You can't keep them down on the farm in Emory after they've seen Baghdad

The Roanoke paper has this delightful article ("Never again say football is war," 8/28/04) about five football players from Emory & Henry College who went to Iraq as part of the 1032nd and made it back from over there to back in school, as changed men.

Blakely meets the Richard Burrow case

The Roanoke Times has this article ("Burrow's charges should be separate," 8/28/04) about some rulings by Senior Judge Turk in the Richard Burrow case, which is scheduled to be retried starting September 17 in Charlottesville. Burrow is accused of illegal acts in connection with fundraising for the D-Day monument outside Bedford.

Regarding the tinkering with the indictment to include language dealing with the Blakely problem, the article says this:

"Turk did rule that he would strike language in the most recent indictment against Burrow that deals with the issue of sentencing, should Burrow be convicted of any charges.

Prosecutors returned to the grand jury earlier this month and sought a new indictment in light of a recent U.S. Supreme Court decision. The high court's ruling raised the question of whether any factors that could potentially make a defendant's sentence longer should be decided beyond a reasonable doubt by a jury, rather than by a judge at sentencing on a lower standard of proof.

As the new indictment stood, the Charlottesville jurors would consider not only Burrow's innocence or guilt, but if they decided to convict, they would also decide such issues as how much fraud Burrow should be held responsible for.

But Burrow's attorneys, John Lichtenstein, John Fishwick and Greg Johnson, have argued that the law is in flux, because it is still unclear whether the Supreme Court decision applies to the federal system.

They also argued that the Department of Justice has acknowledged that it is "constitutionally unworkable" to try sentencing issues before a jury. And they argued that jury consideration of the sentencing issues would be like a trial within a trial, and they would need more time to prepare.

Turk ruled that the sentencing language should be struck from the new indictment, but did not grant the defense attorneys' request that it be dismissed altogether.

"It seems to me like it ought to be tried like we've always tried a case," Turk said."

Is there an intentional infliction of emotional distress claim when some other claim is available?

In this post from Jottings by an Employer's Lawyer, a recent decision by the Texas Supreme Court is described, in which the Court reversed a $10 million sexual harassment verdict, where the plaintiff could have (and had) proceeded under the Texas Commission on Human Rights Act, concluding that the tort of intentional infliction of emotional distress was intended only to apply where there was no other remedy.

This is very interesting.

Should I save this stuff for the presidential library - or take it on to dump?

In the backseat of my car are two boxes of papers that are mostly the record of my high school days. Twenty years later, Mom has decided to out this archive from her house. Included among them are papers showing that I really was, notwithstanding all evidence to the contrary, a kid who scored well on standardized tests, well enough perhaps to have qualified for at least one famous group of smart people. Then, I went off to college and discovered, much to my surprise, that I was probably the dumbest kid out of 20 on my hall in the first year dorm at the University of Virginia. (I could, however, then and perhaps even now work the Washington Post and NY Times weekday crosswords better than the engineering students.)

Virginia Supreme Court removes a General District Court judge

The Norfolk paper reports here ("Portsmouth judge taken off bench by court order," 8/28/04) and the AP reports here that the Virginia Supreme Court has ordered the removal from the bench of a General District Court judge in Portsmouth, for as-yet unknown reasons.

The articles note that the judge, Hon. Archie Elliott, Jr., was disappointed that he was not elected chief judge for his district: "After losing the election for chief judge, Elliott wrote and distributed letters to his colleagues, legislators and other judges saying the selection process was unfair. He also said that blacks were underrepresented as clerks in the court’s criminal division and under-utilized as substitute judges." Elliott was first appointed as judge in 1979.

Best Bainbridge post ever - biscuits and gravy

Professor Bainbridge proves his Southwest Virginia ancestry with this post explaining how to make biscuits and gravy, although I must confess that these days I mostly get mine from Hardees, since my wife from Northern Virginia has never understood the whole concept.

Paula Jones lawyer at the Biscuit Connection

This morning I saw Gil Davis at the place where I get biscuits, Gil Davis the once and future candidate for statewide office in Virginia and the litigator from the Paula Jones case against President Clinton. I suppose he is in town for the Bristol races.

Speeder's sentence reduced from 20 days to 4 days

Following up on an earlier story, the Richmond paper reports here ("Speeding-case jail term is cut to four days," 8/26/04) that on appeal, a speeder caught going 90+ mph had his sentence reduced to 4 days in jail.

Sixth Circuit en banc says OK to USSG

In U.S. v. Koch, the Sixth Circuit sitting en banc, in an opinion by Judge Sutton, concludes that the U.S. Sentencing Guidelines are constitutional, notwithstanding Blakely. The vote was 9-5. Professor Berman has excellent comments here and here.

