I don't know that Vaughn Taylor has that much of a Southwest Virginia connection, but his bio says he was born in Roanoke.
Anyhow, it says here that he is in the 12:04 game with Tiger Woods tomorrow in Charlotte.
I'm not entirely sure of the usage of the word "game" in the foregoing sentence, but I would cite the usage of Governor Bredesen, in his proclamation earlier this week, when he said: "I encourage anyone who enjoys outdoor activities to get out and play a game of golf in Tennessee in May." Probably I would be more literate or literary when writing about golf if I read more of the golf columns of the lawyer who gets through life not only with Sneaking Suspicions but also Hole by Hole.
Saturday, May 07, 2005
74 year-old man gets 10 years for selling OxyContin from his store in Tazewell County
The Bluefield paper has this story of a 74 year-old man in Tazewell County who was sentenced to seventy years in prison, with all but ten suspended, for selling OxyContin from his store.
Floyd County prosecutor gets called up to Iraq, judge replaces him
In this wild story ("Lawyer's battles: Judge, insurgents," 5/7/05), the Roanoke paper reports that the Commonwealth's Attorney for Floyd County is in Iraq, and plans to run his office from there, by e-mail, with a hired lawyer to handle the courtroom work. Back in Virginia, however, Circuit Court Judge Ray Grubbs has taken a different view, and appointed someone else to replace the elected official while he is gone. The article says a brand new AG opinion concludes "that a commonwealth's attorney is not required to relinquish his office when involuntarily called to active military duty," which makes the soldier/prosecutor think he will not lose his office. The matter will have to be resolved by the Virginia Supreme Court.
A murder in Virginia, 1895
I've been reading A Murder in Virginia: Southern Justice on Trial (2003) by Suzanne Lebsock. The book is about an 1895 murder case in Lunenberg County, Virginia, for which three black women and a black man were accused of committing the crime. It is, among other things, an excellent book about lawyering and the courts, remarkable in its account of the yin and the yang, the ebb and flo, the thrill of victory and the agony of defeat, or what I sometimes call the hockey game aspect of litigation, as the cases proceeded through trial and retrial, verdict and appeal. It is also a history book, a snapshot of race relations in the Southside 30 years after the end of the Civil War. The book is full of surprises and interesting characters.
There were no NHL play-offs this year, and might never be again for all I know, but it can be exciting, overtime in a play-off game, with the play moving back and forth, up and down the ice, and the game can end at any moment.
There were no NHL play-offs this year, and might never be again for all I know, but it can be exciting, overtime in a play-off game, with the play moving back and forth, up and down the ice, and the game can end at any moment.
Bob Gibson's take on the Virginia political blogs
Here Bob Gibson of the Daily Progress describes the "blog delight" that has sprung up right here in the Commonwealth, citing, among others, Waldo and Bacon's Rebellion and Commonwealth Conservative and SST and One Man's Trash and Rick Sincere.
It sounds like Bob reads the same stuff I do.
It sounds like Bob reads the same stuff I do.
Post-It notes get slash-dotted
Here is a Slashdot post on the 25 year history of Post-It notes, "an exemplary product of their time," foreshadowing the methods of working developed since.
On the Virginia state crime lab
This TalkLeft post reports on an independent audit blasting the state lab that analyzes evidence in criminal cases in Virginia, and links to this NY Times article, which begins: "A sharply critical independent audit found Friday that Virginia's nationally recognized central crime laboratory had botched DNA tests in a leading capital murder case. The findings prompted Gov. Mark Warner to order a review of the lab's handling of testing in 150 other cases as well." The NYT article says the report implies that office of Governor Gilmore pressured the lab in connection with the prosecution of Earl Washington.
The Richmond paper has this article on the audit report. This story reports one of Washington's lawyers as saying: "There's every reason to believe that in every capital case, there is enormous political pressure to break the rules, if necessary, to keep the defendant convicted."
The Norfolk paper has this article, which explains that the audit was only about the one case, the Washington case. It cites DNA lawyer Peter Neufeld, who also represented Washington:
"Washington’s attorney, Peter Neufeld, said the audit demonstrates that Washington should have been exonerated in 1993.
'He unnecessarily and unconscionably spent an additional seven years in prison,' said Neufeld, co-director of the Innocence Project.
Neufeld said Warner should amend the pardon to state that Washington is in fact innocent of the crime, a conclusion Gilmore did not reach."
The Richmond paper has this article on the audit report. This story reports one of Washington's lawyers as saying: "There's every reason to believe that in every capital case, there is enormous political pressure to break the rules, if necessary, to keep the defendant convicted."
The Norfolk paper has this article, which explains that the audit was only about the one case, the Washington case. It cites DNA lawyer Peter Neufeld, who also represented Washington:
"Washington’s attorney, Peter Neufeld, said the audit demonstrates that Washington should have been exonerated in 1993.
'He unnecessarily and unconscionably spent an additional seven years in prison,' said Neufeld, co-director of the Innocence Project.
Neufeld said Warner should amend the pardon to state that Washington is in fact innocent of the crime, a conclusion Gilmore did not reach."
