AG candidate Bob McDonnell was interviewed for this story in the Leesburg paper about the resignation of the executive director of the Indigent Defense Commission, Richard Goemann.
The article concludes:
"Goemann, who was making $132,211 a year and is a former public defender, commanded the 25 public defender offices and more than 1,000 court-appointed attorneys, and controlled the commission's $31 million budget. Some of the criticism aimed at him by commission members was that he did not spend enough money on the attorneys of the system--the overwhelmed public defenders, some who handle twice as many cases as the average, private attorney. The large workload led to public defenders botching appeals on default because they couldn't meet filing deadlines. The Leesburg public defender's office mishandled at least eight appeals cases in a two-year period. These failures prompted the General Assembly to pass a law that last year that protected a defendant's appeal rights if his indigent defense attorney missed a filing deadline."
It seems like the newspaper is stretching the point a bit to suggest a connection between missed appeal deadlines and the fiscal management by Mr. Goemann.
Sunday, July 31, 2005
What's the statute of limitations on goofiness?
Bob Gibson points out here that the timing of the Republican Party of Virginia's lawsuit against its insurer is absurd.
Was the RPV facing a statute of limitations problem? Probably not, on a written contract of insurance - the time to sue is probably five years. I thought that the point of the settlement, in such amount at such point in time, was to get the case out of the news - since I never understood the damage claim. What else made the case worth $750,000? No one was maimed, no profits were lost, nobody on the plaintiffs' side lost a job.
Was the RPV facing a statute of limitations problem? Probably not, on a written contract of insurance - the time to sue is probably five years. I thought that the point of the settlement, in such amount at such point in time, was to get the case out of the news - since I never understood the damage claim. What else made the case worth $750,000? No one was maimed, no profits were lost, nobody on the plaintiffs' side lost a job.
U.Va. law's Prof. Harrison on Roberts
In this commentary, Professor John Harrison endorses the nomination of Judge Roberts to the U.S. Supreme Court.
The news coverage regarding Judge Roberts is really boring, and that's a good thing.
The news coverage regarding Judge Roberts is really boring, and that's a good thing.
100 days for cussing out the judge
The Kingsport paper has this story about a defendant in General Sessions court who earned extra jail time by cursing the judge, giving the finger to the judge, threatening the judge, and so on. Evidently, the judge summarily sentenced the defendant ten times to ten days, spinning out the numbers in the manner of auctioneer, or so claimed the author of the newspaper story.
Ah, a centrist
Reading today's Bristol paper, I learned from the local print version of this AP story that Senator Feinstein from San Francisco (whose interest group ratings are shown here and whose biography in the dKosopedia is here) is "a centrist." I didn't know.
Why I won't be hired by the Bush administration
This commentary suggests that President Bush picked Judge Roberts because of his physical fitness.
By way of contrast, the author refers to President Clinton as "a cheesy marching band geek if ever there was one."
By way of contrast, the author refers to President Clinton as "a cheesy marching band geek if ever there was one."
Are fewer pages better?
This post asks the question, is a shorter document with a smaller font better than a longer document with a larger font? The winner is: a shorter document with a larger font.
Saturday, July 30, 2005
Contempt finding in custody matter based on mental health provider's testimony without consent reversed
In Schwartz v. Schwartz, the Virginia Court of Appeals in an opinion by Judge Elder reversed the contempt citation and attorneys' fees award against the appellant, where the appeals court found that the contempt finding was based primarily on testimony from a mental health provider in violation of Va. Code § 20-124.3:1.
The Court explained:
"In 2002, however, the General Assembly passed new legislation specifically limiting the admissibility of mental health records in child custody and visitation proceedings,"
and concluded -
"We agree with mother and hold that, in this case 'in which custody or visitation of a minor child is at issue pursuant to § 20-124.2,”3 the trial court erroneously admitted testimony 'concerning a parent' that constituted 'information obtained during . . . therapy.'"
The Court explained:
"In 2002, however, the General Assembly passed new legislation specifically limiting the admissibility of mental health records in child custody and visitation proceedings,"
and concluded -
"We agree with mother and hold that, in this case 'in which custody or visitation of a minor child is at issue pursuant to § 20-124.2,”3 the trial court erroneously admitted testimony 'concerning a parent' that constituted 'information obtained during . . . therapy.'"
On the criminal contempt prosecution of the Petersburg sheriff
The power struggle between a local sheriff and court officials reached the Virginia Court of Appeals, as it considered a number of issues related to the criminal contempt conviction of the sheriff in Epps v. Com. In an opinion by Judge Frank, the Court held: (1) the court order with which the sheriff had refused to comply was not void, (2) the trial court erred in allowing the testimony of a sitting judge as evidence against the sheriff, (3) the ambiguity as to whether the contempt proceedings were civil or criminal was not ambiguous enough for the sheriff to show that his rights to the protections of criminal procedure were violated, and (4) notwithstanding his limited funds, the sheriff had no impossibility defense to the charge of contempt, as he could have complied with the order.
Does McDonnell Douglas survive Desert Palace?
In Diamond v. Colonial Life & Accident Ins. Co., the Fourth Circuit in an opinion by Judge Motz, joined by Judge Widener and Senior Judge Hamilton, affirmed summary judgment for the employer, where the plaintiff had raised various claims of employment discrimination.
In so doing, the Court rejected the plaintiff's argument "that the Supreme Court’s recent decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), rendered the 'shifting burden test . . . no longer . . . applicable' in Title VII cases at the '[s]ummary [j]udgment stage.'"
In response, the Court observed in a footnote:
"Notwithstanding our clear recognition in [Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004) (en banc)] of these principles and the continued vitality of the McDonnell Douglas framework, Diamond insists that after Desert Palace that framework is "no longer a tool which can be used to dismiss a Title VII case at the [s]ummary [j]udgment stage." Her argument finds no support in the text of Desert Palace, which does not even mention McDonnell Douglas. Moreover, since deciding Desert Palace, the Supreme Court has continued to invoke the burden-shifting framework in pretext cases. See Raytheon Co. v. Hernandez, 124 S. Ct. 513, 517 n.3, 518 (2003); see also Johnson v. California, 125 S. Ct. 2410, 2418 n.7 (2005). Our sister circuits have also rejected the view that Desert Palace nullified the McDonnell Douglas framework. See, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005); Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1018 (8th Cir. 2005); Cooper v. Southern Co., 390 F.3d 695, 725 n.17 (11th Cir. 2004)."
In so doing, the Court rejected the plaintiff's argument "that the Supreme Court’s recent decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), rendered the 'shifting burden test . . . no longer . . . applicable' in Title VII cases at the '[s]ummary [j]udgment stage.'"
In response, the Court observed in a footnote:
"Notwithstanding our clear recognition in [Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004) (en banc)] of these principles and the continued vitality of the McDonnell Douglas framework, Diamond insists that after Desert Palace that framework is "no longer a tool which can be used to dismiss a Title VII case at the [s]ummary [j]udgment stage." Her argument finds no support in the text of Desert Palace, which does not even mention McDonnell Douglas. Moreover, since deciding Desert Palace, the Supreme Court has continued to invoke the burden-shifting framework in pretext cases. See Raytheon Co. v. Hernandez, 124 S. Ct. 513, 517 n.3, 518 (2003); see also Johnson v. California, 125 S. Ct. 2410, 2418 n.7 (2005). Our sister circuits have also rejected the view that Desert Palace nullified the McDonnell Douglas framework. See, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005); Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1018 (8th Cir. 2005); Cooper v. Southern Co., 390 F.3d 695, 725 n.17 (11th Cir. 2004)."
War protester's conviction of being in restricted space where the President was visiting upheld
Earlier in the week, in the case of U.S. v. Bursey, the Fourth Circuit in an opinion by Judge King, joined by Judge Motz and Senior Judge Siler from the Sixth Circuit, upheld the criminal conviction of a fellow who showed up to protest at an appearance by President Bush at the airport in Columbia, SC.
The charge was brought under 18 U.S.C. § 1752, under which "It shall be unlawful for any person . . . (1) willfully and knowingly to enter or remain in . . . (ii) any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting. . . ." The protester was tried before a magistrate judge and fined $500. On appeal, the amici supporting the appellant included: DKT LIBERTY PROJECT; PEOPLE FOR THE AMERICAN WAY; NATIONAL LAWYERS’ GUILD; FIRST AMENDMENT FOUNDATION; PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS; and PEOPLE’S LAW OFFICE OF CHICAGO. Arguing for the appellant were Jeffrey E. Fogel, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York, and P. Lewis Pitts, Jr., ADVOCATES FOR CHILDREN’S SERVICES, Durham, North Carolina.
The appellant raised two issues, that the "restricted area" was not really restricted, and that his remaining in the area was not willful and knowing in violation of the statute. The Court rejected both contentions, in affirming the conviction.
The charge was brought under 18 U.S.C. § 1752, under which "It shall be unlawful for any person . . . (1) willfully and knowingly to enter or remain in . . . (ii) any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting. . . ." The protester was tried before a magistrate judge and fined $500. On appeal, the amici supporting the appellant included: DKT LIBERTY PROJECT; PEOPLE FOR THE AMERICAN WAY; NATIONAL LAWYERS’ GUILD; FIRST AMENDMENT FOUNDATION; PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS; and PEOPLE’S LAW OFFICE OF CHICAGO. Arguing for the appellant were Jeffrey E. Fogel, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York, and P. Lewis Pitts, Jr., ADVOCATES FOR CHILDREN’S SERVICES, Durham, North Carolina.
The appellant raised two issues, that the "restricted area" was not really restricted, and that his remaining in the area was not willful and knowing in violation of the statute. The Court rejected both contentions, in affirming the conviction.
Are family courts finally coming to Virginia?
Some judges have dusted off their crystal balls in Colonial Heights, where The possibility of Family Court factors into courthouse decision.
The article says that Chief Justice Hassell is trying to drum up support for the Family Court system that was proposed more than 10 years ago but never funded:
"In September, a Supreme Court committee assigned to the project will report an updated proposal on Family Court to the Judicial Council of Virginia. If approved, it will be introduced to next year's General Assembly.
