth Elzinga of the University of Virginia, who taught Introductory Economics to about a gazillion Wahoos over the years, and who is so far as I know the co-author of the economic murder mysteries, beginning with Murder at the Margin (under the pseudonym, Marshall Jevons).
After 36 years, a new juvenile & domestic relations district judge
The Winchester paper reports here ("Kellas Sworn In As Judge," 6/12/04) that the first woman judge for the Winchester/Frederick County district was sworn in Saturday, and that her successor served for 36 years.
I'm guess there are many more women judges than there are district court jduges who sit for 36 years, but perhaps I am mistaken.
I'm guess there are many more women judges than there are district court jduges who sit for 36 years, but perhaps I am mistaken.
Son of Thurgood Marshall may run for lieutenant governor of Virginia
The Washington Post reports here ("Va. Safety Chief May Run for Lt. Governor," 6/11/04) that John Marshall, Virginia's Secretary of Public Safety, may seek the 2005 Democatic nomination for Lieutenant Governor of Virginia.
Mark your calendar - sales tax hike not until September 1
As previously noted in connection with an article by Paul Goldman, the Virginia Constitution precludes an August 1 effective date for the legislation passed in the special session of the General Assembly, including tax increases, as reported here ("$50 million break on sales tax," 6/13/04) in the Richmond paper.
Roanoke city manager sues online columnist for defamation
The Roanoke paper reports here ("Burcham files suit against columnist," 6/11/04) that "City Manager Darlene Burcham sued a Roanoke online columnist for defamation on Thursday over his account of a January encounter in the Tanglewood Mall parking lot that she says never happened."
The columnist is (or was) with roanokejournal.com, about which I not heard previously.
The columnist is (or was) with roanokejournal.com, about which I not heard previously.
Anti-tax legislators accused of not being clueless
In this AP report, Democrats and others claim that anti-tax Republican legislators had the same information as did Governor Warner about the increased revenues the state government realized in March and April of this year.
Logging and protesting
Gerald Gray had this interesting letter to the editor in today's Bristol paper, which also published this second letter dealing with "facts" about logging in the National Forest.
Friday, June 11, 2004
Harassment case settled for $62,000 and new job
The Norfolk paper reports here ("Officer agrees to settlement in harrassment suit," 6/11/04) on the settlement of a sexual harassment case brought by a city employee.
Judge Wilson denies summary judgment based on adverse inference from spoiled evidence
In Ward v. Texas Steak, Ltd., Judge Wilson found an adverse inference for spoliation of the key evidence in the case and therefore denied the defendant's motion for summary judgment.
So what is the Chrissy-Dog's excuse?
I've been reading articles like this one about how border collies know English.
Our old hound maybe can't hear or quit listening, but she watches us like a hawk.
Our old hound maybe can't hear or quit listening, but she watches us like a hawk.
What feels good about e-filing
Balasubramania has this post about how e-filing at night makes him feel good - "While opposing counsel is sleeping you are serving them with pleadings!"
More on the Gate City election
The Richmond Times-Dispatch has this story ("Disputed election reviewed," 6/11/04) about the controversy over the outcome of mayor's race in Scott County.
Interview with the shooter in Appalachian School of Law killings
The AP has this frightening interview with the man who shot and killed Dean Sutin at the Appalachian School of Law in Grundy.
Wednesday, June 09, 2004
Conviction on failure to appear reversed for lack of evidence that trial judge took judicial notice
In Edmonds v. Com., the Virginia Court of Appeals, in a decision by Judge Annunziata, joined by Judges Clements and McClanahan, held that the Commonwealth failed to prove that the defendant knew she was supposed to appear in court, and therefore her conviction for failure to appear was reversed, notwithstanding the Commonwealth's arguments that the trial court jduge took judicial notice of the indications on the warrant that the defendant knew of the hearing date. The Court explained that the trial court must make some kind of statement that communicates its intent to take judicial notice for such facts to be considered evidence that would sustain a conviction.
Double jeopardy clause precludes larceny trial after acquittal on robbery charge
In Hudgins v. Com., the Virginia Court of Appeals, sitting en banc, held that the Double Jeopardy Clause precluded a subsequent prosecution for grand larceny after the defendant had been acquitted of robbery in connection with the same incident. The opinion was written by Judge Walter Felton. Judge Benton wrote a separate concurring opinion. Judge Elder wrote a separate concurring opinion. Judge Annunziata, joined by Judge Clements, wrote a separate opinion concurring in part and dissenting in part.
