Saturday, October 30, 2004

The only black school in Lee County

This account describes the past and present of the building that at one time was the only primary school for black students in Lee County, Virginia. The article notes that Lee County public schools were integrated in the 1966-67 school year.

Mouse-in-soup case certified to grand jury

The Newport News paper reports here ("Mouse-in-soup case headed to grand jury," 10/30/04) that District Judge Bryant Sugg found probable cause and certified to the grand jury the case of a mother and son who tried to extort money from Cracker Barrel by planting a mouse in their soup.

As I've written here before, Judge Sugg was one of my law school classmates. I wonder whether he was amused or appalled (or both) at the outrageous facts of this case.

Circuit court judge charged with assault and violating protective order

The Norfolk paper reports here ("Norfolk judge charged after wife accuses him of assaulting her," 10/30/04) that a Norfolk circuit court judge "was charged Thursday with assaulting his wife and violating a protective order to stay away from her."

More on SOLs

The Norfolk paper has this interesting article ("Teachers say SOLs can provide a road map for the curriculum," 10/30/04) which is mostly favorable the Commonwealth's Standards of Learning tests.

No-trespassing policy in public housing does not apply to voters

The Richmond paper reports here ("No-trespassing law doesn't apply to vote," 10/30/04) that the famous no-trespass policy of the Richmond Development and Housing Authority, which has been to the U.S. Supreme Court and back, does not apply to anyone who comes to vote on Election Day. The article notes that "almost 2,000 people have been barred from entering any of the RRHA's public housing communities."

Richmond church files Chapter 11 petition

The Richmond paper reports here ("Church files Chapter 11," 10/29/04) that a non-denominational church in Richmond has filed a bankruptcy petition.

FBI picks Chesterfield County as a place for monitoring polls

Perhaps my in-laws will meet some friendly FBI men on Tuesday. The Richmond paper reports here ("FBI to monitor county poll sites," 10/30/04) that the Federal Bureau of Investigation will monitor the polls on election day in Chesterfield County, south of Richmond.

U.S. attorney for W.D. Va. readying for election fraud complaints

The Roanoke paper reports here ("Election fraud complaints get attention from Brownlee," 10/30/04) on the plans of the U.S. Attorney's office for the W.D. Va. to deal with allegations of election fraud.

Thursday, October 28, 2004

World Series leftovers

I liked this piece from, especially this part:

"Reminds me of a story. Sometimes we bring home doggie bags for the Dooze. This one time, we brought her home a pork chop, which she picked up and slinked over to the living room, then dropped it on the ground. Then she kept glancing at the pork chop, then back at us. Really? This is for me? You serious? That's how I feel right now. Like Dooze staring at that pork chop. A World Series championship? Red Sox players celebrating? Really? For me?"

Anti-Boucher commentary questioned

The Roanoke paper printed this opinion which is that Congressman Boucher has not done much to distinguish himself as a member of Congress, and is not a leader among the Democrats.

I have read elsewhere that part of Boucher's popularity in Southwest Virginia is tied to the fact that he is not a very partisan Democrat, as evidenced by his ditching the national convention (again) this year, and from reading about him on the Internet, he has carved out a leadership position on telecommunications that does draw attention to him in a manner unlike other congressmen.

Wednesday, October 27, 2004

The dogs on the porch

Com. Conservative has this post collecting the articles from today's paper in which Attorney General Kilgore had some fun things to say about the prospects of Senator Kerry winning votes from rural Virginians, including comments about a dog and a porch.

As for your dogs and porches, my grandma in Christiansburg had a great collie named Brownie whom she allowed in on the screened porch on a hot summer's day, where he spied me sneaking Hershey bars from the refrigerator but accepted chocolate bribes in return for his silence (probably I poisoned him to death and never knew it), and the other grandma's last dog Meg, sort of a border collie, generally hopped off the front porch, barking and retreating, when somebody came to the house because she didn't like strangers (and wasn't too sure about the familiars).

