Saturday, April 03, 2004

Northern Virginians, beware! Southwest Virginia senator proposes undoing car tax relief

The Roanoke paper reports here ("GOP senator offers 'different approach' to budget woes - reconsider the car tax," 4/3/04) and the Richmond paper reports here ("Republican Wants Car Tax Restored," 4/2/02) that one Southwest Virginia Republican Senator is proposing that the Commonwealth should undo the car tax subsidy program as an alternative to increasing the sales or income taxes. The Roanoke article notes that "[t]he vast majority of the reimbursements flow to densely populated localities in Northern Virginia that also have high personal property tax rates."

Big Mac quandary

I read this article titled "Burgers, Fries, and Lawyers," about the prospect of litigation against purveyors of fast food.

Among the people I've known since I was old enough to drive through the drive-thru, I've eaten more Big Macs (often while driving) than any of them, which makes me wonder, with regard to this specialized area of litigation, whether I would be best qualified to serve as plaintiff, counsel, or expert witness?

Belated blawgiversary

Somehow I missed the blawgiversary of Free Space, which is one of my favorites. Although many of the posts are a bit beyond, the man still says he wants to live in Virginia.

Lawsuits to be filed when Commonwealth shuts down?

Via this post from Commonwealth Commonsense, this Jeff Shapiro column says if July 1 arrives with no budget, "there may be lawsuits - possibly initiated by the state - to fully determine the governor's authority to spend money in the absence of a General Assembly-passed budget." No kidding.

From the other side, Ben Domenech is concluding that the Taxman Wins, and cites this Washington Post column ("Promise Them Anything, Then Raise Taxes," 3/28/04), which if nothing else makes Governor Warner look foolish or look like someone who is undeterred by foolish consistencies.

Worrisome developments before the West Virginia Supreme Court

Brian Peterson has this post, which says, among other things, that a justice of the West Virginia court denies that he ever saw the concurring opinion he is listed as having joined, or any of the opinions, before they went to the printer.

Split panel of Fourth Circuit finds ministerial exception to FLSA for kosher food inspector

In Shaliehsabou v. Hebrew Home of Greater Washington, Inc., the Fourth Circuit in an opinion by Judge Williams, joined by Judge Widener with Judge Luttig dissenting, affirmed summary judgment for the employer in an overtime case brought by a plaintiff the Court concluded was a "ministerial" employee. The plaintiff was employed as a "mashgiach," which is defined as "an inspector appointed by a board of Orthodox rabbis to guard against any violation of the Jewish dietary laws." The employer was a non-profit home for aged Jewish persons. The Court noted the Fourth Circuit has recognized a ministerial exception to the FLSA, in Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th
Cir. 1990).

Judge Luttig in dissent offered his opinion that there is no such thing as a ministerial exception or if there is, it would not apply to the plaintiff in this case.

Fourth Circuit overturns suppression of trailer with load of marijuana

In U.S. v. Singh, the Fourth Circuit in an opinion by Judge King joined by Judge Williams and Judge Traxler reversed the district court, concluding that North Carolina law enforcement officials had probable cause to seize a tractor trailer containing a quantity of marijuana.

The appeals court opinion makes it appear that the District Court judge took a strangely restrictive view of the evidence justifying the actions of the police. The District Court judge was Judge James A. Beaty, Jr., of Durham.

Just in time for end of Church/Gilmore trial - Ealy verdict upheld on appeal

In U.S. v. Ealy, the Fourth Circuit in an opinion by Judge Motz joined by Judges King and Duncan upheld the conviction in the W.D. Va. of Samuel Stephen Ealy for his involvement with the Pocahontas murders of 1989.

Ealy was acquitted in state court in 1991. He was indicted in federal court in 2000. The argument which got closest consideration by the Fourth Circuit was his claim that the five-year statute of limitations had expired. The Court held that the limitations period was not applicable, because the offenses with which Ealy was charged were "capital" offenses for limitations purposes, even though the death penalty was not sought against him.

UPDATE: The AP has this story on the decision.

Friday, April 02, 2004

Former Chief Justice Carrico on judicial independence

The Winchester paper has this account of the remarks of former Chief Justice Carrico of the Virginia Supreme Court on the theme of judicial independence.

The article concludes: "Despite his criticism, even Carrico expressed optimism about the American legal system. 'Our judiciary may have faults, but it's still the best in the world,' he said."

Voluntary program for taxpayers to pay more nets $6,000 in two years

According to this amusing article ("'Tax Me More' has few takers," 4/2/04) in the Washington Times, the undeserving rich in Virginia have no conscience, as almost no one is participating in a voluntary program to pay extra taxes.

Is coal cool?

This WSJ article reprinted in the Norfolk paper suggests that the coal business "is making an unexpected comeback."

