Saturday, May 01, 2004

NY Times picks out Roanoke in SW Virginia as town of many divorces

Sunday's New York Times has this article ("An All-American Town, a Sky-High Divorce Rate," 5/2/04) about all the many people in Roanoke who are divorced.

The article says, among other things: "About one in 10 American adults are divorced or separated. In Roanoke, a city of 94,000 that has taken a disproportionate share of the cultural and economic blows that shatter marriages, the rate is closer to one in five. The national rate of divorce and separation grew 10 percent in the 1990's, according to the 2000 census. It grew about 30 percent in Roanoke. . . . A divorce is harder to get in Virginia than in many other states. But in some ways, Roanoke seems more exposed than most cities to the influences that lead to marital tensions, like poverty and lost jobs and shifting cultural views that make marriage optional. . . . Ranked another way, among cities of comparable size, only Reno, the Las Vegas suburb Paradise and Flint, Mich., ravaged by the loss of well-paid jobs in automobile plants, have higher rates. Two other cities match Roanoke: Gary, Ind., sunk by the disappearance of steel mills, and Miami Beach."

Roanoke woman who claimed she murdered mother because of Paxil gets 14 years

The AP reports here on the sentencing in Roanoke Circuit Court of a woman who claimed that the reason why she stomped her mother to death was because she was intoxicated by the prescription drug Paxil.

More on Warner fever

This AP story says that Governor Warner has been celebrating the tax vote as a big victory, with much grinning and feasting.

More merger mania - Williams Mullen joins up with Norfolk's Hofheimer Nusbaum

The Norfolk paper reports here ("Merger creates area's No. 2 law firm," 5/1/04) and the Richmond paper reports here ("Law firms merging today," 5/1/04) on another big law firm merger, this time the union of Richmond-based Williams Mullen (with 200+ attorneys) and the Hofheimer Nusbaum firm in Norfolk (with 29 attorneys).

Budget apparently settled, Fairfax County looks to next sniper trial

With the budget impasse resolved, prosecutors in Fairfax County are beginning to look at the next prosecution of the sniper John Muhammad, according to this report ("Fairfax preparing for next sniper trial," 4/30/04) in the Richmond paper.

Richmond circuit court dismisses delegates' lawsuit over the budget

According to this article ("Judge tosses lawsuit filed by delegates," 5/1/04) in the Richmond paper, Circuit Court Judge T.J. Markow dismissed the lawsuit brought by Republican delegates challenging the constitutionality of Governor Warner's budget bill, on grounds including lack of standing.

More on employment law and summary judgment

Via this post from Abstract Appeal, the Eleventh Circuit in the case of Hulsey v. Pride Restaurants, LLC reversed the district court's order granting summary judgment.

The District Court had written only to explain its decision: "For the reasons appearing in the motion for summary judgment filed by defendant, Pride Restaurants, LLC, and elaborated in its evidentiary submission and accompanying brief, the court finds that there are no genuine disputes of material fact, so that defendant is entitled to judgment as a matter of law. The court sees no purpose in writing an opinion that simply reiterates the undisputed relevant evidence and the propositions of law contained in defendant’s submissions, with which the court agrees and which the court adopts."

While noting that findings of fact and conclusions of law on the order of Rule 52 are not required when a trial court grants summary judgment, the appeals court was critical of this terse manner of disposing of the case, which has the effect of leaving the appeals court "like the proverbial blind hog, scrambling through the record in search of an acorn." (quoting Clay v. Equifax, Inc., 762 F.2d 952, 957 (11th Cir. 1985)).

The opinion goes on to describe the different theories of sexual harassment, and to point out that while the plaintiff's has not quite mastered the jargon, the plaintiff had alleged enough of a case to avoid summary judgment, on liability theory the defense did not even think was in the case, which was surely a bummer for defense counsel.

Maybe school uniforms would avoid this problem

In yet another Virginia public school dispute over a student's t-shirt, the Richmond paper reports here ("Anti-abortion group protests school's ban on T-shirts," 4/30/04) that a group is protesting a middle school principal's directive that students at his school stop wearing anti-abortion t-shirts.