Tuesday's opinions from the Court of Appeals
In Department of Labor and Industry v. Summit Contractors, the Court of Appeals in an opinion by Judge Kelsey, joined by Chief Judge Fitzpatrick and Judge Elder, affirmed summary judgment in favor of a contractor in a civil penalty enforcement action brought by the Virginia Occupational Safety and Health Program. The appellee was general contractor for construction of an apartment complex. The subcontractor for the siding work was cited for job safety violations. VOSH went after the general contractor as well, even though it had only 2 employees onsite and it had not committed any violations as to its employees. The issue on appeal was whether a general contractor could be liable for the subcontractor's safety violations with respect to the sub's employees, and the answer is no, under Virginia law (but perhaps not federal law).
In Crutchfield v. State Water Control Board, the Court of Appeals in an opinion by Senior Judge Willis, joined by Chief Judge Fitzpatrick and Judge Humphreys, affirmed the issuance of a permit to discharge treated wastewater into the Pamunkey River in Hanover County. The decision was affirmed based on the Court's conclusion that the agency's decision was supported by substantial evidence. (I wonder what this panel would have done with the birth certificate case). As I understand it, the landowners were initially denied permission to get into this case. The Court of Appeals reversed the ruling on standing, and the Virginia Supreme Court agreed the landowners have standing. State Water Control Bd. v. Crutchfield, 265 Va. 416, 578 S.E.2d 762 (2003).
In Conkling v. Com., the Court of Appeals, in an opinion by Chief Judge Fitzpatrick joined by Judges Felton and Kelsey, that a juvenile adjudication for petit larceny could not be used as the basis for an enhanced penalty under Va. Code 18.2-104, which makes the third or successive offense of petit larceny punishable as a Class 6 felony. The defendant was convicted of stealing a Sony Playstation from one of his relatives. He had a record of 5 petit larceny adjudications as a juvenile. The Court concluded that juvenile offenses don't count unless the legislature specifically says so.
In Kyer v. Com., the Court of Appeals, sitting en banc, concluded in an opinion by Judge Kelsey, with Judge Humphreys concurring only in the result, and with Chief Judge Fizpatrick concurring in part and dissenting in part and Judges Elder and Benton joining her opinion, that the search of the apartment where the defendant lived with his mother was not illegal because the law enforcement officers had the consent of the mother. Judge Humphreys wrote that in his view, the initial entry into the property was legal under the common caretaker exception to the warrant requirement. The police showed up at the property at 4 am and the place was dark but the front door was wide open while it was raining. Chief Judge Fitzpatrick agreed with the majority that the common caretaker exception did not apply, but disagreed as to whether there was adequate proof of the mother's consent.
In Bristol v. Com., the Court of Appeals in an opinion by Judge Benton, joined by Judge Frank and Senior Judge Overton, kicked out the blood test in a drunk driving case because the defendant had not been arrested at the time when the blood was drawn. The defendant caused an accident, for which he was taken to the hospital. While he was there, the officer told him he was under arrest and later a technician drew some blood and gave it to the officer. The defendant was treated and released from the hospital and went home. A few days later the officer called the defendant to come down to the police station to answer some more questions, which he did. Later, after he was indicted, he was served and arrested and taken into custody. The implied consent statute requires that the defendant must be "arrested" within three hours of the alleged offense. Va. Code 18.2-268.2. The Court concluded that telling the defendant at the hospital he was arrested was not enough of an exercise of control over him to meet the requirements of the statute, and the defendant's express consent to the blood test did not eliminate the requirement of an arrest.
In Crutchfield v. State Water Control Board, the Court of Appeals in an opinion by Senior Judge Willis, joined by Chief Judge Fitzpatrick and Judge Humphreys, affirmed the issuance of a permit to discharge treated wastewater into the Pamunkey River in Hanover County. The decision was affirmed based on the Court's conclusion that the agency's decision was supported by substantial evidence. (I wonder what this panel would have done with the birth certificate case). As I understand it, the landowners were initially denied permission to get into this case. The Court of Appeals reversed the ruling on standing, and the Virginia Supreme Court agreed the landowners have standing. State Water Control Bd. v. Crutchfield, 265 Va. 416, 578 S.E.2d 762 (2003).
In Conkling v. Com., the Court of Appeals, in an opinion by Chief Judge Fitzpatrick joined by Judges Felton and Kelsey, that a juvenile adjudication for petit larceny could not be used as the basis for an enhanced penalty under Va. Code 18.2-104, which makes the third or successive offense of petit larceny punishable as a Class 6 felony. The defendant was convicted of stealing a Sony Playstation from one of his relatives. He had a record of 5 petit larceny adjudications as a juvenile. The Court concluded that juvenile offenses don't count unless the legislature specifically says so.
In Kyer v. Com., the Court of Appeals, sitting en banc, concluded in an opinion by Judge Kelsey, with Judge Humphreys concurring only in the result, and with Chief Judge Fizpatrick concurring in part and dissenting in part and Judges Elder and Benton joining her opinion, that the search of the apartment where the defendant lived with his mother was not illegal because the law enforcement officers had the consent of the mother. Judge Humphreys wrote that in his view, the initial entry into the property was legal under the common caretaker exception to the warrant requirement. The police showed up at the property at 4 am and the place was dark but the front door was wide open while it was raining. Chief Judge Fitzpatrick agreed with the majority that the common caretaker exception did not apply, but disagreed as to whether there was adequate proof of the mother's consent.
