Reading this Professor Berman post titled "The next big Blakely issue: the prior conviction exception" makes me think that Virginia knew what it was doing when provided for bifurcated criminal trials, so the prior convictions would be considered by the jury in the sentencing phase but not necessarily in the guilt phase. In July, Chief Judge Jones of the W.D. Va. wrote in a footnote, "the fact of prior conviction is not the type of fact requiring jury determination," citing Apprendi. Professor Berman explains that "the theoretical soundness of Almendarez-Torres' 'prior conviction' exception to the Apprendi/Blakely rule has been widely questioned, and Justice Thomas' statements suggest that there are no longer five Justices who support this exception."
My metaphor for Blakely is "The Empire Strikes Back," the revenge of a judiciary that is sick of micro-managing of sentencing by the legislature and therefore quite pleased to pose this problem to those who write the laws - either rewrite the substance to eliminate the "mandatoriness" or rewrite the procedure to put the fact issues before the juries.
Saturday, August 21, 2004
Making an impression on the son of Jerry Kilgore
From the Floyd County paper, in this article about a visit from AG Jerry Kilgore to Floyd County, it says that he said:
his 11-year old son has become keenly interested in the Presidential campaign. Kilgore took him to meet the President when Bush made a visit to Northern Virginia Community College earlier in the week. “My son was really impressed that the President greeted me by name. I think he was even more impressed that the protesters knew who I was.”
his 11-year old son has become keenly interested in the Presidential campaign. Kilgore took him to meet the President when Bush made a visit to Northern Virginia Community College earlier in the week. “My son was really impressed that the President greeted me by name. I think he was even more impressed that the protesters knew who I was.”
Tazewell County woman violates probation by taking methadone?
The Roanoke paper reports here ("Woman jailed for listening to doctor," 8/21/04) on the case of woman in Tazewell County who found herself in a situation where her doctor prescribed methadone for her OxyContin addiction but the judge (Judge Henry Vanover) in her criminal case concluded that taking methadone violated her probation.
The article says that Judge Vanover entertained a motion on Friday for reconsideration of his ruling that the defendant would have to serve three years of her suspended time for violating the terms of her probation, and notes that the ACLU is working to help the defendant in the case.
The article somewhat bungles the terminology. Apparently the woman got a jail sentence that was suspended on condition that she not violate the terms of her probation, and the judge reimposed the prison time he had earlier suspended, once the probation violation was found to have occurred. The article notes that the defendant was charged last year with child abuse and possession of OxyContin.
Another question I have about this scenario is whether it would have been feasible for the defendant in advance of taking the methadone to apply to the Court for modification of the terms of her probation. I suspect that Judge Vanover would studied such a request at somewhat greater length than he did in the exchange that is quoted at the end of the article.
The article says that Judge Vanover entertained a motion on Friday for reconsideration of his ruling that the defendant would have to serve three years of her suspended time for violating the terms of her probation, and notes that the ACLU is working to help the defendant in the case.
The article somewhat bungles the terminology. Apparently the woman got a jail sentence that was suspended on condition that she not violate the terms of her probation, and the judge reimposed the prison time he had earlier suspended, once the probation violation was found to have occurred. The article notes that the defendant was charged last year with child abuse and possession of OxyContin.
Another question I have about this scenario is whether it would have been feasible for the defendant in advance of taking the methadone to apply to the Court for modification of the terms of her probation. I suspect that Judge Vanover would studied such a request at somewhat greater length than he did in the exchange that is quoted at the end of the article.
Boing Boing discovers Appalshop
The always delightful Boing Boing blog has this post about digital music available from Appalshop, which of course is mostly not about music. Among its other works, Appalshop made this movie about the United Mine Workers' strike against the Pittston companies of 1989-1990.
The country and bluegrass music blog I spotted not too long ago is Ram Radio, which is a member of the Birthplace of Country Music Alliance (based in Bristol).
The country and bluegrass music blog I spotted not too long ago is Ram Radio, which is a member of the Birthplace of Country Music Alliance (based in Bristol).
A crammer?
Legal Underground asks here "Are you a crammer?"
This causes me to recollect the story of the lawyer who asked for the 30 day extension, and when asked if all that time was necessary, he replied, "Well, the first 27 days aren't too important, but, Judge, I can't do without those last three days."
This causes me to recollect the story of the lawyer who asked for the 30 day extension, and when asked if all that time was necessary, he replied, "Well, the first 27 days aren't too important, but, Judge, I can't do without those last three days."
Another federal judge who was a Virginia newspaperman and Abingdon lawyer
Here is the FJC biographical listing for Robert William Hughes, who was once a lawyer here in Abingdon and was appointed by President U.S. Grant and served as judge of the E.D. Va. from 1874 to 1898 (and of whom I never heard anything before just now). He read law in 1846 and was the editor of a newspaper in Richmond during the Civil War. This list of federal government officials in 1893 indicates that he sat in Norfolk as the only judge of the E.D. Va. As listed here, he died in 1901 (at the age of 80) and was buried in Sinking Springs Cemetery in Abingdon.
His papers at William & Mary include, among other things, a receipt for the purchase of two slaves in 1862. It says here that he was "unsuccessful Republican candidate for governor of Virginia and for Congress, married Joseph E. Johnston's niece, who was the adopted daughter of John B. Floyd" and his papers at William & Mary also include correspondence with Benjamin F. Butler, Benjamin S. Ewell, U.S. Grant, Joseph E. Johnston, W.H.F. Lee, James Longstreet, and John S. Mosby. This page about his son notes that Judge Hughes was "one of the first prominent Virginians to turn Republican during the Reconstruction period," and that the son tried and failed to be appointed to succeed his father as federal judge in Norfolk. The son Robert M. Hughes, was born and raised in Abingdon, and served for many years on the Board of Visitors of the College of William & Mary.