Chief Judge Jones rules on remedy for DirecTV against alleged signal bandits
In DirecTV, Inc. v. Adkins, Chief Judge Jones of the W.D. Va. ruled in favor of DirecTV on the question of what is the appropriate remedy for the plaintiff in this signal theft case. The Court granted plaintiff's request for statutory damages and injunctive relief, the award of statutory damages being $10,000 per device. The Court noted that "[b]ecause the
statute deems the selling or distributing of each device to be a separate violation . . . , DIRECTV’s request would amount to awards of $2,050,000 against defendant Adkins, $150,000 against defendant Coleman, $200,000 against defendant Dykes, and $820,000 against defendant Rife."
statute deems the selling or distributing of each device to be a separate violation . . . , DIRECTV’s request would amount to awards of $2,050,000 against defendant Adkins, $150,000 against defendant Coleman, $200,000 against defendant Dykes, and $820,000 against defendant Rife."
More on Judge Wilson's ruling disqualifying lawyer from California's Geragos firm
The Roanoke paper has this article ("Lawyer disqualified in smuggling case," 6/9/04) on Judge Wilson's ruling that a California lawyer cannot represent multiple defendants in a series of smuggling prosecutions. The article notes that the lawyer is with the law firm of Geragos and Geragos, most famous recently as counsel for Scott Peterson.
Baby-faced VMI cadet from Norelco ads killed in Iraq
The Richmond paper reports here ("Graduate of VMI killed in Iraq," 6/9/04) the following:
"The conflict in Iraq claimed the life of a Virginia Military Institute graduate known by family and friends for his determined spirit, energy and generosity.
Spc. Ryan Doltz, 26, of Mine Hill, N.J., died in Baghdad on Saturday when the vehicle in which he was riding hit an improvised explosive device. . . .
Doltz was VMI's "baby face" in a Norelco shaver advertising campaign that featured institute cadets.
In real life, he was zealous about the war and reconstruction effort in Iraq and eager to play a role."
The Roanoke paper also has this report ("3rd VMI graduate dies in Iraq War," 6/9/04) and the AP has this report.
From 1998, here is a Roanoke Times story about the commercial.
"The conflict in Iraq claimed the life of a Virginia Military Institute graduate known by family and friends for his determined spirit, energy and generosity.
Spc. Ryan Doltz, 26, of Mine Hill, N.J., died in Baghdad on Saturday when the vehicle in which he was riding hit an improvised explosive device. . . .
Doltz was VMI's "baby face" in a Norelco shaver advertising campaign that featured institute cadets.
In real life, he was zealous about the war and reconstruction effort in Iraq and eager to play a role."
The Roanoke paper also has this report ("3rd VMI graduate dies in Iraq War," 6/9/04) and the AP has this report.
From 1998, here is a Roanoke Times story about the commercial.
More on Reagan and Jelly Belly
The AP has this report on the Reagan/Jelly Belly connection and, via this post from Southern Appeal, the Jelly Belly company has this page ("Jelly Belly Saddened by the Passing of Ronald Reagan," 6/6/04) about Reagan.
I usually get my Jelly Bellies down at the Simply Delicious delicatessen on Volunteer Parkway, about $10 at a time, which doesn't last very long. My wife buys me Jelly Bellies 2-3 times a year, and it is always a good gift.
I usually get my Jelly Bellies down at the Simply Delicious delicatessen on Volunteer Parkway, about $10 at a time, which doesn't last very long. My wife buys me Jelly Bellies 2-3 times a year, and it is always a good gift.
Virginia AG's brief in the W.D. Va. prisoners' rights case
Tuesday, June 08, 2004
On West Virginia's Judge Hallanan
In this post, Brian Peterson links to this article on the life and times of Judge Elizabeth Hallanan, who died this week at age 79. She served on the U.S. District Court for the Southern District of West Virginia, having been appointed by President Reagan.
Judge Wilson disqualifies lawyer with multiple clients in tobacco smuggling cases
In U.S. v. Chichyan, Judge Wilson disqualified counsel for one of the defendants, because the lawyer also represented two other defendants in a related prosecution in California. The Court concluded: "Buehler’s representation of defendants in overlapping prosecutions arising out of a single undercover operation when those defendants could possibly offer trial testimony against one another, receive leniency by cooperating, or if convicted receive varying role adjustments is simply too problematic."
