Saturday, July 10, 2004

Posner v. Easterbrook on Blakely

On Friday, the Seventh Circuit issued this opinion in U.S. v. Booker, with conflicting opinions by Judges Posner and Easterbrook regarding the effect of Blakely on the federal sentencing guidelines.

Unrelated to this, How Appealing reports here that Judge Easterbrook will be the answerer of 20 Questions for August.

More on FOIA, the General Assembly, and laws with unintended consequences

A reader of SW Virginia law blog has this article in the Augusta Free Press, breaking down the new law passed this past session dealing with the applicability of the Freedom of Information Act to the meetings of the General Assembly.

A Jewish writer's perspective on the blue law snafu

In this column from the Daily Press, the author concludes the blue-law snafu was "a holy mess."

Fiber loop progresses in Lee County

The Kingsport paper has this update ("Lee County fiber-optic project getting national attention," 7/9/04) on the progress of the fiber-optic network in Lee County.

On bedbug litigation in Virginia

The Richmond paper has this update ("Don't let the bedbugs bite - seriously," 7/10/04) on bedbug litigation in Virginia.

List of statewide wannabes for 2005 approaching 14

The Charlottesville paper has this roundup of the declared and undeclared candidates for statewide office in 2005, including John W. Marshall, the son of the late Supreme Court Justice Thurgood Marshall.

Judiciary committee postpones vote on 4th circuit nominee Claude Allen

The Washington Post reports here ("Senators Delay Vote On Va. Bench Nominee," 7/10/04) that the Judiciary Committee of the U.S. Senate has postponed a vote, probably for the rest of 2004, on the nomination of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit. The senators from Maryland, both Democrats, continue to oppose the nomination of Allen, who is from Virginia, to fill what they view as a "Maryland seat," made vacant by the death of Judge Murnaghan.

The article notes that there are 15 seats on the Fourth Circuit. Right now, there are 13 full-status judges, with the nominations of Allen and Judge Boyle in limbo, as is the nomination of William Haynes to replace Judge Widener, who will eventually take senior status. Of the 13, 8 were appointed by Republican presidents, 4 were appointed by President Clinton, and Judge Gregory was appointed at different times by both President Clinton and President Bush. Other than Judge Widener, none of the current judges were born before 1940.

Virginia Beach figures out how to keep coaches without violating FLSA

The Norfolk paper reports here ("60 coaches will keep jobs in Beach schools," 7/10/04) on the resolution of the Virginia Beach school system's consideration of what to do about keeping its non-teacher coaches while complying with the overtime provisions of the Fair Labor Standards Act.

Virginia lawyer pleads guilty to embezzlement

The Charlottesville paper reports here ("Ex-lawyer admits to charges," 7/10/04) on the guilty plea of a Virginia lawyer to charges that she embezzled client funds.

More ideas for the special session

In this editorial about the special session to fix the Sunday-off law, the Daily Press wonders that no more laws than this one get fouled up each session, and goes on to suggest the General Assembly should also do the following:

"Pass legislation giving localities the right to use cameras to catch motorists running red lights.

Give police the right to stop and ticket motorists solely for not wearing seat belts.

Provide some serious money for highway construction.

Repeal the poorly named "Affirmation of Marriage Act," which is really nothing more than an act of discrimination against homosexuals."

Friday, July 09, 2004

Are overtime suits against a school board barred by the Eleventh Amendment?

In Smith v. School District of Greenville County, from April of 2004, a federal judge in South Carolina held dismissed FLSA claims against a local school district on the theory that the claims were barred by the Eleventh Amendment, which prohibits the federal courts from entering money judgments against the States.

Back when I was in college and then law school, we studied the Supreme Court's decision which finally held, after some waxing and waning, that the Tenth Amendment did not bar the application of the FLSA to local governments and the states.

More on the toughened DUI laws in Virginia

The Washington Post reports here ("DUI Laws May Jail Thousands in Va.," 7/9/04) that "Virginia's new, tougher drunken driving laws are likely to put thousands more drivers behind bars each year and require them to install expensive breathalyzer equipment in their cars."

Thursday, July 08, 2004

The Blakely files

This page is chock full of resources and cases related to how federal courts are handling the Blakely decision.

Governor Warner calls special session

From Governor Warner's website, here is his call for a special legislative session on July 13 to fix the blue law problem.

The Daily Press has this report ("Gov. reconvenes Assembly to fix law," 7/8/04), and the AP has this report.