This page from the Booker T. Washington papers states that "among the Southern gentlemen present" for the graduation exercises at the Hampton Institute in 1875 was "Judge R.W. Hughes of Richmond," and here it says that of his remarks on that occasion, "Judge Hughes, who was once a rabid fire-eater, said it was gratifying to put to rest the old belief that one race was inferior in capacity to the other."
His papers at William & Mary include, among other things, a receipt for the purchase of two slaves in 1862. It says here that he was "unsuccessful Republican candidate for governor of Virginia and for Congress, married Joseph E. Johnston's niece, who was the adopted daughter of John B. Floyd" and his papers at William & Mary also include correspondence with Benjamin F. Butler, Benjamin S. Ewell, U.S. Grant, Joseph E. Johnston, W.H.F. Lee, James Longstreet, and John S. Mosby. This page about his son notes that Judge Hughes was "one of the first prominent Virginians to turn Republican during the Reconstruction period," and that the son tried and failed to be appointed to succeed his father as federal judge in Norfolk. The son Robert M. Hughes, was born and raised in Abingdon, and served for many years on the Board of Visitors of the College of William & Mary.
This page from the Booker T. Washington papers states that "among the Southern gentlemen present" for the graduation exercises at the Hampton Institute in 1875 was "Judge R.W. Hughes of Richmond," and here it says that of his remarks on that occasion, "Judge Hughes, who was once a rabid fire-eater, said it was gratifying to put to rest the old belief that one race was inferior in capacity to the other."
Friday, August 20, 2004
What is the meaning of JK '05?
The Washington Times reports here that some Virginians are wondering about the "JK '05" bumper stickers that are being distributed by the Jerry Kilgore campaign, as if to promote John Kerry.
What are all these people doing in here on a Friday?
The hit count was above normal today thanks to links from Crim Law and, even more surprising, the American Constitution Society blog, who both noticed my post about Frank Dunham and the Hamdi case.
Double jeopardy! argues sniper Muhammad's legal team
The Post has this account ("Muhammad Lawyers Cite Double Jeopardy," 8/20/04) of the arguments raised by the lawyers for sniper John Muhammad seeking dismissal of his prosecution in Fairfax County, while the appeal of his earlier conviction for murder in Prince William County remains pending. Evidence about the victim from Fairfax County was heard in the Prince William case.
No Nader on the ballot in Virginia this fall?
The AP reports here ("State Board of Elections rejects Nader qualifying petitions," 8/20/04) that the Virginia State Board of Elections has rejected the petitions by Ralph Nader's presidential campaign to appear on the Virginia ballot in November.
Just so you know, my dad drove his '59 Corvair (often with me in it) for roughly another 10 years after Nader published Unsafe at Any Speed. I remember when I was really small, when it was cold, I could get down on the floor in the backseat, where the Corvair had those vents from the REAR ENGINE.
Just so you know, my dad drove his '59 Corvair (often with me in it) for roughly another 10 years after Nader published Unsafe at Any Speed. I remember when I was really small, when it was cold, I could get down on the floor in the backseat, where the Corvair had those vents from the REAR ENGINE.
More on municipal telecommunications networks
In this recent article from TelephonyONLINE, there is more discussion about the merits of telecommunications networks owned by local governments.
Not long ago, there was this article ("Warner endorses ARC funding for Jonesville fiber-optic project," 8/4/04) in the Kingsport paper about my sister's efforts to get the fiber-optic cable into Jonesville, how she has gotten Governor Warner to recommend approval for a grant for the project which she called "400 yards to Jonesville."
The article says, among other things:
"When Glen "Skip" Skinner was looking for ways to expand off a backbone fiber-optic system that Lenowisco and other partners are developing in Southwest Virginia, he went to Joan Porter, whose consulting business is located in a business incubator in which Lenowisco is involved.
Part of Porter's business is to write grants for nonprofit groups, so together she and Skinner completed a grant application to the Appalachian Regional Commission for $30,000 to help fund the $70,000 project. Both believe that Porter's creativity in naming the project "400 yards to Jonesville" helped draw attention to the project and get it recommended for funding.
Porter said she chose the name because ARC wants to fund projects they call "the last mile."
"We shortened ours to the last 400 yards, because that's all that was needed to bring this cable to the downtown area," she said.
On Friday, Gov. Mark R. Warner recommended funding for that and 14 other projects that will support entrepreneurial business efforts in Virginia's Appalachian communities and increase access to technology in the region.
"Entrepreneurship and technology are important engines for Appalachian Virginia's economy," said Warner. "These grants will improve access to technology in the region and support small business efforts that will help us create jobs in Virginia's Appalachian communities."
Skinner said Lenowisco has obtained $10,000 in matching funding from the Center for Innovative Technology, and because of the existing network in place, the project will have a $70,000 value.
"We are extremely pleased that Lee County is going to get benefits of ARC and CIT funding for this project," said Skinner upon learning of the governor's recommendation.
Skinner said he hopes work can start by spring, or even earlier, and that the goal is to take the fiber-optic line on to Rose Hill.
"With projects such as this, we have to take it one step at a time," he said.
Porter, who lives in Rose Hill, said businesses such as hers can be far more competitive when they have access to fiber-optic and high-speed Internet. She became interested in helping with the project because she wanted to locate her office closer to home than the incubator in Duffield. Porter said she will be relocating her business to Jonesville as soon as the line is operational.
"Downtown Jonesville needs some new alternatives. In small, rural areas like Jonesville, technology is one of the ways we can transform for new opportunities. I am tickled to hear that there is going to be new economic opportunities in Lee County and in particular, the county seat," she said.
Although the governor's recommendation does not guarantee the project is funded, Porter said his recommendations are traditionally funded, and she is optimistic ARC will come through with the money."
Here is the complete list of Governor Warner's recommendations to the Appalachian Regional Commission.
Not long ago, there was this article ("Warner endorses ARC funding for Jonesville fiber-optic project," 8/4/04) in the Kingsport paper about my sister's efforts to get the fiber-optic cable into Jonesville, how she has gotten Governor Warner to recommend approval for a grant for the project which she called "400 yards to Jonesville."
