Small towner rooting for small towns on Monday

I'm planning to be in the audience to observe the oral argument Monday morning in the Missouri Municipal telecommunications case on appeal from the Eighth Circuit, where the issue before the Supreme Court is mostly whether local governments are included in the phrase "any entity" as it appears in the Telecommunications Act (and, indeed, as Judge Jones of the W.D. Va. so held).

A business reporter called my office today inquiring about an amicus brief that I filed - I e-mailed him the URL for this page, where mostly all the briefs can be found, and the name and phone number of someone else he could call if he wanted to talk with a real live human.

The mention of the reporter's call reminds me of the story that one Lee County lawyer supposedly was quoted in the Kingsport paper some years ago in reference to the complexity of the matter before some court as saying that it was "one booger of a case." I've been unable to track down that precise quote in the online archives.

My favorite places to eat in the D.C. area

We're going up to D.C. area this weekend, so I can watch the argument before the Supreme Court on Monday, but also so my wife can see her old stomping grounds, as she lived in that area until I lured her to Southwest Virginia. One thing we have been talking about is where to eat.

I spent a lot of the time in the D.C. area between 1988 and 1998 but never really got past the stage of being a 20-something tourist, so the places where I liked to go were basically casual, touristy, good time places, and I'd go back to all of these:

Blackie's , 22nd St., N.W., D.C. (in the old days, we ate prime rib there, and crackers with blue cheese)
Clyde's (Tyson's and Georgetown) (chili, and whatever else)
Fish Market, Alexandria (about the only place I ever ordered a fried fish sandwich)
Hard Times Cafe, Alexandria (chili and cornbread)
Ilija's International Gourmet, MacArthur Blvd., N.W., D.C. (gyros when they had them)
Layalina, Arlington
The Market Inn, E Street, S.W., D.C. (soup sampler - three soups, best restaurant idea ever, especially when one of the soups is she-crab soup)
Peking Gourmet, Falls Church (spring chicken)
Three Pigs Barbecue, McLean

Reporter for The Nation comments on Claude Allen nomination

According to this commentary from the website of The Nation, one of several "horrors in the pipeline" among the federal judicial nominees is Claude Allen, whom President Bush has nominated to sit on the U.S. Court of Appeals for the Fourth Circuit. The author explains that "Allen has supported antichoice statutes and regulations; urged sexual abstinence as the solution to AIDS and teen pregnancy; and opposed expanded health insurance for poor children."

Somehow, that reminds me of the conservative critics of the Lawrence decision, who argued that the spread of disease was one good reason why sodomy should be illegal.

Sen. Deeds weighs run for Virginia AG

This article ("Bath County's Deeds eyes run at attorney general," 1/8/2004) from the Kingsport paper (registration required) says that Senator R. Creigh Deeds from Bath County might seek win nomination as the Democratic candidate for Virginia Attorney General in 2005. Former U.S. Attorney John Edwards from Roanoke is among the oft-mentioned candidates for the Democrats.

National Review on the Fourth Circuit's NRA camp t-shirt opinion

NRO columnist Dave Kopel has this favorable commentary on the Fourth Circuit's opinion in the Newsom v. Albemarle County School Board case, and the article says one thing I didn't know, which was that both the ACLU and the Virginia Attorney General's office filed briefs against the School Board's position in the case, which I guess leaves nothing but aspiring school board lawyers to sympathize with the losing side of the appeal.

Ben takes on W&M President Tim Sullivan again

In this post, Ben Domenech says that the president of the College of William & Mary has sent some strange e-mails to critics of limitations on campus speech at the College. Not just Ben, but the Volokh Conspiracy has a link to this post with the same subject matter, and the Conspiracy's own post makes it sound like this is reason enough to NOT GO to the law school at William & Mary (where Sullivan is on the faculty and used to be dean). There is also this post from Discrimination on the same subject.

The comments attributed to President Sullivan are very troubling, but what I always wanted to have investigated is whether President Sullivan (seen here) was actually Captain Kangaroo (shown here) back when I was a kid. (As to Captain Kangaroo, it says here that he did not really fight the Japanese on Iwo Jima as Lee Marvin's sergeant in the Marines.)