In Bristol v. Com., the Court of Appeals in an opinion by Judge Benton, joined by Judge Frank and Senior Judge Overton, kicked out the blood test in a drunk driving case because the defendant had not been arrested at the time when the blood was drawn. The defendant caused an accident, for which he was taken to the hospital. While he was there, the officer told him he was under arrest and later a technician drew some blood and gave it to the officer. The defendant was treated and released from the hospital and went home. A few days later the officer called the defendant to come down to the police station to answer some more questions, which he did. Later, after he was indicted, he was served and arrested and taken into custody. The implied consent statute requires that the defendant must be "arrested" within three hours of the alleged offense. Va. Code 18.2-268.2. The Court concluded that telling the defendant at the hospital he was arrested was not enough of an exercise of control over him to meet the requirements of the statute, and the defendant's express consent to the blood test did not eliminate the requirement of an arrest.
Whacking away at the judiciary
This interesting piece in the NY Times by historian Ron Chernow on the handling of the judiciary in the early years of the U.S. opines that "we are witnessing a re-enactment of a historic drama that unfolded two centuries ago, shortly after Thomas Jefferson's election as president."
It recites that the lame-duck Federalists, on their way out in 1801, created new federal circuit court judgeships, just as they named a bunch of federal judges and magistrates (including Chief Justice Marshall and the unlucky William Marbury), after they lost the 1800 election to Thomas Jefferson.
Jefferson's party responded by repealing the Federalists' Judiciary Act in 1802, eliminating the circuit court positions, which made it necessary for the Supreme Court justices to ride circuit once again. They also cancelled two sessions of the Supreme Court. As Chief Justice Rehnquist explained in his book, "Congress at the same time passed a law abolishing the June and December terms of the Supreme Court, which had been created by act of 1801, and restoring the old Rebruary term but not the old August term. By dint of this rather extraordinary measure, enacted with ill-disguised hostility toward the Supreme Court, an adjournment of that body was enforced for fourteen months - from December 1801 to February 1803." The Supreme Court (2001) at 28.
Thus, the case of Marbury, whose commission for a judicial position was not delivered before time ran out, was not decided by the Supreme Court until 1803, when Marshall wrote his famous opinion, the "twistifications" of which Jefferson denounced. The Marbury case is full of irony. Marshall himself was a midnight judge like Marbury would have been. Rather than issuing a writ of mandamus, which the Jefferson administration would have ignored, the Court enhanced its power by declaring the statute for authorizing issuance of the writ was unconstitutional.
The Jeffersonians went on to impeach two federal judges, convicting one.
This analysis provides a new answer to the question, what do Pat Robertson and Thomas Jefferson have in common besides Virginia residence? Previously, I would have thought the answer was: nothing.
It recites that the lame-duck Federalists, on their way out in 1801, created new federal circuit court judgeships, just as they named a bunch of federal judges and magistrates (including Chief Justice Marshall and the unlucky William Marbury), after they lost the 1800 election to Thomas Jefferson.
Jefferson's party responded by repealing the Federalists' Judiciary Act in 1802, eliminating the circuit court positions, which made it necessary for the Supreme Court justices to ride circuit once again. They also cancelled two sessions of the Supreme Court. As Chief Justice Rehnquist explained in his book, "Congress at the same time passed a law abolishing the June and December terms of the Supreme Court, which had been created by act of 1801, and restoring the old Rebruary term but not the old August term. By dint of this rather extraordinary measure, enacted with ill-disguised hostility toward the Supreme Court, an adjournment of that body was enforced for fourteen months - from December 1801 to February 1803." The Supreme Court (2001) at 28.
Thus, the case of Marbury, whose commission for a judicial position was not delivered before time ran out, was not decided by the Supreme Court until 1803, when Marshall wrote his famous opinion, the "twistifications" of which Jefferson denounced. The Marbury case is full of irony. Marshall himself was a midnight judge like Marbury would have been. Rather than issuing a writ of mandamus, which the Jefferson administration would have ignored, the Court enhanced its power by declaring the statute for authorizing issuance of the writ was unconstitutional.
The Jeffersonians went on to impeach two federal judges, convicting one.
This analysis provides a new answer to the question, what do Pat Robertson and Thomas Jefferson have in common besides Virginia residence? Previously, I would have thought the answer was: nothing.
Friday, May 06, 2005
The end of the Scott Stadium grass as we know it
It says here that the Rolling Stones might play in Charlottesville this summer.
When I was a first year, the new Stones' album was Undercover, which rates as one of their worst, according to this list.
When I was a first year, the new Stones' album was Undercover, which rates as one of their worst, according to this list.
Kingsport lawyer on the filibuster debate
In this column from the Kingsport paper, a local lawyer says that the Democratic opposition to judges is not based on antipathy toward religion, that the filibuster is not based on anything in the Constitution, that the filibuster help protect the minority from the majority, that the Democrats are not really treating Bush's nominees worse than the Republican treated Clinton's nominees, and concludes that the Senate ought to debate the nominees and vote on them.
When science and blogging meet
Here on the QandO blog is offered the thesis that cleaner air has led to increased surface temperature, which kicked off an interesting exchange of comments about who are the worse ignoramuses, scientists or non-scientists.
Thursday, May 05, 2005
A nice round number
Just now I was reading the transcript of a hearing, where the judge explained why he picked 12 lawyers for a particular committee:
"The number works for juries, it was used to define the 12 tribes, it was used to define the number of apostles, it's a sacred number, and I think that number is very workable."