The article says, among other things:
"When Glen "Skip" Skinner was looking for ways to expand off a backbone fiber-optic system that Lenowisco and other partners are developing in Southwest Virginia, he went to Joan Porter, whose consulting business is located in a business incubator in which Lenowisco is involved.
Part of Porter's business is to write grants for nonprofit groups, so together she and Skinner completed a grant application to the Appalachian Regional Commission for $30,000 to help fund the $70,000 project. Both believe that Porter's creativity in naming the project "400 yards to Jonesville" helped draw attention to the project and get it recommended for funding.
Porter said she chose the name because ARC wants to fund projects they call "the last mile."
"We shortened ours to the last 400 yards, because that's all that was needed to bring this cable to the downtown area," she said.
On Friday, Gov. Mark R. Warner recommended funding for that and 14 other projects that will support entrepreneurial business efforts in Virginia's Appalachian communities and increase access to technology in the region.
"Entrepreneurship and technology are important engines for Appalachian Virginia's economy," said Warner. "These grants will improve access to technology in the region and support small business efforts that will help us create jobs in Virginia's Appalachian communities."
Skinner said Lenowisco has obtained $10,000 in matching funding from the Center for Innovative Technology, and because of the existing network in place, the project will have a $70,000 value.
"We are extremely pleased that Lee County is going to get benefits of ARC and CIT funding for this project," said Skinner upon learning of the governor's recommendation.
Skinner said he hopes work can start by spring, or even earlier, and that the goal is to take the fiber-optic line on to Rose Hill.
"With projects such as this, we have to take it one step at a time," he said.
Porter, who lives in Rose Hill, said businesses such as hers can be far more competitive when they have access to fiber-optic and high-speed Internet. She became interested in helping with the project because she wanted to locate her office closer to home than the incubator in Duffield. Porter said she will be relocating her business to Jonesville as soon as the line is operational.
"Downtown Jonesville needs some new alternatives. In small, rural areas like Jonesville, technology is one of the ways we can transform for new opportunities. I am tickled to hear that there is going to be new economic opportunities in Lee County and in particular, the county seat," she said.
Although the governor's recommendation does not guarantee the project is funded, Porter said his recommendations are traditionally funded, and she is optimistic ARC will come through with the money."
Here is the complete list of Governor Warner's recommendations to the Appalachian Regional Commission.
Wow, criminal conviction for HIPAA violation
The HIPAA blog has this post with details and links about the first CRIMINAL conviction for violation of HIPAA, in a case where some guy stole medical information and used it for some kind of identity theft.
Weak prima facie case plus weak evidence of pretext equals summary judgment for employer
In Price v. Thompson, the Fourth Circuit in an opinion by Senior Judge Bowman from the Eighth Circuit, joined by Chief Judge Wilkins and Judge Niemeyer, affirmed summary judgment for the employer in a case where the Reeves test was applied to measure the evidence of pretext in refusing to hire the plaintiff.
In Reeves v. Sanderson, decided in 2000, the Supreme Court adopted what some call the "pretext-maybe" standard, for dealing with summary judgment or judgment as a matter of law in cases that are subject to the shifting burdens and inferences under the McDonnell Douglas test for proving discriminatory motive.
There's a good review of Fourth Circuit cases in this opinion, even though it was not written by a Fourth Circuit regular.
In Reeves v. Sanderson, decided in 2000, the Supreme Court adopted what some call the "pretext-maybe" standard, for dealing with summary judgment or judgment as a matter of law in cases that are subject to the shifting burdens and inferences under the McDonnell Douglas test for proving discriminatory motive.
There's a good review of Fourth Circuit cases in this opinion, even though it was not written by a Fourth Circuit regular.
Thursday, August 19, 2004
No waiver of arbitration rights by participation in district court proceedings
In Patten Grading & Paving, Inc. v. Slanska USA Building, Inc., the Fourth Circuit in an opinion by Judge Duncan, joined by District Judge Flanagan, with Judge Widener dissenting, held that the trial court erred in concluding that the defendant contractor and its surety had waived the arbitration clause in its agreement with the subcontractor plaintiff. The proceedings in the district court went on for about eight months and included some written discovery and an attempt at mediation, before the motion for a stay and arbitration was made.
Geez, I would have guessed the other way on this one. Eight months in federal court is a long time!
Geez, I would have guessed the other way on this one. Eight months in federal court is a long time!
Sexual apartheid in Virginia?
The Connection papers have this wild article with more opposing views on the anti-same-sex agreement statute which became the law in Virginia on July 1. As evidence that the law does not apply so broadly as critics have charged, the sponsor, Delegate Marshall, comments: "It is very telling that the ACLU, Equality Virginia and the Log Cabin Republicans have not yet found a plaintiff to sue over my law."
In Virginia trial with testimony in Farsi, woman acquitted of bigamy and perjury
The Norfolk paper has this wild account ("Woman cleared of bigamy, perjury in high-stakes divorce," 8/20/04) of the bigamy and perjury trial of an Iranian woman in the Norfolk Circuit Court.
What if the U.S. court of appeals has got the state law all wrong?
Via this post from How Appealing, the answer, according to Judge Easterbrook in Reiser v. Residential Funding Corp., is so what, the district court still has to go by what the Court of Appeals says, because that is the natural order of things.
Well, I guess that makes sense, but it seems like kind of a shame, because the District Court judges from Virginia almost surely know a lot more about the state of Virginia law than do the Court of Appeals judges from another state - any other state.
Well, I guess that makes sense, but it seems like kind of a shame, because the District Court judges from Virginia almost surely know a lot more about the state of Virginia law than do the Court of Appeals judges from another state - any other state.
