Saturday, March 26, 2005

Some beach

Back in a week, if the gators or sun poison or the North American tsunamis don't get me.

Friday, March 25, 2005

Take Your Adversary to Lunch

I really liked the idea of this program called: "Take Your Adversary to Lunch," but why only once a year? And, who is my adversary? I can't think of any in particular - the worst ones, always, have been lawyers not from around here.

Thursday, March 24, 2005

Former school board member sues Norfolk paper for $5 million

The AP reports here that a former School Board member and political candidate has sued the Norfolk paper for defamation over statements of fact made in a campaign eve editorial.

DRI's appellate advocacy section newsletter hits the streets

At this post by Ray of Minor Wisdom you can check out the latest DRI Appellate Advocacy section's newsletter, which includes in the way back some summaries by me of some Fourth Circuit cases - but the good stuff is in the articles.

You could teach a seminar just from this one newsletter, you read it and feel your brain swell with ideas.

Birdwood redone

This press release says that the Birdwood, the U.Va. golf course at the Boar's Head, is being redone. Birdwood opened in the mid-1980s when I was a student.

One time I played there with Young Scottie Michaux and he scored his first eagle, the joy of which was reduced, he said, by his playing partner's score of 12 on the same hole.

Virginia: mother of banjos

Stelling Banjo Works: The Ultimate Banjo has links about their banjos and the invention of the banjo in Virginia.

Wednesday, March 23, 2005

On complete understanding

In my office this afternoon, my assistant asked me "Have you seen Ray?"

I had to think about this, and I was about to say well, I saw him a few days ago and I talked to him on the phone at lunch time. (Ray is my dad's name.)

About that time, someone else said, "I saw Ray and it was a great movie."


Then, again, my assistant also told me today that the reason why her computer was not working for a few hours earlier this week had been determined - it was not plugged in.

American Prospect Online considers Tim Kaine, religion, and the death penalty

In this article titled "Raising Kaine," the author Rob Carver considers the prospects for Democratic gubernatorial candidate Tim Kaine to attract the support of religious voters in the Commonwealth.

The articles notes that "while Catholics went 52 percent to 47 percent for Bush nationally, in Virginia they went 63 percent to 36 percent for Bush."

Juror's blog tainted trial?

This post liks to a story about a case where one of the lawyers is claiming that a juror's blog tainted the trial. The article does not name the blog.

New version of CM/ECF with free opinions?

According to this post, some federal courts may soon implement a a new version of CM/ECF that allows free public access to written opinions.

Both the Washington Post and I were in Gate City on Monday

The Washington Post had this article about the Gate City for candidate Jerry Kilgore, and I was there myself. (On that same day, Tim Kaine was down the street here in Bristol, but I didn't get over there.)

I've never been to a political rally in my life, but I figured that we may never pass this way again, sort of like the World's Fair at Knoxville. So, I went. My first impression (never having been there) was how small is the Gate City H.S. gym, what must it be like for basketball games in there, very exciting and loud. There were many older people there, at least half of the crowd looked to be retirement age to me, including the old fellow standing next to me who periodically bellowed, "You said it, Jerry." I looked around trying to count the lawyers I know (5? not too many) and trying to figure out which ones were the campaign people and which ones were the reporters - who were those guys standing at the back with copies of the candidate's speech? Cable guy Ernie Benco grinned down at me from the camera platform at the back of the room, and I had to laugh thinking that the Chester case when I met him was tried 10 years ago. Also in the hall, of the people from that Wise County Electoral Board case, were Paul Varson and Chances Varson (I didn't talk to them). Former Congressman Bill Wampler, Sr., was there, looking like Sean Connery with his white beard, working the crowd as if he was the candidate. The closest to an old-fashioned stemwinder of a speech (as I imagine one to be like) came from Sen. William Wampler, Jr., almost at the beginning of the night - he does well, I think. I thought that the Notre Dame fight song was a fairly ecumenical choice of music for the band to play as the candidate came into the gym.

UPDATE: A reader says: "Gate City High School has used the Fighting Irish song for years, as its own. This is the reason that this particular song was selected."

The substantive parts of the candidate's speech were interesting, some of the rest of it was not, and the funniest thing he said was that he has the worst accent of anyone who wants to be governor apart from Arnold Schwarzenegger. And, when the speeches were over, I watched the confetti fall for a while, then walked over to Jerry Kilgore and shook his hand, said hello to Sen. Wampler, and went on home.

It was exciting, but not as exciting as, say, the time I saw Charles, Prince of Wales at William & Mary Hall, now that crowd was nuts.

Of the substantive ideas in the speech, the one that caught my imagination was the regional transportation authorities. I'm not sure what this means, but it probably means something better than what we have now.

I looked for John Behan when a call was made for Republican elected officials to raise their hands, but I couldn't actually see who had their hands raised, all I could see was the raised hands.

Senator Warner of Virginia is one of those question marks on changing filibuster rules for judicial nominees

The Washington Times reports here that the Republicans do not have the votes to change the Senate rules to eliminate filibusters on judicial nominations, and one of the votes they don't have is Virginia's own Senator John Warner, seen in Gate City a few days ago.

The joys of Smithfield ham

Incredibly, the New York Times has this article on Virginia ham, or specifically, Smithfield ham, and it mentions one of my favorite places for breakfast, the Old Chickahominy House in Williamsburg, with its. "copious plantation breakfast, featuring eggs, grits, sausage, bacon and ham."

Funky commentary on the Virginia pledge case

Here is commentary from some kind of witch/pagan news site on the argument before the Fourth Circuit in the Virginia case challenging the use of the Pledge of Allegiance in public primary schools.

Odd Tim Kaine fact

The Lynchburg paper reports here that on his hamburger, gubernatorial candidate Tim Kaine likes "mustard, chili, slaw and cheese."

Holy catbirds, that is so wrong. Everybody knows that if you must go all out with a burger, the way to go is with a fried egg, pickle relish, cheese, onion, mayonnaise, etc.

Comparing the Hugh Finn and Terri Schiavo cases

The Washington Post has this article comparing the Hugh Finn and Terri Schiavo cases.

The principals from the Finn case say nobody has learned a thing in the past six years.

Mayor Wilder says $1 million plus in attorneys' fees per year for housing authority is too much

The Richmond paper reports here that Mayor Douglas Wilder thinks the Richmond Redevelopment and Housing Authority has overspent in paying attorneys in excess of $1 million per year.

Sometimes, you've just got to have a biscuit

The Kingsport paper reportshere that "the drunkest driver" the Police Chief in Mount Carmel "has seen in a long time" led law enforcement officers on an early morning "low speed" chase through town that ended when the suspect pulled up to the drive-thru window at Hardee's, where he planned to buy a biscuit.

Tuesday, March 22, 2005

Rocket Boy says ditch the shuttle

According to this post, Homer Hickam, the Rocket Boy, says the Space Shuttle ought to be scrapped.

My dad, the son of a coal miner and who became an engineer, thought the Rocket Boy books were great.

More on mountaintop mining litigation

The Charleston Gazette has this article on the positions taken and brief filed by the government in the appeal of the West Virginia mountaintop mining case.

The article begins:

"A federal judge overstepped his authority when he blocked the streamlined permitting of new mountaintop removal coal mines, the Bush administration says in a new legal brief."

Comparing state and federal criminal sentencing

This interesting article on sentencing from the Charlottesville paper has quotes from the Republican AG candidates and also notes that there are: "80,000 criminal prosecutions annually in federal courts versus 15 million in the 50 states."

New standing order on the handling of sealed documents in the W.D. Va.

Last week, the W.D. Va. entered a new standing order for the handling of sealed documents, which makes plain that the parties cannot seal documents in the Court by agreement or by marking them "sealed." Instead, advance permission to file documents under seal is more or less always required, at least for civil cases.

AG lacks authority to ban nonconforming cigarette seller from doing business in the Commonwealth

In Citland, Ltd. v. Commonwealth of Virginia, the Virginia Court of Appeals concluded that the tobacco statutes did not give the Attorney General's office the power to prohibit, on account of its failure to pay into the tobacco settlement, a small tobacco firm from doing business in Virginia.

On the retirement of Judge Stump

The Coalfield Progress has this article and this article on the retirement of Circuit Court Judge Robert Stump from Wise County.

The Roanoke paper takes on the Schiavo Act from Congress

In this editorial, the Roanoke paper holds forth on federalism, separation of powers, legislative protocol, family values, and all those things held most dear by the Roanoke paper, in opposition to the attempted legislative fix to the Schiavo case by Congress over the weekend.