More on Virginia's appeal in the partial-birth abortion case

The Norfolk paper has this account ("State says abortion law deserves a full trial," 10/27/04) and the Richmond paper has this account ("Court hears abortion arguments," 10/27/04) of the oral argument in the Commonwealth's appeal of the ruling that the new partial-birth abortion statute is unconstitutional.

The Norfolk paper's account mentions that two of the panel members on the Fourth Circuit were Judge Motz and Judge Niemeyer.

Split panel rules prior convictions cannot be admitted as evidence in the guilt phase under three-strikes law for violent offenders

In Washington v. Com., a split panel of the Virginia Court of Appeals held that the trial court erred in allowing the introduction of evidence of the defendant's prior felonies during the guilt phase of the defendant's trial for malicious wounding, even though the Commonwealth was seeking a life sentence in the case pursuant to the three-strikes law of Va. Code 19.2-267.1. Judge Benton, joined by Chief Judge Fitzpatrick, parsed the statute and concluded that it involve only a sentence enhancement, and not substantive elements of the criminal offense, while recognizing that the prior offenses are a substantive element under some other statutes.

Judge McClanahan, in her dissent, offered the view that the differences between those other statutes and section 19.2-271.1 were not very important, and the law was plain under those other statutes that proof of the earlier convictions is part of the substantive elements of the offense.

U.S. Supreme Court's ruling in Hicks applies retroactively

In Kelson v. Com., the defendant argued that at the time of his arrest, his arrest was illegal, based on the Virginia appellate cases that held the trespass policy at Richmond public housing projects to violate the First Amendment. Unfortunately for the defendant, the U.S. Supreme Court subsequently ruled that the Virginia courts were wrong on the First Amendment, and the panel in Kelson explained that the U.S. Supreme Court's ruling controls the validity of the defendant's earlier arrest.

Another Media General paper endorses Bush

This morning, standing out in the rain by the mailbox waiting for the dog to get her act together I read that the Bristol paper has endorsed President Bush, which may further irritate Waldo regarding Media General's suspicious endorsement pattern, although a Bush endorsement in Bristol is far less remarkable than would be a Bush endorsement in Charlottesville.

I note (if I haven't already) that on Sunday, the Danville paper joined the Lynchburg and Richmond M-G papers having endorsed Bush.

Another obscure issue that drives me nuts

Something I've seen a lot lately is legal papers with the paragraphs indented one inch, rather than one-half inch.

To me, this is stupid and without any known justification. And, it would cost one point for each instance, according to this brief format requirements from a legal writing instructor at the University of Arkansas at Little Rock, who says: "Indent the first line of each new paragraph by one-half (.5) inch."

(This does not mean I am now accepting sources from Little Rock, Arkansas, as authoritative.)

Tuesday, October 26, 2004

Group of Mexican workers arrested in Virginia

A Mexican workers' website has this protest against the arrest of a group of Mexican workers in Prince William County.

The Washington Post reports here that some of the arrestees may be deported.

The Supreme Court ponders its effect on foreigners and gangs

From the transcript in the Roper case:

JUSTICE KENNEDY: Do we -- do we ever take the position that what we do here should influence what people think elsewhere?

MR. LAYTON: I -- I have not seen that overtly in any of the Court's opinions, Your Honor.

JUSTICE SCALIA: You -- you think --

JUSTICE KENNEDY: You -- you thought that Mr. Jefferson thought that what we did here had no bearing on the rest of the world?

MR. LAYTON: Oh, I -- I think Mr. Jefferson thought that. I think many of the Founders thought that they were leading the world, and I have no objection to us leading the world, but Mr. Jefferson's lead of the world was through the legislature not through the courts.

JUSTICE GINSBURG: But did he not also say that to -- to lead the world, we would have to show a decent respect for the opinions of mankind?

MR. LAYTON: That -- that may well be.

JUSTICE SCALIA: What did John Adams think of the French?


MR. LAYTON: I read a biography of John Adams recently. I recall that he didn't think highly of them.


. . .