Next time, throw him some pizza
The Roanoke paper reports here ("Ex-pizza deliverer serves up lawsuit over injuries by dog," 8/19/04) that a fellow from Roanoke has filed sued for $100,000 for personal injuries he sustained when he tried to deliver a pizza to a house in Salem.
The article notes: "The dog, Steve, has since been put to sleep after an unrelated incident. . . ." (There is no connection between this story and the previous post about a fictional Stephen King dog.)
This pizza suit reminds me of a gambit from the movie Songcatcher in which: "As Lily walks home at night through the woods, she hears the sounds of what she believes to be a panther (earlier described in the film) and then frantically runs through the woods, discarding some of her clothing (after remembering the instructions to do just that), all while a bit of suspenseful music plays." The idea was that if the panther was chasing you, he would stop at each article of clothing, while you kept running.
The article notes: "The dog, Steve, has since been put to sleep after an unrelated incident. . . ." (There is no connection between this story and the previous post about a fictional Stephen King dog.)
This pizza suit reminds me of a gambit from the movie Songcatcher in which: "As Lily walks home at night through the woods, she hears the sounds of what she believes to be a panther (earlier described in the film) and then frantically runs through the woods, discarding some of her clothing (after remembering the instructions to do just that), all while a bit of suspenseful music plays." The idea was that if the panther was chasing you, he would stop at each article of clothing, while you kept running.
Whose hound is it?
The Lynchburg paper has this account ("Dog-gone dilemma," 8/19/04) of the case of the dog with two owners (and two names).
This reminds me of the dog in Stephen King's The Stand, which was known to the post-plague people as Kojak (but as King notes, parenthetically, and as shown in this list of the characters, the dog still sometimes thought of himself as "Big Steve").
This reminds me of the dog in Stephen King's The Stand, which was known to the post-plague people as Kojak (but as King notes, parenthetically, and as shown in this list of the characters, the dog still sometimes thought of himself as "Big Steve").
The last of the purloined photos.
This one shows not only the deep conversation between Mitch and Judge Persin, but also in the background is the road to the parking lot behind the clubhouse, including the part where I almost ran over Judge Persin last year, missing him but colliding instead with the wire fence on the other side and knocking the outside mirror off the old car. I told my dad twice how this happened to the mirror, and I don't think he's buying it.
Virginia Democrats on the new Jerry Falwell law school
From the Virginia Democrats' blog, this post laments the opening of the new law school at Liberty as likely to result in the further breakdown of the separation of Church and State.
Now, to me, there's something wrong in singling out for criticism the Southern Baptists and other Christians, when they engage in the naked pursuit (so to speak) of their agenda, as they are surely entitled to do, as much as anyone else. The Southern Baptists are not a threat to Our American Way of Life - anyone who has ever been to a Sunday School picnic knows that.
Now, to me, there's something wrong in singling out for criticism the Southern Baptists and other Christians, when they engage in the naked pursuit (so to speak) of their agenda, as they are surely entitled to do, as much as anyone else. The Southern Baptists are not a threat to Our American Way of Life - anyone who has ever been to a Sunday School picnic knows that.
How Scalia like the Buffalo Bills lost the four Big Ones
This Balkinization post says that since Justice Scalia has lost the fight on his four big signature issues, he's made no more of a dent in American constitutional law than say Marv Levy's Bills' teams changed NFL history by losing 4 straight Super Bowls.
(Anyhow, that's how I read it.)
(Anyhow, that's how I read it.)
New Virginia law limits local authority to prohibit political signs
The AP has this story that says the ACLU of Virginia is warning local governments to comply with a new Virginia law on political campaign signs.
The new law, Va. Code 15.2-109, says: "No locality shall have the authority to prohibit the display of political campaign signs on private property if the signs are in compliance with zoning and right-of-way restrictions applicable to temporary nonpolitical signs, if the signs have been posted with the permission of the owner."
The new law, Va. Code 15.2-109, says: "No locality shall have the authority to prohibit the display of political campaign signs on private property if the signs are in compliance with zoning and right-of-way restrictions applicable to temporary nonpolitical signs, if the signs have been posted with the permission of the owner."
Public defender in the Hamdi case
The Norfolk paper has this column ("Underdog public defender scores big in Hamdi case," 8/19/04) with the lowdown on E.D. Va. public defender Frank Dunham, who appears to have prevailed over the Justice Department and the Defense Department in the case of alleged enemy combatant Yaser Hamdi. The article notes that Dunham's argument before the Supreme Court in the Hamdi case is "already the stuff of legal legend," which makes me want to go back and read both the argument transcript and the opinion.
Update: On further review, Dunham's rebuttal before the Supreme Court is worth quoting:
"May it please the Court. Mr. Clement is a worthy advocate and he can stand up here and make the unreasonable sound reasonable. But when you take his argument at core, it is, "Trust us." And who is saying trust us? The executive branch. And why do we have the great writ? We have the great writ because we didn't trust the executive branch when we founded this Government. That's why the Government is saying trust us is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that no man shall be deprived of liberty except upon due process of law.
We have a small problem here. One citizen. We're not talking about thousands. One citizen caught up in a problem in Afghanistan. Is it better to give him rights or is it better to start a new dawn of saying there are circumstances where you can't file a writ of habeas corpus and there are circumstances where you can't get due process. I think not. I would urge the Court not to go down that road. I would urge the Court to find that citizens can only be detained by law. And here there is no law. If there is any law at all, it is the executive's own secret definition of whatever enemy combatant is. And don't fool yourselves into thinking that that means somebody coming off a battlefield because they've used it in Chicago, they've used it in New York and they've used it in Indiana.
The Congress needs to act here. Justice Souter was on point when he was talking about the fact that we're two years into this thing and Congress leaves all the laws on the books that relate to habeas corpus and how a habeas corpus proceeding is supposed to go. They leave the 4001(a) on the books that says no executive detention. But we ignore those laws, we don't enforce them. We don't require Congress to fill a gap. Congress tomorrow could take these military regs and they could say, this is the law, we authorize the executive to detain people and to give
them hearings the way the military says, and then it would be lawful. But Congress hasn't done that and I respectfully submit, Your Honor, that until Congress does that, these detentions are not lawful. And I would respectfully ask this Court to step up to the plate and say so."