On the effect of Booker in Virginia

The Charlottesville paper has this article about the effect of the Supreme Court's decision in Booker on federal cases in Western Virginia.

Sunday, March 20, 2005

Caught me peeping over the fence about the Schiavo case

It says here that only readers of liberal blogs know that former Texas Governor Bush signed a bill called the Texas Futile Care Law, and, among other things, "that this grandstanding by the congress is a purely political move designed to appease the religious right and that the legal maneuverings being employed would be anathema to any true small government conservative."

The CSM reports here this speculation on the Republicans:

"Their gamble is that the general public will be divided on the issue and will not vote on the subject come 2006, but that the Republican-base ... group of conservative Christians will remember this vote forever," says Larry Sabato, a political scientist at the University of Virginia in Charlottesville.

We may have to put another log on the fire up here at SW Virginia law blog headquarters, because hell has frozen over when I'm more in agreement with Congressmen Frank, Wexler, Nadler, Jackson-Lee, and Moran.

A Bashman reader says the Senate bill is probably unconstitutional because the parents cannot have standing.

What I would like to read from Howard or Matt or someone is - who are the federal district court judges who might get this case?

Recollecting the Hugh Finn case in Virginia

On March 9, 1995, Hugh Finn was injured in an automobile accident. As a result of the accident, he suffered severe brain damage and required continuous nursing home care, including artificially administered hydration and nutrition through feeding tubes....

In June 1998, Michele P. Finn, Hugh Finn's wife and legal guardian, determined that it would not have been her husband's wish that he be kept alive by artificial means, including the administration of hydration and nutrition, if there were no reasonable possibility of his recovering from a persistent vegetative state. Michele Finn then informed Hugh Finn's immediate family of her decision that pursuant to the provisions of the Virginia Health Care Decisions Act (the Act), Code § 54.1-2981 et seq., she intended to direct the medical staff at Annaburg Manor Nursing Home to withdraw this life-prolonging procedure from her husband.

A series of legal actions between the various members of Hugh Finn's family followed. These legal actions were emotionally difficult for the family, ultimately became the subject of public debate and, indeed, led to the involvement of the Governor of Virginia.

Several members of Hugh Finn's immediate family disagreed with Michele Finn's decision. John Finn, Hugh Finn's brother, filed a chancery suit in the Circuit Court of Prince William County (the trial court) seeking a permanent injunction to prohibit the withdrawal of hydration and nutrition from Hugh Finn and to remove Michele Finn as Hugh Finn's guardian (the John Finn lawsuit). On July 17, 1998, the trial court granted a temporary restraining order prohibiting Michele Finn from taking action to withdraw the life-prolonging procedure being administered to Hugh Finn. On July 29, 1998, the trial court held a hearing to consider John Finn's request for a permanent injunction and to remove Michele Finn as guardian. The trial court received testimony from Hugh Finn's neurologist, his physiatrist and Dr. Robin B. Merlino, his attending physician. The trial court found that the unanimous diagnosis of these three physicians provided "clear and convincing evidence that Hugh Finn has been and remains in a persistent vegetative state as defined in Va.Code § 54.1-2982, that can be characterized as a permanent vegetative state, meaning that, to a reasonable degree of medical probability, it is irreversible." The trial court further found that there was credible testimony from Michele Finn and in the de bene esse deposition of Kenneth L. Sales, Hugh Finn's attorney, that Hugh Finn had on "multiple occasions before his tragic accident" expressed that "he would not wish to have his life artificially prolonged with artificial life sustaining medical treatment, and that he would specifically wish to have [artificially administered] nutrition and hydration withdrawn if he were in a persistent or permanent vegetative state."

Addressing the provisions of the Act found in Code § 54.1-2986, the trial court found that Michele Finn had satisfied the requirement that she make "a good faith effort to ascertain the risks and benefits of and alternatives to the treatment and the religious beliefs and basic values of ... the patient receiving treatment." The trial court further found that it was " impossible to communicate with Hugh Finn as a result of the permanent vegetative state" and, thus, it was appropriate for Michele Finn to "base [ ] her decision on [her husband's] religious beliefs and basic values and [his] preferences previously expressed ... regarding such treatment." Based upon these findings, the trial court determined that "the termination of [Hugh Finn's] medical treatment ... including the withdrawal of [artificially administered] nutrition and hydration, is a medically appropriate, ethical treatment decision that is not inconsistent with Hugh Finn's personal wishes or his personal religious beliefs." Accordingly, the trial court concluded that John Finn had not satisfied his burden of demonstrating the likelihood of ultimately prevailing on the merits of a challenge to either the appropriateness of Michele Finn's decision or to her suitability as Hugh Finn's guardian. In an order dated August 31, 1998, the trial court denied John Finn's request for a permanent injunction, dissolved the temporary injunction issued in the July 17, 1998 order, and dismissed John Finn's petition to remove Michele Finn as Hugh Finn's guardian. Although granting Michele Finn authority to proceed with her decision to direct the withdrawal of Hugh Finn's artificially administered hydration and nutrition, the trial court stayed that authority for 21 days. The trial court further required John Finn to pay one-half of the fees for the guardian ad litem appointed for Hugh Finn, one-half of the fees for the expert witnesses, and one-half of the attorney's fees and costs incurred by Michele Finn in defending the suit.

During the period of the stay imposed on Michele Finn by the trial court, John Finn filed a motion for reconsideration. In that motion, he asserted that new evidence had been acquired to show that his brother was not in a persistent vegetative state. On September 21, 1998, the trial court held a hearing on that motion and reviewed the affidavit of Marie F. Saul, R.N., a utilization review nurse employed by the Commonwealth's Department of Medical Assistance Services. In that affidavit, Saul stated that while reviewing Hugh Finn's medical records, she attempted to communicate with him. After repeatedly saying "Hi" to him, Saul believed she heard him respond in a similar fashion. Saul further stated that she then persisted in attempting to communicate with Hugh Finn for over an hour, but received no further response, although she observed Hugh Finn "[s]moothing" his hair. Saul also testified at the hearing, essentially reiterating the statements in her affidavit. By proffer, the trial court received evidence from Michele Finn that the Commonwealth's Department of Health and Human Resources had conducted its own investigation of Hugh Finn's condition and that the Department's report concurred in the diagnosis of his treating physicians that Hugh Finn was in a persistent vegetative state. Michele Finn further proffered evidence that it was beyond the usual responsibility or training of a utilization review nurse, such as Saul, to make clinical observations or to report on the physical or medical condition of a patient. The evidence further showed that there had been no change in Hugh Finn's condition or in the diagnosis of that condition by his treating physicians since the entry of the August 31, 1998 order. The trial court found that Saul's affidavit and testimony did not constitute new evidence and, moreover, "did not contradict a finding that [Hugh Finn] is [ ] in a persistent vegetative state" as previously determined by that court. Accordingly, the trial court denied the motion for reconsideration. John Finn was ordered to pay the additional fees and costs arising from the hearing on his motion.

At various times following the July 29, 1998 hearing and continuing after the trial court's denial of John Finn's motion for reconsideration, agencies of the Commonwealth, apparently responding to requests from a relative of Hugh Finn and a member of the General Assembly of Virginia, made a series of investigative visits to Annaburg Manor Nursing Home to examine Hugh Finn. These visits were conducted without the knowledge of Michele Finn and contrary to her express instructions that access to her husband be limited to family members and medical staff. On September 20, 1998, twenty members of the General Assembly released an informal declaration "In the Matter of Hugh Finn" in which they asserted that "the provision of comfort care as well as food and water should not be denied patients where such removal will be the underlying cause of death." Under the aegis of the prior action filed by John Finn, Michele Finn filed a motion seeking an order to enjoin the Commonwealth from making further intrusions into her husband's privacy. The trial court conducted a hearing on Michele Finn's motion on September 25, 1998. At that hearing, the evidence showed that three physicians employed by the Commonwealth's Department of Health and Human Resources had examined Hugh Finn and determined that he was in a persistent vegetative state. The physicians had further stated in an interview with David Tucker, Administrator of Annaburg Manor Nursing Home, that removal of Hugh Finn's feeding tubes would have been warranted as much as a year and a half prior to the date of their examination. Additional evidence showed that the Commonwealth's physicians discounted Saul's report that Hugh Finn had actually responded to her efforts to communicate with him. The trial court sustained the Commonwealth's demurrer to Michele Finn's motion on the ground that the Commonwealth was not a party to the John Finn lawsuit. On September 28, 1998, Hugh Finn's family members who had opposed Michele Finn's decision to withdraw the life-prolonging procedure being administered to Hugh Finn agreed not to pursue further legal action. Accordingly, no appeal was taken from the judgment rendered in the John Finn lawsuit.