Virtual tour of the Coalfield Expressway

The Coalfield Progress reports here ("CFX animation featured as economic development tool," 8/25/04) that a computer simulation of a drive on the not yet built Coalfield Expressway is being used to market what the road in Southwest Virginia will be like.

The Post's take on the Virginia surplus

The Washington Post has this editorial ("'Surplus' Politics," 8/26/04) on the insignificance of the $323.8 million surplus to a budget of $57.7 billion, particular when VDOT needs another $600 million.

Sanctions of $10,000 for failure to disclose party-defendant's death affirmed

In Glucksberg v. Polan, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener and Michael and Senior Judge Hamilton affirmed the sanction of $10,000 imposed against one of the litigants by District Judge Goodwin, based on these circumstances:

"The sanction resulted from Polan’s failure to properly notify the court, during a proceeding in which he and his father were the defendants, that his father had died and that he was not a co-executor of his father’s estate, as the plaintiffs believed. As a result of these failures, a judgment previously entered in favor of the plaintiffs in the amount of $208,637.50 had to be vacated."

Democrats want registrars across Virginia to check Nader petitions

The AP reports here that Virginia Democrats are demanding that the registrars in the counties and cities of Virginia "compare petition signatures to voter registration cards maintained in their offices to ensure that the signatures on Nader's petitions are in fact valid."

Off-track betting in Southwest Virginia?

The Kingsport paper reports here ("Colonial Downs petitions picking up speed in Scott County," 8/26/04) that betting on horseraces may be an issue on the ballot this fall in Scott County.

Geez, that's incredible. You'd figure that would go over just about as well as a methadone clinic.

Catholics and Baptists unite at Liberty Law School, wherever that is

I enjoyed this Bainbridge post about Catholics (including the Dean) and Baptists (including Jerry Falwell) at the new Liberty law school, until I got to the part where he said it was in "southeast Virginia." No place called the "Hill City" and the "City of the Seven Hills" can be found over in the flatlands of Southeast Virginia.

I myself grew up going to the Abingdon Baptist Church (until we moved away) then was married (by a Jesuit priest) in Holy Trinity Catholic Church in Georgetown.

Will new case for damages from spread of STD lead to ruling on constitutionality of fornication law

The Norfolk paper reports here ("Suit saying man spread herpes could uproot state coitus law," 8/25/04) that a lawsuit brought by a woman who claims a man intentionally infected her with herpes could force the Virginia courts to rule on whether the Virginia fornication statute is unconstitutional, and therefore the woman's damage claim would not be barred by a defense of illegality. Defense lawyers know the case of Zysk v. Zysk, 232 Va. 32, 404 S.E.2d 721 (1990) in which the Virginia Supreme Court held that a woman in similar facts could not recover damages for contracting a disease from a sex partner with whom she was not married, which is illegal under the fornication statute, because as a principle of Virginia law, no recover is allowed for participation in an illegal act (thus modifying the Biblical admonition to something like "the wages of sin . . . is no damages").

The constitutional argument is based on ruling by the U.S. Supreme Court in Lawrence v. Texas, which threw out a criminal conviction for consensual sodomy. Last year, I wrote this post ("The effects of the Texas sodomy case on Virginia law"), concluding that the Virginia fornication statute is likely to be invalid (at least for private, consensual acts). Supporters of the statute might argue, however, that the facts of the Virginia Beach case show why the Commonwealth has a rational basis for a prohibition against unmarried persons having sex, to prevent the spread of disease.

Winchester judge rules Virginia law bars custody based on Vermont same-sex union

In the Virginia case involving the custody dispute between two women over custody of a child, a judge in Winchester recognized the birth mother in Virginia as the sole parent, notwithstanding their civil union in Vermont and some kind of prior visitation ruling made by a court in Vermont.

The Richmond paper has this article ("Judge rules that Va. law voids issue of custody for gays," 8/25/04), which says the judge "based his decision on the state's Affirmation of Marriage Act, a law that took effect in July barring the state from recognizing same-sex civil unions." The Winchester paper has this article ("Custody Ruling Favors Frederick Woman," 8/25/04), which quotes the judge as saying, "As far as Virginia is concerned, nothing is taking place in Vermont," and this article ("Advocates on Both Sides Predict Difficult Outcomes," 8/25/04), which says that prior to the ruling, both sides "had dire predictions if Judge John R. Prosser did not rule in their favor on Tuesday" and quotes the Vermont woman's lawyer as saying that "Virginia should be the Las Vegas of gay divorce." The Augusta Free Press has this article ("Ruling seen as step back for gay rights," 8/25/04). The Washington Post has this article ("Vt. Same-Sex Unions Null in Va., Judge Rules," 8/25/04), which quotes one advocacy group spokesman saying the parentage issue is still unresolved in the Vermont case: "In Vermont, the judge still hasn't figured out how Janet could be a parent. Vermont's civil union law does not address parentage."