Ninth District race as most expensive this year in Virginia?
The Coalfield Progress has this report ("Ninth district race may be Virginia's most expensive," 6/3/04) speculating that the Boucher-Triplett race will involve the most spending of this year's congressional campaigns in Virginia.
Warner makes interim appointments of judges in Hampton, Alexandria
The Daily Press reports here ("Judge's return to Hampton angers critic," 6/8/04) that Governor Warner gave an interim reappointment to Judge Andrews of the Circuit Court in Hampton, angering the Republic delegate who opposed his reappointment.
For Alexandria, Warner gave the interim appointment to criminal defense lawyer Lisa Kemler, as reported here ("Warner Makes New Pick for Circuit Court," 6/8/04) in the Washington Post.
For Alexandria, Warner gave the interim appointment to criminal defense lawyer Lisa Kemler, as reported here ("Warner Makes New Pick for Circuit Court," 6/8/04) in the Washington Post.
Del. Griffith on FOI council
Denying any sense of the ironic, Delegate Morgan Griffith, after seeking legislation that could have had the effect of closing party caucuses of the General Assembly members from the public, even where legislation was discussion, has sought and obtained a position on the FOI council, according to this report ("Griffith named to FOI council," 6/8/04) in the Richmond paper.
On the face of it, I wonder why stick this on Griffith (or let him take it), when he has enough on his plate already, and when no one would say he has any particular credibility as an open government advocate.
On the face of it, I wonder why stick this on Griffith (or let him take it), when he has enough on his plate already, and when no one would say he has any particular credibility as an open government advocate.
Lawyer Rocovich replaced at head of Va. Tech Board of Visitors
The Roanoke paper has this article ("John Rocovich replaced as Tech rector on 3-9 vote," 6/8/04) on the ouster of Roanoke lawyer John Rocovich as the head of the Tech BOV.
The article notes: "Critics accused Rocovich of pushing his own conservative beliefs when he drafted a resolution effectively ending race and gender polices at Tech as well as removing homosexuals from the university's anti-discrimination clause."
The article notes: "Critics accused Rocovich of pushing his own conservative beliefs when he drafted a resolution effectively ending race and gender polices at Tech as well as removing homosexuals from the university's anti-discrimination clause."
Monday, June 07, 2004
The Southwest Virginia connection with this year's Stanley Cup
Apparently, John Tortorella, the coach of the National Hockey League champion Tampa Bay Lightning, met his wife and got into coaching after he blew out a knee playing minor league hockey in Roanoke in the 1980s.
The Cup finals were fantastic, simply outstanding (and I was rooting for Calgary). The skating of the Cup after the game is one of the best things in sports.
The Cup finals were fantastic, simply outstanding (and I was rooting for Calgary). The skating of the Cup after the game is one of the best things in sports.
No federal jurisdiction for city-county squabble over proceeds of red-light camera program
In Shavitz v. Guilford Board of Education, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz and Traxler and Senior Judge Hamilton concluded that there was no federal jurisdiction for the claim of the City of High Point against Guilford County regarding the proceeds of a red-light camera program
No federal jurisdiction for city-county squabble over proceeds of red-light camera program
In Shavitz v. Guilford Board of Education, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz and Traxler and Senior Judge Hamilton concluded that there was no federal jurisdiction for the claim of the City of High Point against Guilford County regarding the proceeds of a red-light camera program
Escolastica.com beats trademark infringement claim brought by Scholastic
In Scholastic, Inc. v. Escolastica.com, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Williams, and Baldock affirmed judgment for the defendant on the plaintiff's trademark claims.
Sending out sample socks not trafficking in counterfeit goods
In U.S. v. Habegger, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Duncan and Senior Judge Bobby R. Baldock of the Tenth Circuit, overruled the defendant's conviction for trafficking in counterfeit goods, holding that the shipping of sample counterfeit socks was not trafficking within the meaning of the statute.