"The number works for juries, it was used to define the 12 tribes, it was used to define the number of apostles, it's a sacred number, and I think that number is very workable."
Women in Virginia politics
Here Shaula has figured that there were not too many women in Virginia elected to statewide office or as Congresspersons before quite recently.
The first woman running for anything that I recall was Edythe Harrison, who got a shade less than 30% of the vote against Sen. Warner in 1984, which made me think at the time that the Virginia Democrats must be crazy. In fact, I still don't understand it, I've never read and no one has ever explained to me why there was no better candidate to be found that year. It is one of those strange things that you remember but just don't make any sense, sort of like the fact that the Florida Marlins have ever won the World Series.
The first woman running for anything that I recall was Edythe Harrison, who got a shade less than 30% of the vote against Sen. Warner in 1984, which made me think at the time that the Virginia Democrats must be crazy. In fact, I still don't understand it, I've never read and no one has ever explained to me why there was no better candidate to be found that year. It is one of those strange things that you remember but just don't make any sense, sort of like the fact that the Florida Marlins have ever won the World Series.
More on the Wiccan would-be Chesterfield County invocationist
Here is a report from the ABA Journal's ereport on the Fourth Circuit's decision in the case of the Wiccan who sued Chesterfield County to get on the list of persons allowed to perform the invocation at meetings of the County Board of Supervisors.
I saw a hilarious cartoon about this case, where the judges who ruled against the plaintiff were tuned into toads, or something like that (it was funny without reference to whomever actually was on the panel).
I saw a hilarious cartoon about this case, where the judges who ruled against the plaintiff were tuned into toads, or something like that (it was funny without reference to whomever actually was on the panel).
On evaluating judges
This law.com article that the American Bar Association has now out new guidelines for evaluating state court judges, which guidelines "aimed at educating those who re-elect or reappoint judges. The guidelines ask that judges be judged by objective criteria, including a judge's willingness to make impartial, difficult and unpopular decisions based on law and fact."
The article also describes the new Virginia program for evaluating judges up for reappointment.
The article also describes the new Virginia program for evaluating judges up for reappointment.
Hip to have a hillbilly twang
Via this Fragments from Floyd post, I see from the National Geographic, Appalachians Are Finding Pride in Mountain Twang. They need to throw that in the pot stewing over the candidates' accents in the gubernatorial race in Virginia.
The article says, among other things:
"What we're finding is that people are taking a new pride in their mountain culture," said linguistics professor Walt Wolfram of North Carolina State University. "That includes their language. People are making the comment, 'We're hillbillies, but we're proud of it. That's who we are.'"
The article says, among other things:
"What we're finding is that people are taking a new pride in their mountain culture," said linguistics professor Walt Wolfram of North Carolina State University. "That includes their language. People are making the comment, 'We're hillbillies, but we're proud of it. That's who we are.'"
On the significance of Kaine's UMWA endorsement
Kilo writes here that an endorsement from the UMWA is not what it once was.
Indeed, in 1990, there were Pittston, Westmoreland, and Island Creek, among others, operating union mines in Southwest Virginia, and UMWA District 28 covered Virginia. Now, there are no Pittston, no Westmoreland, no Island Creek (as such), and no District 28.
Indeed, in 1990, there were Pittston, Westmoreland, and Island Creek, among others, operating union mines in Southwest Virginia, and UMWA District 28 covered Virginia. Now, there are no Pittston, no Westmoreland, no Island Creek (as such), and no District 28.
A funnier transcript
Here is the transcript from Johnson v. California, which includes these exchanges:
5 MR. SCHALIT: Well, Your Honor, I believe the
6 phrasing was that it's explained the operation of prima
7 facie burden of proof rules, and that's the footnote on
8 page 94, sort of the operation of the burden of proof
9 rules that is at issue here. And the burden of proof and
10 burden of production rules --
11 JUSTICE SCALIA: A lot of people don't read
12 footnotes.
...............
4 MR. SCHALIT: Well, the challenge does cease
5 being peremptory because the Equal Protection Clause has
6 overturned the State statute that provides that challenges
7 -- peremptory challenges are challenges for which no
8 reason need be given.
9 JUSTICE SCALIA: But Batson overruled that. I
10 mean, those days are gone. Tell California to stop
11 worrying about that.
....................
7 JUSTICE STEVENS: Of course, in avoiding that
8 chill, you're in effect saying the prosecutor is entitled
9 to one or two free discriminatory challenges.
10 MR. SCHALIT: Well, certainly there -- there is
11 a somewhat different consequence in -- in the standard as
12 articulated by petitioner in that the striking party does
13 get perhaps a freebie. And California doesn't accept
14 that. We've recognized that in State supreme court cases
15 there are no substantial free challenges.
16 JUSTICE SOUTER: The dog is entitled to one
17 bite.
18 MR. SCHALIT: I'm sorry, Your Honor?
19 JUSTICE SOUTER: I say, the dog is entitled to
20 one bite.
21 MR. SCHALIT: Oh.
22 (Laughter.)