How are the panels selected for Fourth Circuit cases

How Appealing has this link to a web page about a 2000 law review that examines the ways that the different federal courts of appeals assign judges to cases, including this summary of the procedures for the several circuits.

It makes you wonder how it was done before computers, which I guess is the stuff of the article.

On summary judgment in employment cases

George's Employment blog has this interesting post with his views on the mechanics of getting summary judgment, particularly in employment law cases.

I agree with almost all of it, or maybe all of it.

The other thought I had on reading it was that wouldn't it have been nice for this fellow to have been able to electronically file these papers, instead of sending them by FedEx.

S.Ct. justice gets beat up while out jogging in D.C.

Talk Left has this post about news reports that Justice David Souter of the U.S. Supreme Court was attacked by a couple of thugs while he was out for a run near the Potomac in Southwest D.C. on Friday night.

Evidently, this was just an "ordinary" street crime, and the assailants did not know the identity of their victim.

No error in denying motion based on timing of death penalty notice

In U.S. v. Breeden, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Shedd with Judge Widener concurring in part and dissenting in part, affirmed a decision by Chief Judge Wilson of the W.D. Va. to deny defendants' motion in which they asserted that the U.S. attorneys had acted too late in filing their notice of intent to pursue the federal death penalty.

Judge Widener wrote separately to say that, in the context of this case, he believed the ruling on the government's request for a continuance was a reviewable order - but that he found no abuse of discretion in the district court's decision to grant that request.

Must have been something in the water

At the Wise County event, I renewed acquaintances with Sue Gumm Kennedy, who lived across the street from the extra lot my dad bought next to our house in Abingdon. We remarked on how she and I and two other kids from the old neighborhood are now lawyers practicing in Southwest Virginia - four future lawyers within a few years of being the same age who grew up almost within sight of each other in a little two-block subdivision in Washington County.

Chief Justice Hassell comes to Wise County

Last night, Chief Justice Leroy R. Hassell of the Virginia Supreme Court was the guest speaker at the 30th Judicial Circuit Bench/Bar conference in Big Stone Gap. He arrived early, before dinner, spoke with everyone who approached him, had many kind (and some hilarious) words for Judge Coleman and Justice Kinser from our area, and gave a speech which showed, if nothing else, his determination to know about Southwest Virginia.

I'm glad he was there, and that I was, too.

Friday, April 30, 2004

Judge Jones becomes new chief judge of W.D. Va. on Saturday

According to this report ("Jones replaces Wilson as chief judge," 4/30/04) in the Roanoke paper, Chief Judge Wilson's seven-year term as chief judge will expire and Judge Jones will become the next chief judge of the U.S. District Court for the Western District of Virginia.

Progress toward public defender for W.D. Va.

The Roanoke paper reports here ("Federal public defender near fruition," 4/30/04) on steps taken by Chief Judge Wilson of the W.D. Va. to open a public defender's office for the W.D. Va., and his thoughts on where the head of that office should come from.

Proposal for JCOTS to study invasive technologies

This article from RFID Journal explains how some Virginia legislators want to examine civil rights implications for consumers of "invasive technologies." The article talks about HB 1304, which was carried over to next year.

The bill would have required "the Virginia Joint Commission on Technology and Science (JCOTS) will undertake a study to advise state governmental bodies on “invasive technologies,” include RFID. The study is part of a bill (HB 1304) sponsored by Delegate L. Scott Lingamfelter (R-31st District) that will require any state public body to conduct a privacy-impact analysis of any new invasive technology before authorizing or prohibiting its use. For the purposes of the study, invasive technologies are defined as those that have the potential to infringe on the civil rights of individuals involved in the technology."

“The confusion [about whether existing technologies violate individuals’ civil liberties] is already there,” he says. “I would hope we would have guidelines soon.”

The article notes that "[t]he bill evolved from another bill, sponsored by Delegate H. Morgan Griffith (R-8th District) but defeated in 2002 and 2003 in the state senate, that would control the use of facial recognition technology."

