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).

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.

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.

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."

Henrico drug court graduates first class 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.

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.

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.

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 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.

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.

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.

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.

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."

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.

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.

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, 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.