If it survives, Family Court will then enter into planning stages and each Virginia court would assess its facilities and report back what it needs to accommodate the new system."
I remember attending a meeting of the Bristol Bar where candidates for the never-funded Family Court judgeship asked for the bar's support. That seems like a long time ago.
The article says that Chief Justice Hassell is trying to drum up support for the Family Court system that was proposed more than 10 years ago but never funded:
"In September, a Supreme Court committee assigned to the project will report an updated proposal on Family Court to the Judicial Council of Virginia. If approved, it will be introduced to next year's General Assembly.
If it survives, Family Court will then enter into planning stages and each Virginia court would assess its facilities and report back what it needs to accommodate the new system."
I remember attending a meeting of the Bristol Bar where candidates for the never-funded Family Court judgeship asked for the bar's support. That seems like a long time ago.
Your first American legislative session in Virginia on July 30, 1619
This fine post contains A salute to July 30, 1619, and the folks of Jamestown.
It says in part: "The first elected assembly in the New World has its inaugural meeting today in Jamestown, Virginia in 1619."
It says in part: "The first elected assembly in the New World has its inaugural meeting today in Jamestown, Virginia in 1619."
Writing resources
In this Minor Wisdom post, Raymond points to his discovery of a page full of links on writing at N.C. State.
The page begins with six excellent rules from George Orwell:
* Never use a metaphor, simile, or other figure of speech that you are used to seeing in print.
* Never use a long word where a short one will do.
* If it is possible to cut a word out, always cut it out.
* Never use the passive where you can use the active.
* Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
* Break any of these rules sooner than say anything outright barbarous.
The page begins with six excellent rules from George Orwell:
* Never use a metaphor, simile, or other figure of speech that you are used to seeing in print.
* Never use a long word where a short one will do.
* If it is possible to cut a word out, always cut it out.
* Never use the passive where you can use the active.
* Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
* Break any of these rules sooner than say anything outright barbarous.
Slashdot takes on embryonic stem cell research
For a lively debate among the Slashdotters, here is a run of comments kicked off by a report on some medical research involving the spines of rats.
The Remote Area Medical event at Wise
Here is the story in today's Bristol paper, with the headline, "Too Many to Treat." The story says: "Friday’s numbers puts RAM on track to top its record-breaking visit to Wise last year, when 6,000 uninsured, unemployed or underinsured made the clinic the largest in the nation. It even topped some international records for most patients treated in a single day."
Here are recorded the impressions of the Tim Kaine campaign staffers who attended the RAM event.
This article in the Coalfield Progress said: "A record 140 physicians, nurses, lab technicians, pharmacists, radiologists and other employees of the University of Virginia will staff the RAM event and offer medical services to an anticipated 6,000 patients, according to the UVa Health System."
Here is the link for the Remote Area Medical Foundation, based in Knoxville.
Here is a pile of information from Southwest Virginia GMEC of U.Va.-Wise about the state of the population and the health care business in far SW Virginia.
Here are recorded the impressions of the Tim Kaine campaign staffers who attended the RAM event.
This article in the Coalfield Progress said: "A record 140 physicians, nurses, lab technicians, pharmacists, radiologists and other employees of the University of Virginia will staff the RAM event and offer medical services to an anticipated 6,000 patients, according to the UVa Health System."
Here is the link for the Remote Area Medical Foundation, based in Knoxville.
Here is a pile of information from Southwest Virginia GMEC of U.Va.-Wise about the state of the population and the health care business in far SW Virginia.
Those stupid signs on the interstate
It says in the Kingsport paper: VDOT hails smart traffic technology after I-81 closure.
I rode to Roanoke earlier this week and marveled once again at why are there more lanes on Interstate 81 at Bristol than at Salem-Roanoke, and why is Exit 118 so ugly, and will all of Interstate 81 have those canyon walls one of these days. Also, I've been listening to debate on the radio about exactly who is to blame for the lack of progress on the Coalfields Expressway.
The lack of animated traffic control signs was not at the top of my list of grievances against VDOT. I suspect that the new signs are yet another experimental gimmick for which the Commonwealth (and/or the federal government?) has overpaid, like this one.
I rode to Roanoke earlier this week and marveled once again at why are there more lanes on Interstate 81 at Bristol than at Salem-Roanoke, and why is Exit 118 so ugly, and will all of Interstate 81 have those canyon walls one of these days. Also, I've been listening to debate on the radio about exactly who is to blame for the lack of progress on the Coalfields Expressway.
The lack of animated traffic control signs was not at the top of my list of grievances against VDOT. I suspect that the new signs are yet another experimental gimmick for which the Commonwealth (and/or the federal government?) has overpaid, like this one.
Friday, July 29, 2005
How do you define belly dancing in Norfolk?
The answer is, very carefully, according to this great story in the Norfolk paper.
The upset eBay buyer case
CNET reports here on the story of the upset eBay buyer who made a house call.
Is zoning the cause of the housing bubble?
Will has this post which points to a recent study on the "zoning tax."
Strangely enough, I just read this article which suggests that there is a "zoning tax" but not in very many places, just New York and California.
Strangely enough, I just read this article which suggests that there is a "zoning tax" but not in very many places, just New York and California.
South Carolina city's parade ordinance unconstitutional
In Cox v. City of Charleston, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judges Traxler and King, affirmed the District Court's ruling that two sections of the parade ordinance of the City of Travelers Rest, S.C., are unconstitutional, as the ordinance contains no small gathering exception and it arbitrarily prohibits parades on Sunday mornings.
The unsupported damage claim in federal court
Earlier this week, in an unpublished opinion in the case of Bizprolink, LLC v. America Online, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Traxler and Duncan and Senior Judge Siler from the Sixth Circuit ruled that the trial court had erred in dismissing the plaintiff's case for failure to produce better evidence of its damages, instead of the lesser remedy for the alleged discovery violation of limiting the plaintiff's damages evidence at trial to what evidence it did have.
So, what are they saying here? The trial court cannot rule both that the universe of evidence that the plaintiff can use at trial is X, and that X will not support a jury verdict for the plaintiff and therefore there should be no trial? Maybe that's not it.
So, what are they saying here? The trial court cannot rule both that the universe of evidence that the plaintiff can use at trial is X, and that X will not support a jury verdict for the plaintiff and therefore there should be no trial? Maybe that's not it.
The County Supervisor certification program
Worried about the skills of your local representative on the county board of supervisors? Maybe you need to send him or her off to this Virginia Tech-VaCo program to learn more about how to be a good supervisor.
"The program will provide participants with an overview of basic issues, expectations, and practices associated with serving as a county supervisor as well as detailed information regarding local government."
"The program will provide participants with an overview of basic issues, expectations, and practices associated with serving as a county supervisor as well as detailed information regarding local government."
Virginia Wine & Garlic Festival is located where?
Here is a map that shows where will be held the Virginia Wine and Garlic Festival - in Amherst County, October 8 and 9. Heck, you can get there from here, why not do it?
I never heard of it before I saw this Crescat post.
I never heard of it before I saw this Crescat post.
On racism, schools, and SUVs
I've posted a couple of comments to the effect that I think the claim that candidate Kilgore's comments about "good students" not being admitted to Virginia schools does not seem to have anything to do with race, but that's just my opinion. (I would link to them, but they're on Waldo's site, which is only live about half the time.) The odd part is the claim that they are good students from Northern Virginia. I always though the complaint around here was that the high achievers in the lower performing rural schools could not get into to William & Mary or U.Va. while 25 kids from one Northern Virginia school did, or 15 kids from some prep schools in New Jersey did. That may be a different form of prejudice, but not precisely about race.
On the other hand, I certainly agree with this post, which suggests that GM's advertising is not subtle in pointing out that among the intended beneficiaries of the company's latest pricing gambit are would-be buyers other than white males, who don't have to dicker with white male car salesman to get the benefit of the program.
On the other hand, I certainly agree with this post, which suggests that GM's advertising is not subtle in pointing out that among the intended beneficiaries of the company's latest pricing gambit are would-be buyers other than white males, who don't have to dicker with white male car salesman to get the benefit of the program.
Thursday, July 28, 2005
How to look like a sore winner
In Ford v. General Electric Lighting, LLC, Judge Wilson whacked the successful defendant's application for costs as excessive, including the costs of deposing some of the witnesses twice, without leave of court.
How did they get to do that, I wonder, but then again I once had a case where the Court let the defendants depose my guy three times, over a period of years including two trials.
How did they get to do that, I wonder, but then again I once had a case where the Court let the defendants depose my guy three times, over a period of years including two trials.
A survey on trial practice from the National Center for State Courts
The NSCS has some questions here about your last trial, wherever or whenever it was.
Looking down the list of questions, I think there has been substantial voir dire by the lawyers and written instructions in the jury room in every jury trial I've ever had, but I may be mistaken about the latter.
Looking down the list of questions, I think there has been substantial voir dire by the lawyers and written instructions in the jury room in every jury trial I've ever had, but I may be mistaken about the latter.
Pleading states Virginia law defamation and outrage claims against NY Times for articles on anthrax investigation
In Hatfill v. NY Times, the Fourth Circuit in an opinion by Judge Shedd, joined by Chief Judge Wilkins with Judge Niemeyer dissenting, held that the district court erred in dismissing for failure to state a claim the complaint of Dr. Steven J. Hatfill against the NYT and columnist Nicholas Kristof for what was published about him in connection with the anthrax investigation by the FBI. Kristof was dismissed from the case prior to the appeal for lack of personal jurisdiction.
Judge Shedd explained, first of all: "To the extent that the district court applied a stricter standard to Hatfill’s complaint than the ordinary standards under Rule 12(b)(6), that was error." Judge Shedd concluded the pleading was sufficient as to both defamation and intentional infliction of emotional distress under Virginia law and federal pleading standards. Judge Shedd also concluded that the whole of the refiled claim was timely, even though the defendant argued and the district court concluded that the refiled claim was broader than the original claim that was non-suited, as to which there was tolling of the limitations period under 8.01-229E3.