Car wash sues city for cutting its water, Judge Michael dismisses for lack of jurisdiction and failure to state a claim
In Express Carwash of Charlottesville, LLLP v. City of Charlottesville, Senior Judge Michael of the W.D. Va. affirmed the recommendations of Magistrate Judge Crigler and dismissed the constitutional claims brought by a Charlottesville car wash against the City for rationing its water during a time of drought. The Court concluded, among other things, that the plaintiff's Takings claim was not ripe, and because the water-rationing scheme was rational, plaintiff had no Equal Protection claim.
Sunday, June 06, 2004
First month of tax increases unconstitutional?
Via Bacon's Rebellion, Paul Goldman has this column explaining how laws passed in a special session of the General Assembly (such as the recent tax bill) take effect, according to the Virginia Constitution, "on the first day of the fourth month following the month of adjournment of the special session." Va. Const., art. IV, section 13. The tax bill on its face takes effect August 1, the Constitution says it can't take effect (without emergency status) until September 1.
Listening on the extension phone generally not viewed as interception?
A reader sent me a link to this law review article which says courts mainly do not find a parent's eavesdropping to be a violation of the Federal Wiretap Act. The first footnote cites these cases: Schieb v. Grant, 22 F.3d 149, 154 (7th Cir. 1994) (acknowledging father’s use of an extension phone to record minor son’s conversations with mother permissible under the Wiretap Act); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991) (holding interception by custodial parent of minor son’s conversations with father outside the scope of the Wiretap Act); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977) (stating husband’s recording of wife’s conversations with minor child excepted under Wiretap Act).
One Delegate Marshall bill I missed
One of the bills proposed by Delegate Robert Marshall but not passed in this past General Assembly session was HB 757, which would have added to the Virginia statute prohibiting same sex marriage the following proviso:
"Any judge who rules the provisions of this section to be unconstitutional shall be deemed to have committed malfeasance in office and may be subject to impeachment under the provisions of Article IV, § 17 of the Constitution of Virginia."
"Any judge who rules the provisions of this section to be unconstitutional shall be deemed to have committed malfeasance in office and may be subject to impeachment under the provisions of Article IV, § 17 of the Constitution of Virginia."
The geography of picking statewide candidates for the Democrats in 2005
This column includes speculation from Professor Sabato that Democrats need a candidate from rural Virginia and a candidate from the Tidewater to run with Tim Kaine in 2005, figuring that Northern Virginia is going Democratic no matter what.
More on Circuit Court Judge Clark, the author
The Charlotte paper has this delightful article about a less than profitable book-signing for Circuit Court Judge Martin Clark, related to his second novel.
The article concludes, "I can promise you that he is a hoot of the first magnitude -- one with smart things to say about writing, the law and rural Southern life."
The article concludes, "I can promise you that he is a hoot of the first magnitude -- one with smart things to say about writing, the law and rural Southern life."
Prince William court's case management system going online
The Washington Post has this article ("Courthouse Documents To Be Easier To Retrieve," 6/6/04) about the soon-to-be-launched electronic case management system in the Circuit Court of Prince William County.
VDOT needs new acronym for Southeastern Expressway?
The Norfolk paper includes this column concluding that VDOT needs a new term when referring to the Southeastern Expressway project, known internally as "SEX."
On outdoor-dining in downtown Roanoke
The Richmond paper has this item ("LETTER FROM ROANOKE: Outdoor-dining boom creates buzz in a revived downtown," 6/6/04) about the growth of outdoor dining at restaurants in downtown Roanoke.
Saturday, June 05, 2004
Virginia official defends DNA test results in Earl Washington case
The Richmond paper has this article ("Official backs disputed DNA test," 6/5/04) about the defense and criticism of DNA testing performed by the Virginia Division of Forensic Science in connection with the Earl Washington case. The Virginia test results conflict with tests performed by Dr. Edward Blake in California (see earlier post below).
McGuireWoods band smoking breaks
The Richmond paper reports here ("Smoking policy stinks, some say," 6/5/04) that the McGuireWoods firm has outlawed smoke breaks for its lawyers and staff.
DNA guru Blake to Virginia - Coleman samples not leaving my lab
The Roanoke paper reports here that DNA expert Edward Blake has declared that he will not release the DNA samples from Roger Keith Coleman stored in Blake's California laboratory. Blake questions whether the Commonwealth could or would do an adequate job of testing the sample.