Chief Judge Jones rules for insureds in liability coverage dispute over flood damage

In State Auto Property and Casualty Ins. Co. v. Gorsuch, a declaratory judgment action brought by an insurer, Judge Jones granted the defendants' motions for summary judgment, on coverage issues related to whether the insurer was responsible for claims against the insureds for causing flood damage.

Special session to make sure Virginians work on Sundays

The Roanoke paper has this article ("Warner may call session on rest law," 7/8/04) on the upcoming special session of the General Assembly to fix the messed-up blue laws.

People For the American Way gives thumbs down to Fourth Circuit nominee Boyle

In response to the press efforts from the White House, the group People for the American Way had this press release, which says among other things that if Judge Boyle was confirmed to the Fourth Circuit, "he could wreak havoc on civil rights enforcement and push the Fourth Circuit even further to the right."

C. Boyden Gray on Claude Allen

In this NRO commentary, the former White House counsel writes in favor of the nomination of Claude Allen to the Fourth Circuit.

White House on federal judgeships

Via How Appealing, the White House has issued this factsheet on its judicial nominees from Michigan and from North Carolina, including the nomination of District Judge Terence Boyle to the Fourth Circuit.

Wednesday, July 07, 2004

How the Blue Law error slipped through the cracks

This Post article ("Sundays-Off Law Got By Many Officials," 7/7/04) explains how the blue law amendment error got past everyone involved, in the offices of the legislature, the legislative services office, the Governor, and the Attorney General, without anyone catching, but it was detected by an associate at McGuire Woods.

The Post's solutions to the lawyers for the poor problem in Virginia

In today's segment ("Fixing Virginia's System," 7/7/04) from the Washington Post, the editors offer their ideas about what needs to be done to fix the Virginia system for legal representation of the poor in criminal cases.

More on the First Circuit's e-mail decision

Yesterday's NY Times has this article on the First Circuit's decision in U.S. v. Councilman, the stored e-mail case.

Congressman Boucher takes on state regulation of VOIP

This CNET article describes a new bill to be introduced by Congressman Boucher of SW Virginia which would ban the state regulation of voice-over-Internet-protocol.

Tuesday, July 06, 2004

More from the Washington Post on bad lawyers in Virginia criminal cases

The Washington Post has this editorial ("Inexcusable delay," 7/5/04) and this editorial ("Attention: Virginia Bar," 7/6/04), continuing its series on the inadequate representation of indigent criminal defendants in Virginia.

The latter includes the following:

"For equanimity in the face of failing a client, though, no one can match Andrea C. Long. Last November, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, dismissed the habeas corpus appeal of Kenneth B. Lewis, a state inmate serving more than 30 years for murder; Mr. Lewis's lawyer, Ms. Long, the court ruled, had filed the notice of his appeal four days too late. Ms. Long insisted in an April letter to Mr. Lewis and in a recent interview that the error was not her own; the court's clerk had stamped the wrong date, she maintains -- an explanation that five prominent appellate experts we consulted described as highly implausible and which Ms. Long admits that she cannot prove. "While I do not know whether you are a religious man, I am a religious woman," she concluded in her letter. "I can't help but believe" that the error "had to be the work of God, since it was no fault of yours or mine. That means that there is some purpose that God has for you to remain in prison." She signed off, wishing Mr. Lewis luck as "you find and fulfill that purpose." The presence of lawyers in Virginia's defense bar who could write such a letter or throw case after case away is not an act of God. And it should not be tolerated any longer."

The $1,000 per hour barrier

Adam Smith blog has this post, referencing among other things a prediction that some law firms will soon be "approaching and backing off from resistance at the magic $1,000/hour billing rate."

Holy catbirds.

Something else to look for in the Virginia Code

Over at Begging the Question, one of them confesses here to reading SW Virginia law blog, and in particular the story of the blue law snafu, which of course reminds him of a Simpsons episode:

"This also reminds me of a funny "Simpsons" episode written by Conan O'Brien. It's the one with the monorail, and when the monorail goes out of control, Mayor Quimby and Chief Wiggum scour the town charter to determine who has final authority in a crisis. They get off track (pun intended) when Wiggum discovers that, "as Chief Constable, I'm supposed to get a pig each month, and 'two comely lasses of virtue true'!" Quimby: "How many broads do I get?" Well, despite the fun stuff one can find in old laws, I hope the outdated stuff is culled more carefully than Virginia has done. Or perhaps this is all happening because the governor and attorney general can't agree on who gets how many comely lasses."

Stopping distance instruction was error but not reversible error

In Jones v. Griffey, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Shedd, and Duncan held that the trial court erred by giving a jury instruction based on Instruction No. 10.105 of the Virginia Model Jury Instructions, referring to Va. Code 46.2-880, the statutory stopping distance table.