Judge Niemeyer in dissent concluded that the columns did not impute any criminality to the plaintiff, and that the defendants conduct was not that outrageous.
Interestingly, I think that on these two torts, defamation and intentional infliction of emotional distress, there is a very wide gap in the pleading standards under state and federal law - the state law is much more demanding on what is necessary to plead either claim, and much more than notice pleading is required in state court.
Judge Shedd explained, first of all: "To the extent that the district court applied a stricter standard to Hatfill’s complaint than the ordinary standards under Rule 12(b)(6), that was error." Judge Shedd concluded the pleading was sufficient as to both defamation and intentional infliction of emotional distress under Virginia law and federal pleading standards. Judge Shedd also concluded that the whole of the refiled claim was timely, even though the defendant argued and the district court concluded that the refiled claim was broader than the original claim that was non-suited, as to which there was tolling of the limitations period under 8.01-229E3.
Judge Niemeyer in dissent concluded that the columns did not impute any criminality to the plaintiff, and that the defendants conduct was not that outrageous.
Interestingly, I think that on these two torts, defamation and intentional infliction of emotional distress, there is a very wide gap in the pleading standards under state and federal law - the state law is much more demanding on what is necessary to plead either claim, and much more than notice pleading is required in state court.
Stupid open-air malls
This article about whether shoppers don't go as much to the new Richmond-area open-air malls when the temperatures are soaring makes me think somehow of the old Yogi Berra phrase when he said, speaking of a restaurant, "Nobody goes there any more, it's too crowded."
The Washington Post takes the road to Damascus
In The Roads to Damascus, the Washington Post describes Damascus and the Creeper Trail.
The Atkins case goes to trial
The Norfolk paper reports here on the continuing criminal proceedings against Daryl Atkins, of the famous Supreme Court case by the same name.
The article says:
"The bad news for Atkins: He’s been scoring higher on recent intelligence tests – up to 76. One theory is that the time Atkins has spent working on appeals with his attorneys has sharpened his mind."
The article says:
"The bad news for Atkins: He’s been scoring higher on recent intelligence tests – up to 76. One theory is that the time Atkins has spent working on appeals with his attorneys has sharpened his mind."
Republicans sue their carrier for failure to pay the eavesdropping damages
The AP reports here that the Virginia Republican Party is suings its liability insurance carrier in federal court in Richmond.
As if the bar exam was not difficult enough
Rex Bowman of the MG papers reports here that the bar examinees were melting in Roanoke this week.
The thermometer on Jim Elliott's truck said it was 101 outside as we were driving through Salem yesterday.
When I'm King for a Day, the dress code for the bar exam will be relaxed.
The thermometer on Jim Elliott's truck said it was 101 outside as we were driving through Salem yesterday.
When I'm King for a Day, the dress code for the bar exam will be relaxed.
Monday, July 25, 2005
Now we know why Roy keeps cats
Because they won't drink his Mountain Dew. Scientific American has Why Cats Don't Cotton to Sweets Explained.
Sunday, July 24, 2005
Kilgore polling bummer
The latest poll showing Kilgore down to Kaine is not going to make me go out and tear off my Kilgore bumper sticker, but it did give me cause to look up this chart showing that in the last race I was following, there was a low point for the Republican candidate at about this time of the summer.
Perhaps it's the weather.
Perhaps it's the weather.
Saturday, July 23, 2005
That narrows it down
Earlier in the week, the Bristol paper reported that court-appointed defense lawyers want out of the case of a murder defendant. One of them said here of the defendant's plans: "he has told me he will give his opening statement, closing statement and act as his own expert witness." The same article indicated that the lawyers were seeking approval for pharmacological and mental health experts.
Is the defendant planning to act as his own mental health expert?
I am reminded that years ago, one of my old court-appointed clients saw me in downtown Bristol and asked me how she could signed up for disability benefits. Well, you have to have something wrong with you, I said, that makes you unable to work. How about mental, she replied, everyone here (gesturing to her friends) knows I'm nuts.
Is the defendant planning to act as his own mental health expert?
I am reminded that years ago, one of my old court-appointed clients saw me in downtown Bristol and asked me how she could signed up for disability benefits. Well, you have to have something wrong with you, I said, that makes you unable to work. How about mental, she replied, everyone here (gesturing to her friends) knows I'm nuts.
Should it cost money to walk around CW?
I agree with this letter to the editor that the idea of charging pedestrians to walk around Colonial Williamsburg is a bad one.
Best quote from Bill Bolling
AFP reports here that the candidate declared at the Rockbridge County fair: "I will not leave here tonight without my Polish-sausage sandwich and my candy apple."
Special courts for medical malpractice?
The Richmond paper reports here that some doctor groups want Virginia to establish special courts for non-jury resolutions to medical malpractice cases.
That sounds like a strange idea to me.
That sounds like a strange idea to me.
Celebrating John Marshall's 250th birthday
This press release describes Virginia events celebrating the 250th anniversary of the birth of John Marshall, with more on this page.
Right to bear irons
From this C&F post, I read this story about a self-defense shooting, but the bit that stuck out was this:
"Jon Chevalier, a nearby resident, said he heard five shots and went to investigate, carrying a golf club for protection, before police arrived.
'I saw this guy frantically talking on a cell phone in the alley,' Chevalier said. 'Then I stopped myself because if there was a gun, I only had a golf club.'"
"Jon Chevalier, a nearby resident, said he heard five shots and went to investigate, carrying a golf club for protection, before police arrived.
'I saw this guy frantically talking on a cell phone in the alley,' Chevalier said. 'Then I stopped myself because if there was a gun, I only had a golf club.'"
Who has a paper trail?
Balkinization says: "Circuit court judges are bound by Supreme Court precedent, are also bound by the precedent of their circuit. So we don’t know much about how they’ll be when they’re unbound, when they grow comfortable in their Supreme Court robes. And advocates argue their clients’ positions, not their own, so we’ll never know if any of the statements he made as a lawyer were his own beliefs."
And so, almost everyone is a "stealth" candidate, except for a few hardcore book writers, law professors, bloggers, pundits, and lawyers whose careers are wrapped up in their causes - a group that might be collectively called, depending on your point of view, a bunch of kooks.
On this point, Beldar opines in response to this interesting post from Professor Barnett that "doing law is substantially harder, and ultimately more meaningful, than just writing, lecturing, and blogging about it." I don't know about harder or meaningful, but certainly different. It's not quite like the difference between writing about golf and making the PGA tour, but definitely not the same.
I suspect that people who think they are entitled to know what a nominee thinks about some particular case or issue or doctrine are missing the point that the people who create a paper trail on such matters are a limited and unusual group.
And so, almost everyone is a "stealth" candidate, except for a few hardcore book writers, law professors, bloggers, pundits, and lawyers whose careers are wrapped up in their causes - a group that might be collectively called, depending on your point of view, a bunch of kooks.
On this point, Beldar opines in response to this interesting post from Professor Barnett that "doing law is substantially harder, and ultimately more meaningful, than just writing, lecturing, and blogging about it." I don't know about harder or meaningful, but certainly different. It's not quite like the difference between writing about golf and making the PGA tour, but definitely not the same.
I suspect that people who think they are entitled to know what a nominee thinks about some particular case or issue or doctrine are missing the point that the people who create a paper trail on such matters are a limited and unusual group.
Due process in 1845
I've just read The Oregon Trail : An American Saga (Knopf 2004) by David Dary.
One group that hit the trail in 1845 adopted the following as their criminal law:
"Anyone guilty of willful murder shall be punished by death and shall not be forced into trial before three days.
Anyone guilty of manslaughter shall be delivered to the authorities in Oregon.
Any one guilty of Rape or attempt at it shall receive thirty nine lashes for three successive days --
Any one guilty of open adultery, or fornication shall receive 39 lashes on their bare back.
Any one guilty of Larceny shall be fined double the amount, and receive 39 lashes on his bare back.
Any one guilty of indecent language shall be fined at the discretion of the Ex. Counsel.
Every Dog found running about Camp at large shall be shot at the discretion of the Capt. --"
There was at least one Southwest Virginia reference in the book, which reported that a fellow named Joseph Meek from Washington County drove a wagon to Oregon in 1840. About Meek was written Joe Meek, the Merry Mountain Man a Biography by Stanley Vestal. It says here that Vestal described Meek as "the Davy Crockett of our Great Northwest, bold, adventurous, humorous, a first-class trapper, pioneer, peace officer, and frontier politician. More, he was the wittiest, saltiest, most shameless wag and jester that ever wore moccasins in the Rockies -- a tall, happy-go-lucky Virginian, lover of practical jokes, tall tales, Jacksonian democracy, and Indian women." That description kind of makes you want to read Vestal's book about Meek.
One group that hit the trail in 1845 adopted the following as their criminal law:
"Anyone guilty of willful murder shall be punished by death and shall not be forced into trial before three days.
Anyone guilty of manslaughter shall be delivered to the authorities in Oregon.
Any one guilty of Rape or attempt at it shall receive thirty nine lashes for three successive days --
Any one guilty of open adultery, or fornication shall receive 39 lashes on their bare back.
Any one guilty of Larceny shall be fined double the amount, and receive 39 lashes on his bare back.
Any one guilty of indecent language shall be fined at the discretion of the Ex. Counsel.
Every Dog found running about Camp at large shall be shot at the discretion of the Capt. --"
There was at least one Southwest Virginia reference in the book, which reported that a fellow named Joseph Meek from Washington County drove a wagon to Oregon in 1840. About Meek was written Joe Meek, the Merry Mountain Man a Biography by Stanley Vestal. It says here that Vestal described Meek as "the Davy Crockett of our Great Northwest, bold, adventurous, humorous, a first-class trapper, pioneer, peace officer, and frontier politician. More, he was the wittiest, saltiest, most shameless wag and jester that ever wore moccasins in the Rockies -- a tall, happy-go-lucky Virginian, lover of practical jokes, tall tales, Jacksonian democracy, and Indian women." That description kind of makes you want to read Vestal's book about Meek.