23 MR. SCHALIT: Hopefully not --
24 JUSTICE SCALIA: It's a New Hampshire rule.
5 MR. SCHALIT: Well, Your Honor, I believe the
6 phrasing was that it's explained the operation of prima
7 facie burden of proof rules, and that's the footnote on
8 page 94, sort of the operation of the burden of proof
9 rules that is at issue here. And the burden of proof and
10 burden of production rules --
11 JUSTICE SCALIA: A lot of people don't read
12 footnotes.
...............
4 MR. SCHALIT: Well, the challenge does cease
5 being peremptory because the Equal Protection Clause has
6 overturned the State statute that provides that challenges
7 -- peremptory challenges are challenges for which no
8 reason need be given.
9 JUSTICE SCALIA: But Batson overruled that. I
10 mean, those days are gone. Tell California to stop
11 worrying about that.
....................
7 JUSTICE STEVENS: Of course, in avoiding that
8 chill, you're in effect saying the prosecutor is entitled
9 to one or two free discriminatory challenges.
10 MR. SCHALIT: Well, certainly there -- there is
11 a somewhat different consequence in -- in the standard as
12 articulated by petitioner in that the striking party does
13 get perhaps a freebie. And California doesn't accept
14 that. We've recognized that in State supreme court cases
15 there are no substantial free challenges.
16 JUSTICE SOUTER: The dog is entitled to one
17 bite.
18 MR. SCHALIT: I'm sorry, Your Honor?
19 JUSTICE SOUTER: I say, the dog is entitled to
20 one bite.
21 MR. SCHALIT: Oh.
22 (Laughter.)
23 MR. SCHALIT: Hopefully not --
24 JUSTICE SCALIA: It's a New Hampshire rule.
Oral argument in Mark Hurt's case
Here is the transcript for the oral argument in the case argued by Abingdon lawyer Mark Hurt before the U.S. Supreme Court, which had to do with the statute of limitations for retaliation claims under the False Claims Act.
I talked to Mark a little bit about the case. It was interesting to read the transcript.
I talked to Mark a little bit about the case. It was interesting to read the transcript.
The sort of crime that John Behan would prosecute to the fullest extent of the law
Here is a report on the rise of golf club theft.
I had a case years ago where my client was charged with stealing a car and stealing a set of golf clubs out of the car, on his birthday, as he and his buddy came upon the car parked outside of George and Sid's with the motor running. The victim was an investment counselor. The defense was that instead of being out stealing cars, my guy was celebrating his 20th birthday by drinking beer under the Hobo Bridge with his mother. ("What do you do on your birthday, ladies and gentlemen, do you go out looking for trouble - no, you spend time with your family. Some people eat German chocolate cake with their parents, some people drink beer with them.")
What I recall of the trial was that one fellow on the jury was glaring at us the whole time. The guy just hated us. I looked back at the list and studied his address. He lived about a block from George and Sid's. Uh-oh. We didn't have enough strikes to boot everyone we didn't like.
The other thing I recall about the trial was that I had co-counsel, who was a bit more flamboyant. He ranted, he raved, he paced, he waved his arms, and that was just when I went to see him in his office (and every time I've ever seen him since, and I'm always glad to see him). Afterwards, the judge commented on the contrasting styles. "It was interesting to watch," he said. "You were so much quieter, but you made some good points."
I had a case years ago where my client was charged with stealing a car and stealing a set of golf clubs out of the car, on his birthday, as he and his buddy came upon the car parked outside of George and Sid's with the motor running. The victim was an investment counselor. The defense was that instead of being out stealing cars, my guy was celebrating his 20th birthday by drinking beer under the Hobo Bridge with his mother. ("What do you do on your birthday, ladies and gentlemen, do you go out looking for trouble - no, you spend time with your family. Some people eat German chocolate cake with their parents, some people drink beer with them.")
What I recall of the trial was that one fellow on the jury was glaring at us the whole time. The guy just hated us. I looked back at the list and studied his address. He lived about a block from George and Sid's. Uh-oh. We didn't have enough strikes to boot everyone we didn't like.
The other thing I recall about the trial was that I had co-counsel, who was a bit more flamboyant. He ranted, he raved, he paced, he waved his arms, and that was just when I went to see him in his office (and every time I've ever seen him since, and I'm always glad to see him). Afterwards, the judge commented on the contrasting styles. "It was interesting to watch," he said. "You were so much quieter, but you made some good points."
Wednesday, May 04, 2005
Stuck in reality
My wife is watching American Idol. It is ridiculous how people get wrapped up in these shows.
The TV contest that had me enthralled lately was the Big Break III on the Golf Channel, won by the villainous Danielle. I was rooting for Jan, the Canadienne, who had the swing but not the nerves. Pam lost 2 and 1 to Danielle in the finale. Afterwards, I wanted her to throw Danielle in the James River, but, if it happened, they didn't show that part on TV.
It will be a good weekend for golf, Tiger Woods in Charlotte and Annika Sorenstam in Williamsburg.
The TV contest that had me enthralled lately was the Big Break III on the Golf Channel, won by the villainous Danielle. I was rooting for Jan, the Canadienne, who had the swing but not the nerves. Pam lost 2 and 1 to Danielle in the finale. Afterwards, I wanted her to throw Danielle in the James River, but, if it happened, they didn't show that part on TV.
It will be a good weekend for golf, Tiger Woods in Charlotte and Annika Sorenstam in Williamsburg.
