Saturday, March 19, 2005

Congress and the Schiavo case

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

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

Adult education course I wish I was old enough to take

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

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

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

On 3.14159, etc.

Last week was Pi Day, 3.14.

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

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

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

Richmond law professor blasts Bush nominees for Fourth Circuit

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

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

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

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

On media access to Virginia courtrooms

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

No teeth in FOIA

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

Instant replay in the stands

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

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

Here, here

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

More on state court judicial selection

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

Heard in the crowd

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

Virginia franchise statute for motorcycle dealers declared unconstitutional

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

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

Applying McDonnell-Douglas to other forms of retaliation

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

What's love got to do with it

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

Fourth Circuit reversal in the cell phone emissions case

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

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

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

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

The AP has this report on the decision.

Habeas relief denied in N.C. death penalty case

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

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

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

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

Friday, March 18, 2005

Get a map

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

The VQ effect

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

Bass clarinet cover band recordings you can hear on the internet

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

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

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

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

The roid hearings and D.C. baseball

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

Still more on Judge Chafin

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

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

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

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

No house tax

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

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

Fourth Circuit panel hears Pledge of Allegiance case at Wake Forest

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

We're No. 1

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

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

We're No. 2352627

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

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

On attending the Bar Leaders Institute

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

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

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

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

Thursday, March 17, 2005

New and improved opinion on Booker from Fourth Circuit

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

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

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

Wednesday, March 16, 2005

More on Judge Chafin

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

I've got a golden ticket

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

On the swearing in of Circuit Court Judge Chafin

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

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

Tuesday, March 15, 2005

Virginia AG candidates weigh in on constitutional issues and higher ed

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

Monday, March 14, 2005

Magistrate judge gives 4 thumbs down to guarantors in default

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

Magistrate Judge Urbanski approves deposition of more than seven hours

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

The Commonwealth - center of basketball power

Women's basketball that is.

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

Fake Supreme Court news you won't see on SCOTUSblog

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

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

On cameras in the courtroom in Prince William County

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

Gene Nichol hired as next president of William & Mary

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

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

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

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

The understaffing of commonwealth's attorneys office in Virginia

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

Sunday, March 13, 2005

The trouble with the Democrats in the General Assembly

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

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

Open government articles and editorials

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

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

From the Bristol paper - How open is open?

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

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

From the Newport News paper - Healing sunshine

From the Charlottesville paper - Shedding light on public records

From the Lynchburg paper - Keeping all governments in the sunshine

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

Virginia's democracy more pure than in Pennsylvania

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

Haynes nomination may be 'DOA'

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

On judicial filibusters

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