Should law clerks talk to lawyers

Ernie the Attorney, in his ongoing law clerk chronicles, concludes here that it was a good thing that he was not allowed to talk to the lawyers when he was a law clerk.

Well, I was allowed to talk to the lawyers when I was a law clerk in the W.D. Va., but the lawyers didn't really want to talk to me, because they knew and I knew that I didn't know anything and couldn't do anything. Now, down in the Eastern District of Tennessee, they've got these permanent law clerks, and it is imperative that lawyers get to know them and pick their brains at every opportunity.

No qualified immunity for state bar official picketed at his house by plaintiff

Via this How Appealing post, in the case of Dean v. Byerly, the Sixth Circuit in an opinion by Judge Moore, with Judge Daughtrey concurring, held that the defendant, a lawyer for the State Bar of Michigan, was not even entitled to qualified immunity on claims that he violated the constitutional rights of the plaintiff, a frustrated applicant for admission to the bar, who had engaged in picketing outside the front lawn of the defendant's house. Judge Sutton dissented, and I think he has the right of the thing, when he wrote that "it becomes difficult to understand why Mr. Dean ought to be allowed to make a $2 million federal case out of this incident."

Now if I can just get one of those audita querela cases

As a civil procedure buff, I enjoyed this How Appealing post, which describes this Sixth Circuit opinion, as holding that the prohibition in the rules against the writ of audita querela does not mean what it says.

The opinion, quoting AmJur, says that "The common-law writ of audita querela is a remedy granted in favor of one against whom execution has issued or is about to issue on a judgment the enforcement of which would be contrary to justice, either because of matters arising subsequent to its rendition, or because of prior existing defenses that were not available to the judgment debtor in the original action because of the judgment creditor’s fraudulent conduct or through circumstances over which the judgment debtor had no control.” Well, ok, then. The case involved a woman about to be deported to Nigeria.

State board to consider easing test score requirements for teachers

The Norfolk paper reports here ("Proposals would ease teacher testing standards," 1/7/2004) that the State Board of Education is considering a proposal to reduce the test scores required for new teachers in Virginia, or even to accept their SAT scores instead, noting that some states accept SAT scores of over 1,000.

Hokies, Wahoos, and Tribe want to set own rates

This report ("Cash-starved Va. colleges want power to raise tuition," 1/7/2004) from the Norfolk paper says that the College of William & Mary, the University of Virginia, and Virginia Tech are seeking to become free of legislative limits on tuition, since they don't get much money from the Commonwealth anyhow.

Danville City Council, irate at Adelphia, might consider municipal cable service

The Danville paper reports in this story ("Council approves cable contract," 1/7/2004) that the City Council there is unhappy with its renewed franchise with Adelphia and might consider its own cable network.

Proposal would ban nude summer camps for teens in Virginia

The AP has this story on a legislative proposal to ban nude summer camps for teens in Virginia.

Proposal would allow court action against local school officials over unaccredited schools

The AP has this story on a legislative proposal that would allow local circuit courts to make school officials answer for failure to comply with state rules for schools.

More on motions in the Pocahontas murder case

The Bluefield paper has this article ("Triple homicide case back in court," 1/6/2004) on pre-trial motions heard in the murder case against defendants Gilmore and Church.

AG Kilgore opines on application of FOIA to party caucuses of legislators

This report ("Kilgore opinion letter leaves issue of closed caucus meetings hazy," 1/7/2004) in the Roanoke paper and this report ("Kilgore offers opinion on caucus meetings," 1/6/2004) in the Charlottesville paper describe the limited opinion of Attorney General Kilgore's office on the question of whether open meeting requirements of the Freedom of Information Act applies to party caucuses of legislators.

Maybe under AG Kilgore's FOIA proposals from earlier in the week, the caucuses would have to start making audio or video recordings of their closed sessions.

Burrow indicted again in D-Day memorial fundraising case

According to this article ("Burrow again indicted, faces 12 new counts," 1/7/2004) in the Roanoke paper, W.D. Va. prosecutors have obtained a new and improved indictment against Richard Burrow for fraud in fundraising for the D-Day Monument, whose previous trial ended with the jury unable to reach a verdict.