Last night's debate on the radio
The Charlottesville paper has this article about the debate between the two candidates for the Republican nomination for Attorney General, broadcast on public radio and on the internet.
I heard most of it, here at the friendly confines, including the bit where a woman called up and asked if the candidates had ever been divorced, and then a second woman called up and asked Mr. Baril to answer the question posed by the earlier caller. Another caller asked whether Mr. McDonnell agreed with recent statements by Pat Robertson about activist judges being as bad as al Qaeda.
I don't know who was the winner, but it sounded to me like Mr. McDonnell had more fun with it. The questions (but for the ones described above) were mostly good, and the moderator did well with his follow-up questions. The answers were very detailed and mostly response, with occasional use of canned bits.
I heard most of it, here at the friendly confines, including the bit where a woman called up and asked if the candidates had ever been divorced, and then a second woman called up and asked Mr. Baril to answer the question posed by the earlier caller. Another caller asked whether Mr. McDonnell agreed with recent statements by Pat Robertson about activist judges being as bad as al Qaeda.
I don't know who was the winner, but it sounded to me like Mr. McDonnell had more fun with it. The questions (but for the ones described above) were mostly good, and the moderator did well with his follow-up questions. The answers were very detailed and mostly response, with occasional use of canned bits.
Tuesday, May 03, 2005
Solomon amendment plaintiffs' own version of don't ask, don't tell
If I knew, I had forgotten, the fact stated here regarding the plaintiffs in the Solomon Amendment case, about military recruiters on campusRedState.org ||: "Interestingly, most of the schools involved the lawsuit have refused identification. Several schools have admitted participation and many off the record interviews have cited possible alumni backlash, among other reasons, for wanting to keep quiet about participation in the suit."
In other words, the whoevers behind the lawsuit(s) would be fired.
In other words, the whoevers behind the lawsuit(s) would be fired.
AG Jagdmann to deliver commencement address at ASL
This press release says that Attorney General Judith Williams Jagdmann will be the graduation speaker on May 14 at the Appalachian School of Law. It will be ASL's sixth graduating class, which seems incredible.
The dean of the zoning lawyers in Virginia
The Washington Post has this profile on zoning guru John Foote, a lawyer in Northern Virginia.
I've heard John Foote speak at seminars. He wrote the zoning law chapter in the Local Government Attorneys handbook. When our firm had a zoning case go before the Virginia Supreme Court a few years back, we touched base with him before the argument, and he had some good insights. Besides which, listening to him on any topic is never dull.
I've heard John Foote speak at seminars. He wrote the zoning law chapter in the Local Government Attorneys handbook. When our firm had a zoning case go before the Virginia Supreme Court a few years back, we touched base with him before the argument, and he had some good insights. Besides which, listening to him on any topic is never dull.
Those Republican presidents all look alike
The Norfolk paper says here: "Of the nine members on the U.S. Supreme Court, seven were nominated by Presidents Ronald Reagan or George H.W. Bush. Only two had Democrat Bill Clinton as their benefactor."
I get the point, even though it is inaccurate, since Justice Stevens was appointed by President Ford.
I get the point, even though it is inaccurate, since Justice Stevens was appointed by President Ford.
Monday, May 02, 2005
Curious armed guard story
In Jordan v. Western Distributing Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Michael and Duncan and District Judge Stamp held, among other things, that the defendant employer was not liable for the conduct of its two employees.
The facts were these:
"Ronnie G. Sasser, Jr. (“Sasser”) and Stephen Philip Meininger (“Meininger”), while transporting currency in an armored vehicle pursuant to their duties as drivers and security guards for Western Distributing Company (“Western”) and its subsidiary, United States Armored Company, allegedly attempted to “cut off and to force
[Lloyd Jordan’s] vehicle off the road on numerous occasions.” Compl. ¶ 11. During the incident, Meininger also allegedly leaned out of the passenger window and repeatedly aimed a sawed-off shotgun at Jordan and threatened to “blow off” Jordan’s head. Id.
The Maryland State Police subsequently stopped and arrested Sasser and Meininger. Sasser was charged with possession of marijuana and carrying a concealed weapon without a proper permit. Meininger was charged with first degree assault of Jordan, second degree assault of Jordan, concealment of a deadly weapon, possession of a controlled, dangerous substance, and possession of paraphernalia. Sasser pleaded guilty to the marijuana charge and the State dismissed the weapon charge against him. A jury convicted Meininger of first degree assault against Jordan and possession of a controlled, dangerous substance."
So, now we know, armored vehicle drivers threatening people on the interstate with sawed-off shotguns are not acting outside the scope of their employment, at least in Maryland.
The facts were these:
"Ronnie G. Sasser, Jr. (“Sasser”) and Stephen Philip Meininger (“Meininger”), while transporting currency in an armored vehicle pursuant to their duties as drivers and security guards for Western Distributing Company (“Western”) and its subsidiary, United States Armored Company, allegedly attempted to “cut off and to force
[Lloyd Jordan’s] vehicle off the road on numerous occasions.” Compl. ¶ 11. During the incident, Meininger also allegedly leaned out of the passenger window and repeatedly aimed a sawed-off shotgun at Jordan and threatened to “blow off” Jordan’s head. Id.