Years ago, Blake's own evidence was cited by Judge Williams in support of the Court's conclusion to deny post-conviction relief to Coleman, who was later executed by the Commonwealth. Coleman v. Thompson, 798 F. Supp. 1209 (W.D. Va. 1992).
Regarding Blake's role in the Coleman case, the Roanoke paper notes: "Blake has had the sample in cold storage since 1990, when he was selected by Coleman's attorneys to perform DNA testing. At the time, Coleman was challenging his conviction, and his attorneys hoped technology not available at the time of his 1982 trial would clear him. It did not. Blake found that Coleman was within 2 percent of a population that could have produced the sperm sample."
Years ago, Blake's own evidence was cited by Judge Williams in support of the Court's conclusion to deny post-conviction relief to Coleman, who was later executed by the Commonwealth. Coleman v. Thompson, 798 F. Supp. 1209 (W.D. Va. 1992).
Regarding Blake's role in the Coleman case, the Roanoke paper notes: "Blake has had the sample in cold storage since 1990, when he was selected by Coleman's attorneys to perform DNA testing. At the time, Coleman was challenging his conviction, and his attorneys hoped technology not available at the time of his 1982 trial would clear him. It did not. Blake found that Coleman was within 2 percent of a population that could have produced the sperm sample."
Gilmore throws the book at Warner
The AP has this report on Saturday's remarks by former Governor Gilmore lashing out at Governor Warner.
Federal appeals court nominee went three years without a law license?
Via this post from Marcia Oddi, the Washington Post has this article ("Appeals Court Nominee Let His Bar Dues Lapse, 6/4/04) that says the new nominee to the U.S. Court of Appeals for the D.C. Circuit practiced in D.C. for three years in private and public positions while his license was suspended for not paying bar dues.
An unrelated story ("Phony Ex-Judge Receives 2 Years," 6/4/04) in the Washington Post begins: "A local businessman who has been sanctioned again and again over the past two decades for misrepresenting his legal credentials was sentenced yesterday to a two-year prison term for failing to heed earlier court orders.
It was the maximum the judge could impose and the stiffest penalty yet in the long saga of Simon Banks, 65, who kept advertising himself as a former administrative law judge, even though he had never even passed the bar."
An unrelated story ("Phony Ex-Judge Receives 2 Years," 6/4/04) in the Washington Post begins: "A local businessman who has been sanctioned again and again over the past two decades for misrepresenting his legal credentials was sentenced yesterday to a two-year prison term for failing to heed earlier court orders.
It was the maximum the judge could impose and the stiffest penalty yet in the long saga of Simon Banks, 65, who kept advertising himself as a former administrative law judge, even though he had never even passed the bar."
Correction about strange wiretapping ruling
The criminal case described in this AP article is in Greene County, not Spotsylvania County. The article says:
"The girl's father learned of the alleged sexual abuse in February 2003 when he picked up an extension phone in his bedroom and heard his daughter and her boyfriend talking about it. Greene County Circuit Judge Daniel R. Bouton ruled last week that evidence stemming from the conversation inadmissible because the call was illegally intercepted."
I wouldn't have thought that picking up the telephone extension in another room involves the use of an "electronic, mechanical or other device" in a way that could meet the definition of "intercept." Some other kind of gadget has to be used to hear the conversation for an "interception," or so I understood the law. One of the lawyers in my firm wrote this article about the Tennessee and Virginia statutes in this area a few years back.
Under Va. Code 19.2-61,
"'Intercept' means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device," and
"'Electronic, mechanical or other device' means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:
(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business. . . ."
. . .
"The girl's father learned of the alleged sexual abuse in February 2003 when he picked up an extension phone in his bedroom and heard his daughter and her boyfriend talking about it. Greene County Circuit Judge Daniel R. Bouton ruled last week that evidence stemming from the conversation inadmissible because the call was illegally intercepted."
I wouldn't have thought that picking up the telephone extension in another room involves the use of an "electronic, mechanical or other device" in a way that could meet the definition of "intercept." Some other kind of gadget has to be used to hear the conversation for an "interception," or so I understood the law. One of the lawyers in my firm wrote this article about the Tennessee and Virginia statutes in this area a few years back.
Under Va. Code 19.2-61,
"'Intercept' means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device," and
"'Electronic, mechanical or other device' means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:
(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business. . . ."
. . .