Thursday, July 21, 2005
Intentional infliction of emotional distress claim against John Grisham and others dismissed
The Hook reports here on the dismissal of a state court claim against some Charlottesville-area residents including John Grisham for intentional infliction of emotional distress.
One of my local lawyer friends has asserted that it is in fact impossible to plead a claim for intentional infliction of emotional distress, that every one of them is subject to demurrer. I tried to plead such a claim not so long ago and found it to be a difficult task, there is some really rough language in the opinions of the Virginia Supreme Court.
One of my local lawyer friends has asserted that it is in fact impossible to plead a claim for intentional infliction of emotional distress, that every one of them is subject to demurrer. I tried to plead such a claim not so long ago and found it to be a difficult task, there is some really rough language in the opinions of the Virginia Supreme Court.
John Roberts and the UMWA contempt fines case
The Roanoke paper reports here that Supreme Court nominee John Roberts worked with lawyers from Woods Rogers on the case that went to the U.S. Supreme Court over the $50 million in contempt fines that were imposed against the United Mine Workers by then-Judge McGlothlin of Russell County in connection with the Pittston strike.
The case was Mine Workers v. Bagwell, 512 U. S. 821 (1994).
The case was Mine Workers v. Bagwell, 512 U. S. 821 (1994).
Official Roberts endorsement from me
Not wanting to keep Jerry in suspense, my own view is that the nomination of John Roberts is as perfect as can be - he has the right resume of achievement that will make his critics look like bums, and seems to be a good guy with a sense of humor (from what I've gleaned from stories like this one).
It seems odd, really, that President Bush would rise up and for whatever reason try to pick the best available, rather than the most politically satisfying. (Ann Coulter for one is not satisfied.) Who'd have thought it?
It seems odd, really, that President Bush would rise up and for whatever reason try to pick the best available, rather than the most politically satisfying. (Ann Coulter for one is not satisfied.) Who'd have thought it?
Wednesday, July 20, 2005
Record enrollment of 380 expected for ASL this year
It says here that when the fall semester starts in August, the Appalachian School of Law will have the most students enrolled ever in its history, which began in the fall semester of 1997.
Applying the well-known judge-pro golfer analogy
Here Southern Appeal links to somebody who says John Roberts is the Tiger Woods of the Supreme Court bar.
From time to time, I've tried to describe some of our W.D. Va. judges with reference to famous golfers, but I'm not sure I need to fully elaborate on that theory in writing.
From time to time, I've tried to describe some of our W.D. Va. judges with reference to famous golfers, but I'm not sure I need to fully elaborate on that theory in writing.
W and his accent
At some point last night I heard President Bush on the radio say "the rule of law," only it sounded to me as if he said "roo-la-la" or perhaps "Rue La-La," which sounds like a street in France where you go to see can-can girls.
Tuesday, July 19, 2005
My dog's vet gets nominated to the U.S. Supreme Court?
Well, actually, the old dog's vet is a good guy named John B. Roberts, whereas it's being reported that the nominee will be John G. Roberts, profiled here with the other judges of the D.C. Circuit.
Eyewitness to the argument before the Fourth Circuit in the Padilla case
Jaded JD was there, and he says the lawyering was weak, and it looks like there may be some disagreement between Judge Luttig and Judge Michael.
Best looking lost dog in Southwest Virginia
Yeah, we'll hear about the Supreme Court tonight, but we have to wait until Friday to find out the rest of the story on Timmy the found dog.
What she said and how
What Marcia Oddi says about here about the NFP opinions of the Indiana Court of Appeals goes double for the Virginia Supreme Court - it's an open government issue, all opinions should be available online, whether anyone can cite them or not.
Heck, I'd pay $51 for that
News Thoughts on why to attend the Virginia poliblog summit: it will be "the chance to finally see in person Virginia’s most prominent whey-faced freaks crawl out of their hovels, clutching laptops to their chests with mangled hands."
I wonder if they'll be selling Commonwealth Conservative t-shirts on the premises.
Also, they need a section for bloggers in burkhas or something, to allow the attendance of Old Zach & Co., and Jaded JD, etc.
I wonder if they'll be selling Commonwealth Conservative t-shirts on the premises.
Also, they need a section for bloggers in burkhas or something, to allow the attendance of Old Zach & Co., and Jaded JD, etc.
Might as well, since the law and politics thing did not work out
In this story about a Eastern Kentucky politician who was sentenced today in federal court, where the defendant explained what he has been doing lately while he waited for his case to get finished: "With his law license suspended, Hays said, he has been attending Liberty University Baptist Theological Seminary, run by Jerry Falwell in Virginia."
Anne's Whatzit and Sean Whozit
I listened a little bit ago to Sean Hannity run through a list of Supreme Court candidates, then he talked to Ann Compton, who confirmed that she heard (as reported here on the ABC site) that Judge Clement was out of the running.
Holy catbirds, the names of people and places and acts of Congress were really mangled - there was a clunker every five seconds, including Hannity's account of the decision in the case of "the Violence Against Womens Act." Womens? Also, the reference to "Judge Edith Hollow Jones."
Compton said that Judge Luttig was in court today in Washington, and that his wife and children were there, and his wife was all dressed up. That sounds interesting except for the part about it being in Washington, since the Fourth Circuit doesn't sit in Washington, but there was a panel hearing argument today in Richmond, which is what I suppose she meant.
The argument today in Richmond was the latest phase of the Jose Padilla case, who was shipped out of New York to Charleston for the good of the country, and so the Supreme Court ruled that he had to file for habeas relief in S.C., which he did, and got none, and so now he is trying his luck before the Fourth Circuit. It says here in the Washington Post that Judge Luttig was on the panel, along with Judge Michael and Judge Traxler.
Holy catbirds, the names of people and places and acts of Congress were really mangled - there was a clunker every five seconds, including Hannity's account of the decision in the case of "the Violence Against Womens Act." Womens? Also, the reference to "Judge Edith Hollow Jones."
Compton said that Judge Luttig was in court today in Washington, and that his wife and children were there, and his wife was all dressed up. That sounds interesting except for the part about it being in Washington, since the Fourth Circuit doesn't sit in Washington, but there was a panel hearing argument today in Richmond, which is what I suppose she meant.
The argument today in Richmond was the latest phase of the Jose Padilla case, who was shipped out of New York to Charleston for the good of the country, and so the Supreme Court ruled that he had to file for habeas relief in S.C., which he did, and got none, and so now he is trying his luck before the Fourth Circuit. It says here in the Washington Post that Judge Luttig was on the panel, along with Judge Michael and Judge Traxler.
Sentence enhancement based on prior criminal record still not a sentencing issue for the jury
In U.S. v. Cheek, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judges Williams and Shedd, redeclared that there is no constitutional right to have a jury decide whether the defendant's criminal record warrants an enhancement of his criminal sentence.
This is not to suggest that the defendant in the case actually wanted the jury to hear about his criminal record. In the Commonwealth, through the beauty of bifurcation, the jury does get to hear about the defendant's record in the sentencing phase, and for that reason, most plead guilty.
This is not to suggest that the defendant in the case actually wanted the jury to hear about his criminal record. In the Commonwealth, through the beauty of bifurcation, the jury does get to hear about the defendant's record in the sentencing phase, and for that reason, most plead guilty.
How many tries does it take for the Labor Department to plead an overtime case?
In Chao v. Rivendell Woods, Inc., the Fourth Circuit in an opinion by Judge Motz, joined by Judge King and Senior Judge Siler from the Sixth Circuit, reversed the District Court's decision to dismiss without prejudice for failure to state a claim the Government's amended complaint filed in an overtime case.
There's something bizarre about almost every bit of that. First of all, what's a senior judge from the Sixth Circuit doing in the Fourth Circuit case? I thought they were short-handed and swamped with work in Cincinnati. Second, since when does the failure to state a claim mean that the case gets dismissed without prejudice? Third, how often does a dismissal without prejudice get reversed, or even appealed? Fourth, it was the amended complaint that was dismissed, so the DOL lawyers will soon be on their third try to meet the requirements of Rule 8 in this case, which ought to be pretty easy (much easier than the District Court judge seems to think) and which the pros for the Government ought to have figured out how to do by now (since the FLSA was passed roughly 70 years ago).
There's something bizarre about almost every bit of that. First of all, what's a senior judge from the Sixth Circuit doing in the Fourth Circuit case? I thought they were short-handed and swamped with work in Cincinnati. Second, since when does the failure to state a claim mean that the case gets dismissed without prejudice? Third, how often does a dismissal without prejudice get reversed, or even appealed? Fourth, it was the amended complaint that was dismissed, so the DOL lawyers will soon be on their third try to meet the requirements of Rule 8 in this case, which ought to be pretty easy (much easier than the District Court judge seems to think) and which the pros for the Government ought to have figured out how to do by now (since the FLSA was passed roughly 70 years ago).
Monday, July 18, 2005
Parol evidence in Tennessee
From on High points here to a Bristol paper's headline that says: "Tennessee Parol Board to Holds Hearings for 400 Prison Inmates."
I'm unsure how these hearings will be affected by the parol evidence rule.
I'm unsure how these hearings will be affected by the parol evidence rule.
So, it's the beef?
It says here: "the chances of someone with Crohn's being a meat eater were 40% greater than those of someone without the disease being a meat eater." But, would anyone with Crohn's eat nothing but vegetables?
Friday, July 15, 2005
New faculty at Appalachian School of Law faculty
Here is the tale of the new faculty at Appalachian School of Law in Grundy.
The famous ex-Alabama football coach defamation case and the constitutional limits on revealing sources
In Price v. Time, Inc., the Eleventh Circuit in a really fun opinion by Judge Carnes (an Alabama grad), joined by Judge Pryor (another Alabaman) said:
"While the scope of the 'any' adjective is plenty wide to sweep in all of the noun category that follows, it ordinarily does not sweep beyond that category. The term 'any dog' does not mean 'any dog or cat' unless a cat is a dog. Likewise, the term 'any newspaper' does not mean 'any newspaper or magazine,' unless a magazine is a newspaper."