On September 30, 1998, James S. Gilmore, III, "acting in his official capacity [as Governor of the Commonwealth of Virginia] and in the name of the Commonwealth," filed a bill of complaint against Annaburg Manor Nursing Home, Dr. Merlino, and Michele Finn seeking a temporary restraining order and a permanent injunction to prohibit the respondents from withdrawing the administration of hydration and nutrition from Hugh Finn (the Governor's lawsuit). The Governor asserted in the bill of complaint that the suit was brought pursuant to Code § 2.1-49, which provides, in pertinent part, that "pursuant to his duty to protect or preserve the general welfare of the citizens of the Commonwealth, the Governor may institute any action, suit, motion or other proceeding on behalf of its citizens, in the name of the Commonwealth acting in its capacity as parens patriae, where he shall determine that existing legal procedures fail to adequately protect existing legal rights and interests of such citizens." In addition, it was asserted that the suit was brought pursuant to Code § 54.1-2986(E), which provides that: "On petition of any person to the circuit court of the county or city in which any patient resides or is located for whom treatment will be or is currently being provided, withheld or withdrawn pertinent to this article, the court may enjoin such action upon finding by a preponderance of the evidence that the action is not lawfully authorized by this article or by other state or federal law." (Emphasis added.)

The Governor, as pertinent to the present appeal, contended that Hugh Finn is "dependent upon the artificial administration of nutrition and hydration in order to survive" and that the withdrawal of this procedure "will initiate a process of dying which will cause Hugh Finn to die from starvation and/or dehydration." Accordingly, the Governor further contended that "the Virginia Health Care Decisions Act ... does not authorize the withholding of nutrition and hydration from Hugh Finn" because Code § 54.1-2990 expressly provides that "nothing in [the Act] shall be construed to condone, authorize or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying." The Governor further contended that "[u]pon information and belief, Hugh Finn is not in a persistent vegetative state as defined under Code § 54.1-2982; however, even if Hugh Finn were in a persistent vegetative state, the Respondents would not be authorized under the Act ... to withhold or withdraw the administration of nutrition and/or hydration" from Hugh Finn.

On October 1, 1998, the trial court held a hearing on the Governor's request for a temporary restraining order. At that hearing, the Governor, represented by the Office of the Attorney General, conceded that there was no new evidence to present in support of the contention that Hugh Finn was not in a persistent vegetative state and relied solely on Saul's affidavit. The Governor contended, however, that Hugh Finn's medical condition was not dispositive inasmuch as the principal contention of the bill of complaint was that the withdrawal of hydration and nutrition under the circumstances of the case was prohibited by Code § 54.1-2990. Hugh Finn's guardian ad litem advised the trial court that there was new evidence in the form of a medical report prepared for the Department of Medical Assistance Services by Dr. Naurang S. Gill, which the guardian ad litem had obtained from the Office of the Attorney General. Dr. Gill's report confirmed the previous diagnoses of Hugh Finn's personal physicians and the physicians employed by the Department of Health and Human Resources that Hugh Finn "had been and remained in a persistent vegetative state." Dr. Gill further opined "that [Hugh Finn's] chances of any meaningful recovery ... are practically zero." On the day the hearing was held, the trial court denied the Governor's request for a temporary restraining order. In that order, the trial court reviewed the prior proceedings and its factual findings in the John Finn lawsuit and then reiterated its prior determination that Michele Finn had "full authority under the Act, to withhold and withdraw life-prolonging medical procedures," including the artificial administration of hydration and nutrition. Addressing the argument that Code § 54.1-2990 prohibited the withdrawal of hydration and nutrition, the trial court concluded that "a person in a persistent vegetative state is, as a matter of law, in the natural process of dying within the meaning of [Code § 54.1-2990] and ... the withholding and/or withdrawal of artificial nutrition or hydration from a person in a persistent vegetative state merely permits the natural process of dying and is not mercy killing or euthanasia with[in] the meaning of [Code § 54.1-2990]."

Pursuant to Code § 8.01-626, the Governor filed an emergency petition in this Court for review of the trial court's order. The Governor's sole assignment of error asserted that the denial of the motion for a temporary restraining order "was error, and was based on an erroneous interpretation of Va.Code § 54.1-2990." Without conceding that Hugh Finn was in a persistent vegetative state, the Governor argued for reversal of the trial court's order on the ground that a person in a persistent vegetative state is not in the "natural process of dying," but rather that the withdrawal of hydration and nutrition would "initiate a dying process not previously present." Thus, the Governor contended, as he had in the trial court, that a plain reading of Code § 54.1-2990 would prohibit the withdrawal of hydration and nutrition from a person not otherwise in the process of dying from some other disease or condition. The Governor further contended that even if this Court were unwilling to construe the statute in this manner, the failure to issue the temporary restraining order deprived the parties of the opportunity "to make [a] more deliberate investigation" of Hugh Finn's condition, "whatever that condition may be."

By order entered October 2, 1998, we denied the Governor's emergency petition for review. In that order, we held that the "withholding and/or withdrawal of artificial nutrition and hydration from ... a person in a persistent vegetative state[ ] merely permits the natural process of dying and is not mercy killing or euthanasia within the meaning of Code § 54.1-2990." Gilmore, et al. v. Annaburg Manor Nursing Home, et al., Order Denying Emergency Petition for Review (October 2, 1998). Hugh Finn subsequently died following the withdrawal of the life-prolonging procedure in question.

Gilmore v. Finn, 259 Va. 448, 453-60, 527 S.E.2d 426, 428-32 (2000).

The Appalachian roots of the House of the Rising Sun

Via Yahoo News, this news story chronicles the Appalachian roots of the House of the Rising Sun, and the current efforts to locate such a place in New Orleans.

The story says:

The first known recording of the song was made in 1937, when a music historian named Alan Lomax learned it from a miner's daughter in Kentucky. It was then known as the "Rising Sun Blues."

Good one, guys

Brian Patton and Sparkitup have linked to this page with a funny juxtaposition of photos of Bush and Kerry.

I suspect that within the next few months there might be a conference of SW Virginia bloggers and those two guys will be there.

When will Petersen decide

Shaula has this post explaining the dates when Chap Petersen will decide finally whether he is a candidate for re-election as delegate or for lieutenant governor.

She notes that Republicans held the seat for 20 years before Petersen was elected, and so if Petersen gives it up, it will be a fight to see which party takes it over.

Two websites on the Virginia Creeper Trail

Virginia Creeper Trail Club and are two good sites for information about the trail that runs from Abingdon to White Top.

My dad just bought himself a bike. He went to a bike store and said he wanted a bike for a grandfather who wanted to ride with his grandkids. They sold him a funky looking machine that he's anxious to try out. So, I expect that sooner or later we'll take a ride or two.

Saturday, March 19, 2005

Congress and the Schiavo case

I read about the intervention of Congress into the Terri Schiavo case and legislation like S. 653 and H.R. 1332 and I scratch my head - what are they doing? I've read the floor debate in the House (beginning here) and it is unspeakably lame. I'm sure that federal judges everywhere are thrilled at the prospect of midnight sessions of Congress adding little bits of removal jurisdiction to cure social issues on which the Congress may disagree with the state courts.

When I want to read about the Schiavo case, and sometimes I do, I start with Matt Conigliaro's Abstract Appeal, and this page (with links) includes as thorough a summary as any I've seen.

Adult education course I wish I was old enough to take

On the Spring schedule for the College for Older Adults at the Southwest Virginia Higher Ed Center is the following:

FAMOUS TRIALS. Tuesdays, 9:00—10:30, April 5—May 10 (RM 231). This class will provide a closer look at some of the court cases that have captured imaginations of the public through the years. Can we finally answer the question of which case really was “the trial of the century”? Instructor: Judge Charles Flannagan, recently retired Circuit Court judge.

Also on the list are two classes by Claude Greever, my old teacher, who might have been amused or appalled by yesterday's "band" post.

On 3.14159, etc.

Last week was Pi Day, 3.14.

For the occasion, I should have worn the old hoodie I have on now. On the front it says "PI R MINOR." On the back, it says "BUCKSKINS 1981 SECTION 2 CHAMPS."