More on the Republican Party's party
The Charlottesville paper has this article ("Va. GOP gathers for convention," 6/5/04) about the Republican convention, including some discussion that only Republicans should be allowed to cast ballots in Republican primaries. The article goes on to talk about how a potential Republican candidate in 2009 impressed one commentator by the way he attracted a lot of Democratic voters. So, do Republicans want the votes of Democrats, or not?
City says response to FOIA request will cost $16,000
The Daily Press has this story ("Information request tops $16,000," 6/5/04) about a fellow in Suffolk who was told his FOIA request would cost him $16,000.
Ah, that sounds completely bogus. It is like the problem sometimes with written discovery, where one side apparently can't write out adequately what it wants and the other side apparently can't read adequately to produce what was requested. I suspect that quite a few of the 10,000 documents said to be within the scope of the FOIA request are not really within the scope of the FOIA request, or if so, the FOIA request could be easily be rewritten to get at whatever is the nub of the matter.
Nobody knows the actual cost of a FOIA response. I sometimes think the General Assembly should fix a fee schedule for FOIA responses and leave it at that, take the cost issue out of the hands of government officials who even with the best intentions can only make some wild guess. The other thing of course is that public documents ought to be available online anyway, to the maximum extent possible consistent with the constraints of cost, privacy, and security.
Ah, that sounds completely bogus. It is like the problem sometimes with written discovery, where one side apparently can't write out adequately what it wants and the other side apparently can't read adequately to produce what was requested. I suspect that quite a few of the 10,000 documents said to be within the scope of the FOIA request are not really within the scope of the FOIA request, or if so, the FOIA request could be easily be rewritten to get at whatever is the nub of the matter.
Nobody knows the actual cost of a FOIA response. I sometimes think the General Assembly should fix a fee schedule for FOIA responses and leave it at that, take the cost issue out of the hands of government officials who even with the best intentions can only make some wild guess. The other thing of course is that public documents ought to be available online anyway, to the maximum extent possible consistent with the constraints of cost, privacy, and security.
Docket control in general district court
The Norfolk paper has this article ("Traffic courts limit number of cases heard per session," 6/5/04) about new efforts to control the traffic offense docket in general district court in Norfolk.
The article says: "At the urging of Leroy Rountree Hassell Sr., chief justice of the Supreme Court of Virginia, district courts are trying to reduce the wait for cases to be called."
Chief Justice Hassell is always working on something.
The article says: "At the urging of Leroy Rountree Hassell Sr., chief justice of the Supreme Court of Virginia, district courts are trying to reduce the wait for cases to be called."
Chief Justice Hassell is always working on something.
S.C. doctor proposes at AMA convention to deny medical treatment to trial lawyers
The Richmond paper has this article ("Doctor's malpractice cure doesn't care for attorneys," 6/5/04) about a proposal at the American Medical Association convention that no doctor should treat trial lawyers.
The doctor's proposal did not mention whether coverage would be provided to the officers, directors, and shareholders of malpractice insurance companies, or whether there would be an exception for trial lawyers representing injured doctors, their spouses, children, friends, and relatives. He did leave out the children of trial lawyers.
The doctor's proposal did not mention whether coverage would be provided to the officers, directors, and shareholders of malpractice insurance companies, or whether there would be an exception for trial lawyers representing injured doctors, their spouses, children, friends, and relatives. He did leave out the children of trial lawyers.
Somebody's fooling us about the Va. Economic Development Partnership
As made plain by this article ("Wampler sees VEDP board disconnect," 6/5/04) in the Bristol paper, this article ("Wampler blames commerce secretary for bill's veto," 6/5/04) and this article ("Kilgore sides with Wampler in dispute over VEDP appointments," 6/5/04) in the Kingsport paper, either the Republican legislators or the Warner administration is making stuff up about the effect of legislation related to the membership of the board of the Virginia Economic Development Partnership and the rationale for Governor Warner's veto.
Friday, June 04, 2004
Suppression of evidence by Judge Smith of E.D. Va. reversed
In U.S. v. Foreman, the Fourth Circuit in an opinion by Senior Judge Hamilton, joined by Judge Luttig, with Judge Gregory concurring in part and dissenting in part, reversed Judge Smith's ruling on a suppression motion related to the drugs found in the defendant's vehicle.
I've got the vague impression from reading opinions over the years that Judge Smith is pretty sound.