Later, Judge Kennedy made this interesting point:

JUSTICE KENNEDY: I have -- I have one other question I'd like to ask because it's been troubling me and I want your comment. A number of juveniles run in gangs and a number of the gang members are over 18. If we ruled in your favor and this decision was given wide publicity, wouldn't that make 16-, 17-year-olds subject to being persuaded to be the hit men for the gangs?

MR. WAXMAN: Well -­

JUSTICE KENNEDY: I'm -- I'm very concerned about that.

MR. WAXMAN: I -- I am also concerned about it, and I -- I have thought about this. First of all, if they 18 are enlisted by people over the age of 18 to do that, the -- the precise degree of culpability goes to the people who are over 18, and juries ought to consider whether people who are over the age of 18 have so enlisted them. But even -- but with respect to -
JUSTICE KENNEDY: I'm talking about the deterrent value of the existing rule insofar as the 16 and 17-year-old. If -- if we rule against you, then the deterrent remains.

MR. WAXMAN: Well, I think -- I think, as with the mentally retarded, or in fact, even more than with the mentally retarded, adolescents -- the -- the role of deterrence has even less to say, precisely because they weigh risks differently and they don't see the future and they are impulsive and they're subject to peer pressure. And in fact, if you look at what happened in this case, it's as good an example as any. The State says, well, okay, you know, he -- you know, this guy, according to the State's witness, the person, who was over 18 and described as the Fagin of this group of juveniles, testified to the court, well, Christopher Simmons says, let's do it because, quote, we can get away with it.

JUSTICE KENNEDY: Well, there were a number -- a number of cases in the Alabama amicus brief, which is chilling reading -- and I wish that all the people that sign on to the amicus briefs had at least read that before they sign on to them -- indicates that often the 17-year-old is the ringleader.

MR. WAXMAN: Well, the 17-year-old may be the ringleader, and even if you posit that Christopher Simmons was the ringleader here, he -- he wasn't under any illusions. He wasn't making a statement about being executed. He said, we could get away with it, which speaks volumes about the -- the extent to which -- this guy was subject to life without parole, which is, Justice Scalia, fundamentally different than death. This Court has said that only when the penalty is death, do you look at the character of the defendant as opposed to the nature of the crime and the act.

But the data shows -- and I think this Court has acknowledged -- it acknowledged in Thompson in any event -- that the -- that adolescents like the -- the mentally retarded are much less likely to be deterred by the prospect of an uncertain, even if probable, very substantial penalty. The -- no mature adult would have thought, as Chris Simmons reportedly said, I can get away with this because I'm 17 years old, when the mandatory punishment for him would have life in prison. It's -- it is not -- eliminating the death penalty as an option, which is -- which is imposed so rarely as to be more freakish than the death penalty was in Furman -- three States in the last 10 years, one -­

JUSTICE STEVENS: But of course, the death penalty was not a deterrent for any of the crimes described in the Alabama brief because those are all -­ crimes all occurred in States which execute people under 18.

MR. WAXMAN: Yes . . . .

Good dog

The Charlottesville paper has this account ("Slain police dog's final act detailed," 10/26/04) of a police dog killed in the line of duty.

Malvo takes plea deal for life sentence in Spotsylvania County

The AP reports here that sniper Lee Malvo admitted his guilt and received a life sentence in connection with a shooting in Spotsylvania County.

More such and nonesuch about electing judges in Virginia

Ed Lynch has more ideas in this column following up on his support for elected judges in Virginia.

One thing he says is this: "there is nothing in Virginia law to prevent personal injury attorneys from contributing to legislators who will pick the judges who will later hear the attorneys’ cases." That's true, although I don't know that the Republican legislators are particularly responsive to the agenda of personal injury attorneys, or even to the Chamber of Commerce attorneys these days.

Something else he says is that "it is likely that minutes after Virginia decided to elect judges, both the candidates for judgeships, and the various lawyers’ organizations, would announce that the latter would not offer, and the former would not accept, any such contributions." That's wrong, some lawyers would insist on their First Amendment rights, that's what lawyers do.

He says the basic objection is that "the people are not qualified to select judges on their own." The people aren't the problem, the candidates would be the problem, and what they want or have to do by necessity or mendacity to get elected, sacrificing their independence for votes and money.