Update: On further review, Dunham's rebuttal before the Supreme Court is worth quoting:
"May it please the Court. Mr. Clement is a worthy advocate and he can stand up here and make the unreasonable sound reasonable. But when you take his argument at core, it is, "Trust us." And who is saying trust us? The executive branch. And why do we have the great writ? We have the great writ because we didn't trust the executive branch when we founded this Government. That's why the Government is saying trust us is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that no man shall be deprived of liberty except upon due process of law.
We have a small problem here. One citizen. We're not talking about thousands. One citizen caught up in a problem in Afghanistan. Is it better to give him rights or is it better to start a new dawn of saying there are circumstances where you can't file a writ of habeas corpus and there are circumstances where you can't get due process. I think not. I would urge the Court not to go down that road. I would urge the Court to find that citizens can only be detained by law. And here there is no law. If there is any law at all, it is the executive's own secret definition of whatever enemy combatant is. And don't fool yourselves into thinking that that means somebody coming off a battlefield because they've used it in Chicago, they've used it in New York and they've used it in Indiana.
The Congress needs to act here. Justice Souter was on point when he was talking about the fact that we're two years into this thing and Congress leaves all the laws on the books that relate to habeas corpus and how a habeas corpus proceeding is supposed to go. They leave the 4001(a) on the books that says no executive detention. But we ignore those laws, we don't enforce them. We don't require Congress to fill a gap. Congress tomorrow could take these military regs and they could say, this is the law, we authorize the executive to detain people and to give
them hearings the way the military says, and then it would be lawful. But Congress hasn't done that and I respectfully submit, Your Honor, that until Congress does that, these detentions are not lawful. And I would respectfully ask this Court to step up to the plate and say so."
Former D-Day Memorial director still innocent
The AP has this report that Richard Burrow has once again entered a plea of not guilty to the federal charges brought against him in connection with the fundraising for the D-Day monument at Bedford.
ASL starts year 8 with 142 for class of 2007
As stated in this press release, the Appalachian School of Law in Buchanan County started classes on Monday, with an incoming group of 142.
Post wonders whither Virginia's Republicans
The Washington Post has this editorial that says nobody knows what might have with Virginia Republicans in 2005, noting that since the end of the General Assembly session, "the Republicans have been riding off in all directions with fingers to the wind."
How to litigate before a crooked judge
The NY Times has this story ("Played in Court, Tapes Show Judge Coaching Lawyer and Taking Cash," 8/19/04) about how some judges told the lawyers how to argue a case before them.
Baker Donelson goes to Iraq
Via Findlaw, this article from the Memphis paper (registration required) says that Baker Donelson has got lawyers in Iraq.
They also have an office here in the Tri-Cities, so I guess they've got all corners of the globe covered. I think I mentioned that in May, the wife of a Baker Donelson lawyer who is better known as this TV decorator.
They also have an office here in the Tri-Cities, so I guess they've got all corners of the globe covered. I think I mentioned that in May, the wife of a Baker Donelson lawyer who is better known as this TV decorator.
Wednesday, August 18, 2004
Both Virginia parties want primaries for next year's state-wide races
The Richmond paper reports here ("Dueling primaries expected in 2005," 8/18/04) that it appears both parties will have primary elections to select their statewide candidates in Virginia for 2005.
Keep them at home, barefoot, and Republican?
Tsuredzuregusa has this post which implies that the policy of the new Virginia law which lowers the threshold of education required for home schooling is because the home school advocates don't want the children to learn very much, lest they become Democrats.
Opening of the Liberty University School of Law
Jurist has this post with links about the opening next week of the new law school at Jerry Falwell's Liberty University in Lynchburg, including this AP report and the Dean's blog.
Counsel, read your e-mail from the Court, or else
In King v. Island Creek Coal Company, Chief Judge Jones refused to reconsider his ruling on a motion in limine regarding the theory of expert testimony, even though lead counsel for the plaintiff claimed that he never got the motion and knew nothing about until it was filed.
The Court noted: "This court has adopted certain procedures for filing and serving pleadings and papers by electronic means, as authorized by Rule 5 of the Federal Rules of Civil Procedure. The First Motion in Limine was filed by electronic means, although the certificate of service attested that copies of the pleading had been served by mail on opposing counsel. Nevertheless, lead counsel for the plaintiffs in this case, Annesley H. DeGaris, had previously submitted an electronic case filing registration form on June 3, 2004, by which he consented to receive notice of filings pursuant to the court’s electronic filing system. Thus, when the First Motion in Limine was filed electronically by counsel for Island Creek, the system sent to Mr. DeGaris a notice to the email address designated in his registration form. In oral argument, Mr. DeGaris contended that he had not actually seen the notice of filing, because his secretary handles his email. Nevertheless, proper service of the pleading was completed on transmission. See Fed. R. Civ. P. 5(b)(2)(D)."
So, the Court concluded there was no argument that the motion was not properly served. The Court went on to conclude that there was no reason for reconsideration, anyhow.
This opinion tells me that even though the use of electronic filing is still not yet mandatory and in sort of a transitional phase, it has to be taken seriously by those who participate in it.
The Court noted: "This court has adopted certain procedures for filing and serving pleadings and papers by electronic means, as authorized by Rule 5 of the Federal Rules of Civil Procedure. The First Motion in Limine was filed by electronic means, although the certificate of service attested that copies of the pleading had been served by mail on opposing counsel. Nevertheless, lead counsel for the plaintiffs in this case, Annesley H. DeGaris, had previously submitted an electronic case filing registration form on June 3, 2004, by which he consented to receive notice of filings pursuant to the court’s electronic filing system. Thus, when the First Motion in Limine was filed electronically by counsel for Island Creek, the system sent to Mr. DeGaris a notice to the email address designated in his registration form. In oral argument, Mr. DeGaris contended that he had not actually seen the notice of filing, because his secretary handles his email. Nevertheless, proper service of the pleading was completed on transmission. See Fed. R. Civ. P. 5(b)(2)(D)."