By some kind of convoluted football coach logic, my nickname as the resident brainy kid among the scout team heroes on the high school football team was "Pi R," meaning that instead of paying attention to the plays, I was thinking about loftier things such as the formula for determining the area of a circle.

Even more strange, I was not the only Pi. One of the other players' dad's name was Pius. Sometimes when we would meet, I would say "hey, Pi," to which he would respond, "hey, Pi."

Richmond law professor blasts Bush nominees for Fourth Circuit

In this column, University of Richmond law professor Carl Tobias says where's the outrage over the renominations of Judge Boyle and William J. Haynes, II - which he says "is of critical significance for everyone who lives in" the states that make up the Fourth Circuit.

Wanted - lawyers to work for low pay and too many clients who may go to jail if you mess up or sometimes even if you don't

This article from the Daily Press describes efforts to recruit new staff lawyers for the public defender's offices in Hampton and Newport News.

This article repeats the facts about the caps for court-appointed fees: "For felonies that carry sentences of less than 20 years, a court-appointed attorney gets paid a maximum of $395. For misdemeanors and juvenile cases, they can charge $112."

On media access to Virginia courtrooms

The Richmond paper has this article explaining the rules of media access to Virginia's courtrooms.

No teeth in FOIA

In this editorial, the Roanoke paper laments the lack of enforcement power in Virginia's Freedom of Information Act, noting that in some states violators go to jail or lose office.

Instant replay in the stands

Notwithstanding the technological advance hailed in this post, people are already in the stands with digital cameras and picture phones.

At last year's Virginia-Virginia Tech football game in Blacksburg, an argument about why Wali Lundy fumbled near the goal line was settled with a picture on the cell phone of the guy in the row in front of me.

Here, here

In this post, John Behan cheers this year's success, and the many years of success, enjoyed by U.Va. woman's basketball coach Debbie Ryan.

More on state court judicial selection

It says here: "South Carolina and Virginia are the only states that use legislators to elect trial and appellate judges."

Heard in the crowd

As reported here, somebody outside the courthouse where the former Connecticut governor was sentenced suggested that he should be sent to serve his time in Virginia, like many of the Connecticut inmates during his time as governor.

Virginia franchise statute for motorcycle dealers declared unconstitutional

In Yamaha Motor Corp. v. Jim's Motorcycle, Inc., the Fourth Circuit in an opinion by Judge Michael, joined by Judge Luttig and Senior Judge Baldock of the Tenth Circuit, held that a provision of Virginia's motorcyle dealer franchise law, Va. Code 46.2-1993.67(5), unduly burdens interstate commerce in violation of the dormant Commerce Clause.

Interestingly, the case deals with the plan of Yamaha to locate a new dealership in Southwest Virginia, specifically in Russell County. An existing Yamaha dealer in Bristol protested.

Applying McDonnell-Douglas to other forms of retaliation

Curiously, the district court in Lundgren v. American Honda Motor Company, Inc. applied a version of the McDonnell-Douglas test from Title VII cases in evaluating the claim of retaliation, and the appeals court affirmed - and the plaintiff lost. I wonder whether the application of the same test of motivation would have been affirmed if the plaintiff had won. One wonders, why the McDonnell-Douglas test as opposed to say, the Mt. Healthy test?

What's love got to do with it

In U.S. v. Turner, the Fourth Circuit in a per curiam decision for the panel of Judges Wilkinson, Gregory, and Duncan rejected the various arguments for a lesser sentence raised on behalf of the defendant named Tina.

Fourth Circuit reversal in the cell phone emissions case

In Pinney v. Nokia, Inc., the Fourth Circuit in an opinion by Judge Michael, joined by Judge Luttig, with Senior Judge Kiser of the W.D. Va. dissenting, reversed the decision by Judge Blake of the D. Md. in the cell phone emissions multidistrict litigation to deny remand to state court and to dismiss the state law class actions based on preemption by the Federal Communications Act. The majority concluded that there was no federal jurisdiction to support removal in four of the five cases, and in the fifth case, there was no preemption.

Michael Allweiss from New Orleans argued for the plaintiffs, Kenneth Starr argued for the defendants.

I guess this case and the recent mold case from the E.D. Va. show the perils of removing products cases on less than ironclad premises - the defendants get to federal court where they can win on legal and evidentiary issues, only to lose their victory on appeal for lack of subject matter jurisdiction.

Senior Judge Kiser, himself a district court judge, was convinced by the good work of the district court judge - and explained that he thought the plaintiffs could not prove their claims without litigating the federal emissions standards. The whole case, Judge Kiser determined, was more of an attack on the FCC standards than anything else. He concluded: "we should use common sense and recognize that plaintiffs’ claims directly implicate a federal regulatory scheme and threaten to undermine that same scheme."

The AP has this report on the decision.

Habeas relief denied in N.C. death penalty case

In Jones v. Polk, the Fourth Circuit in an opinion by Judge Motz, joined by Judge Widener with Judge Michael dissenting in part and concurring in part, affirmed the denial of post-conviction relief to a defendant who for the murder of his adult son was given the death sentence by a jury in North Carolina. The majority agreed that the trial court's exclusion of evidence of the defendant's remorse was harmless error, and there was no error in denying a hearing to explore the "ill-advised" concurrent representation by the defendant's counsel of both the defendant and, in an unrelated matter, a witness for the prosecution, who testified that the defendant shot the victim and "walked away like he shot a dog." Judge Michael, in his dissent, opined that there should have been a hearing on the issue of the attorney's conflict of interest.

This past week's opinions from the W.D. Va.

In Papproth v. DuPont, Judge Conrad granted the defendant's motion for summary judgment in an Americans with Disabilities Act case, concluding that the plaintiff was not disabled within the meaning of the Act, notwithstanding her fibromyalgia and rheumatoid arthritis.

In U.S. v. Comarovschi, the defendant's sentence became final in October 2004, and he filed a motion for new sentence in January. Judge Michael denied the motion as untimely, and rejected the argument that Booker and Hammoud apply to closed cases.

Friday, March 18, 2005

Get a map

This fellow seems to be well-intentioned, but I think Lee County and not Buchanan County holds "the south-western-most point in Virginia."

The VQ effect

It says here that the Virginia Quarterly is up for a big prize. The Virginia Quarterly is one of those publications that you pick up in someone else's office and an hour later they find you in there sitting on the floor reading it and wondering what in the world you are doing, at which point you mumble, "can I borrow this?" and six years later the volume is still on your desk.

Bass clarinet cover band recordings you can hear on the internet

Under the heading "Reason No. 1,950,856 why we love the Internet" is a link to this site with bass clarinet music.

From the sixth grade to the twelfth grade, I played the bass clarinet - the last year, I was in the Pennsylvania Music Educators Association All-State Band. The closest I ever got to these recordings was the bass line to Pink Floyd's "Money," at top volume. My playing was not too accomplished but always very, very loud, and it freaked some people out. My proudest moment was in a rehearsal of the county wind ensemble, in my last year (so why not go for it), the conductor told the tubas to play louder, that he couldn't believe but they were being drowned out by the bass clarinet.

Not too many people know what a bass clarinet is. In the last high school concert before the home crowd, the tradition was to include a solo for the one or two most distinguished members of the group. So, in the spring of 1983, the crowd heard me play a bass clarinet solo, accompanied on piano by a fellow student named Lorrie Heagy (who I think is now a music teacher in Alaska). When it was done, the crowd cheered and I laughed like a nut on the stage. A member of the audience told me later, your sound was great, particularly since none of us knew what you were supposed to sound like.

Two famous bass clarinet players: Alan Greenspan and John Kasich.

The roid hearings and D.C. baseball

In this post, Behindthenet explains why the steroid hearings were not instigated by a Virginia congressman on account of baseball's decision to send the Expos to D.C. instead of Virginia.

Still more on Judge Chafin

The Bluefield paper had this report on the swearing-in of Judge Teresa Chafin as the new circuit court judge for the 29th Circuit. The online article includes a picture of Judge Chafin with her husband as Judge McClanahan of the Court of Appeals administered the oath of office.

Speaking of swearings-in, I noticed the other day that the Attorney General's website has a picture of Judge Williams swearing in Ms. Jagdmann.

The minds of impressionable young Virginia law students to be shaped by Ashcroft

Via SST, the AP reports here that former Attorney General John Ashcroft will teach students of the Regent law school, for two weeks a year.