The Court concluded that Sports Illustrated is not a newspaper for purposes of Alabama's reporter shield law. Based on the last post and this one, I'm thinking we should all go one better on Bill Hobbs (and like-minded others) and make this an online newspaper, with a paid staff of one.
The Court went on to conclude, however, that Price was not yet entitled to get the defendants to reveal their secrets, which are not very secret - the ladies from the strip club with whom the coach was accused of partying have been named but not yet to be deposed, and maybe one of them was the SI reporter's confidential source.
"While the scope of the 'any' adjective is plenty wide to sweep in all of the noun category that follows, it ordinarily does not sweep beyond that category. The term 'any dog' does not mean 'any dog or cat' unless a cat is a dog. Likewise, the term 'any newspaper' does not mean 'any newspaper or magazine,' unless a magazine is a newspaper."
The Court concluded that Sports Illustrated is not a newspaper for purposes of Alabama's reporter shield law. Based on the last post and this one, I'm thinking we should all go one better on Bill Hobbs (and like-minded others) and make this an online newspaper, with a paid staff of one.
The Court went on to conclude, however, that Price was not yet entitled to get the defendants to reveal their secrets, which are not very secret - the ladies from the strip club with whom the coach was accused of partying have been named but not yet to be deposed, and maybe one of them was the SI reporter's confidential source.
Boucher's federal shield law might not protect bloggers
It says here the new federal law being promoted by Congressman Boucher to give some protection to reporters from having to reveal confidential sources to federal prosecutors might not apply to bloggers.
Best title for an article on the Chief Justice
The title is: Chief Justice To Jackals: Nuts.
It has a sort of patriotic aspect, borrowing the famous phrase attributed to General Anthony McAuliffe at Bastogne.
It has a sort of patriotic aspect, borrowing the famous phrase attributed to General Anthony McAuliffe at Bastogne.
Potts agrees to debate in Scott County
It says here that the Scott County paper formerly published or edited or some such by the fellow running against Terry Kilgore has invited the gubernatorial candidates to debate in Scott County and that candidates Kaine and Potts are willing to be there. The Jerry Kilgore campaign called the invitation "a thinly veiled political stunt by his brother’s opponent."
Where to drive without a license in the Commonwealth?
According to this report: "Federal judges here have dismissed hundreds of traffic tickets over the past several months since a federal appeals court ruled that streets on military bases and their access roads are not public highways."
The 2005 Legal Aid award winner
The Fredericksburg paper has this profile of Bill Botts with Rappahanock Legal Services.
Who wouldn't want to have the life of Jack Nicklaus?
Watching Jack Nicklaus finish his round today at St. Andrews, we talked about the kind of life Nicklaus has had. From his post-round interview comes this:
"'I've been asked, 'What would you do differently?'' Nicklaus said. 'I can't imagine anything.'"
The hard thing about watching this particular stretch golf with the guys from work over lunch at Damon's is that you have to be cool. If I'd been watching at home (like I was earlier in the day when Jack teed off), I could have taken off my glasses and rubbed my eyes (like I did at home when Jack teed off).
To see the special Jack Nicklaus banknote issue this month, click here.
"'I've been asked, 'What would you do differently?'' Nicklaus said. 'I can't imagine anything.'"
The hard thing about watching this particular stretch golf with the guys from work over lunch at Damon's is that you have to be cool. If I'd been watching at home (like I was earlier in the day when Jack teed off), I could have taken off my glasses and rubbed my eyes (like I did at home when Jack teed off).
To see the special Jack Nicklaus banknote issue this month, click here.
Falwell says he's not recommending anyone for the Supreme Court
How Appealing links here to this article from the Lynchburg paper in which the Rev. Jerry Falwell says he's not making any recommendations to the White House about who should be named to the Supreme Court.
The Coach on the list for Master Coaches Survey
It says here that George Welsh has been invited to participate in the new college football poll of old coaches.
Wednesday, July 13, 2005
An order to dispose of clothes I read today
"The United States of America, by counsel, has advised this Court that . . . a defendant in the above-named case, has abandoned clothing, received as a bribe, to agents of the Internal Revenue Service and the Federal Bureau of Investigation. This clothing is described as One (1) black checkered 44R FUBU Collection Suit; One (1) grey wool 48R S&K Sport Coat; One (1) black wool 38 Robert Villini pair of pants; One (1) size 8M Brutini pair of shoes; and Two (2) size 17 white dress shirts, one being a Taylor's Row and the other a Robert Bruini. It is hereby ORDERED that the designated clothing set forth be donated to 'Thangs', a charity located in Grundy, Virginia."
Docket No. 370, U.S. v. Adkins, et al., No. 1:04CR00056 (W.D. Va. June 22, 2005).
Docket No. 370, U.S. v. Adkins, et al., No. 1:04CR00056 (W.D. Va. June 22, 2005).
H.S. wrestling coach denied qualified immunity on claim he deliberately got the other wrestlers to beat up the plaintiff
In Meeker v. Edmundson, the Fourth Circuit in an opinion by Judge Motz, joined by Judge Gregory and Senior Judge Hamilton, affirmed the denial by District Court Judge Boyle of qualified immunity to a high school wrestling coach who was accused of violating the plaintiff's right to substantive due process by causing other members of the team to beat up on the plaintiff to try to get him to quit the team. The Court relied on its earlier decision in Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980), along with cases from other circuits (all but one of which are in accord with Hall), in concluding that the existence of the constitutional right in the relevant context was clearly established.
Red rover, red rover, we dare a new justice over
In this fine post, Milbarge at BTQ ponders who would the "liberal" justices on the Supreme Court recommend to President Bush.
And, Milbarge says he likes Judge Wilkinson as a candidate.
And, Milbarge says he likes Judge Wilkinson as a candidate.
On the passing of Frank Rogers, Jr.
Yesterday's Roanoke paper had this obituary for the lawyer who practiced in Roanoke for more than 50 years.
Does the homeseller have a duty to disclose that there's a sex offender living nearby?
The Williamsburg paper has this article on the theory behind the Virginia law that requires sellers to be told where to find the state police sex offender list, but does not require any more than that.
Tail of the dog
The old dog I think is gradually losing control of her rear end - her legs are bad, her bowels are unpredictable, and her tail has gone crazy.
It is the strangest thing to see - she wakes up, staggers into an upright position (if she can), takes a stretch (hopefully without falling back down), gives us a grin, and then her tail goes off at 100 miles an hour, like windshield wipers at top speed.
It is the strangest thing to see - she wakes up, staggers into an upright position (if she can), takes a stretch (hopefully without falling back down), gives us a grin, and then her tail goes off at 100 miles an hour, like windshield wipers at top speed.
Tuesday, July 12, 2005
Not much joy in last 60 years for Fourth Circuit nominees to U.S. Supreme Court
Is that Legal? has this post with a copy of a memo from the then-Attorney General to President Roosevelt, which mentions Fourth Circuit Judge John J. Parker, and Southern Appeal has this link with to Wm. Rehnquist's memo to the White House, about Fourth Circuit Judge Clement F. Haynsworth.
I think these were the last two Fourth Circuit judges nominated to the U.S. Supreme Court, and the U.S. Senate voted against them both.
In this editorial, George Will pumps up Judge Wilkinson of the Fourth Circuit for the Supreme Court.
I think these were the last two Fourth Circuit judges nominated to the U.S. Supreme Court, and the U.S. Senate voted against them both.
In this editorial, George Will pumps up Judge Wilkinson of the Fourth Circuit for the Supreme Court.
NASA launch director is a Wahoo
This Knight-Ridder story relates, among other things, that the launch director for this week's space shuttle flight is a double Wahoo named Mike Leinbach.
Still more on the Virginia reaction to Kelo
The Fredericksburg paper has this article with more on the plans of Virginia legislators to limit the authority of localities in the Commonwealth to take private property.
Supreme Court grants stay in Lovitt case
The Richmond paper reports here that yesterday the Supreme Court granted a stay of execution in the Robin Lovitt case. The AP has this story. The Washington Post has this story. Lyle Denniston has this post from SCOTUSblog.
Yesterday, Democracy in Virginia had this post by a death penalty opponent regarding the Lovitt case.
Yesterday, Democracy in Virginia had this post by a death penalty opponent regarding the Lovitt case.
Monday, July 11, 2005
Another Richmond lawyer profile
The Richmond paper has this article on Donald Butler, whom I've never met, but word of his success reaches even into this far corner of the Commonwealth.
Appeal of $8.3 M verdict dismissed on procedural issue
Via VLW, the Charlottesville paper reports here that the appeal in the Wintergreen case has been dismissed by the Virginia Supreme Court.
The article says:
"In a one-page order, the court announced this week that it would not hear the appeal because Wintergreen 'failed to timely file the transcript or written statement of facts' in the case."
The article says:
"In a one-page order, the court announced this week that it would not hear the appeal because Wintergreen 'failed to timely file the transcript or written statement of facts' in the case."
If I liked you last week, why not this week
This post discusses the "same actor" inference, which can be a big deal in litigation employment discrimination cases.
Where it applies, the same actor inference is a basic element of summary judgment practice. There are a bunch of "same actor" cases from the Fourth Circuit - see Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (“a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer” where the same individuals who gave a job to the plaintiff removed the plaintiff a short time later); see also Taylor v. Virginia Union University, 193 F.3d 219, 231 (4th Cir. 1999) (citing Proud); DeJarnette v. Corning Inc., 133 F.3d 293, 298 (4th Cir. 1998) (employer’s knowledge of plaintiff’s pregnancy at time of her hiring “creates an inference that [the employer’s] reasons for discharging [plaintiff] are not pretextual”); Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959 (4th Cir. 1996) (citing Proud); Mitchell v. Data General Corp., 12 F.3d 1310, 1318 (4th Cir. 1993) (same) - and elsewhere - see Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000) (“where the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire”); Grossmann v. Dillard Department Stores, Inc., 109 F.3d 457, 459 (8th Cir. 1997) (“To uphold the jury’s verdict, we would have to believe that Franzke, himself fifty-eight, was free of age bias when he hired Grossmann, suddenly turned against older workers four years later, then just as abruptly changed his mind again”); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (citing Proud as best explanation of “same actor” inference); E.E.O.C. v. Our Lady of Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996) (“The same hirer/firer inference has strong presumptive value”); Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. 1995) (“It is simply incredible that the company officials who hired an employee at age fifty-one had suddenly developed an aversion to older people two years later”).