Thursday, April 29, 2004

No error in excluding expert testimony on use of force

In Clem v. Corbeau, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz, King, and Gregory affirmed a jury verdict in favor of a police officer in an excessive force case, rejecting among other arguments the plaintiff/appellant's claim that the trial court improperly excluded expert testimony on the proper use of force.

The opinion indicates that Senior Judge Leonard D. Wexler of the E.D. N.Y. presided over the trial, which was in Alexandria.

Six-year statute applies to actions under False Claims Act

In U.S. v. Graham County Soil & Water Conservation Dist., the Fourth Circuit in an opinion by Judge Duncan, joined by Judge Michael with Judge Wilkinson dissenting, held that the statute of limitations applicable to the plaintiff's retaliation claim under the False Claims Act, 31 U.S.C. 3730(h), was the six-year statute of 31 U.S.C. 3731(b), and the trial court erred in dismissing the case as untimely under a shorter state law limitations period. Judge Wilkinson in dissent concluded that amendments to the statute broke the connection between section 3730 retaliation claims and the limitations rule stated in section 3731(b).

The majority opinion notes that "[t]he proper interpretation of these provisions has divided both our sister circuits and courts within this circuit." Perhaps the case will be reheard and taken up all the way to the U.S. Supreme Court.

More local government cutbacks in Southwest Virginia

According to this report from the Virginia Tech paper, the mayors of 5 localities in Southwest Virginia have signed up to lose weight to increase obesity awareness.

More on Virginia taxes

The Virginian-Pilot opines here that the tax vote was a "proud day" for Virginia. The Post says here the votes of the pro-tax legislators were "courageous," and says here that the anti-tax bell "has been unrung." The New Democrats declare here it never would have happened without Governor Warner's leadership.

Ben Domenech says here the Bad Guys won.

Over-federalization of criminal law

This article criticizing the expansion of the federal criminal law cites, among other authorities, a 1995 article from Professor Jeffries of the University of Virginia, who concluded that "federal prosecutors can conduct organized crime investigations more quickly, bring more charges, and win more convictions than state and local authorities" due to "features of federal law [that] combine to give federal prosecutors enormous advantages over their state and local counterparts."

Wednesday, April 28, 2004

En banc opinion dealing with Batson in NC capital murder case

In Allen v. Lee, the Fourth Circuit sitting en banc considered a range of issues, including a constitutional challenge to the prosecution's use of peremptory strikes in jury selection. On the Batson issue, the majority in an opinion by Judge Niemeyer concluded that the defendant had either waived the issue at trial or failed to make out a prima facie case of a constitutional violation. Judge Niemeyer's opinion on that issue was joined by Chief Judge Wilkins, and Judges Wilkinson, Williams, Traxler, and Shedd, with a separate concurrence by Jude Luttig, and a dissent from Judge Gregory, joined by Judges Michael, Motz, and King. Judge Widener recused himself and Judge Duncan did not participate in the case.

Almost no claim can be made for political gerrymandering

Today, in Vieth v. Jubelirer, the U.S. Supreme Court affirmed dismissal of the political gerrymandering challenge to the reapportionment of the congressional districts in Pennsylvania. The opinion was sort of 4-1-4, with Justices Scalia joined by Rehnquist, Thomas, and O'Connor holding that the claim is never justiciable, Justice Kennedy agreeing with the dismissal but not willing to say never, and the rest dissenting.

Justice Scalia, I have thought, is particularly suspicious of claims about politics - including patronage-based employment claims. I once quoted something he said to the effect that Elrod v. Burns was maybe a bad idea - which citation got me absolutely nowhere.

Online Resource Library for the Judiciary on Impaired Driving

Via the Virginia Judiciary web page, this site offers "A National Online Resource Library for the Judiciary on Impaired Driving."

Arguments proceed in lawsuit over tax legislation

The AP has this report on the arguments of counsel in the case brought by two delegates claiming that the original Warner tax bill/budget was unconstitutional as it combined tax increases with appropriations. Former Republican chairman Patrick McSweeney represents the plaintiffs, two Republican delegates.

I don't see why this is still a case, since the legislation didn't pass as proposed - and since now something else has passed.