Oral argument before the Fourth Circuit in the partial-birth abortion case

The AP has this report on the oral argument before the Fourth Circuit in the case where Virginia's partial-birth abortion statute was declared unconstitutional by Judge Richard Williams of the E.D. Va. The article, incredibly, does not mention the names of the judges on the panel, which is a really lame oversight.

State school in Virginia tries to block showing of Moore film?

Commonwealth Commonsense has this post about efforts to make it more difficult for a group to show "Fahrenheit 911" at Christopher Newport University.

Rehearing denied in Commonwealth's appeal of Earl Washington civil case

The Richmond paper reports here that the Fourth Circuit denied the Commonwealth's petition for rehearing en banc in the Earl Washington case. The article begins: "Only the U.S. Supreme Court can now block the release of secret documents concerning the investigation of a 1982 capital murder and rape for which an innocent man was nearly executed."

First felony spam trial in Virginia

USATODAY had this report ("First felony spam trial begins in Virginia," 10/25/04) on the anti-spam trial that began yesterday, in the first application of the Commonwealth's criminalization of spam.

Hokie supercomputer less pokey than ever

The Virginia Tech supercomputer is even more super, as reported Virginia here by cnet. Virginia Tech has the world's fastest Mac supercomputer, now operating at 12.25 teraflops.

86,000 words by order of popularity

Via Rain Man 2, this site says that out of 86,000 words ranked by popularity, George is No. 913, Bush is No. 2629, John is No. 266, and Kerry is No. 14903, conclusive evidence that the combination of George and Bush is more popular than John and Kerry.

Monday, October 25, 2004

Public radio station not subject to Virginia FOIA

According to this report, the Circuit Court in Norfolk determined earlier this year that the public television station in Norfolk is not a public body covered by the Virginia Freedom of Information Act.

Preston Bryant says Democrats' posting of lawyers at polls is disgusting

Del. Bryant is harsh on Virginia Democrats in this column, saying they are just trying to make trouble sending a bunch of lawyers to the polls. He says: "Sending hundreds of drippingly partisan lawyers to hundreds of Virginia polling places – without historical good cause for doing so – may in itself create the very environment of intimidation Democrats say they want to guard against."

Today I got an e-mail with a link to this site, supposedly a non-partisan election monitoring group.

More on Virginia law covering election day

The Newport News paper has this report ("Virginia law spells out mechanics of an election," 10/25/04) with descriptions of Virginia law governing what can and cannot be done at the polls on Election Day.

A bunch of civil actions over the water in Chesapeake

The Norfolk paper has this interesting article ("Water lawsuits could drain city," 10/25/04) about a series of lawsuits against the City of Chesapeake for contaminated drinking water, which may hinge on a case before the Virginia Supreme Court, soon to be decided, about how the statute of limitations applies to such claims, and whether the City is protected by sovereign immunity against such claims.

Virginia Tech wants giant underground lab in Giles County

The Richmond paper reports here ("Tech proposes a honeycomb of a lab," 10/25/04) that Virginia Tech is seeking federal funding for a giant underground laboratory that would be used for the study of outer space and new technologies.

No individual liability in Title VII and age discrimination claims

In Norman v. City of Roanoke, Judge Wilson of the W.D. Va. held that there could be no individual liability on the plaintiff's Title VII and ADEA claims, while noting in dictum that individual liability is possible in cases under 42 U.S.C. 1981.

Summary judgment for employer reversed on Virginia law claims of negligent hrring and negligent retention

In Blair v. Defender Services, Inc., the Fourth Circuit in an opinion by District Judge Bennett from Maryland, sitting by designation, joined by Judge King, with Judge Widener dissenting, held among other things that Judge Turk of the W.D. Va. erred in granting summary judgment on claims of negligent hiring and negligent retention against the employer of a janitor who beat a Virginia Tech student on campus. The Court also ruled unanimously that Judge Turk properly granted summary judgment on the plaintiff's respondeat superior claims.