So, the Court concluded there was no argument that the motion was not properly served. The Court went on to conclude that there was no reason for reconsideration, anyhow.
This opinion tells me that even though the use of electronic filing is still not yet mandatory and in sort of a transitional phase, it has to be taken seriously by those who participate in it.
Chief Judge Jones grants summary judgment for Purdue in OxyContin cases
In McCauley v. Purdue Pharma, L.P., Chief Judge Jones of the W.D. Va. granted summary judgment to the Purdue defendants where the plaintiffs failed to create a question of fact as to whether their alleged injuries were caused by OxyContin.
Canadian lawyers reject ban on sex with clients
I read this column which reports on the vote by the Canadian lawyers against a ban on sex with clients, and it sort of makes me think of small-town lawyers mentally counting the eligible members of the opposite sex in their hometowns and thinking, wait a minute, I've already represented half of them.
Tuesday, August 17, 2004
Summary judgment denied to self-funded ERISA plan looking for its money back
In York International Corporation Employee Benefit Plan v. Brewer, Chief Judge Jones of the W.D. Va. denied plaintiffs' motion for summary judgment, where it failed to prove there was a pool of funds on which the Court could impose a remedy.
NCIC report admissible in criminal case to prove prior offenses
In Hawes v. Com., the Virginia Court of Appeals in an opinion by Judge Benton concluded the trial court did not err in refusing to exclude evidence of the defendant's prior convictions in the form of a redacted NCIC report.
Recollecting my first unemployment case
In Denisar v. Barrett Hauling, the Virginia Court of Appeals in a per curiam opinion affirmed the circuit court order affirming the VEC's decision that the appellant was disqualified by misconduct from unemployment benefits.
One of my first research projects as a lawyer was to write the brief for the appellant in what became Kennedy’s Piggly Wiggly Stores v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992), a case not infrequently cited on the issue of misconduct and unemployment. One of these days I will get the nerve to post the text of the circuit court opinion from that case, which was written in the form of a poem, dated April 1.
One of my first research projects as a lawyer was to write the brief for the appellant in what became Kennedy’s Piggly Wiggly Stores v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992), a case not infrequently cited on the issue of misconduct and unemployment. One of these days I will get the nerve to post the text of the circuit court opinion from that case, which was written in the form of a poem, dated April 1.
What is the community caretaker exception to the warrant requirement for a legal search
In Kyer v. Com., the Virginia Court of Appeals in an opinion by Judge Humphreys concluded that the arresting officers were acting within their role as community caretakers when they entered the house where the defendant was.
What are the limits on reopening commissioner's report in divorce cases
In Morrill v. Morrill, the Virginia Court of Appeals in an opinion by Judge Annunziata, joined by Judge Felton, held that the trial court erred by reopening fact issues that were referred to the commissioner in chancery in a divorce case. In dissent, Judge McClanahan was of the view that the referral did not include the matters on which the trial court heard additional evidence.
Boucher and Triplett schedule TV debate for October 22
The Roanoke paper reports here ("Boucher to debate challengers," 8/17/04) that the contenders for the Ninth District congressional seat will have a televised debate in October.
How reliable can a dog named Dino be?
The Roanoke paper has this article ("Dino hounded by attorney's challenge," 8/17/04) about the challenge brought by criminal defendants to probable cause based on the actions of a drug-sniffing dog.
What happens to that coal, anyhow?
In this article, the Washington Post bashes the Bush administration and the coal industry.
Monday, August 16, 2004
Football time in Tennessee
Here's my alltime favorite piece of writing about college football in Tennessee. Probably I posted it last year and will again next year, until the IP police tell not to do it any more:
It's Football Time in Tennessee
by Jake Vest -- Orlando Sentinel -- Jake Vest is the creator of the comic strip That's Jake.
Re-printed in Knoxville News-Sentinel January 14, 1996
I grew up just down the river from Knoxville's Neyland Stadium in the poor direction -- out toward the rock quarries, dairy farms and tobacco patches.
On a crisp mid-October Saturday you could climb a hill, and if the wind was just right, you could hear the rich people booing Bear Bryant and the Tide.
I spent a lot of time climbing those hills and listening.
Football was the second favorite sport out in the greater Forks of the River metropolitan area, right behind squirrel hunting -- which you didn't need a ticket to do.
Sometimes the squirrel hunters would carry transistor radios so they could listen in on John Ward, the Voice of the Vols, calling the shots for that other sport. If Tennessee was driving for a score, there would be a general, temporary cease-fire.
Now that is devotion. Anything that gets a Tennesseean s mind off hunting is something special.
If it was a particularly big game, even the dogs would stop barking. They knew Ward's voice, and they could tell when he was getting serious, a fact that may seem like a stretch to some but you've got to remember we had some mighty good dogs.
Out in my part of the woods, an affection for the Big Orange was something you took up early in life and held onto.
One of my first memories is of sitting on the front porch in a swing with my grandfather, that s Pappaw in East Tennessean, listening on the radio to Tennessee play Ole Miss. That was back in the days when the forward pass was considered an alternative lifestyle, something you did if you weren't man enough to play real football, and both teams rushed about 300 times for a total
of about 150 yards.
Every time Ole Miss would gain a step, Pappaw would cuss and spit tobacco juice. By halftime, the side yard looked like an oil spill.
What's most remarkable about this is that I don t think Pappaw had any notion of what a football game was. It wasn t mentioned in the Bible, so he had no reason to have ever read about it; and he sure had never attended a game. He had no idea what those Mississippians were doing. But he knew they were doing it to us. And he was against it. He never set foot in the University of Tennessee campus in his life, but he was a Vol and a mighty good one if I say so myself.