No house tax

The AP reports here that the Kaine campaign has launched a proposal to cut local property taxes and reimburse the localities with state money.

Wait, wasn't that the deal with the car tax? I get confused by these things.

Fourth Circuit panel hears Pledge of Allegiance case at Wake Forest

The AP reports here that a panel of the Fourth Circuit heard argument today at the law school in Winston-Salem, including a Virginia case challenging the use of the Pledge of Allegiance in public schools.

We're No. 1

The funniest thing said by the commenters at the open discussion part of today's event was the proposal that the courts should rule that a criminal case is over when the money for the defense lawyer runs out. Apparently, that proposal was rejected.

After listening to a series of speakers describe how Virginia leads the nation in its unwillingness to pay for the defense of poor people charged with crimes, I saw this article that says Virginia also leads the nation in anti-homosexual laws.

We're No. 2352627

According to, my NCAA tournament picks (before Syracuse lost) put me in the 16th percentile. My sweet sixteen is down to a tart twelve.

I'm sure that my picks would have done better if this was a football tournament.

On attending the Bar Leaders Institute

So, I went to the BLI, saw many of my friends among the bar, and listened to the speeches and presentations.

Most memorable were the comments of Steven Benjamin and also Steve Stephenson. Steven Benjamin, among his many cases, was the lawyer for the defendant in the Hicks case, that went to the U.S. Supreme Court. He spoke powerfully in challenging everyone there to each one act according to his abilities to see the end of the caps on lawyer fees for representing the poor in criminal cases in Virginia.

Steve Stephenson told it like it is for how the practice of law has changed for some country lawyers, in some ways not for the better, or not any easier - especially without high-speed internet connections. He began by explaining that anyone expecting a semi-retired Supreme Court justice would be disappointed to find that the after-lunch speaker was his semi-retarded son (speaking of himself),

The town meeting aspect of the conference was fairly tame. It might have worked better if the questions were written like they do at the National Press Club luncheons you see on C-SPAN. Chief Justice Hassell deserves credit for his participation in this event and his willingness to give direct answers to questions about various problems, some of which are obviously beyond his power to remedy. As at last year's 30th Circuit conference, he stayed as long as there was anyone who wished to speak with him, shook every hand, and posed for pictures.

Thursday, March 17, 2005

New and improved opinion on Booker from Fourth Circuit

In U.S. v. Hughes, on rehearing by the panel, Chief Judge Wilkins offers his latest views on finding error in sentencing post-Booker. Professor Berman has this post.

New trial denied in $50 million tortious interference case in WV

The AP reports here that the trial court judge has refused to grant a new trial in the case where the West Virginia jury awarded $50 million against Massey Energy for tortious interference with the coal contracts of Harman Mining.

Wednesday, March 16, 2005

More on Judge Chafin

The Richmond paper has this story on tomorrow's swearing-in of Judge Chafin. The story notes again that she will be the first woman circuit court judge west of Roanoke.

I've got a golden ticket

In today's mail arrived a letter stating that I am nominated again for invitation to the Fourth Circuit Judicial Conference, for which I am delighted.

On the swearing in of Circuit Court Judge Chafin

The AP has this report on the swearing-in of Judge Chafin, to be held tomorrow at the Tazewell County courthouse at 4:00 pm.

I may be there, if I get a bunch of stuff done between now and then.

Tuesday, March 15, 2005

Virginia AG candidates weigh in on constitutional issues and higher ed

In this article from the Washington Times, the three candidates for Virginia attorney general weighed in on constitutional issues related to higher education, including race in admissions.

Monday, March 14, 2005

Magistrate judge gives 4 thumbs down to guarantors in default

In BB&T v. Fowler, Magistrate Judge Urbanski recommended granting a default judgment against four individual guarantors on a bank loan.

Magistrate Judge Urbanski approves deposition of more than seven hours

In Moore v. CVS Corp., Magistrate Judge Urbanski ruled on various discovery motions, including a request for more than seven hours for a deposition, as to which the judge explained, "no court has construed the 2000 Advisory Committee notes as causing some profound change in the Rules requiring parties to use a stopwatch and immediately and finally adjourn a deposition after seven hours of testimony taken."

The Commonwealth - center of basketball power

Women's basketball that is.

I think there are five college teams from Virginia in the women's tournament - Richmond, Liberty, ODU, Virginia, and Virginia Tech.

Fake Supreme Court news you won't see on SCOTUSblog

Thanks to Shaula for sending me a link to this wild post with fictionalized accounts of Supreme Court decisions.

I had to laugh when I got to the part where Chief Justice Rehnquist supposedly wrote, in a water rights case: "there are Coca-Cola machines on the reservation."

On cameras in the courtroom in Prince William County

It says here that press photographers rely on something called the blimp to take quiet pictures inside the courtrooms in Prince William County.

Gene Nichol hired as next president of William & Mary

The Richmond paper is reporting here ("UNC dean named next W&M president," 3/14/05) that UNC law school dean Gene Nichol has been selected as the next president of the College of William & Mary.

I'd say that will be quite a change from the last guy. For one thing, he is a much better football player, or was in 1986, when he and Tim Sullivan were both on the law school faculty.

More views on the nomination of Judge Boyle to the Fourth Circuit

Via How Appealing, this article says among other things that the NAACP opposes while N.C.'s Senators favor the nomination of the E.D.N.C.'s Judge Terence Boyle to the Fourth Circuit.

The understaffing of commonwealth's attorneys office in Virginia

The Norfolk paper has this article ("More people plus more arrests add to burden on prosecutors," 3/14/05) that says the Commonwealth's attorneys offices in Virginia, or some of them, are understaffed, but more positions will be funded this year.

Sunday, March 13, 2005

The trouble with the Democrats in the General Assembly

I believe Shaula is saying here that the trouble with some of the Democrats in the General Assembly is that they are too wealthy and too young to take a progressive stand on matters of conscience.

Come to think of it, she would probably say the same of some of the Republicans.

Open government articles and editorials

From Robert Tanner of the AP: Across U.S., Citizens Fight for Records

From Rebecca Car of Cox News Service - New study shows open government at stake at state level

From the Bristol paper - How open is open?

From the Roanoke paper - Knowledge blooms in sunshine, not shadow

From the Richmond paper - Fishing for answers by reporter Gordon Hickey, Open Doors: American System Requires Sunshine by Professor Rod Smolla, Press Freedom: Shield Bill Would Ensure Sources' Confidentiality by Congressman Rick Boucher, Let the Sun Shine, and FOI: Honoring your right to know by Thomas Silvestri

From the Newport News paper - Healing sunshine

From the Charlottesville paper - Shedding light on public records

From the Lynchburg paper - Keeping all governments in the sunshine

From the Staunton paper - In Search of Sunshine and The Hall of Shame: Slamming the door on open government

Virginia's democracy more pure than in Pennsylvania

In this column, a Virginia reporter who used to live in Pennsylvania opines that the Virginia's legislature is superior because it is fewer, cheaper, and quicker than that of the other Commonwealth which shares borders with Maryland.

Haynes nomination may be 'DOA'

Newsweek's Michael Isikoff writes here that prisoner abuse investigations may derail the President's nomination of William J. Haynes II to the Fourth Circuit.

On judicial filibusters

The Richmond paper has this article on the coming showdown on filibusters in the Senate to prevent votes on some of the President's appeals court nominations.

Saturday, March 12, 2005

Michelle Malkin cites John Behan (again)

In this post, commentator Michelle Malkin links to our own John Behan.

More on the low pay for court-appointed counsel in Virginia courts

The Richmond paper reports here ("Va. pays low fees to lawyers," 3/12/05) on the deplorable state of Virginia's compensation for the lawyers who represent indigent criminal defendants in state court.

The article begins: "The fees Virginia pays court-appointed lawyers for defending the poor have been the lowest, or among the lowest, in the country for at least three decades."

The article includes speculation that there will be federal court litigation to try to compel greater fees.

The article notes that in Georgia, litigation over court-appointed fees resulted in the establishment of a statewide public defender system.

In support of new public defender's office

In this editorial, the Roanoke paper says the forthcoming public defender's office for the Western District of Virginia is a good thing.

Local federal judges comment on the risk in their jobs

The Kingsport paper has this interview with the E.D. Tenn.'s Judge Greer and the Bristol paper has this interview with the W.D. Va.'s Judge Williams, with their stories and comments on the perils of being a judge. Also, the Roanoke paper has this article with quotes from judges including Chief Judge Jones of the W.D. Va.