On the spoken word in Southwest Virginia

Fers is the word for "fellows" in Southwest Virginia, according to this report, which reminds of Patti Church's explanation that she lived in Wise County for a while before she camed to understand that the word pronounced "herkin" meant "Hurricane."

Using waste oil as fuel

This article from the Knoxville paper describes a Northeast Tennessee business that sells heaters that run on waste oil as the fuel source for heat.

I think my '94 Saturn (made in Tennessee by Tennesseans) has been running on waste oil for some years.

Fourth Circuit upholds ruling for government in Judicial Watch FOIA case

In Judicial Watch, Inc. v. U.S., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Luttig, and Motz affirmed the district court's decision that the Internal Revenue Service did not improperly redact portions of the records requested by the Judicial Watch group, which had asked for IRS records on Judicial Watch itself.

Postal employee's sex plus discrimination theory rejected

In Hess-Watson v. Potter, Chief Judge Wilson of the W.D. Va. ruled against the plaintiff "sex plus" discrimination theory, where she failed to prove that the employer gave less favorable working hours to women with small children.

Officers not liable for entry into jointly-owned property in domestic dispute

In Dingus v. Moye, Chief Judge Wilson ruled on the defendants' motion for summary judgment that the defendant officers either had consent for their acts on the jointly-owned property or that they were protected by qualified immunity for those acts.

Court of appeals reverses dismissal of conviction where jurisdiction at issue

In Jones v. Com., the Virginia Court of Appeals, sitting en banc, reversed its earlier panel decision, and reinstated the defendant's conviction, concluding that there was sufficient evidence to support the trial court's exercise of jurisdiction over the case, where the defendant entered a no contest plea and the prosecution produced evidence of a crime but not where it happened. The en banc court agreed with the Commonwealth that the nolo contendere established jurisdiction. The panel decision to the contrary was written by Judge Benton, joined by Judge Annunziata, with Senior Judge Coleman dissenting.

Suit challenging 40 hour week for judges dismissed

Via VLW, this article ("Judge's suit challenging policy dismissed," 1/6/2004) from the Richmond paper reports that a Virginia judge's lawsuit challenging the 40 hour work week has been dismissed.

Next chapter of the David Stanley story

This account ("Stanley arrested in California, may be extradited to Virginia," 1/6/2004) in the Coalfield Progress describes the latest arrest of convicted embezzler David Stanley.

The article notes that "Stanley pleaded guilty in Wise County Circuit Court in 1989 to 24 charges, including committing securities fraud, embezzlement and obtaining money under false pretenses. He pleaded guilty to 31 similar charges in Tennessee."

AG wants executive sessions recorded

This story ("Kilgore to offer sunshine bills," 1/6/2004) from the Free Lance-Star says that Attorney General Kilgore will seek reforms to the Freedom of Information Act, including one proposal that the closed sessions of local government bodies will be recorded for purposes of incriminating the boards if there is a challenge to whether improper matters were discussed in executive session.

Plaintiffs can't proceed anonymously in suit over alien college admissions

In this AP story it is reported that Judge Ellis of the E.D. Va. has ruled that the plaintiffs in the lawsuit concerning the admission of illegal aliens to Virginia's public colleges and universities cannot proceed anonymously.

Lawyers in Pocahontas murder case want more info on jailhouse informants

The AP has this story on the efforts of lawyers for Charles Gilmore and Walter Lefight Church to get more court-ordered discovery from the federal prosecutors in their murder case.

Judge Turk's ruling for employer reversed in Title VII retaliation case

In Lauer v. The Schewel Furniture Company, Inc., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Traxler and Duncan reversed Judge Turk's decision to grant the motion for judgment as a matter of law of the defendant employer on the plaintiff's claims of employment discrimination, after the jury had found for the plaintiff on her retaliatory discharge claim and awarded $20,000 in compensatory damages. Incredibly, there is not a single reference to the Reeves case in this opinion, unlike the Hill v. Lockheed Martin case decided on the same day. Does Reeves not apply in retaliation cases? If Reeves applied, would the Court have to consider whether the evidence of pretext was enough to support a verdict for the plaintiff?

Also, Judge Turk ruled that if he was reversed on the merits, there should be a new trial rather than judgment on the verdict. The court of appeals agreed that this ruling was within the bounds of what was proper, and remanded the case for a new trial. So, the plaintiff still gets no money, not even the option of a remittitur - but, maybe on the next trial, the jury will get fired up and award a few more dollars.