Judge Gregory, in his separate opinion, says, among other things, "Before this case, I was not familiar with the notion that compliance with the letter of textbook driver’s education instructions would trigger police suspicion, i.e., both hands on the wheel, no rubbernecking." Judge Gregory also suspects that part of the problem on appeal was bad briefing: "the Appellee’s briefing may be partly to blame for the majority’s willingness to accept the government’s narrative."
Reading through this opinion, I wondered about the race of the defendant, and I didn't see it mentioned until I got to Judge Gregory's opinion.
I've got the vague impression from reading opinions over the years that Judge Smith is pretty sound.
Judge Gregory, in his separate opinion, says, among other things, "Before this case, I was not familiar with the notion that compliance with the letter of textbook driver’s education instructions would trigger police suspicion, i.e., both hands on the wheel, no rubbernecking." Judge Gregory also suspects that part of the problem on appeal was bad briefing: "the Appellee’s briefing may be partly to blame for the majority’s willingness to accept the government’s narrative."
Reading through this opinion, I wondered about the race of the defendant, and I didn't see it mentioned until I got to Judge Gregory's opinion.
More on the statute of limitations for post-contractual section 1981 claims
Following the Supreme Court's decision in May in the case of Jones v. R.R. Donnelley & Sons, Co., the Fourth Circuit in James v. Circuit City Stores, Inc. held in an opinion by Judge Williams, joined by Judge Widener and Judge Motz, that claims under section 1981 "alleging discrimination after the formation of the employment relationship (post-formation conduct claims)" are subject to the four-year statute of limitations under 28 U.S.C. 1658.
This conclusion does not, I would argue, and have argued, reach claims that allege discrimination in the formation of the employment relationship, for which I think the two-year statute applies.
In Williams v. Giant Food Inc., the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan with Judge Widener concurring, did not apply or discuss holding in Jones, for reasons unknown, but then ruled that summary judgment should have been denied on the merits with respect to discrimination within the limitations period, which makes me wonder - how will the district court deal with limitations on remand, if at all.
This conclusion does not, I would argue, and have argued, reach claims that allege discrimination in the formation of the employment relationship, for which I think the two-year statute applies.
In Williams v. Giant Food Inc., the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan with Judge Widener concurring, did not apply or discuss holding in Jones, for reasons unknown, but then ruled that summary judgment should have been denied on the merits with respect to discrimination within the limitations period, which makes me wonder - how will the district court deal with limitations on remand, if at all.
Virginia parties set to party
Hugh Lessig of the Daily Press has this piece ("In Richmond and Roanoke, it's schmooze time," 6/4/04) on the upcoming state party conventions in Virginia.
Fiber-optic connections in Scott County
The Kingsport paper reports here ("High-speed Internet coming to rural Scott County homes," 6/4/04) that the Scott County telephone co-op is receiving a federal grant to bring fiber optic connections to some homes in Scott County.
Thursday, June 03, 2004
Man who ran after trooper with skillet ruled insane
The Winchester paper has this report ("Judge Finds Skillet-Wielding Attacker Insane," 6/3/04) on the successful insanity defense in a Frederick County case for a man who tried to clobber a state trooper with a skillet.
Losers in court, anti-loggers turn to civil disobedience training
The AP reports here that opponents of logging in the Jefferson National Forest in Southwest Virginia are learning civil disobedience techniques to fight logging.
One step over the line
This Washington Times editorial calling for the impeachment of the federal judge who ruled against the federal Partial-Birth Abortion Act goes off in the wrong direction. It is difficult to expect that many trial court judges, negotiating the grisly appellate precedents and expert testimony on this subject, would have ruled differently.
More and more candidates for 2005
This Washington Post article ("Lines Forming for '05 Va. Candidates," 6/3/04) studies the list of likely and unlikely statewide candidates for 2005.
Accused mouse planters protest their innocence
The Norfolk paper reports here ("Mother, son deny placing mouse in soup," 6/3/04) that the mother and son accused of planting a mouse in their soup at the Cracker Barrel say they didn't do it.
Evidence overheard on telephone by eavesdropping dad ruled inadmissible
The AP has this report on a court rulingin Spotsylvania County that defense lawyers convinced the trial court judge in a molestation case to rule out evidence of what the victim's dad overheard on the telephone, based on the Virginia wiretapping laws.
