Saturday, February 19, 2005

Fish in a barrel?

The Washington Post reports here that the Fairfax County electoral board has fired the registrar of voters.

Under Virginia law, the electoral board has to be made up of a majority of members of the Governor's party. When the Governor's office changes parties, so do the electoral boards. The new boards sometimes want to rid themselves of the registrar hired by the old boards.

Since the groundbreaking cases out of the W.D. Va. in the 1980s, when it was determined that registrars are not patronage employees, see McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), every registrar who has ever been fired or denied reappointment following a realignment has sued the electoral board and won. The plaintiffs in the original W.D. Va. cases included Ms. Kilgore, the registrar in Scott County. She won her job back, and ever since, so have all the rest who wanted reinstatement, in every case with which I am familiar, from every corner of the Commonwealth.

Ed Stout and Gerald Gray beat me in one of those cases, and I appealed, and the Fourth Circuit argument was held in Baltimore, during baseball season. So, the night before the argument, the lawyers went (separately) to Camden Yards (for a few innings), and after the argument, we ate together overlooking the Harbor. I'm still mad about that case, but I can't complain about the trip to Baltimore.

On the late Judge Merhige

A lawyer of my age and location knows of the great federal judges from Virginia during the 20th century mainly by reputation, history books, and old lawyer stories: among others, these include Judge Hoffman for whom the courthouse is named in Norfolk, Judge Bryan for whom the courthouse is named in Alexandria, Judge Dalton in Roanoke.

The Richmond paper reports here that Judge Robert Merhige died on Friday at age 86. The headline reads: "He was a giant of law," and he was. This story contains Judge Merhige reflections on school integration, 50 years after Brown. His most famous ruling was system-wide integration in the Richmond metro area, including Henrico County where he lived.

In 1992, Controversy in the courts: A biography of Judge Robert R. Merhige, Jr., by Ronald Bacigal, was published. Bending the Law : The Story of the Dalkon Shield Bankruptcy by Richard Sobol is one of several books detailing Judge Merhige's role in the A.H. Robins bankruptcy case.

I'm unable to write in this space what could or should be written about him, and so I'll resort to my usual nonsense instead. Judge Merhige was the speaker at my law school graduation in Williamsburg in 1989. He told the story that he applied to law school at William & Mary but had to withdraw once he discovered that it was not located in Richmond, where he had a job he needed to pay his way through school. So, he was a William & Mary law student for one day, after which he enrolled at T.C. Williams.

A few months ago, I sent an e-mail to Judge Merhige, written in my usual absurd manner, and laughed aloud at his bemused reply.

Mark Sadd out as federal judge candidate in WV

Via this WV Law Dog post, according to this report in the Charleston Gazette (registration required), attorney Mark Sadd is no longer in the running for the S.D. W.Va. judgeship made vacant by the death of Judge Charles Haden.

Evidently, some Republicans are wanting somebody else. One Republican is quoted as saying: "He does not have the temperament, the character or the background. He’s a real-estate lawyer." Ouch, what's up with that?

Mark Sadd and I both graduated in the 1986 class at U.Va., where among other things he was one of the big cheeses and I was one of the hangers-on at the now-defunct University Journal.

W&L symposium on unpublished opinions

This press release describes an upcoming symposium at Washington & Lee on the controversy over the use of unpublished opinions.

As I've said before, my view is, lawyers should be free to cite whatever works - except foreign case law on U.S. constitutional issues.

Deja vu, another retaliation claim goes forward

In Smith v. Shenandoah Valley Juvenile Detention Home Commission, Judge Conrad granted summary judgment on the plaintiff's race and gender discrimination claims, but denied the defendant's motion on the retaliation claim.

Something similar happened in a different case before Judge Jones a couple of weeks ago. Retaliation claims might be the easiest kind to get to the jury when something bad happens soon after the protected conduct of the plaintiff, whatever it is.

Disqualification of counsel from representing multiple debtors affirmed

In Tri-State Leasing v. U.S. Trustee, Chief Judge Jones affirmed a Bankruptcy Court order that required the disqualification of counsel from representing more than one of a related group of debtors that owed each other money.

Sounds like a full time job

The Roanoke Slant tackles the task of keeping the Roanoke paper honest.

Thursday, February 17, 2005

Chief Judge Jones goes low

In U.S. v. Mullins, Chief Judge Jones imposed a sentence below the "advisory sentencing guideline range" in a case where the defendant was charged with possessing an illegal assault weapon about a month before the statutory ban expired.

To "go low" is a good thing, at least on the PGA Tour.