The war in Iraq responsible for flooding in West Virginia

According to this editorial in the Bluefield paper, federal money for controlling floods caused by mountaintop mining is being diverted to pay for the war in Iraq.

More on Ralph Nader and the Virginia ballot

Hugh Lessig of the Daily Press has this article ("Nader wins round in Va. ballot fight," 8/24/04), which quotes the Virginia chairman for Nader as saying of AG Kilgore, "Jerry is man of integrity . . .and I don't think he made his decision based on political leanings."

In this article ("State board reverses ruling, allowing Nader on Va. ballot," 8/24/04) from the Norfolk paper, Jim Hopper from the AG's office describes the scene as the Nader petition was presented as chaotic: "the situation was confusing at best,” Hopper wrote.

In the article ("Advice on Nader state bid reversed," 8/24/04) in the Richmond paper, by Jeff Shapiro, a Democratic "spokeswoman" was quoted as saying: "I am not surprised that the attorney general has reversed himself, given the nationwide effort by Republicans to assist Ralph Nader's efforts to get on the ballot."

Does gang activity equal terrorism under Virginia's FOIA?

The Staunton paper reports here ("Council, police to discuss gang activity," 8/24/04) that the city council there is going to have a closed meeting with police to discuss ongoing criminal investigations about gang activity in the city, and as an exception to the open meeting requirements, they are relying on Va. Code 2.2-3711(A)(20), which applies to:

"Discussion of plans to protect public safety as it relates to terrorist activity and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such activity or a related threat to public safety."

New council with new lawyer switches sides on Wal-Mart zoning issue

The AP reports here that the new town council in Front Royal has changed lawyers and is looking to join a lawsuit challenging the rezoning for a proposed Wal-Mart that was passed by the old town council.

Not all Jerry Kilgores with same view on taxes

Howard County, Texas commissioner Jerry Kilgore was quoted here regarding a proposed 3% tax increase: "we need it."

Virginia polls, by race

RedState in this post ponders some recent polling data for Virginia about the presidential race and speculates that President Bush might actually get more than 20% of the votes of black Virginians, opining that "breaking the 20% barrier could help break the stigma that voting Republican and being African-American are no longer contradictory."

An old fellow I used to know from Scott County tried to explain to me one time that in Virginia in the the 1950s, the Republicans were viewed as the party of the blacks, and Ted Dalton suffered with anti-segregationist white voters in his gubernatorial campaigns because of President Eisenhower sending troops to Little Rock. I don't know whether that would also mean that those African-Americans who were able to overcome the various obstacles to voting mostly supported for Republicans.

Judges - hot or not?

Inter Alia links here to Rate Philly Judges, where the judges of Philadelphia are getting rated by somebody on a scale of 1 to 5. (These ratings appear to be somewhat less unruly than those offered by Underneath Their Robes.)

Photos of victims worn by courtroom spectaors did not impair right to fair trial

In Cooper v. Com., the Virginia Court of Appeals in an opinion by Judge McClanahan joined by Chief Judge Fitzpatrick and Judge Benton concluded that the capital murder defendant was not denied a free trial by the presence of spectators in the courtroom wearing badges with a picture of the victims.

No res judicata applicable among criminal conspirators

In Waters v. Com., the Virginia Court of Appeals in an opinion by Judge Frank, joined by Judges Benton and Elder, rejected the appellant's argument that the Commonwealth was barred from prosecuting him for the felony of malicious wounding by mob after a co-conspirator was separately convicted of the lesser included offense of assault and battery by mob.

No success for Jens Soering for latest appeal

In Soering v. Warden of Brunswick Correctional Center, the Fourth Circuit in a per curiam decision for the panel of Judges Motz, Gregory, and Duncan dismissed on procedural grounds the appeal of Jens Soering from the denial by Judge Kiser of his latest petition for post-conviction relief.

This blog gets a hit once every week or two from someone searching Google for links about Jens Soering and Elizabeth Haysom.

Big day for Bristol bar

At today's Bristol Virginia bar meeting, the speakers were a woman from the HELP House, which is a supervised visitation center; the U.S. attorney for the Western District of Virginia, John Brownlee; and State Senator William Wampler. Responding to begging and pleading from the bar president, there were about 35 attendees, counting guests, which is a very high turnout.