If you can understand my Pappaw, you can probably understand the relationship between Tennessee football and Tennessee football fans. If you can't, there's not much reason to try to explain it.
It's an us vs. them proposition. If you're one of us, you know how we feel; if you're not, I'm not sure you want to know.
Some people make the mistake of separating the game from all the stuff that surrounds the game and therefore can't see what's the big deal. College football in general, Southern college football in the particular and Tennessee Volunteer Go Big Orange college football, to be precise, is much much more than that.
It's crisp autumn afternoons with chicken barbecuing, bands playing and trees trying to out-pretty each other. It s riding down the river as part of the Vol Navy and singing Rocky Top 400 or 500 times in an afternoon. It s a cold beer and a turkey sandwich at Sam & Andy s down on Cumberland Avenue before the game. It s tailgating around Kent Boy Rose's orange and white motor home -- one of the hundreds of that color that line Neyland Drive on game day, right outside Neyland Stadium where General Neyland used to coach. It's memories of Tennessee Walking Horses strutting the sidelines and of cannons in the end zone. It's Old Smokey howling for a touchdown. It's John Ward hollering GIVE HIM SIX when the good guys score and hollering STOPPED BY A HOST OF VOLUNTEERS when the bad guys get stuffed. It's Bobby Denton calling the play by play and telling a fired-up crowd "It's fooootball time in TENN-E-SSEEEEE!" It's old women and little babies decked out in orange. It's African-Americans and redneck farmers high-fiving, hugging and saying "How bout them Vols?" after a touchdown.
It's touchdowns.
It's road trips to Birmingham, radio talk shows, shakers, and flags flapping in the wind. It's dancing to the Tennessee Waltz after the game and sipping illicit Tennessee whiskey during it.
It's memories: The time we beat the unbeatable Auburn and the unstoppable Bo Jackson couldn't go anywhere but backward; the undertalented Daryl Dickey shutting the overactive mouths of a Miami team in the Sugar Bowl we were supposed to lose by 22 but won by 28; holding Larry Csonka and Floyd Little out of the end zone to preserve a bowl victory over Syracuse; reminding Ken Stabler that left-handers can lose football games too; Condredge Holloway hopping out of an ambulance to return to the UCLA game and rally the troops to a tying touchdown; Jack Reynolds cutting his car in half after a loss and earning the nickname Hacksaw.
It's Doug Atkins, the Majors boys, Bob Johnson, Charlie Rosenfelder, Karl Kremser, Richmond Flowers, Herman "Thunderfoot" Weaver, Dewey "Swamp Rat" Warren, Tony Robinson, Curt Watson, Steve Kiner, Willie Gault, Carl Pickens and Reggie White and all our other heroes running through that big T while the Pride of the Southland band plays and over 100,000 of us holler and carry on like free-will Baptists having a spell. It's also memories of my daddy sitting on the front porch during the last autumn Saturdays of his life listening to the game on the radio and cussing and spitting tobacco juice every time an opponent gained a step on us. He would understand what I'm talking about.
So would Pappaw.
I could go on, but you probably get the picture. If you don't, you won't ever so there's no reason to go further.
I guess it's the kind of feeling that just runs in the family.
It's Football Time in Tennessee
by Jake Vest -- Orlando Sentinel -- Jake Vest is the creator of the comic strip That's Jake.
Re-printed in Knoxville News-Sentinel January 14, 1996
I grew up just down the river from Knoxville's Neyland Stadium in the poor direction -- out toward the rock quarries, dairy farms and tobacco patches.
On a crisp mid-October Saturday you could climb a hill, and if the wind was just right, you could hear the rich people booing Bear Bryant and the Tide.
I spent a lot of time climbing those hills and listening.
Football was the second favorite sport out in the greater Forks of the River metropolitan area, right behind squirrel hunting -- which you didn't need a ticket to do.
Sometimes the squirrel hunters would carry transistor radios so they could listen in on John Ward, the Voice of the Vols, calling the shots for that other sport. If Tennessee was driving for a score, there would be a general, temporary cease-fire.
Now that is devotion. Anything that gets a Tennesseean s mind off hunting is something special.
If it was a particularly big game, even the dogs would stop barking. They knew Ward's voice, and they could tell when he was getting serious, a fact that may seem like a stretch to some but you've got to remember we had some mighty good dogs.
Out in my part of the woods, an affection for the Big Orange was something you took up early in life and held onto.
One of my first memories is of sitting on the front porch in a swing with my grandfather, that s Pappaw in East Tennessean, listening on the radio to Tennessee play Ole Miss. That was back in the days when the forward pass was considered an alternative lifestyle, something you did if you weren't man enough to play real football, and both teams rushed about 300 times for a total
of about 150 yards.
Every time Ole Miss would gain a step, Pappaw would cuss and spit tobacco juice. By halftime, the side yard looked like an oil spill.
What's most remarkable about this is that I don t think Pappaw had any notion of what a football game was. It wasn t mentioned in the Bible, so he had no reason to have ever read about it; and he sure had never attended a game. He had no idea what those Mississippians were doing. But he knew they were doing it to us. And he was against it. He never set foot in the University of Tennessee campus in his life, but he was a Vol and a mighty good one if I say so myself.
If you can understand my Pappaw, you can probably understand the relationship between Tennessee football and Tennessee football fans. If you can't, there's not much reason to try to explain it.
It's an us vs. them proposition. If you're one of us, you know how we feel; if you're not, I'm not sure you want to know.
Some people make the mistake of separating the game from all the stuff that surrounds the game and therefore can't see what's the big deal. College football in general, Southern college football in the particular and Tennessee Volunteer Go Big Orange college football, to be precise, is much much more than that.