Coverage of the Big Tax vote

Articles on yesterday's General Assembly votes on taxes are here ("Budget blockade busted," 4/28/04) in the Richmond paper, here ("A state tax plan, at last," 4/28/04) in the Norfolk paper, here ("Virginia General Assembly agrees on tax increase," 4/28/04) in the Roanoke paper, here ("Tax hike plan is approved by GA," 4/28/04) in the Daily Press, here ("Va. Passes Landmark Increases In Taxes," 4/28/04) and here ("Tax Vote A Crucial Victory For Warner," 4/28/04) in the Washington Post, here ("Boost in taxes OK'd in Virginia," 4/28/04) in the Washington Times, here ("Tax measure approved," 4/28/04) in the Charlottesville paper, and here in the Danville paper.

Tuesday, April 27, 2004

Election fraud conviction affirmed despite lack of evidence about pre-printed form

In Williams v. Com., the Virginia Court of Appeals in an opinion by Judge Elder affirmed the defendant's conviction for election fraud, even though the Commonwealth failed to prove that the pre-printed form on which the defendant registered to vote contained the statutory warning of the penalties for false statement.

First Vanessa Williams, now an ex-Portsmouth teacher

The Norfolk paper has this article ("Teacher of the year changing job, loses award," 4/27/04) about a woman selected as "teacher of the year" who lost her title when she opted to go work for another school system. Said the superintendent, "It’s like the Miss America pageant."

More on e-filing and the courts

Lawyers Weekly USA has this free article on the growth of electronic filing in U.S. state and federal courts.

The article begins:

"The electronic filing movement continued to gather momentum last month, when Chief Judge William G. Young of the U.S. District Court in Massachusetts issued an order mandating e-filing in all his cases as of June 1.

The order, which applied to some cases as early as April 1, also provides for sanctions if lawyers fail to comply."

Senate budget plan passed with freeze on car tax relief

The Washington Post has this report and the AP has this report on the budget passed this afternoon by the Senate of Virginia.

Judge rejects convicted murderer's bid to withdraw Alford plea

The AP reports herethat Judge John W. Scott, Jr., of the Circuit Court for the City of Fredericksburg has denied a motion for the withdrawal of an Alford plea in a murder case.

Where federal judges went to law school

Via Robert Ambrogi, I read this list of where federal judges went to law school.

I can only think of two who went to my law school, Judge Conrad from the W.D. Va and Judge Rebecca Beach Smith of the E.D. Va.

Monday, April 26, 2004

Margaret Edds says Virginia again sets itself up for future apology

The woman who literally wrote the book on Earl Washington has this this Sunday Pilot commentary suggesting that in another 50 years, Virginians will look back on this year's anti-gay partnership legislation with as much shame as the Massive Resistance to desegregation.

Martinsville city attorney fed up with AG's office in dealings over museum

I was directed to this article from the Martinsville paper, in which the city attorney says, among other things, "It's no wonder people hate lawyers so much," in describing his efforts to satisfy the real estate questions posed by the Attorney General's office with regard to the Natural History museum project.

That deli on Williamson Road in Roanoke

I am informed that the name of the great deli up on Williamson Road in Roanoke is the New Yorker Deli, and reading this account makes me very much want to go there.

(This is becoming the Southwest Virginia food blog.)

More fun with Prof. Sabato at the shad-planking

I never heard of the shad-planking until I took a course from Professor Sabato, who was the unprecedentedly unelected guest speaker this spring at Wakefield, and I keep reading little bits and pieces of his remarks, some of which I'd read few times before ("Flat Earth Society," etc.) but in this piece (mostly about redistricting) from the Daily Press I've spotted a few new zingers, in particular these:

"Sabato got in a few digs, saying Attorney General Jerry Kilgore's far Southwest Virginia twang would likely be "subtitled in English" during his anticipated gubernatorial candidacy next year. "Clodhopper Kilgore," Sabato called the AG. . . .

A better line was directed at the crowd itself, which Sabato observed to be half tipsy and half not paying attention - "just like when I'm teaching at U.Va," he said."