The opinion goes on to conclude, however, that the error was harmless, and affirmed the defense verdict.

More on Blakely

In a footnote in U.S. v. Burrell, Chief Judge Jones notes in connection of whether the defendant's prior conviction for something or other was a "crime of violence" under the federal sentencing guidelines: "Because this determination is a matter of law and not of fact, my decision does not implicate the principles of Blakely v. Washington, No. 02-1632, 2004 WL 1402697 (U.S. June 24, 2004). Moreover, the fact of prior conviction is not the type of fact requiring jury determination. See Apprendi v. New Jersey, 530 U.S. 466, 488 (2000)."

In this post, Ken Lammers said the following waiver language is being tried with mixed success by some federal prosecutors following Blakely:

I am also waiving any right I may have for a jury determination of any and all facts relevant to the application of any Sentencing Guideline factors by the United States District Judge. I agree the District Judge should make the Sentencing Guideline determination using the preponderance of the evidence standard. I understand that by signing this plea agreement I waive any right to a jury determination of sentencing factors that may exist under Blakely and Apprendi, and any case interpreting these two Supreme Court decisions.

Via How Appealing, here is an interesting profile of the 33 year-old lawyer from Washington State who won the Blakely case.

Vick suspended, faces more criminal charges

Here are some of the latest Michael Vick stories:

from the Washington Post: Latest Arrest Puts Vick In Limbo, 7/7/04

from the Richmond Times-Dispatch: Va. Tech suspends Marcus Vick, 7/6/04

from the Daily Press: Tech suspends Vick indefinitely, 7/6/04

from the AP: Tech QB Marcus Vick suspended after traffic charges on I-64, 7/6/04

from the Lynchburg News-Advance: Virginia Tech's Vick suspended, 7/6/04

from the Roanoke Times: Marcus Vick charged with marijuana possession, 7/6/04

opinion from the Roanoke Times: Aaron McFarling: Vick must go, 7/6/04

Real estate closing costs go up September 1

As the Richmond paper reports here ("Closing costs in Virginia to rise," 7/7/04), one tax increase passed by the General Assembly will cause an increase in recording fees for real estate transactions, effective September 1.

Governing Buchanan County after Operation Big Coon Dog

The Bluefield paper has this report ("Fallout from alleged money scheme grows," 7/5/04) on the effect of Operation Big Coon Dog, the federal bribery case, on the ongoing process of governing Buchanan County, including some quotes from one of the county attorneys, Frank Kilgore.

Monday, July 05, 2004

Lee County group seeks non-methadone rehab clinic

The Richmond paper reports here ("Lee group wants rehab without methadone," 7/5/04) on efforts to establish in Lee County a drug rehab center that will not use methadone.

Sunday, July 04, 2004

The page about Southwest Virginians in the Bill Clinton book has this account about how the Bill Clinton biography includes a page about his chance meeting with the late Charlie Daniels and attorney Carl McAfee in Moscow in 1970.

160 DNA samples collected during Charlottesville-area rapist search destroyed

The AP reports here on the destruction of DNA samples from dozens of black men by police in the Charlottesville area who were searching for a serial rapist.

More than one in ten state court criminal appeals in Virginia botched by lawyers?

In this editorial ("Court of No Appeal," 7/4/04), the Washington Post claims the following:

"An investigation by this page reveals that in 2003 more than one in 10 of the 2,660 criminal cases before the Virginia Court of Appeals -- the state's mid-level appellate court -- were dismissed not because the cases had no merit but because fees or documents were not filed with the court on time. These dismissals were overwhelmingly the result, as in Mr. Watts's case, of attorney error, not defendants mishandling cases in which they represented themselves: Nearly 9 percent of appeals in the court were thrown out because of errors by lawyers -- errors so fundamental that they don't even involve legal skills. Public defenders and court-appointed lawyers for poor defendants were responsible for more than 70 percent of the cases in which lawyers threw away their clients' rights. Moreover, we identified more than 40 attorneys who, over 15 months, appear to have blown more than one case and at least 12 who appear to have filed appeals in three or more cases that were dismissed. Every time one of these defaults takes place, someone's appeal -- however much merit it may have, however innocent the defendant may be -- does not get heard."

The editorial goes on to conclude there are two conditions which make this outcome likely: (1) the harshness of Virginia procedural rules, and (2) lack of compensation means inadequate counsel.

Polling places in Southwest Virginia and elsewhere in state to be scrutinized for disabled access

The Richmond paper reports here that the polling places in Southwest Virginia and the rest of the state will be scrutinized this summer for handicapped access.