It's crisp autumn afternoons with chicken barbecuing, bands playing and trees trying to out-pretty each other. It s riding down the river as part of the Vol Navy and singing Rocky Top 400 or 500 times in an afternoon. It s a cold beer and a turkey sandwich at Sam & Andy s down on Cumberland Avenue before the game. It s tailgating around Kent Boy Rose's orange and white motor home -- one of the hundreds of that color that line Neyland Drive on game day, right outside Neyland Stadium where General Neyland used to coach. It's memories of Tennessee Walking Horses strutting the sidelines and of cannons in the end zone. It's Old Smokey howling for a touchdown. It's John Ward hollering GIVE HIM SIX when the good guys score and hollering STOPPED BY A HOST OF VOLUNTEERS when the bad guys get stuffed. It's Bobby Denton calling the play by play and telling a fired-up crowd "It's fooootball time in TENN-E-SSEEEEE!" It's old women and little babies decked out in orange. It's African-Americans and redneck farmers high-fiving, hugging and saying "How bout them Vols?" after a touchdown.
It's touchdowns.
It's road trips to Birmingham, radio talk shows, shakers, and flags flapping in the wind. It's dancing to the Tennessee Waltz after the game and sipping illicit Tennessee whiskey during it.
It's memories: The time we beat the unbeatable Auburn and the unstoppable Bo Jackson couldn't go anywhere but backward; the undertalented Daryl Dickey shutting the overactive mouths of a Miami team in the Sugar Bowl we were supposed to lose by 22 but won by 28; holding Larry Csonka and Floyd Little out of the end zone to preserve a bowl victory over Syracuse; reminding Ken Stabler that left-handers can lose football games too; Condredge Holloway hopping out of an ambulance to return to the UCLA game and rally the troops to a tying touchdown; Jack Reynolds cutting his car in half after a loss and earning the nickname Hacksaw.
It's Doug Atkins, the Majors boys, Bob Johnson, Charlie Rosenfelder, Karl Kremser, Richmond Flowers, Herman "Thunderfoot" Weaver, Dewey "Swamp Rat" Warren, Tony Robinson, Curt Watson, Steve Kiner, Willie Gault, Carl Pickens and Reggie White and all our other heroes running through that big T while the Pride of the Southland band plays and over 100,000 of us holler and carry on like free-will Baptists having a spell. It's also memories of my daddy sitting on the front porch during the last autumn Saturdays of his life listening to the game on the radio and cussing and spitting tobacco juice every time an opponent gained a step on us. He would understand what I'm talking about.
So would Pappaw.
I could go on, but you probably get the picture. If you don't, you won't ever so there's no reason to go further.
I guess it's the kind of feeling that just runs in the family.
New study of desegregation in Western Virginia
The Richmond paper reports here ("Project to study desegregation," 8/16/04) on a new study of what happened when the schools were integrated in Western Virginia, between Waynesboro and Roanoke.
Fourth Circuit says no to bankruptcy trustee trying to get at property held as tenants by the entireties
In Schlossberg v. Barney, the Fourth Circuit in an opinion by Judge Duncan, joined by Judge Widener and Judge Flanagan, rejected a bankruptcy trustee's claim that it had the same rights to get at property held as tenants by the entireties as does the IRS.
Chief Judge Wilkins to teach at new Charleston law school
The State.com reports here (second story down) that Chief Judge William Wilkins of the Fourth Circuit will be part of the faculty of the new law school being created in Charleston, South Carolina.
Sunday, August 15, 2004
Wilder mad about attacks on wife of Kerry for calling herself African-American
The Charlottesville paper has this column which says that Doug Wilder, Virginia's first African-American governor, is uptight over the targeting of black voters with radio ads complaining about Ms. Kerry's claim to be an "African-American."
More on the little girl at the heart of the same-sex couple custody dispute
On Saturday, the Winchester paper had this article on the child whose custody is being litigated in Virginia in a dispute between two women who were parties to a civil union in Vermont. The article notes that at the last hearing, the lawyer for the birth mother in Virginia argued that the woman from Vermont lacks standing to contest custody - which pretty much gets to the nub of the matter, I'd say, if it means the Court will have to decide as a matter of law whether the Vermont woman has standing to litigate custody by virtue of the civil union in Vermont.
The Richmond paper had this article ("It's Virginia vs. Vermont incustody case," 8/14/04) on the case.
The Richmond paper had this article ("It's Virginia vs. Vermont incustody case," 8/14/04) on the case.
First-time speeder gets 20 days in jail from substitute district court judge
Mark Holmberg of the Richmond paper has this column ("Little mercy: Goochland judge gave jail time to fast drivers," 8/15/04) about the substitute General District Court judge who gave a fellow with an otherwise clean driving record who was caught driving 90+ mph on Interstate 64 20 days in jail for reckless driving. The article notes that the prosecutor expected a lesser sentence from the Circuit Court on appeal.
Virginian at the head of the Swift Boat veterans
The Richmond paper has this article ("Veteran attacks Kerry," 8/15/04) on the Richmond-area man who launched "a movement to brand John F. Kerry a liar" about his service in Vietnam.
Somewhat unrelated to this, the Washington Post repeats here ("Kerry Hoping Veterans Will Tip Va. His Way," 8/15/04) the strange thesis that Kerry will carry Virginia because of the Commonwealth's large population of veterans. The article notes that Professor Sabato says veterans don't vote based on their status as veterans.
Somewhat unrelated to this, the Washington Post repeats here ("Kerry Hoping Veterans Will Tip Va. His Way," 8/15/04) the strange thesis that Kerry will carry Virginia because of the Commonwealth's large population of veterans. The article notes that Professor Sabato says veterans don't vote based on their status as veterans.
Money in place for place to view Scott County railroad trestle
The Kingsport paper has this article ("Grant to fund overlook project at scenic Scott railroad trestle," 8/15/04) that says there will soon be a place to stop and take a picture of the interesting spot where two railroad bridges and the Clinch River meet at Speers Ferry.
The best way to check the scene right now is from on the river, as shown here.
The best way to check the scene right now is from on the river, as shown here.
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