Where it applies, the same actor inference is a basic element of summary judgment practice. There are a bunch of "same actor" cases from the Fourth Circuit - see Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (“a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer” where the same individuals who gave a job to the plaintiff removed the plaintiff a short time later); see also Taylor v. Virginia Union University, 193 F.3d 219, 231 (4th Cir. 1999) (citing Proud); DeJarnette v. Corning Inc., 133 F.3d 293, 298 (4th Cir. 1998) (employer’s knowledge of plaintiff’s pregnancy at time of her hiring “creates an inference that [the employer’s] reasons for discharging [plaintiff] are not pretextual”); Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959 (4th Cir. 1996) (citing Proud); Mitchell v. Data General Corp., 12 F.3d 1310, 1318 (4th Cir. 1993) (same) - and elsewhere - see Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000) (“where the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire”); Grossmann v. Dillard Department Stores, Inc., 109 F.3d 457, 459 (8th Cir. 1997) (“To uphold the jury’s verdict, we would have to believe that Franzke, himself fifty-eight, was free of age bias when he hired Grossmann, suddenly turned against older workers four years later, then just as abruptly changed his mind again”); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (citing Proud as best explanation of “same actor” inference); E.E.O.C. v. Our Lady of Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996) (“The same hirer/firer inference has strong presumptive value”); Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. 1995) (“It is simply incredible that the company officials who hired an employee at age fifty-one had suddenly developed an aversion to older people two years later”).
Thursday, July 07, 2005
Another candidate from the Fourth Circuit for the Supreme Court
It says here that Sen. Graham from SC is talking up Chief Judge Wilkins for the Supreme Court.
So, Luttig, Wilkinson, Williams, Wilkins - let me throw in Judge Widener as a candidate. The Democrats wouldn't know what to make of a Supreme Court nominee who rolls his own cigarettes (or used to).
So, Luttig, Wilkinson, Williams, Wilkins - let me throw in Judge Widener as a candidate. The Democrats wouldn't know what to make of a Supreme Court nominee who rolls his own cigarettes (or used to).
On the case of the parents who gave beer to under-aged drinkers, now before the en banc VCA
The Hook has this story on the Robinson case, where the couple have gotten really nailed for giving alcohol to minors, and claim that the cops should not have come up in their driveway and looked around to see what was going on, thereby spotting the underaged drinkers in action.
Wednesday, July 06, 2005
On jury instructions and qualified immunity
In Willingham v. Crooke, the Fourth Circuit in an interesting opinion by Chief Judge Wilkins held that the trial court erred in instructing the jury on the legal question of whether, on the facts found by the jury, the defendant was entitled to qualified immunity in a case brought under 42 U.S.C. § 1983.
Earlier, the District Court had granted the defendant's motion for summary judgment based on qualified immunity, and the court of appeals reversed, concluding that there was a question of fact as to whether the plaintiff had obstructed the defendant officers in their search. The plaintiff was charged with obstruction of justice, which is sometimes the catch-all statute in the Commonwealth for being a wise guy to the police. On remand, the trial court in its instructions gave the entirety of the qualified immunity issue to the jury, asking not only for the jury to determine what happened, but also for the jury to determine under those facts whether the defendants' conduct was reasonable "in light of the legal rules clearly established at the time of the incident."
On appeal, the Court first rejected the plaintiff's argument that the defendants had no qualified immunity defense after the earlier decision on appeal. The Court explained that the jury was not required to view the facts in the light most favorable to the plaintiff, and the Court in its earlier decision had not decided whether a reasonable officer would have known that his actions were unlawful under any and all versions of the facts.
Secondly, the Court agreed with the plaintiff's argument that the trial court went to far in presenting the issue to the jury. The Court explained that the existence of factual disputes does not mean that the jury gets to decide the essentially legal question of qualified immunity. Rather, the task of the jury is to resolve the factual disputes, leaving to the trial court the decision as to whether on the facts found by the jury the defendant is entitled to qualified immunity.
Several years ago, in article on qualified immunity, I wrote: "Qualified immunity ought to be determined long before trial, but where it is not, it remains an issue at trial. The court must define what is the clearly-established law. The jury with proper instructions and interrogatories should do no more than to decide the necessary facts. After the jury has determined disputed facts, qualified immunity remains an issue of law for the court to decide."
Citing many cases, the Court wrote: "The issue having now come before us, we hold that the legal question of a defendant’s entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury. See Littrell v. Franklin, 388 F.3d 578, 584-86 (8th Cir. 2004); Swain v. Spinney, 17 F.3d 1, 9-10 & n.3 (1st Cir. 1997); Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996); Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992). But see Oliveira v. Mayer, 23 F.3d 642, 649-50 (2d Cir. 1994) (holding that the district court erred in failing to submit the question of reasonableness to the jury); but cf. Curley v. Klem, 298 F.3d 271, 278-79 (3d Cir. 2002) (holding that once disputed factual questions are resolved, the question of the reasonableness of an officer’s actions may be decided either by the jury or by the court); but cf. also Maestas v. Lujan, 351 F.3d 1001, 1008-10 (10th Cir. 2003) (holding that the jury may decide the question of reasonableness if disputed facts are dispositive of that question); Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000) (similar); Snyder v. Trepagnier, 142 F.3d 791, 799-800 (5th Cir. 1998) (similar), cert. granted, 525 U.S. 1098 (1999), cert. dismissed, 526 U.S. 1083 (1999)."
An interesting question not discussed in this case is - who has the burden of proof as to what happened. The instruction given by the trial court seemed to indicate that the burden was on the plaintiff to show facts that would prove the defendants were not entitled to qualified immunity. The instruction read in part: "If after considering the scope of discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the surrounding circumstances of the case as they would have reasonably appeared at the time of the arrest you find from a preponderance of the evidence that Ms. Willingham has proved that [Sergeant] Crooke knowingly violated the law regarding Ms. Willingham’s constitutional rights, you must find for Ms. Willingham."
I still think, notwithstanding the language of a number of Fourth Circuit opinions, that it is at least an open question as to whether the plaintiff and not the defendant has the burden of proof, as a number of other circuits have so held, at different times. See Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) ("Garretson bears the ultimate burden of proof to show that the individual officers are not entitled to qualified immunity"); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) ("Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate"); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) ("The defendant official must initially plead his good faith and establish that he was acting within the scope of his discretionary authority. Once the defendant has done so, the burden shifts to the plaintiff to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law."); Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996) (“Once a public official raises the defense of qualified immunity, the plaintiff bears the burden of proof on the issue”); Lenz v. Dewey, 64 F.3d 547, 550 (10th Cir. 1995) (“Once a defendant asserts qualified immunity, the plaintiff bears the burden of proving that the defendants violated a law that was clearly established”).
The last time I checked, the Supreme Court had not squarely addressed the issue. See Gomez v. Toledo, 446 U.S. 635, 642 (1980) (Justice Rehnquist reads the opinion “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading”); see also Davis v. Scherer, 468 U.S. 183, 190 (1984) (“defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard”).
Earlier, the District Court had granted the defendant's motion for summary judgment based on qualified immunity, and the court of appeals reversed, concluding that there was a question of fact as to whether the plaintiff had obstructed the defendant officers in their search. The plaintiff was charged with obstruction of justice, which is sometimes the catch-all statute in the Commonwealth for being a wise guy to the police. On remand, the trial court in its instructions gave the entirety of the qualified immunity issue to the jury, asking not only for the jury to determine what happened, but also for the jury to determine under those facts whether the defendants' conduct was reasonable "in light of the legal rules clearly established at the time of the incident."
On appeal, the Court first rejected the plaintiff's argument that the defendants had no qualified immunity defense after the earlier decision on appeal. The Court explained that the jury was not required to view the facts in the light most favorable to the plaintiff, and the Court in its earlier decision had not decided whether a reasonable officer would have known that his actions were unlawful under any and all versions of the facts.
Secondly, the Court agreed with the plaintiff's argument that the trial court went to far in presenting the issue to the jury. The Court explained that the existence of factual disputes does not mean that the jury gets to decide the essentially legal question of qualified immunity. Rather, the task of the jury is to resolve the factual disputes, leaving to the trial court the decision as to whether on the facts found by the jury the defendant is entitled to qualified immunity.
Several years ago, in article on qualified immunity, I wrote: "Qualified immunity ought to be determined long before trial, but where it is not, it remains an issue at trial. The court must define what is the clearly-established law. The jury with proper instructions and interrogatories should do no more than to decide the necessary facts. After the jury has determined disputed facts, qualified immunity remains an issue of law for the court to decide."
Citing many cases, the Court wrote: "The issue having now come before us, we hold that the legal question of a defendant’s entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury. See Littrell v. Franklin, 388 F.3d 578, 584-86 (8th Cir. 2004); Swain v. Spinney, 17 F.3d 1, 9-10 & n.3 (1st Cir. 1997); Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996); Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992). But see Oliveira v. Mayer, 23 F.3d 642, 649-50 (2d Cir. 1994) (holding that the district court erred in failing to submit the question of reasonableness to the jury); but cf. Curley v. Klem, 298 F.3d 271, 278-79 (3d Cir. 2002) (holding that once disputed factual questions are resolved, the question of the reasonableness of an officer’s actions may be decided either by the jury or by the court); but cf. also Maestas v. Lujan, 351 F.3d 1001, 1008-10 (10th Cir. 2003) (holding that the jury may decide the question of reasonableness if disputed facts are dispositive of that question); Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000) (similar); Snyder v. Trepagnier, 142 F.3d 791, 799-800 (5th Cir. 1998) (similar), cert. granted, 525 U.S. 1098 (1999), cert. dismissed, 526 U.S. 1083 (1999)."