The poll sponsored by WSLS

Here it is, if you haven't seen it.

Friday, March 11, 2005

The states where I've been

I saw one of these on the Jaded JD, so I made one up for this blog. In eight of the red states, plus D.C., I've taken depositions.

The question is, at my advanced age, do I even want to go to any of the remaining states, or is that it? I'm not sure there's any place I might want to go in those gray states except for Las Vegas and Seattle. And Ann Arbor - to Michigan Stadium. And Boulder, don't all the good people have dreams of an old lady telling them to travel to Boulder? With "Don't Fear the Reaper" playing in the background? ("Baby, I'm your man....") Wait, that was a book.

Besides, I'm almost certain there are enough electoral votes in the states where I've been, to carry the nation.

The Jaded JD: 1000 hits

The Jaded JD credits this blog for helping him get 1,000 hits.

Well, since this blog was stuck on Monday until Friday, they might as well be reading the Jaded JD. In fact, I recommend it.

Stuff to tell the new guy

Memo: from Steve Minor

Since you are new, you should know some of the fine points about word processing and legal writing in which I believe wholeheartedly -

1. Never underline anything, ever. Underlining is for typewriters. Use italics.

2. Don't put double spaces after periods. If you do, I will take them all out.

3. Always use curly quotes. The stuff you paste from Westlaw won't have curly quotes. Use Command-H and replace them all, it takes a second.

4. Always use only 14 point type. If it's good enough for Judge Jones, the Fourth Circuit, and the U.S. Supreme Court, it's good enough for me. No court in America is getting mad because the type is too big.

5. Every paragraph must have 3, 4, or 5 sentences - not 2 and not 6.

6. Nobody else I know gives a donkey's butt about items 1-5.

Once more - come to the BLI in Abingdon next Friday

Here is the brochure for the Bar Leaders Institute to be held at the Higher Ed center in Abingdon next Friday, March 18.

It includes some free ethics CLE, a discussion of "What the State Bar is Doing," and a "Town Hall" chaired by Chief Justice Hassell.

In the morning, if you go for the whole kitten kaboodle, there will be a report from the Indigent Defense Task Force, probably the most relevant part of the program.

Speaking of inadequate representation, I made a couple uncompensated appearances in criminal cases myself this past week.

The Big Aristotle to become the Big Deputy in SW Virginia

On the topic of Shaquille O'Neal as a Southwest Virginia law enforcement officer, working with the internet crimebusters in Bedford County, here are links from the U.S. Marshals Service: (There's a New Marshal in Town...and His Name is Shaq); the Washington Post (Heat's O'Neal Is the New Sheriff in Town); the Roanoke paper (Bedford Co. turns up heat on online predators); and the AP here and here.

Charlottesville lawyer sues U.S. over cut in fees by Chief Judge Wilkins

The Daily Progress reports here ("Lawyer files suit over unexplained pay cut," 3/11/05) that a Charlottesville lawyer has filed suit after the Chief Judge of the Fourth Circuit cut his fee application by 74% for the representation of an indigent federal criminal defendant.

On singing the national anthem

In various papers today are articles like this one from the Washington Times. The Times went to the Mall, quizzing people about the lyrics of the National Anthem.

This is one test I could pass. Indeed, when I was started high school, in try-outs for the high school chorus, the test for admission was singing the National Anthem. After about ten seconds, the director told me to quit, and moved on to the next candidate - I was in.

Then and now, I can belt out the National Anthem, and do so at every opportunity, sometimes to the embarrassment, amusement, delight or whatever of those around me (generally in the stands at football stadiums on Saturdays in the fall).

Congress approves funding for W.D. Va. public defender's office

The Roanoke paper reports here ("Western Va. gets funds to create federal public defender's office," 3/11/05) that Congress has funded the proposed public defenders' office for the Western District of Virginia. The article quotes Chief Judge Jones as saying that the head of the office will be appointed by the Fourth Circuit. The article notes that the W.D. Va. is among only 14 out of the 94 district courts in the U.S. without a public defender. The article says Judge Jones envisions six assistants, and offices in Abingdon and Charlottesville as well as Roanoke, and that the chief public defender will be selected within six to nine months.


SST has declared that he is beginning to lose patience with Blogger.

Right-wing blogger goons

SST has this post citing Barnie Day on the "right-wing blogger goons" who went after Senator Potts.

Freaked out by the Confederate Southern American reference

Tax & Biz has this post in which he scratches his head over the analysis of the panel (including Judges Williams and Michael and District Judge Floyd from South Carolina) in Chaplin v. DuPont Advance Fiber Systems, about Rule 11 sanctions and the award of attorneys' fees against Title VII claimants in an E.D. Va. case decided by Judge Hudson.

Notwithstanding the language cited, I don't believe the panel was trying to say that there could be a claim for "national origin" discrimination brought on behalf of persons of "Confederate Southern American descent."

Good week for Social Security claimants

In Sumner v. Barnhart, Judge Urbanski remanded the case for reconsideration, and in Dales v. Barnhart and Boyd v. Barnhart, Judge Sargent remanded the cases for reconsideration.

Bushel of opinions from Judge Wilson of the W.D. Va.

In Cellco Partnership v. Board of Supervisors of Roanoke County, Judge Wilson upheld the County's denial of a special use permit for a cell tower, applying state law and the federal Telecommunications Act.

In Wiatt v. Marrs, Judge Wilson concluded that the plaintiff could bring her Title VII claim against the "Montgomery County Sheriff's Office," notwithstanding the defendant's claim that there is no such entity. Indeed, there are cases to support the defendant's view of the case, but Judge Wilson took a view more in the spirit of the Rules, perhaps, and concluded that the claim was stated against the Sheriff in his official capacity.

In Shashi, Inc. v. Ramada Worldwide, Inc., Judge Wilson granted Ramada's motion for a preliminary injunction against further use of its trademarks, in a case against a former franchisee that had been booted for failure to measure up to Ramada's standards. Ramada was nominally the defendant, but had removed the case and counterclaimed for injunctive relief. In this case, Judge Wilson applied the Blackwelder test, considering the harm resulting from wrongful use of a trademark.

In Short v. McEathron, Judge Wilson granted summary judgment for some and denied some for others among the defendants sued in a section 1983 case in connection with an inmate suicide at the Warren County jail. The defendants were seven deputy sheriffs. The Court found there was a question of fact as to deliberate indifference for five of the seven jailers.

In Donald's Electric and Refrigeration Service, Inc. v. United States, Judge Wilson granted the government's motion to dismiss, where an employer brought suit seeking relief from penalties imposed for late payment of employment taxes, on the theory that it should be excused because its tax person had been impaired by mental illness.

In Freeman v. Potter, Judge Wilson denied the government's motion to dismiss plaintiff's claim for breach of an agreement settling a Title VII case, and stayed the case for the pendency of EEOC proceedings on the plaintiff's retaliation charge.

In Miller v. Luttrell, Judge Wilson found one of the defendants not liable in a wrongful death case arising out of an accidental shooting, where the plaintiff claimed the father was responsible for not keeping his gun away from his son, who was age 17 at the time of the accident. As to the son, who was in default in the civil case and is now in prison for involuntary manslaughter, the Court entered an award of damages of $258,306.

In Wachovia v. Ranson, Judge Wilson applied the Fourth Circuit's ruling in Wachovia Bank, N.A., v. Schmidt, 388 F.3d 414 (4th Cir. 2004), and dismissed for lack of diversity jurisdiction.

More on the proposal for a single form of action in Virginia

This report and this draft deal with the proposal for a single form of action in civil cases in Virginia. SB1118 authorizing this change passed the General Assembly. The vote in the House was 67-29.

Tuesday, March 08, 2005

No joy for what used to be Pittston in Coal Act challenge

The AP reported that the U.S. Supreme Court denied the petition for certiorari of the The Brink's Company, which owns what used to be The Pittston Company, in its case to overturn the Coal Industry Retiree Health Benefit Act of 1992 as unconstitutional.

The only thing the Wahoos have got going for them in the upcoming ACC tournament

This article form the Baltimore Sun explains how things have gone weird in the ACC tournament when it is played outside of North Carolina - as in 1976, when Virginia won it at the Capital Centre.

Monday, March 07, 2005

Chief Judge Jones cites Roper in sentencing below guidelines

In U.S. v. Naylor, Chief Judge Jones cited the Supreme Court'a analysis in Roper, in deciding to impose a lower sentence for a fellow who committed his predicate offenses as a young man.

