Republicans sue Governor Warner over tax increases

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

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

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

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

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

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

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

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

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

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

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

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

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

Delegates Johnson and Phillips join with Republicans in House budget vote

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

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

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

Democrats in General Assembly sue over eavesdropping?

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

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

Judge Moon wants to know about leaks in Rice case

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

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

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

Discrimination plaintiff dismissed for failure to give discovery

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

On relief from default

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

The expendable man

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

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

Wanted - new bunch from the old party

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

Lots of good games to watch on TV today

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

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

Conjunction junction, what's your function?

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

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

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

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

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

Let Terry and William thrash it out

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

Those vacationing legislators

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

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

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

Which town has the fewest rats and skunks in Virginia?

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

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

Justice Scalia on planning ahead

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

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

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

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

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

Unusual way to win cases on appeal

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

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

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

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

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

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

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

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

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

Don't want this guy doing my taxes

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

EEOC reports decline in charges filed

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

Still keeping score on Judge Widener?

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

The more common reversal of fortune in a civil rights case

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

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

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

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

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

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

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

Summary of the other bills from the 2004 General Assembly session

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

The Tennessee town that executed a circus elephant

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

Judge Andrews as future Willie Horton?

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

Overtime in Richmond

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

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

What price drug-testing?

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

On accrual date for legal malpractice claims

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

Jury to detemine whether Atkins can be executed?

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