My two favorite Sabato quotes (not that I can quote him) were these: (1) when asked about Doug Wilder in 1985, he said the odds of Wilder beating Chichester were 1000-to-1 (how did Chichester get so much livelier in his old age than he was that year?); and (2) when asked about Ross Perot, Sabato once said, in effect, that when Perot speaks, Sabato had a hard listening to what he was saying because of the noise from all the loose screws rattling around in his head.

Chick-N-Little makes it big

Once in a while, I take my wife to Chick-N-Little and eat the chicken livers, which are fried to the point of being golden brown.

Nothing could please me more than to see the place recognized on

U.S. Supreme Court takes a pass on VMI dinner prayer case

Via this post from TalkLeft, the U.S. Supreme Court has denied certiorari in the case of the VMI dinner prayer, which the Fourth Circuit held was unconstitutional. This How Appealing post includes a link to the dissenting opinion by Justice Scalia, joined by Chief Justice Rehnquist.

The dissent talks about the merits-first order of dealing with qualified immunity issues in section 1983 cases. In such cases, the courts are supposed to first decide whether plaintiff has alleged a constitutional violation, before proceeding to the question of whether the plaintiff's constitutional right was clearly established at the time the defendant acted. The Fourth Circuit affirmed qualified immunity for the superintendent of VMI in the dinner prayer case. So, since he was the winner on the money damages issue, it was not so easy for him to be the appellant before the Supreme Court, but Justice Scalia tried to explain that this was not an insurmountable obstacle in qualified immunity cases. Otherwise, the merits determination would not make it to the Supreme Court, which outcome would more or less be the opposite of what was intended the merit-first rule, to prevent the defendants from winning over and over on the "clearly established" element because the law never would be made clear.

Como se dice not guilty?

The Charlottesville paper has this account ("Misinterpreting justice?, 4/25/04) of the deficiencies of the interpreter program in Virginia courts.

Toll talk runs off business from Western Virginia

The Roanoke Times reports here ("Study sought on effect of tolls on I-81," 4/24/04) that some business leaders want a study of the economic impact of the proposed tolls on Interstate 81 on the economy of Western Virginia, citing anecdotal evidence that they are already costing the area.

One Va. county just says no to new power to hold illegal immigrants

The Washington Times reports here ("Arlington to ignore law aimed at illegals," 4/24/04) that Arlington County law enforcement has declared it will not use the new statutory power given police to detain illegal immigrants involved in criminal activity.

U.Va. endowment hits $2 billion

Part of the reaction of the big universities in Virginia to decreased funding from the Commonwealth has been increased fund-raising. The University of Virginia announced this month that its endowment surpassed $2 billion for the first time, according to this report in the Cavalier Daily.

Expansion of Jefferson National Forest sought

The Washington Times reports here ("Virginians seek to expand wilderness protection," 4/26/04) and the Richmond paper reports here ("Lawmakers push for wilderness projects," 4/23/04) that Congressman Boucher and Senator John Warner are both lobbying for a 40,000 acre expansion of the Jefferson National Forest, which includes parts of Southwest Virginia.

Hearing set in E.D. Va. for prayer song at graduation case

The Daily Press has this report ("Hearing today in prayer song suit," 4/26/04) on a lawsuit brought by a former student who claimed that she was wrongfully denied the right to sing a song called "The Prayer" at her high school graduation exercises.

Anti-jury commentary

This lawyer's commentary ("The Contemporary American Jury - Confusion, Chaos, Corruption," 4/26/04) on the jury system in the U.S. is mostly against it.

Sunday, April 25, 2004

On the use of primaries to determine statewide nominees

In this editorial, the Richmond paper declares its support for holding open primaries every time to determine the party nominees for statewide offices. The paper mildly agreed with the thesis put forth by luminaries including Professor Sabato, most recently at the shad-planking, that redistricting has reduced the capacity of the General Assembly to govern because legislators with "safe seats" have less incentive to make deals with those with whom they disagree.

Roanoke the railroad town

The Baltimore Sun has this good article ("Romance of the rails," 4/25/04) on Roanoke as a place to go and an old railroad town.