An interesting question not discussed in this case is - who has the burden of proof as to what happened. The instruction given by the trial court seemed to indicate that the burden was on the plaintiff to show facts that would prove the defendants were not entitled to qualified immunity. The instruction read in part: "If after considering the scope of discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the surrounding circumstances of the case as they would have reasonably appeared at the time of the arrest you find from a preponderance of the evidence that Ms. Willingham has proved that [Sergeant] Crooke knowingly violated the law regarding Ms. Willingham’s constitutional rights, you must find for Ms. Willingham."
I still think, notwithstanding the language of a number of Fourth Circuit opinions, that it is at least an open question as to whether the plaintiff and not the defendant has the burden of proof, as a number of other circuits have so held, at different times. See Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) ("Garretson bears the ultimate burden of proof to show that the individual officers are not entitled to qualified immunity"); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) ("Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate"); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) ("The defendant official must initially plead his good faith and establish that he was acting within the scope of his discretionary authority. Once the defendant has done so, the burden shifts to the plaintiff to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law."); Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996) (“Once a public official raises the defense of qualified immunity, the plaintiff bears the burden of proof on the issue”); Lenz v. Dewey, 64 F.3d 547, 550 (10th Cir. 1995) (“Once a defendant asserts qualified immunity, the plaintiff bears the burden of proving that the defendants violated a law that was clearly established”).
The last time I checked, the Supreme Court had not squarely addressed the issue. See Gomez v. Toledo, 446 U.S. 635, 642 (1980) (Justice Rehnquist reads the opinion “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading”); see also Davis v. Scherer, 468 U.S. 183, 190 (1984) (“defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard”).
On the state of DNA evidence in the Commonwealth
This Style Weekly article takes on the good and the bad of the Virginia experience with DNA evidence.
This one will generate a few Google hits
In White Tail Park, Inc. v. Stroube, the Fourth Circuit in an opinion by Judge Traxler reversed the District Court on the question fo whether the American Association for Nude Recreation has standing to challenge the new Virginia law prohibiting licensure of nudist camps for juveniles attending without their parents.
In the 2004, the General Assembly amended Va. Code § 35.1-18, to prohibit licenses for nudist camps for juveniles. The American Association for Nude Recreation held such a camp in Virginia in 2003 and planned another for 2004. The Association sued for a declaration that the new law violated their constitutional rights to privacy and freedom of association under the First Amendment. After its motion for preliminary injunction was denied, the Association dropped its plans for a camp in Virginia during 2004. Because the Association moved its 2004 camp to another state, the District Court dismissed the Association’s claims both on grounds of mootness and lack of standing.
On standing, the Association claimed injury to itself as an organization, and did not rely on injuries to its members. It asserted that the prohibition against camps for young people only would reduce the size of the audience for its message of social nudism and this reduction will continue so long as the law remains in effect. While District Court rejected this consequence as de minimis, Judge Traxler disagreed, concluding that a state law that reduces the size of a speaker’s audience can constitute an invasion of a legally protected interest.
In the 2004, the General Assembly amended Va. Code § 35.1-18, to prohibit licenses for nudist camps for juveniles. The American Association for Nude Recreation held such a camp in Virginia in 2003 and planned another for 2004. The Association sued for a declaration that the new law violated their constitutional rights to privacy and freedom of association under the First Amendment. After its motion for preliminary injunction was denied, the Association dropped its plans for a camp in Virginia during 2004. Because the Association moved its 2004 camp to another state, the District Court dismissed the Association’s claims both on grounds of mootness and lack of standing.
On standing, the Association claimed injury to itself as an organization, and did not rely on injuries to its members. It asserted that the prohibition against camps for young people only would reduce the size of the audience for its message of social nudism and this reduction will continue so long as the law remains in effect. While District Court rejected this consequence as de minimis, Judge Traxler disagreed, concluding that a state law that reduces the size of a speaker’s audience can constitute an invasion of a legally protected interest.
Tuesday, July 05, 2005
On the new law regarding guns on school property
The Richmond paper has this article on the debate about the new Virginia law dealing with guns in cars on school property.
The article says:
"A state law that took effect Friday allows people with concealed-weapon permits to have a loaded, concealed gun in their cars on school property, as long as the person carrying the gun doesn't leave the vehicle."
The article says:
"A state law that took effect Friday allows people with concealed-weapon permits to have a loaded, concealed gun in their cars on school property, as long as the person carrying the gun doesn't leave the vehicle."
Southern Appeal picks up on Judge Karen Williams
In this post, William of Southern Appeal bangs the drum for Judge Karen Williams of the Fourth Circuit as another candidate for the Supreme Court.
Fun election story
Christina Nuchols of the Norfolk paper wrote this story on the 2005 governor's election, which begins:
"Virginia will choose a new governor this year, but voters in the Old Dominion might well wonder whether they are being asked to pick the next sheriff of Tombstone."
She also quotes John T. Hazel:
"The far right and far left manage to haul out these social issues that don’t amount to a hill of beans."
"Virginia will choose a new governor this year, but voters in the Old Dominion might well wonder whether they are being asked to pick the next sheriff of Tombstone."
She also quotes John T. Hazel:
"The far right and far left manage to haul out these social issues that don’t amount to a hill of beans."
In case you're wondering about Del. Marshall's take on the Supreme Court vacancy
AFP has this quote: "Virginia voters need to know well before Nov. 8 what their governor or lieutenant governor would do if a new Supreme Court majority ruled that Virginia could once again ban abortion from conception to live birth as it did under statutory law from 1847 to 1969."
Monday, July 04, 2005
Matriculated his way down the field
The NY Times reports here and NFL.com reports here that Hank Stram has died. I listened to him broadcasting football with Jack Buck many times, and I've seen the NFL Films version of Super Bowl IV many times. He was delightful, in his dress and commentary, whether he meant to be or not. Here is an excellent column from the time of Stram's admission to the NFL Hall of Fame. Hank Stram quotations can be found here, here, and here. Billy Bob Thornton, the recent movie football coach, said this: "My favorite thing to watch on television sports is when they do the NFL films, when they do those and they mic’d the coaches from the 60s and 70s. Hank Stram was my boy. I had to get at least one line in there, in this movie, that was kind of a Hank Stram-like line."
Also, my dad's company used to have a salesman who looked like Hank Stram, or so I thought. We have talked about the guy who looked like Hank Stram for at least 30 years.
I imagine my handful of friends, near and far, who were in Kansas City around 1970 will be flying the flag low tomorrow. So would I, if I had a Chiefs flag.
Also, my dad's company used to have a salesman who looked like Hank Stram, or so I thought. We have talked about the guy who looked like Hank Stram for at least 30 years.
I imagine my handful of friends, near and far, who were in Kansas City around 1970 will be flying the flag low tomorrow. So would I, if I had a Chiefs flag.
Another Gang of 14 article
Tomorrow's CSM has this article, which somewhat likely the Post article cited earlier indicates that the Democratic senators who make a difference on the Supreme Court nominee are Robert Byrd of West Virginia, Joseph Lieberman of Connecticut, Ben Nelson of Nebraska, Mary Landrieu of Louisiana, Daniel Inouye of Hawaii, Mark Pryor of Arkansas, and Ken Salazar of Colorado - and not anyone from New York, or anyone running for President, or anyone who was on TV on Sunday (so far as I know). If the deal works out as these articles suggest (to my reading of them), it was a better deal than it appeared.
Taking a second look for oil in Appalachia
This AP story says the government and a group of energy companies are looking at the feasibility of drilling deeper under the Appalachian foothills to find more oil in America.
A Williamsburg lawyer
This obituary tells of Williamsburg's Vernon Geddy, Jr., described as "to the manner born." Among other things, it asks the question, "How many recent law school graduates inherit John D. Rockefeller for a client?"
Hokiephotos.com
Hokiephotos.com sells Virginia Tech sports photos, as described in this Roanoke Times article, which makes me think I might ought to rethink that last post.
The Byrds
This interesting Winchester Star story (registration required) chronicles the history of the Byrd family and the 70+ years that Harry F. Byrd, Jr., now age 90, has been affiliated with the newspaper.
Among other things, it says that Senator Byrd comes to the paper most days and regularly reads seven different dailies.
Among other things, it says that Senator Byrd comes to the paper most days and regularly reads seven different dailies.
Still crazy about No. 6
This old photo from CNN/SI
is of Thomas Jones.The Jones brothers, Thomas and Julius, had an event in Wise County last week.
Thomas Jones is still my wife's favorite to have played for U.Va. - mine, too. I think what he needs in the NFL is - his old number.
Margaret Edds' take on the scheduled execution of Robin Lovitt
In this commentary by Margaret Edds of the Norfolk paper, she questions the sufficiency of the evidence to support the capital murder conviction of Robin Lovitt, who is scheduled to be put to death on July 11. Lovitt was convicted and sentenced in Arlington County, not some conservative, rural jurisdiction. Ms. Edds explains: "At issue is whether it’s proper to execute a man, one who proclaims his innocence, even though a clerk mistakenly destroyed evidence in the case."
Lovitt was represented without success before the Fourth Circuit by Ken Starr. In Lovitt v. True, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Williams and Traxler, rejected Lovitt's post-conviction claims, with this introduction:
"Robin Lovitt was convicted and sentenced to death for the murder of his former co-worker during the commission of a robbery. His challenges to his conviction and sentence — under Strickland, Brady, and Youngblood — have been heard by many courts. The Supreme Court of Virginia rendered two thorough and conscientious opinions in his case — one on direct appeal and one on habeas. The state habeas court in Arlington also treated Lovitt’s claims with care, holding a two-day evidentiary hearing and authoring detailed findings of fact and conclusions of law. Finally, the federal district court again reviewed Lovitt’s claims, and dismissed them in a meticulous and lengthy opinion.