SW Virginia law blog on USA Today

Marchblogness has a link to the post about Chuck Thompson, which says one tribute to the man is the diversity of the blogs which have written about him.

Twenty years from now, when the death penalty is abolished in the United States

The Daily Press has this profile of a Virginia public defender, which includes his predictions for the future.

No tire slashing here

This piece from a Wisconsin paper includes an interview with a spokesman from the campaign of Del. Petersen about the involvement of his campaign manager as a witness for the prosecution in connection with the tire slashing incidents in Wisconsin on Election Day.

The writers concluded with this:

"So, we were just wondering, are tire-slashings common in races in the Old Dominion State?"

The spokesman replied, "Not that I've heard of."

Sunday, March 06, 2005

On the commitment of violent sex offenders in Virginia

The Washington Post had this article ("Va. Court Limits Committing of Sex Offenders," 3/5/05) on last week's decisions in the first commitment cases to reach the Virginia Supreme Court.

The article begins with these statistics: "Virginia has sought to have 41 violent sex offenders confined to a mental hospital after they finish their prison terms under a law that took effect in 2003. So far, courts have agreed to send 15 of them to the institution."

The Supreme Court ruled against the Commonwealth in two of three cases decided on Thursday.

580,000 Virginians live west of Roanoke

SST has the numbers in this post, which questions why a statewide candidate would go no further than Roanoke.

On the late, great Chuck Thompson

The AP has this report on the life and times of Baltimore sportscaster Chuck Thompson, who died on Sunday.

When I lived in Pennsylvania, when I lived in D.C., when I was hanging out at the in-laws in McLean, and more than a few summer nights driving through Virginia from anywhere to anywhere, I listened to and watched a lot of Orioles baseball over a period of about 20 years. I thought Chuck Thompson was delightful.

SI's Frank Deford once wrote: "I was lucky enough to grow up in Baltimore, where Chuck Thompson was for so long the Voice (not only of the Orioles, but also the Colts). To twist the dial when you were away from town -- say, at the beach, or coming back home from a trip -- and to hear Chuck's voice was enough to put you right there in Memorial Stadium. Once, parked with a girl in Maine, looking for some make-out music, I actually picked up Chuck, clear-channel WBAL, Baltimore to Maine, and was so excited that I actually forgot (well, at least for awhile) about making out."

Saturday, March 05, 2005

Contingent fee dispute before the Fourth Circuit

Tax & Biz has this post explaining the Fourth Circuit's analysis of the contingent fee dispute in the case of Sanders v. Mueller, worth reading even though it is a Maryland law case.

Another Virginia law blog

Here is Shane Jimison's Virginia Law Blog. Check it out.

The perils of section 1983 litigation

Section 1983 litigation is the most fun area of the law there is. You work with the Constitution. You are in federal court (whenever possible). There are many issues to litigate, and motion practice is likely to carry the day. There's a fair amount to learn just to get started, and in some respects the case law changes quickly. Some of the stuff in the brief you wrote last year is timeless, some of it is worthless. This article describes a case where the defense lawyers apparently lost their way in unraveling section 1983 concepts - including Leatherman. (I used to argue for heightened pleading in every case, then in every case as to the individuals only, then . . . .) In its opinion, the Court notes "a puzzling failure on the part of the movants to review, much less appreciate, the governing judicial opinions and statutory provisions applicable to the claims presented in the Complaint."

I've been there, not in quite the same way, but you have to rethink what you are saying in every case.

Private employer liable for conspiracy with state actor to retaliate for protected speech

In Dossett v. First State Bank, the facts were these: the plaintiff worked for defendant bank. She went and told off the School Board on some issue at a public meeting. School officials declared their unwillingness to deal with her in their business with the bank, which was substantial. The bank fired the plaintiff. The plaintiff sued the bank under section 1983. The case went to trial and the jury awarded more than $1.5 million. The trial court ordered a new trial. The second jury found for the Bank.

One of the issues on appeal was what did the plaintiff have to prove to show that the school officials who dealt with the bank were acting under color of state law. The trial court made up its own instruction. On appeal, the plaintiff argued, in effect, that the trial court should have given the instruction tendered by the bank. The Eighth Circuit agreed, that the trial court's definition was overly restrictive.

The bank argued the error was harmless, because it couldn't be liable anyhow, as a private actor. The appeals court disagreed, stating: "We see no reason why a private actor may not be liable under § 1983 for conspiring with state officials to violate a private citizen’s right to freedom of speech under the First Amendment." The Court rejected the bank's argument that it was stuck between a rock and a hard place, get sued by the plaintiff or lose to School Board's business - the Court explained that the plaintiff's claim was that the bank joined in the unlawful objective of retaliating against the plaintiff on account of her protected speech. So, the critical evidence was that the bank was on board with the idea that the plaintiff's expression was of no account.

On the issue of punitive damages, the Court also explained, "absent willful participation in 'joint action' with state officials to retaliate for the exercise of constitutional rights, the Constitution does not prevent the Bank, as a private actor, from terminating an employee’s at-will employment if her public speech would damage the financial interests of the Bank." The Court concluded that the bank might have stepped over the line so far as to be liable under section 1983, but not far enough to support punitive damages.

The case is the subject of this post called "Small Town Setting, Big Time Legal Issues," which includes many related links. You'd think a case like this has Southwest Virginia written all over it, one of these days, somebody who reads this blog is going to call me up and ask, what about that bank case, I've got a woman here who just got fired after her husband chewed out the Zoning Administrator, can I give you her number . . . .

Balkin calls it on the Ten Commandments case

Professor Balkin offers this prediction on the Supreme Court's Ten Commandments case: "Justice O'Connor upholds five, strikes down five."

The country lawyer and ABA TECHSHOW

Via Denise, I see that the upcoming ABA TECHSHOW has its own blog, including this post about why a country lawyer would attend.

Well, I'm a country lawyer, and I might even attend but for the fact that this event has never been held within 400 miles of here, so far as I know. I generally drive to Atlanta or D.C. (ok, I drove to Chicago once, but that took two days). The country lawyer takes his wife along to the Big City whenever he can and she won't tolerate the expense or anxiety of plane travel.

Washington Post takes on Judge Boyle

On Thursday, the Washington Post published Judges May Be Vetted for Mainstream Values, which discussed among others the nomination of District Judge Terrence Boyle to the Fourth Circuit.

The article notes that Judge Boyle has been "trying to win promotion" to the Fourth Circuit for 14 years. The article says that the Fourth Circuit "is considered perhaps the nation's most conservative appellate court." The article cites critics who claim that "the appeals courts have overturned more than 150 of his decisions." The article says the Senate Democrats are deciding whether to add Judge Boyle to the list of their targeted appeals court nominees, which they call "outside the political mainstream" and therefore plan to filibuster.

In other circumstances, you'd think would be evidence of liberality, if the Fourth Circuit is so conservative, and so often disagrees with Judge Boyle.

Friday, March 04, 2005

Senator John Edwards drops his statewide campaign

After a few weeks of thumbing his nose at conservative Virginia during the General Assembly session, Senator Edwards has now chucked his candidacy for the Democratic nomination for Attorney General, according to this report ("Roanoke senator drops statewide nomination bid," 3/4/05) in the Roanoke paper.

More on how odd it is there has been no ruling yet in the Muhammad case

In this article ("No ruling on sniper's execution," 3/4/05), the Richmond paper notes how it is a "a highly unusual development" that the Virginia Supreme Court went through a second session without an opinion in the sniper Muhammad case.

No joy on appeal for Sassy Cheese lady

The Daily Press reports here ("Sassy cheese conviction upheld," 3/4/05) that the Virginia Supreme Court affirmed the criminal conviction of the woman who refused to allow state employees to inspect the facilities of her cheese-making business.

On the passing of a Virginia lawyer who specialized in murder cases

The Norfolk paper has this account of life and times of Richard Brydges, who practiced in Virginia Beach for 50 years.

Thursday, March 03, 2005

Jaded JDs

Jaded JD is back with, among other things, this post about jaded young lawyers.

How judges cope with threats

The Christian Science Monitor has this article titled How judges cope with everyday threats on the job.

The magnitude of this problem struck me a few months back when one of the local judges who is about my age told me a story that freaks me out completely, and so of course I insisted that it be retold the next time after that when we were again in a tale-telling mode.