Fourth Circuit swats away cat's pay theory of Title VII liability

In Hill v. Lockheed Martin Logistics Management, Inc., the Fourth Circuit sitting en banc voted 7-4 to affirm the district court's granting summary judgment against the plaintiff's claims of employment discrimination. Judge Traxler wrote the opinion for the majority, which included Chief Judge Wilkins and Judges Widener, Wilkinson, Williams, Luttig, and Niemeyer. The dissent was written by Judge Michael and joined by Judges Motz, King, and Gregory. The appellant employer was represented by Ronald Rayson, who though from Knoxville strangely enough is not affiliated with the excellent Kramer Rayson firm.

A major focus of the case is the viability of the cat's paw or rubberstamp theory of showing that the decisionmaker was influenced by a subordinate with discriminatory motives. The majority more or less says that theory doesn't carry any weight with them. The dissent buys the "substantial influence" theory advanced by the EEOC and the appellee employee.

I once wrote a little article that touched briefly on the cat's paw/rubber stamp theory as one way of showing discriminatory intent, but I'm not sure that it is anything more than a way of talking about the facts, rather than some kind of vicarious liability for hidden motives.

I suppose that critics of this decision would also complain that there is too much talk about the facts in this opinion. But, as I have tried to argue, just because there are a lot of facts does not mean that there are a lot of facts in material dispute.

Virginia and West Virginia - more like different countries

Blawger Brian Peterson says here that the differences between the law of Virginia and West Virginia are in some respects more like different countries than different states, referring to the death of the at-will employment doctrine in West Virginia law.

Tennessee lawyer benched for 30 days, called female judge Honey

Via this post from How Appealing, this Tennessee lawyer story ("Tenn. high court upholds suspension of Nashville lawyer," 1/1/04) describes the 30-day suspension of a former judge for threatening some judges and calling other judges and lawyers "honey."

Electronic filing coming to the E.D. Tenn. in May

The Kingport paper (registration required) has this article ("Federal courts in East Tenn. to be online by May," 1/02/2004) on the coming of electronic filing to the Eastern District of Tennessee. I believe the courts elsewhere including the W.D. Va. are on a similar timetable.

I've been working on a case in federal court in Ohio where CM/ECF is already in place, and it is some fun to access all the case documents from my desktop, particularly since I almost never find myself in Ohio.

New office of defenders for Southwest Virginia death penalty cases

The Capital Defense Unit for Southwest Virginia is now open for business in Christiansburg, according to this report ("New office to aid poor in capital defenses," 1/04/2004) from the Roanoke paper.

Who wouldn't want a friendly chat with Delegate Kilgore?

This article ("Legislators lack formal review for judge panels," 1/04/2004) in the Daily Press says that the standard of review for determining whether sitting judges should be reappointed is rather mild, as demonstrated by the easygoing exchange between one judge and Delegate Kilgore, with the exception being those cases where some local legislator has a specific complaint about the judge. But, legislators say, eventually they will get a system in place for a more thorough review of what the judges are doing.

Prayer at government meetings in the Fourth Circuit

This article ("Council prayers spark debate," 1/4/04) on prayers at government meetings in Maryland says there is a case pending out of South Carolina that will set the limits in the Fourth Circuit on what government officials can and cannot do at their meetings.

Methadone treatment in Southwest Virginia

With controversies brewing in Roanoke and Bristol, Virginia legislators are considering new laws that would require notice to local governments when clinic operators seek approval for methadone clinics in their localities, according to this report ("Legislators plan to submit bills restricting methadone clinics," 1/4/04) in the Roanoke paper. The Roanoke paper also has this report ("Methadone a booming business in Western Virginia," 1/3/04) on the booming business for some methadone clinics in Southwest Virginia.

More on the unpaid contractors' suits regarding SWVA pipeline construction

In this Roanoke Times article ("New pipeline opens gusher of lawsuits," 1/3/2004), the claims of various unpaid construction contractors against the Murphy Brothers pipeline construction company are discussed. The Duke pipeline passes through 5 Southwest Virginia counties.