This case is a good example of the care with which state courts should treat capital cases. We think the Virginia Supreme Court properly resolved Lovitt’s claims. Even if that were not the case, however, we could not begin to say that it unreasonably applied clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1) (2000). In so concluding, we affirm the judgment of the district court dismissing the petition."
For the earlier proceedings, see Lovitt v. Com., 260 Va. 497, 537 S.E.2d 866 (2000), cert. denied, 534 U.S. 815 (2001); Lovitt v. Warden, 266 Va. 216, 585 S.E.2d 801 (2003); Lovitt v. True, 330 F. Supp.2d 603 (E.D. Va. 2004) (Hudson, J.).
Evidently, the Virginian-Pilot editorialists, old and new, are not in sync on this case.
UPDATE: John Whitehead of the Rutherford Institute has this commentary urging the commutation of Lovitt's sentence.
Lovitt was represented without success before the Fourth Circuit by Ken Starr. In Lovitt v. True, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Williams and Traxler, rejected Lovitt's post-conviction claims, with this introduction:
"Robin Lovitt was convicted and sentenced to death for the murder of his former co-worker during the commission of a robbery. His challenges to his conviction and sentence — under Strickland, Brady, and Youngblood — have been heard by many courts. The Supreme Court of Virginia rendered two thorough and conscientious opinions in his case — one on direct appeal and one on habeas. The state habeas court in Arlington also treated Lovitt’s claims with care, holding a two-day evidentiary hearing and authoring detailed findings of fact and conclusions of law. Finally, the federal district court again reviewed Lovitt’s claims, and dismissed them in a meticulous and lengthy opinion.
This case is a good example of the care with which state courts should treat capital cases. We think the Virginia Supreme Court properly resolved Lovitt’s claims. Even if that were not the case, however, we could not begin to say that it unreasonably applied clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1) (2000). In so concluding, we affirm the judgment of the district court dismissing the petition."
For the earlier proceedings, see Lovitt v. Com., 260 Va. 497, 537 S.E.2d 866 (2000), cert. denied, 534 U.S. 815 (2001); Lovitt v. Warden, 266 Va. 216, 585 S.E.2d 801 (2003); Lovitt v. True, 330 F. Supp.2d 603 (E.D. Va. 2004) (Hudson, J.).
Evidently, the Virginian-Pilot editorialists, old and new, are not in sync on this case.
UPDATE: John Whitehead of the Rutherford Institute has this commentary urging the commutation of Lovitt's sentence.
Mennonite takes on the Pledge in Virginia
In Devoted to God, but Not the Pledge, in today's Washington Post, Rosalind Helderman profiles Edward R. Myers, the plaintiff in the court challenge to the use of the Pledge of Allegiance in Virginia schools, now pending before the Fourth Circuit.
Reaping the yield of the filibuster deal
If, as suggested in this Washington Post story, the filibuster deal means no filibuster for the President's Supreme Court nominees, then every conservative critic of the deal owes seven Republican senators a big apology.
The article says:
"The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under 'extraordinary circumstances.' Key members of the group said yesterday that a nominee's philosophical views cannot amount to 'extraordinary circumstances' and that therefore a filibuster can be justified only on questions of personal ethics or character."
The article says:
"The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under 'extraordinary circumstances.' Key members of the group said yesterday that a nominee's philosophical views cannot amount to 'extraordinary circumstances' and that therefore a filibuster can be justified only on questions of personal ethics or character."
Still looking for coal miners
Today's Richmond paper has this story describing the mad rush by employers in the coal business to recruit people to work while the getting is good.
The article says, in part:
"Mike Quillen, Alpha Natural Resources' president and CEO, guessed his company would hire roughly 600 miners over the next three years, about half of them to work in new mines and the rest to replace retirees."
Yesterday, the paper ran this article titled "At last - coal is back."
The article says, in part:
"Mike Quillen, Alpha Natural Resources' president and CEO, guessed his company would hire roughly 600 miners over the next three years, about half of them to work in new mines and the rest to replace retirees."
Yesterday, the paper ran this article titled "At last - coal is back."
Sunday, July 03, 2005
NLRA does not necessarily preempt state law wrongful discharge claim
In Lontz v. Tharp, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Luttig and Traxler held that the plaintiff's state law wrongful discharge claim was not preempted by the National Labor Relations Act, where she claimed in essence that she was in retaliation for union-organizing activity. The case was filed in state court, and removed based on total NLRA preemption. In reversing, the Court reasoned that there was either the NLRB had exclusive jurisdiction, or would allow a state law claim, but in either event there was no jurisdiction in the district court, and so left the preemption defense to be decided on remand in state court.
Will President Bush appoint a woman to replace Justice O'Connor?
Professor Bainbridge posts here on Judge Edith Jones of the Fifth Circuit.
This story from the State in South Carolina suggests Judge Karen Williams of the Fourth Circuit. UPDATE: So does this story from the Times & Democrat.
I like Judge Williams, since she voted for my side in a couple of cases, and everything I've ever seen or heard of her is to the good.
I can't say, however, that I am on a first-name basis with her or any of the court of appeals judges. Here's a typical, verbatim exchange from Saturday morning at the Homestead:
Judge Williams (apparently walking back from somewhere as my wife and I go to breakfast): "Good morning, good morning."
Me (at the top of my game): "Gmm."
My wife (as we keep walking): "Who was that?"
Me: "That was one of the judges."
My wife: "She looks awfully fit."
This story from the State in South Carolina suggests Judge Karen Williams of the Fourth Circuit. UPDATE: So does this story from the Times & Democrat.
I like Judge Williams, since she voted for my side in a couple of cases, and everything I've ever seen or heard of her is to the good.
I can't say, however, that I am on a first-name basis with her or any of the court of appeals judges. Here's a typical, verbatim exchange from Saturday morning at the Homestead:
Judge Williams (apparently walking back from somewhere as my wife and I go to breakfast): "Good morning, good morning."
Me (at the top of my game): "Gmm."
My wife (as we keep walking): "Who was that?"
Me: "That was one of the judges."
My wife: "She looks awfully fit."
But what is a centrist?
The Daily Press reports that Senator Warner urges Bush to choose centrist. Who are the centrists? Judge Wilkinson? Alberto Gonzalez? David Souter?
Why we didn't stop at any of the mountain overlooks going up to the Homestead
The MG papers have this account of a couple and their dog who pulled over to see the view from Afton Mountain but kept on going.
Summarizing the 2004-2005 Term
Here is the LII's summary of the decisions of the Supreme Court in this past term.
On Saturday, I listened to the panel discussion including Walter Dellinger, Marci Hamilton, John McGinnis, and Stephen Salzburg at the judicial conference. One of the panelists stole a line from Jon Stewart, that it seems re: the Ten Commandments - "if it's on the wall, it's illegal; if it's on the grass, it's legal" - which prompted Professor Howard to quip that now the secret is out, law professors get educated from late night TV.
On Saturday, I listened to the panel discussion including Walter Dellinger, Marci Hamilton, John McGinnis, and Stephen Salzburg at the judicial conference. One of the panelists stole a line from Jon Stewart, that it seems re: the Ten Commandments - "if it's on the wall, it's illegal; if it's on the grass, it's legal" - which prompted Professor Howard to quip that now the secret is out, law professors get educated from late night TV.
The new Virginia laws that took effect July 1
Here is the Norfolk paper's list of new Virginia laws, in effect since July 1.
The Washington Post reports here that groceries will cost less and cigarettes will cost more.
Crimlaw has this post with the new crim laws.
This Fredericksburg.com article discusses the changes to the law and procedure of medical malpractice claims in Virginia.
The Bristol paper had this article on Virginia's new underage drinking laws.
The Washington Post reports here that groceries will cost less and cigarettes will cost more.
Crimlaw has this post with the new crim laws.
This Fredericksburg.com article discusses the changes to the law and procedure of medical malpractice claims in Virginia.
The Bristol paper had this article on Virginia's new underage drinking laws.
Cheating at the University?
This article begins: "An 'alarmingly large fraction' of the first-year class of economics graduate students at the University of Virginia were involved in a cheating incident that came to light this month, according to the department chair."
What is said to have happened is this:
"Department officials said that some problem sets from textbooks used in introductory graduate economics courses have answer keys online. At least one student found answers for a course taken by all first-year students, and apparently shared the information with classmates."
What is said to have happened is this:
"Department officials said that some problem sets from textbooks used in introductory graduate economics courses have answer keys online. At least one student found answers for a course taken by all first-year students, and apparently shared the information with classmates."
The last horseman
Thursday's Norfolk paper had this light-hearted tale of a Virginia judge who rode to his last day of work on horseback.
More on the Nelson County sporting case
Thursday's Charlottesville paper had this report on the circuit's ruling in the Orion case.
I had wondered whether the constitutional argument was a bit of a red-herring in the case, but it makes me recall one of my favorite legal arguments.
In Virginia law, there is or was a statute limiting the liability of landowners to persons who come on their land for purposes of "hunting." Supposedly, one of my old bosses won a case where the plaintiff had been "hunting" for ginseng. You can imagine the examination. "So, you were hunting for ginseng?" "You had heard there was ginseng there, and you were hunting for it?" etc. I'm not sure how that outcome, despite its ingenuity, squares with the concept of "hunting" applied in the Nelson County case.
I had wondered whether the constitutional argument was a bit of a red-herring in the case, but it makes me recall one of my favorite legal arguments.
In Virginia law, there is or was a statute limiting the liability of landowners to persons who come on their land for purposes of "hunting." Supposedly, one of my old bosses won a case where the plaintiff had been "hunting" for ginseng. You can imagine the examination. "So, you were hunting for ginseng?" "You had heard there was ginseng there, and you were hunting for it?" etc. I'm not sure how that outcome, despite its ingenuity, squares with the concept of "hunting" applied in the Nelson County case.
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