When I was a law clerk, it was about the time of the letter bomb that killed an appeals court judge in the 11th Circuit (as I recall). So, we got a memo from the Administrative Office of the United States Courts, and it read like a script from the Road Runner cartoon - don't open a mysterious package if it has exposed wires or is ticking or says Acme Bomb Company on the return address. (OK, I made that last part up.)

Soon after we got the memo, the computers showed up.

"I'm not opening it," I said. "You open it."

When the gavel strikes, you will bark like a dog

The Washington Post reports here ("Hypnosis Evidence Fought in 'Stalker' Trial," 3/3/05) on the unusual use in the Route 29 stalker case of the testimony of witnesses who have undergone hypnosis to remember what happened to them.

Two of the three Loudoun County spam convictions get the boot from trial court judge

Via CNN, the AP reports that a circuit court judge has thrown out the convictions of two of the three convictions in Virginia's first spam prosecution.

On the Loudoun County downzoning case

Leesburg2Day has this report (with reader comments) with the background on the monster zoning litigation from Loudoun County, as to which the Virginia Supreme Court ruled against the County in a case decided today, on interlocutory appeal.

Radford takes Penny Kyle, will Lady Luck declare for William & Mary job?

Now that it has been announced that the head of the Virginia Lottery will be the next president of Radford University, perhaps the leadership at the College of William & Mary will expand its search to consider a real Virginia icon.

On the future Judge McElyea

Here is the Coalfield's article on the selection of Tammy McElyea to be the next circuit court judge for the 30th Circuit.

Supreme Court case summaries - get 'em while they're hot

Here from the Virginia judiciary website and here from Steve Emmert are summaries of today's opinions from the Virginia Supreme Court. Maybe I'll get around to them myself in a little while.

Three-way split on panel for DOC employee vs. employee case

In Givens v. O'Quinn, the Court reversed in part and affirmed in part the judgment by Chief Judge Jones. The panel included Judges Luttig, Wilkins, and Gregory, and each wrote separately:

"Affirmed in part and reversed in part by unpublished per curiam opinion. Judge Luttig wrote a separate opinion concurring in the judgment. Chief Judge Wilkins wrote a separate opinion concurring in the judgment in part and dissenting in part. Judge Gregory wrote a separate opinion concurring in the judgment in part and dissenting in part."

The disagreement is over the question of whether there was action under color of state law, as would support a section 1983 claim, when two DOC employees beat up the plaintiff DOC employee.

Still no ruling in the sniper Muhammad case

This report notes how the Virginia Supreme Court did not include the Muhammad case among its opinions released today (a rare Thursday opinion day).

The first thing we do, let's boot the insurance defense lawyers

According to this report, 20 insurance defense lawyers were split off from the Virginia office of Shaw Pittman in advance of that firm's big impending merger.

Southwest Virginia lawyers for Steve Baril

I saw a copy of this letter not too long ago, with names of lawyers from Roanoke south and west who are supporting AG candidate Steve Baril.

From way out here, the names on the letter include Greg Edwards, Ronnie Montgomery, Tom Scott, Bill Bradshaw, and Joe Wolfe. In the last 24 hours, I've sent a letter, made a call, or sent an e-mail to three of those five, about something or the other.

Bristol telephone ruling

On February 25, the State Corporation Commission ruled in favor of BVU on Sprint's claim that BVU is cross-subsidizing its local telephone service.

To see the opinion, type in this case number (PUC-2002-00231) at this site.

I guess I was out of town that weekend, missed the whole thing.

Wednesday, March 02, 2005

Death can't and won't be sought for Malvo

This article from the Fredericksburg paper says that the Prince William County prosecutor has abandoned plans to try the teen sniper Malvo on additional charges in the attempt to secure the death penalty.

Another Hokie has it figured

In this column from the Virginia Tech paper, the writer explains how the candidacy of Sen. Potts as an independent will take votes away from Tim Kaine.

Big lot of confusion

In Adventis, Inc. v. Consolidated Property Holdings, Inc., a panel of the Fourth Circuit in an opinion by Judge Duncan, joined by Judge Motz, reversed Judge Turk's ruling in a trademark case, concluding that he should acted on the party's admission on the likelihood that the likelihood of confusion between the various marks involving the words "Big Lot" and "Big Lots".

Both sides made admissions during discovery on the confusion, both sides moved for summary judgment, and after Judge Turk denied the motions, both sides sought an obtained permission for interlocutory appeals. The majority ruled that since there were admissions on the issue of likelihood of confusion, Judge Turk erred by denying summary judgment based on the conclusion that there was no likelihood of confusion between the marks. THe majority remanded the case for determination of the issue of priority of use.

Judge Luttig wrote separately: "I am sufficiently unclear as to the reasons for the majority’s holding, and therefore the implications of the court’s decision, that I simply concur in the judgment reached by the court."

One contract defense I'll never get to use

Today in Tenet v. Doe, the unanimous Court affirmed the rule that secret contracts made with spies are not enforceable in court.

I'm always looking for contract defenses, but I can't figure out how to apply this one in my normal practice. ("Your Honor, my client is actually a front for the CIA . . . .")

More doubletalk from the Roanoke Times

In this editorial, the Roanoke paper applauds the Supreme Court's turnabout on teen murderers, then goes on to say: "Bush needs to base his choice not on political ideology but on a prospective justice's intellectual ability and respect for court precedent."

If respect for court precedent was the measure, the majority in the death penalty case would not have made the grade. It is the absence of justification for deviation from precedent that makes the ruling objectionable.

Three Virginia teen murderers were executed back when it was legal

The Roanoke Times has this article ("Before Supreme Court outlawed death penalty for juveniles, Virginia executed 3 in such cases," 3/1/05) by Laurence Hammack, which says that three juvenile murderers were executed in Virginia since 1998.

Tuesday, March 01, 2005

The Virginia mold case dealing with subject matter jurisdiction - and Daubert has this Legal Times article about Roche v. Lincoln Property Co., as to which the Supreme Court has granted certioriari. The issue on appeal is whether there was diversity jurisdiction between the parties. The subject matter of the case is personal injury caused by toxic mold.

The appeals court opinion was written by Judge Gregory, joined by Judge Widener and Senior Judge Beam from the Eighth Circuit. It is not that clear to me that the case is very important, because you'd think that normal business are not so ambiguously structured as the corporate defendant in this case.

To me, the most interesting aspect of the case is that in the district court, the trial court judge applied Daubert, booted the plaintiffs' evidence, and granted summary judgment. Roche v. Lincoln Property Co., 278 F. Supp. 2d 744 (E.D. Va. 2003). The application of Daubert in a mold case is in itself interesting, because there is much chicanery and not much in the way of real standards in the mold investigation business.

By appealing subject matter jurisdiction, the plaintiffs have escaped the judgment for the defendants, and may get back to Virginia state court, where Daubert (as such) does not apply. If the case is remanded, how will the state court trial judge view the preclusive (or persuasive) effect of the federal court's Daubert ruling? Some, none, or total? It is very interesting to consider - a rare chance under almost laboratory conditions to test the differences between the law of the Commonwealth and the federal evidence rule.

Award of $350,000 in fees to would-be kicker in Title IX case against Duke affirmed

In Mercer v. Duke University, the Fourth Circuit in an opinion by Judge Traxler, joined by Judges Luttig and King, affirmed the award of substantial attorneys' fees in the case of the placekicker who was discriminated against on account of being a woman, even though she only got nominal damages, as her award of punitive damages was wiped out when the Supreme Court determined that punitive damages are not available under Title IX.

Wiliam & Mary grad among the contested appeals court picks

The Washington Post notes here that William G. Myers, III, a nominee to the U.S. Court of Appeals for the Ninth Circuit, is one of the persons renominated by President Bush. The article says that he graduated from the College of William & Mary and also the law school at the University of Denver.

Supreme Court strikes down death penalty for persons under age of 18

The Norfolk paper has this AP report which says the U.S. Supreme Court has ruled 5-4 that the death penalty for juveniles is unconstitutional. The article says that the laws of Virginia and 18 other states allowing executions of persons under 18 are affected by the decision.

Baril calls for tougher sentencing guidelines

The Richmond paper reports here that AG candidate Baril wants sentencing guideline reform "because too many criminals are getting out of jail too soon."

The article concludes: "Baril said the Criminal Sentencing Commission should hold public hearings for commonwealth's attorneys and law enforcement, add jury trials to the sentencing statistics, and give the General Assembly and governor more oversight."

You didn't hear of him here first

The Richmond paper has this story characterizing Senator Puckett as "a little-known state senator from Russell County in rural Southwest Virginia."