Cold and lonely in the deep dark night

In this delightfully-titled post, "Prosecution by the Dashboard light," Balkin cites Matthew Yglesias's comment against prosecution in the Newport News sex case.

I don't know about all that, but I do know I will drive around the block to hear all the way to the end of "Paradise by the Dashboard Light" on the radio.

No same sex marriage in West Virginia

Via How Appealing, a Charleston WV paper reports here that the West Virginia supreme court by 3-2 vote has declined to take up the petitions brought by same-sex couples who could not get marriage licenses in West Virginia. Here is the most recent posting Rory Perry had with links to the filings in the case.

UPDATE - Here's Rory Perry's latest.

The riddle, the enigma, and the conundrum

I love this post from Lyle Roberts about loss causation in securities cases - kind of makes me want to be a securities lawyers. (Or maybe not.)

On being No. 29

Having seen the latest U.S. News & World Report ratings of law schools, it appears that I still went to the lousiest law school of anyone in this firm, but not the worst of anyone I know. In the top 100, Richmond is at No. 72, Tennessee at No. 53, Kentucky at 50, Wake at 34, William & Mary 29, W&L and Emory tied at 23, Georgetown 14, U.Va. 9 - and that most of the lawyers I know. But are the "real" ratings lower for state schools (like William & Mary)? See this Volokh post.

The Roanoke paper has more here and the Daily Press has more here ("W&M law school drops in ranking," 4/2/04) on the U.S. News rankings.

Thursday, April 01, 2004


That Norfolk case was before the U.S. Supreme Court - what is what I meant all along, of course. The Virginia Supreme Court does not hear arguments again until the week of April 19, according to this calendar.

Must have been a busload from Southwest Virginia up there in Fairfax County

According to this post from Commonwealth Commonsense, many of the speakers at a forum on the state budget in Fairfax County favored tax increases, even though much of the increased tax burden on Northern Virginians will flow through the state government to people from Southwest Virginia, where we have radio ads telling the public to oppose statewide tax increases that will "drive jobs to Tennessee and North Carolina."

Termination of parental rights cases in the Virginia Court of Appeal

The Virginia judiciary website has this summary of the last 8 years before the Virginia Court of Appeals of cases involving termination of parental rights.

DirecTV gets summary judgment in W.D. Va. case

Judge Jones granted summary judgment for the plaintiff in DirecTV, Inc. v. Adkins, one of the local versions of the many cases filed nationwide last year by DirecTV.

Foamhenge comes to Natural Bridge

The Roanoke paper has this report ("Modern Merlin raises faux Stonehenge in day," 4/1/04) on the fewer calories, less filling version of Stonehenge that was produced this week at Natural Bridge in Virginia.

Summary of the Missouri municipal telecom

The IMLA, a group of municipal lawyers, has this summary of the Missouri municipal telecom decision.

Tennessee blase about Virginia's proposals for Interstate 81

The Greeneville paper reports here ("‘Trucks Only’ I-81 Considered By Virginia; Tenn. Has No Plans," 3/31/04) that Tennessee transportation officials have no plans to do anything like what Virginia is proposing for Interstate 81, which begins in Tennessee at the south end. The speed limit is actually higher on much of the Tennessee part of I-81.

Pete gets the nod

The Charlottesville paper reports here ("Gillen to stay at Virginia," 4/1/04) and the AP reports here that the University of Virginia announced on Thursday that we will still have basketball coach Pete Gillen to kick around next year. The story says that Pete's record is 104-78 in 6 seasons.

Wednesday, March 31, 2004

On being No. 1

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

Overtime class action against Bank of America filed in Roanoke

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

Oral argument in Virginia Supreme Court on car searches

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

Molly Ivins does not like Haynes nomination

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

Tuesday, March 30, 2004

Dotson fights off Batson challenge

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

The many bizarre happenings involving Richmond city politicans

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

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

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

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

Death row inmate protests injustice of page limitations and lethal injections

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

Pigs killed, injured en route to packing plant

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

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

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

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

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

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

Richmond doctor testifies in case challenging federal abortion statute

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

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

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

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

Who besides Virginia uses the legislature to pick judges?

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

Constitutional challenge to the Commonwealth's sex laws

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

William Pryor to deliver commencement address at Regent law school

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

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

Monday, March 29, 2004

Plaintiff gets summary judgment reversed when appeals court says no diversity

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

Thanks to Construction law blog for pointing out this gem.

Inside baseball

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

Fourth Circuit affirms dismissal of claim for religious discrimination in chatroom

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

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

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

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

Environmentalists also mad about I-81

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

Voodoo economics

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

Condemned man wants out of Wednesday night execution date

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

Deputies want more money

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

NYT shocked to find Republicans for high taxes in Virginia

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

Impact of I-81 tolls on tourism

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

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

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

More on 2005 Republican primary

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