FLSA cheatsheet

Via Benefitsblog, the Ogletree firm has this cheatsheet for applying the revised overtime rules that went into effect this week.

A couple of my favorite D.C. lawyers are with the Ogletree firm - Bill Althen and John Woodrum.

Police officer testifying at grievance hearing not speaking on matter of public concern

In Kirby v. City of Elizabeth City, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Williams and Senior Judge Hansen from the Eighth Circuit, affirmed the entry of summary judgment for a locality on a public employee's First Amendment speech, Equal Protection, and First Amendment retaliation claims. On the speech claim, the appeals court concluded that the plaintiff's remarks at a public hearing on a grievance brought by another employee did not constitute speech on a matter of public concern. On the retaliation claim, the Fourth Circuit concluded that the plaintiff had a freedom of petition claim involving matters of public concern, but the individual defendants were entitled to judgment on qualified immunity - because government officials cannot be liable for "bad guesses in gray areas" and the City was not liable for lack of a custom, policy, or practice.

(I'm always on the lookout for those bad guesses in gray areas and trying to avoid those customs and policies.)

I'm not sure why, but there were a bunch of amici in this case: for the plaintiff, the National Organization of Police Associations, the Fraternal Order of Police, the Professional Firefighters & Paramedics of North Carolina, the North Carolina Association of Educators, and the North Carolina Academy of Trial Lawyers; and for the defendants, the North Carolina Association of County Commissioners and the North Carolina School Boards Association. The trial court judge, by the way, was the Fourth Circuit nominee, Chief Judge Terrence Boyle of the Eastern District of North Carolina.

$20 stolen from a Best Western motel equals impact on interstate commerce

In U.S. Hemingway, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael, Motz, and King concluded, among other things, that the requirement of impact on interstate commerce necessary to sustain a conviction under the Hobbs Act was met where the evidence showed that $20 was stolen from a Best Western motel.

Post-tax increase, Governor Warner declares tax refund

The AP reports here that Governor Warner has declared the Commonwealth has too much money, and therefore $100 increase in the personal exemption from the income tax will be implemented a year earlier than was previously planned.

Delegate Kilgore says no to methadone clinic in Scott County

The Kingsport paper reports here ("Delegate says methadone clinic not 'in the best interest' of Scott County," 8/24/04) that Delegate Terry Kilgore has written to state officials declaring his view that a proposed methadone clinic in Scott County, Virginia, is a bad idea, partly because it would serve a bunch of Tennesseans.

Reversal of fortune for Nader in Virginia

What strikes me as bad about this AP story on the reversal on Ralph Nader's petition to get on the ballot in Virginia is that it gives the impression that somebody at the State Board of Elections is just making stuff up, and for a while it was working on the Attorney General's office.

Don't tell the RIAA - details of the only song I ever downloaded with KaZaa

Maybe I'm telling tales on myself, but the only song I ever downloaded via file sharing was "My Maria" by Brooks and Dunn. I guess that's sort of like going into a bar with a fake ID and ordering a diet Pepsi.

It says here they will play the Republican Convention, so maybe that's one part I'll watch.

Virginia as the Reno for same-sex unions?

This editorial from the Norfolk paper says the new Virginia law on same-sex deals may "make Virginia a haven for gay couples looking for a quickie divorce. Cross the border, and — Poof! — your civil union disappears. Virginia is for ex-lovers, in other words."

Ah, there's a lot wrong with or at least unanswered by this editorial, but I don't have time to track it down this morning.

John Edwards in Roanoke

Documenting Democracy has this stash of photos from Vice-Presidential nominee John Edwards' stop in Roanoke on Saturday.

More on the reconsideration of Nader in Virginia

The Jaded JD has this post with more on the "Ralph Nader's petition may be reconsidered" story.

Virginia's rural vote for Kerry?

The Washington Post has another story ("Rural Va. Economy A Chance For Kerry," 8/22/04) about how Kerry has a chance in Virginia, this time looking at "the rural" vote.

I think that Speaker Howell was correct when he said that if Kerry takes Virginia, he'll take 40 other states - which could happen, but if it does, it won't be because of anything the Kerry campaign did or said in Virginia, and Bush will still do better with the rural vote than the urban vote, even in Virginia (except in the usual places, like Dickenson County).

Ouch, AG's office has to reconsider advice on Nader's petition

The Richmond paper reports here ("State reconsiders Nader's bid," 8/22/04) that the Attorney General's office, led by a Republican elected official, is considering whether to reconsider its earlier advice to the State Board of Elections, because it might have been somehow bamboozled on the facts by the Board's Democratic-appointed secretary.