The Maryland State Police subsequently stopped and arrested Sasser and Meininger. Sasser was charged with possession of marijuana and carrying a concealed weapon without a proper permit. Meininger was charged with first degree assault of Jordan, second degree assault of Jordan, concealment of a deadly weapon, possession of a controlled, dangerous substance, and possession of paraphernalia. Sasser pleaded guilty to the marijuana charge and the State dismissed the weapon charge against him. A jury convicted Meininger of first degree assault against Jordan and possession of a controlled, dangerous substance."
So, now we know, armored vehicle drivers threatening people on the interstate with sawed-off shotguns are not acting outside the scope of their employment, at least in Maryland.
City hall v. city hall
The AFP reports here that in Staunton, the city treasurer is about to sue the city council.
Sunday, May 01, 2005
U.Va. man on PGA tour makes playoff at New Orleans
James Driscoll, who played college golf for U.Va., is a tour rookie who made it to extra holes but came in second this afternoon in New Orleans at the Zurich Classic. Before this week, Driscoll had missed six cuts and made five, with his best finish in 16th place at Doral. The bummer is that he missed a five-footer on the 72nd hole that would have won in regulation. The winner's share of $990,000 goes instead to Tim Petrovic. Driscoll will have to settle for some $500,000+, which will move him up from 146 to No. 39 on the money list.
ACSBlog has Stone on filibusters
This ACS post quotes Geoffrey Stone on the filibuster.
I agree with almost all of it, except for the implication that the Republicans should be expected to do anything other than what they are doing, or that the Democrats in the same circumstances would not do the same thing. How could partisans do otherwise, but to press for confirmation of judges they believe are best for America?
From what little I know, and it is little, the several court of appeals appointees could have been confirmed, and nothing much would have changed. The ideological balance of the circuits will not be changed with then more appointees. The minority party, too, is exercising raw power for partisan purposes. The selection of the filibuster targets does not make much sense otherwise. There ought to be a way to root out real clunkers, but it is not clear to me that any of these are.
Stone writes: "The nightmare scenario is a moment in time in which one faction gains control of the White House, the Senate, the House and the judiciary, then uses that dominance to redesign the processes of government to ensure its perpetuation in power." I agree with that, too, but has that happened before? Sooner or later, the voters throw the bums out, and the academicians talk of "realignment." The more recurring scenario is "what comes around, goes around."
By the way, in my current stash of library books, among them is Stone's Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism.
I agree with almost all of it, except for the implication that the Republicans should be expected to do anything other than what they are doing, or that the Democrats in the same circumstances would not do the same thing. How could partisans do otherwise, but to press for confirmation of judges they believe are best for America?
From what little I know, and it is little, the several court of appeals appointees could have been confirmed, and nothing much would have changed. The ideological balance of the circuits will not be changed with then more appointees. The minority party, too, is exercising raw power for partisan purposes. The selection of the filibuster targets does not make much sense otherwise. There ought to be a way to root out real clunkers, but it is not clear to me that any of these are.
Stone writes: "The nightmare scenario is a moment in time in which one faction gains control of the White House, the Senate, the House and the judiciary, then uses that dominance to redesign the processes of government to ensure its perpetuation in power." I agree with that, too, but has that happened before? Sooner or later, the voters throw the bums out, and the academicians talk of "realignment." The more recurring scenario is "what comes around, goes around."
By the way, in my current stash of library books, among them is Stone's Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism.
The Washington Post takes on the New River
In The this article on whitewater rafting, the Washington Post says: "The New is a 320-mile Southern Appalachian treasure with headwaters in North Carolina's High Country. It's an old river and one of the few that flow south to north, meandering through a calm valley in southwestern Virginia and making its way into the Mountain State. Here, in the old coal country of south-central West Virginia, the river shows its wild side. For 53 miles it ruts through massive rock cliffs, creating the New River Gorge National River, designated a national park in 1978. Within its steep confines, the free-flowing New bustles with pounding rapids of tumultuous whitewater. This is Mother Nature's roller coaster."
Clemson Tiger hoopster turned Wahoo law grad becomes NC federal judge
This press release relates the interesting background of Bob Conrad, who was recently confirmed by the U.S. Senate as a United States district court judge for the Western District of North Carolina.
More on judge/novelist Martin Clark
The Winston-Salem paper has this lively profile of Judge Clark, who is more famous as a novelist than as a judge, at least outside of Patrick County and the rest of the 21st Circuit.
State officials slow to act against bad doctors?
The Daily Press has this report about the State Board of Medicine, which says: "Complaints against doctors have increased and the board received more money to hire investigators to gather evidence in recent years, but the number of doctors punished for breaking medical rules has stayed about the same since 2000."
The Judicial Conference on the 28th Circuit
In the 2004 report of the Judicial Conference of Virginia, the following was written about the proposal for a third judge for the 28th Circuit:
Caseload data for 2003 show that 5,107 cases were commenced in the Twenty-eighth Circuit during the year, an increase of 24.3% or 998 cases from 2002 levels. This growth was due to a rise of 0.4% in civil cases and an increase of 37.8% in criminal cases. The total number of cases concluded rose 16.7% during the year, from 3,636 in 2002 to 4,245 in 2003. The number of juries impaneled fell 42.9% from 35 in 2002 to 20 last year. The circuit judges averaged 11 jury trial days each during the year while the number of criminal defendants increased by 48 (or 6.2%) from 778 to 826. The two judges in the Twenty-eighth Circuit averaged 2,554 commenced cases each in 2003, ranking 3rd among the 31 circuits. The Twenty-eighth averaged 2,123 concluded cases per judge, 8th highest in the state in 2003. The number of commenced cases per judge was 723 above the state average of 1,831 and 560 above the rural average of 1,994. The number of concluded cases per judge (2,123) was 361 above the state average (1,761) and 205 above the rural average (1,918).