Wednesday, June 02, 2004
Pedophilia and acceptance of responsibility for purposes of federal sentencing
In U.S> v. Kise, the Fourth Circuit in an opinion by Judge Gregory, joined by Senior Judge Hamilton and with Judge Luttig separately concurring, takes on the question of how a pedophile can make an acceptance of responsibility for purposes of the federal sentencing guidelines.
This might be the creepiest opinion Fourth Circuit opinion I've read.
This might be the creepiest opinion Fourth Circuit opinion I've read.
Bacon's Rebellion
Apparently, this blog is on a short list of Virginia blogs and websites posted on Bacon's Rebellion, which has among other things posted occasional commentary (such as this one and part of this one) by my old boss, Jack White.
No vote for Goodlatte from UNC law professor on use of international law
This post from IsThatLegal? is downright ungentlemanly in its opposition to the Congressional resolution sponsored by Rep. Goodlatte of SW Va. and others in opposition to the Supreme Court's citation to international law in construing the U.S. Constitution. Geez, I'm in favor of the resolution, not that anyone asks.
If you can't cite unpublished U.S. appeals court opinions, why, all that stuff from Europe ought to be way out of bounds.
If you can't cite unpublished U.S. appeals court opinions, why, all that stuff from Europe ought to be way out of bounds.
Gate City mayor wants do-over
The Kingsport paper reports here ("Gate City mayor calls for new election," 6/2/04) that it would be cheaper to have another election than to fight the challenge filed by the opponent who lost to him by two votes.
Coeburn town council candidate indicted for giving false address
The Coalfield Progress reportshere ("Kennedy indicted for giving false address," 6/1/04) on a Wise County man indicted for a giving a false address on election papers related to his candidacy for town council in Coeburn.
Judge Ledbetter to retire in May
Via VLW, the Fredericksburg paper reports here ("Judge Ledbetter to resign in 2005," 6/2/2004) on the retirement plans of Judge William H. Ledbetter, Jr., of the 15th Circuit.
Tuesday, June 01, 2004
Southwest Virginia man charged with stealing a reel of The Passion of the Christ
This wild story ("Man charged with theft of 'Passion' reel," 6/1/04) from the Roanoke paper chronicles the fellow who stole a reel of the film and tried to sell it on e-Bay. A woman named Rhonda spotted the goods online and turned in the bandit to the authorities.
Are they for or against obesity?
As reported here, Williamsburg is hosting a summit this week on obesity. Williamsburg may be a good town for it, whatever I know about obesity I learned while living and eating there for three years.
New federal courthouse planned for Newport News
The Daily Press reports here ("New federal courthouse planned for Newport News," 6/1/04) on the plans for a new federal courthouse on the peninsula side.
Commentary on Southern Baptists and public schools
The Norfolk paper in this editorial laments the idea that the Southern Baptist children are being told to get out of the public schools, because such an exodus would deprive them of "the opportunity to weigh their values and ideas against those of others, and vice versa."
How odd. Elementary school is not a forum for moral debate. Much of what a teen or pre-teen might learn through from his or her peers is just plain bad. The NY Times had this story today about a family court judge in Las Vegas who blames the Vegas environment for the problems with his daughter. He would have shielded her from the bad influences, if he could have.
I heard it on ESPN Radio this afternoon - the teams you like at age 9 are the ones you will root for at age 49. The kind of kid you are at age 9 might have a lot to do with what kind of person you are at age 39. I would have guessed that keeping kids away from others with unacceptable ideas until they are old enough is precisely the point (or one of them) in favor of home school or private school, to raise kids "right" without someone else telling them another way to go.
How odd. Elementary school is not a forum for moral debate. Much of what a teen or pre-teen might learn through from his or her peers is just plain bad. The NY Times had this story today about a family court judge in Las Vegas who blames the Vegas environment for the problems with his daughter. He would have shielded her from the bad influences, if he could have.
I heard it on ESPN Radio this afternoon - the teams you like at age 9 are the ones you will root for at age 49. The kind of kid you are at age 9 might have a lot to do with what kind of person you are at age 39. I would have guessed that keeping kids away from others with unacceptable ideas until they are old enough is precisely the point (or one of them) in favor of home school or private school, to raise kids "right" without someone else telling them another way to go.
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