Alabama vs. Virginia in freakiness contest

Via Timothy Sandefur, This post compares and contrasts the nuttiness between Alabama and Virginia, and says nothing about either Bear Bryant or Thomas Jefferson.

I can vouch for No. 3

At No. 3 among The 10 Most Dangerous Foods to Eat While Driving is TACOS. The scariest drive of my life was the night I picked up a mess of tacos at a Happy Mart/Taco Bell outside of Pikeville, KY, while headed for home down U.S. 23 before they straightened out the road at Jenkins. (If you've been there, you know what I'm talking about.)

Not on the list, three others I've managed a few times between Bristol and Abingdon are pizza, soup, and Chinese food (specifically, beef with broccoli). This should make you all feel better about driving northbound in that area on the interstate between 8:00 pm and 10:00 pm most any weekday, the usual hours of my exodus.

Thanks to David for turning me on to this link.

Norfolk paper thinks Atkins deserves consideration for making the U.S. reports

The Norfolk paper opines here that convicted murderer Daryl Atkins ought to get some slack from the Commonwealth for winning his Supreme Court case, even if he isn't mentally retarded.

Richmond newsies appeal camera restrictions in murder case

The Richmond paper has this story on the appeal noted by it and two tv stations of the rulings by the Henrico County Circuit Court judge to restricting camera access to a murder trial scheduled for next week.

Tuesday, February 15, 2005

Frank is dead

Here is the story of the Virginia kid who named his brain tumor "Frank" and who is now cancer-free.

Another Coalfield story on the 30th circuit judgeship

The Coalfield Progress reports that Tammy McElyea has the inside track on becoming the new circuit court judge for the 30th Circuit.

Notwithstanding the few articles in the Coalfield Progress, it seems to me like this is a historic year - the General Assembly is going to appoint new circuit court judges for the 28th, 29th, and 30th circuits at the same session - and nobody but the lawyers and judges are paying much attention. How many times has that happened, so many Southwest Virginia circuit court judges appointed at one time?

Trying to get more money for court-appointed counsel

The Norfolk paper has this editorial in support of the efforts of Del. McDonnell, among others, to try to get a pay raise for the lawyers who take on court-appointed criminal clients in Virginia's courts.

Since I'm a lawyer, I think this is a very important issue - funding for public defenders and court-appointed counsel. There ought to be a requirement that every time any member of the General Assembly introduces a bill that would change any part of Titles 18.2 (Crimes) or 19.2 (Criminal Procedure), which they do all the time, the money for lawyers for the indigent defendants will go up by 1%.

Sunday, February 13, 2005

Ruff times

The old dog is sick. Posted by Hello

I know it's a tough old world, but one thing that's no good at all is when the dog makes a mess in the house, slips and falls in it, and because of her bad legs, can't raise herself up off the wet floor and has to lie in it until someone comes along and helps her.

Chrissy the dog is a former death row inmate whose sentence was commuted to house arrest when we brought her home from the Washington County animal shelter in March 1991 - so she is 14 years old. It has been retold here before, and not for the last time, that years ago, Judge Jones and his wife saw us on the street with the dog and he said she is a cute puppy. Even though this was before he was judge, I consider his opinion in this instance a matter of res judicata.

We went to see the vet this morning. The doctor prescribed for the dog a course of Metronidazole. The last time the dog took this medicine, I was taking it, too, for Crohn's disease. It worked for the dog but not for me. On the topic of Crohn's, while the dog has the bad belly, I've been the night nurse. My wife says this should be no imposition, since I'm generally up and down all night anyway, which is true and has been for these many years.

On inundation and gentility and medical malpractice

In this story, mostly about the pending medical malpractice reform bills, the word choices caught my eye.

For one thing, it says of Winchester and surrounding parts that "the area is inundated with frivolous claims", but goes on to say there are not many of them.

Also, it quotes a local lawyer as saying "the practice of law in my region is much more gentile." I think the lawyers in Southwest Virginia are mostly gentile, and in addition some of the Gentiles are genteel.

On the selection of Virginia judges

The Richmond paper has this editorial that says the Republicans have yet to come through on promises to do better than the Democrats in rationalizing the system by which the General Assembly selects judges.

The editorial says, among other things:

"The courts may offer a rare example in which Washington does better than Virginia. The Commonwealth ought to consider adopting an approach similar to the one used by the federal government. The Governor could nominate judicial candidates who would be subject to legislative confirmation. Or Virginia could create a merit system that would authorize independent commissions, whose members would represent not just the parties and an often arrogant bar but other interests having a stake in the justice system, to vet candidates and make formal recommendations to the Assembly."