I'm with Judge Widener in this case, my impression is that Virginia case law does not generally require employers to go behind the employee's representation that he does not have a criminal record, absent some other circumstance that would put the employer on notice of the need for further inquiry.

The vicarious liability ruling may also be controversial. The trend in a number of cases following Plummer v. Center Psychiatrists, Ltd., 252 Va. 233, 476 S.E.2d 172 (1996) was toward less consideration of the subjective motivation of the employee, with more emphasis on whether the circumstances of his employment brought him in contact with the plaintiff. Some federal courts expressed the view that Plummer “may have altered significantly the law of respondeat superior in Virginia.” Kidwell v. Sheetz, Inc., 982 F. Supp. 1177, 1187 n.3 (W.D.Va. 1997); Webb v. U.S., 24 F. Supp.2d 608, 613 (W.D.Va. 1998) (“In 1995 and 1996 the Supreme Court of Virginia decided two cases generally understood to alter the respondeat superior doctrine in Virginia”). Judge Bennett's opinion cites a pair of post-Plummer decisions that seem to be at odds with the analysis in Plummer.

Sunday, October 24, 2004

Litigating qualified immunity by means of a motion to dismiss

In McKenna v. Wright, a panel of the Second Circuit discussed the interesting question of whether the issue of qualified immunity can be raised on a motion to dismiss. Their answer was yes, which is surely the right answer, even though I disagree with many things they said.

The Supreme Court precedents emphasize that qualified immunity should be considered at the earliest possible stage. Even where the trial court is convinced that the plaintiff has not failed to state a claim, qualified immunity also involves the issue of whether the plaintiff's rights were clearly established at the time of the defendant's actions. If the law was unclear, as it often is, then the defendant should win, even on a motion to dismiss.

I certainly agree, however, with the point made in the McKenna opinion that only on a motion for summary judgment can the issue be litigated without encumbrance from unsupportable allegations in the Complaint, which must be taken as true on a motion to dismiss.

More endorsements

The Washington Postendorses Senator Kerry.

The Kingsport paper endorses President Bush.

The Bluefield paper endorses President Bush.

The Newport News paper tepidly endorses Kerry (notwithstanding that it is a Tribune paper).

The Lynchburg paper endorsed President Bush.

Comment on the SOLs

The Richmond paper has this editorial taking the position that notwithstanding much naysaying and teacher opposition, Virginia's Standards of Learning did not keep many young Virginians from graduating from high school, thanks to the hard work of many.

Profile of successful Virginia trial lawyer

The Richmond paper has this article ("Law firm's gamble paying off big," 10/24/04) on attorney P. Christopher Guedri, who evidently is tearing it up for the Allen firm.

The article says in part:

"Just last month, he had the distinction, believed to be unique in Virginia, of helping win two million-dollar jury verdicts in a week.

In the first, a three-day trial ended with a $2 million award for a man who incurred $185,000 in medical bills after the car in which he was a passenger ran into the rear of a tractor-trailer on U.S. 460 in Prince George County. Guedri and a partner, Elizabeth M. Allen, successfully contended that the truck driver was negligent because he had stopped his vehicle at midnight in the left westbound lane to investigate something that had hit a side window of the rig.

In the second case, tried three days later with associate J. David Douthit, a car rear-ended by another tractor-trailer crossed the median on U.S. 1 south of Ashland and crashed almost head-on into a car driven by Guedri's client. The trucking company admitted it was at fault, and the jury returned a $1 million verdict after hearing testimony that the client, a self-employed painter, had significant injuries, including damage to a knee that required its reconstruction.

Guedri made the closing arguments in both cases, and a frequent adversary, Stanley P. Wellman, said Guedri has a well-earned reputation for persuading juries to return large verdicts."

Bush with higher IQ than Kerry?

This So Cal law blog post links to a column in the NY Times that concludes from the officer qualifying tests of President Bush and Senator Kerry that Bush had a higher IQ at age 22 than did Kerry at age 22.

Unfortunately, from my own experience, a high IQ provides no immunity against saying and doing stupid stuff (as evidenced by this blog).