I like Roanoke, in spite or because of the fact I have never eaten at the Texas Tavern. My wife's favorite place to eat there is a place called Arzu. Probably my favorite place is an old deli up on Williamson Road a mile or two north of the interstate, the name of which I can't recall or maybe never knew, but a great place with a big menu of great sandwiches.

More car tax talk

In today's Washington Post article ("Va. Budget Talks Focus on Cost of Car-Tax Relief," 4/25/04) on the Virginia budget and the car tax, Senator Stolle is quoted as saying this: "Everyone was hoodwinked by the initial phaseout of the car tax. . . . On a very superficial level, the idea of getting rid of the car tax was a great idea. It was a good political opportunity. But on a policy level, on an implementation level, it's been a disaster for the state of Virginia."

Not Democrat vs. Republican but East vs. West in Loudoun County

The Washington Post has this wild story ("Loudoun Supervisor Alleges Staff Bias," 4/25/04) about a county supervisor in Loudon County who declares of the county's employees that he knows where they live and therefore what they think, and he doesn't like it.

More of Friday's Virginia Supreme Court opinions

In Maddox v. Commonwealth, the Virginia Supreme Court in an opinion by Justice Kinser held that the plaintiff's nuisance claims were within the sovereign immunity of the Commonwealth and not within the exceptions to it created by the Virginia Tort Claims Act.

In Southern Floors and Acoustics, Inc. v. Max-Yeboah and Food Lion, Inc. v. Max-Yeboah, two cases consolidated on appeal, the Virginia Supreme Court held, among other things, that the property owner Food Lion could not be liable for the negligence of its independent contractor.

In Cochran v. Fairfax County Board of Zoning Appeals, the Virginia Supreme Court in an opinion by Senior Justice Russell decided three consolidated appeals involving the awarding of zoning variances, concluding that the variances were improperly granted in each case, because "[w]ithout any variances, each of the properties retained substantial beneficial uses and substantial value."

In O'Neill v. Windshire-Copeland Assoc., L.P., the Virginia Supreme Court held that the defendant could assert the defense of contributory negligence, even though the apartment railing plaintiff fell over was not constructed up to code, rejecting plaintiff's arguments based on section 483 of the Second Restatement of Torts. The Court distinguished the law of assumption of risk, and held that contributory negligence was available as a defense unless there was something in the statute violated which indicated a legislative intent to preclude a contributory negligence defense.

In Commissary Concepts Mgmt. Corp. v. Mziguir, the Virginia Supreme Court in an opinion by Justice Lacy reversed the plaintiff's verdict in a malicious prosecution case, concluding "the evidence insufficient as a matter of law to support a finding that the prosecution against Mziguir was instituted without probable cause."

In Filak v. George, the Virginia Supreme Court in an opinion by Justice Keenan affirmed the trial court's order sustaining defendant's demurrer to plaintiffs' claim of constructive fraud with respect to failure to obtain insurance, where the Court concluded the claim was barred by the economic loss rule. The Court also affirmed the trial court's ruling for the defendant on a motion to strike the evidence on the plaintiffs' breach of contract claim, where the plaintiffs could not prove damages.

In Video Zone, Inc. v. KF&F Properties, Inc., the Virginia Supreme Court in an opinion by Justice Keenan affirmed the trial court's construction of a commercial lease, that the tenant was required to repair heating and cooling systems on the roof of the building. The appeals court agreed that the terms of the lease were ambiguous, and that the trial court's resolution of the ambiguity was supported by the evidence.

In Richmeade, LP v. City of Richmond, the Virginia Supreme Court in an opinion by Justice Lacy held that the three-year statute of limitations for implied contracts rather the five-year statute for injury to property applied to the plaintiff's inverse condemnation claims.

Free music - Virginia gives out CDs as part of class-action settlement

The Kingsport paper reports here ("Virginia to distribute free compact discs ," 4/24/04) that to give the public the benefit of a settlement of litigation over pricing of music on compact discs, the Commonwealth of Virginia is giving away 138,000 music CDs to libraries and other entities.