The article notes that "[l]ocalities with the highest rates are all in Virginia's coal fields: Buchanan (35.9 percent), Dickenson County (34.9), city of Norton (34.5), Lee County (32.7) and Russell County (31.5)."

School teacher to run as independent against Boucher, Triplett

The Roanoke Times reports here ("Alleghany County teacher enters 9th District race," 7/3/04) on the home-grown candidacy of a school teacher who has entered the Ninth District congressional race as an independent.

State bar suspends license of lawyer convicted of beating his brother with a baseball bat

The Charlottesville paper reports here ("Bar suspends lawyer after assault," 7/2/04) that the Virginia State Bar has suspended the professional license of a Charlottesville lawyer on account of his 2002 conviction for beating his brother with an aluminum baseball bat.

Blaming Gilmore

This column from the Daily Press says that former Governor Gilmore is to blame for VDOT's funding woes.

It also says, strangely enough, that "[t]here are credible reports out of Richmond - although neither man is likely to confirm it on the record - that Gilmore asked Attorney General Jerry Kilgore to step aside so he, Gilmore, could run in 2005. Given the obvious negative answer, Gilmore is said to be planning a campaign in 2009."

This commentary from the Charlottesville paper accuses candidate Kilgore of advocating the same budget tactics as Gilmore.

Former candidate files suit in Virginia Beach against website for defamation

The Norfolk paper reports here ("Waters sues operators of Web site in Chesapeake," 7/3/04) that a former mayoral candidate has sued operators of a local website for posting defamatory information about him 4 days before the election.

The website issued a retraction after the election.

More on the injunction against the change in the blue laws

Yesterday, the Norfolk paper had this article ("Accidental 'day of rest' law won't be enforced yet," 7/3/04) and the Washington Post had this story ("Va. Judge Suspends Blue Law," 7/3/04) with more on the story of the blue law snafu, including the reluctance of Governor Warner to recall the General Assembly for a special session, and the attitudes of some union officials.

Earlier in the week, before the injunction was issued, the NY Times had this article ("New Law Gives Virginia's Workers a Break, by Accident," 7/2/04) on the problem.

Judge Markow was really put on the spot, he might easily have said he wasn't granting the injunction for any length of time, and let the plaintiffs appeal and the legislators rush about. I was local counsel in a case years ago where an injunction was sought by a bunch of big companies, claiming that absent relief, they would have to pay out a chunk of money that they shouldn't be charged and couldn't get back if it was later determined by the Court that they shouldn't be charged. The Court's answer, basically, was this: you are big companies, you can afford it, losing this amount of money is not irreparable harm, and if you want to litigate this issue we can set an early date for a final hearing on the merits.

How W&L got out of big-time football

The Richmond paper has this article ("Fielder's choice," 7/4/04) and this article ("Academics did in W&L team," 7/4/04) with recollections of the events leading up to the decision fifty years ago at Washington & Lee University in Lexington to award no more athletic scholarships, including an academic cheating scandal.

Bill Brill says - no ACC titles for Tech in his lifetime

According this column by Doug Doughty, former Roanoke Times sports editor and diehard Duke fan Bill Brill is predicting that Virginia Tech will not win any ACC titles in his lifetime.

Doughty notes that "the man is 73 and he did smoke cigars for 30 years and, having observed him for decades on the road, he could keel over at any minute."

In addition, the prospect that Coach K will turn pro might add to the stress levels down in Durham.

Roanoke paper - stealing trust worse than stealing money

Last week, the Roanoke paper had this editorial ("In Buchanan County, a case of public trust," 6/28/04) commenting on the indictments in Operation Big Coon Dog, the federal bribery case out of Buchanan County, and concluding that "even in economically distressed places, theft of trust can be worse than theft of money."

Roanoke paper says more money needed for lawyers who represent the poor

In this editorial ("Where's the justice?," 7/3/04) the Roanoke paper says the new Virginia Indigent Defense Commission mostly needs to get more money from the state for the lawyers who represent the poor in criminal cases.

Cashiers cannot be made to pay for stolen gas

The Roanoke paper reports here ("Va. law prohibits making cashiers pay for stolen gas," 7/3/04) that some convenience store owners are illegally making their cashiers pay for the gas stolen by people who drive off without paying.

Former Fourth Circuit judge dies in WV

As the AP reports here, James Marshall Sprouse died on Saturday at age 80. In 1979, President Carter appointed him to serve on the U.S. Court of Appeals for the Fourth Circuit. He took senior status in 1992, and retired in 1995.