At the end of 2003, pending cases in the Twenty-eighth totaled 4,510, an increase of 29.0% over 2002 levels. The number of pending cases per judge stood at 2,255, 4th in the state among the circuits.
. . .
Of the 1,352 civil cases concluded in 2003, 28.4% were concluded prior to trial by settlement or voluntary dismissal. Bench trials accounted for 23.4% of concluded civil cases while 0.7% were concluded by a jury trial. Statewide, 30.0% of civil cases settled prior to trial in 2003, 20.1% were concluded by bench trial and 0.9% ended by a trial by jury.
Approximately 66.4% of civil cases concluded reached termination with 12 months of filing. Statewide, 71.3% of civil cases ended within that time frame. About 77.2% reached conclusion within two years while 9.3% actually took five years or longer. The Judicial Council's voluntary case processing time guidelines establish a goal of concluding 90% of civil cases within one year and 100% within two years.
The two judges in the Twenty-eighth Circuit averaged 746 civil cases each in 2003, ranking 8th among the 31 circuits. The state average for the year totaled 696 civil cases per judge, and the average for judges in rural circuits was 658 civil cases per judge.
...
The judges of the Twenty-eighth Circuit averaged 1,808 criminal cases each in 2003, 4th among the 31 circuits. This was 673 above the average for judges statewide (1,135) and 471 above the average for judges in rural
circuits (1,337 criminal cases each).
...
Based on historical data, the number of cases commenced in the Twenty-eighth Circuit is forecast to increase 4.9%, from 5,107 cases in 2003 to 5,356 in 2004. The number of cases concluded is expected to rise 4.2%, from 4,245 to 4,424. At the forecast caseload levels for 2004, the two judges in the Twenty-eighth Circuit would each average 2,678 commenced cases and 2,212 concluded cases. This number of commenced cases per judge would be 871 cases above the projected state average for 2004 of 1,807 cases per judge. The number of concluded cases per judge would be 478 cases above the projected state average of 1,734 cases per judge. If the additional judgeship is granted, the number of commenced cases per judge for the three judges would fall to 1,785, 22 cases below the projected state average of 1,807 cases per judge and 209 less than the 2003 average for rural circuits of 1,994. The number of concluded cases per judge would total 1,475, 259 less than the forecast average for judges statewide (1,734) and 443 fewer than the 2003 average for rural circuits (1,918 cases per judge).
Caseload data for 2003 show that 5,107 cases were commenced in the Twenty-eighth Circuit during the year, an increase of 24.3% or 998 cases from 2002 levels. This growth was due to a rise of 0.4% in civil cases and an increase of 37.8% in criminal cases. The total number of cases concluded rose 16.7% during the year, from 3,636 in 2002 to 4,245 in 2003. The number of juries impaneled fell 42.9% from 35 in 2002 to 20 last year. The circuit judges averaged 11 jury trial days each during the year while the number of criminal defendants increased by 48 (or 6.2%) from 778 to 826. The two judges in the Twenty-eighth Circuit averaged 2,554 commenced cases each in 2003, ranking 3rd among the 31 circuits. The Twenty-eighth averaged 2,123 concluded cases per judge, 8th highest in the state in 2003. The number of commenced cases per judge was 723 above the state average of 1,831 and 560 above the rural average of 1,994. The number of concluded cases per judge (2,123) was 361 above the state average (1,761) and 205 above the rural average (1,918).
At the end of 2003, pending cases in the Twenty-eighth totaled 4,510, an increase of 29.0% over 2002 levels. The number of pending cases per judge stood at 2,255, 4th in the state among the circuits.
. . .
Of the 1,352 civil cases concluded in 2003, 28.4% were concluded prior to trial by settlement or voluntary dismissal. Bench trials accounted for 23.4% of concluded civil cases while 0.7% were concluded by a jury trial. Statewide, 30.0% of civil cases settled prior to trial in 2003, 20.1% were concluded by bench trial and 0.9% ended by a trial by jury.
Approximately 66.4% of civil cases concluded reached termination with 12 months of filing. Statewide, 71.3% of civil cases ended within that time frame. About 77.2% reached conclusion within two years while 9.3% actually took five years or longer. The Judicial Council's voluntary case processing time guidelines establish a goal of concluding 90% of civil cases within one year and 100% within two years.
The two judges in the Twenty-eighth Circuit averaged 746 civil cases each in 2003, ranking 8th among the 31 circuits. The state average for the year totaled 696 civil cases per judge, and the average for judges in rural circuits was 658 civil cases per judge.
...
The judges of the Twenty-eighth Circuit averaged 1,808 criminal cases each in 2003, 4th among the 31 circuits. This was 673 above the average for judges statewide (1,135) and 471 above the average for judges in rural
circuits (1,337 criminal cases each).
...
Based on historical data, the number of cases commenced in the Twenty-eighth Circuit is forecast to increase 4.9%, from 5,107 cases in 2003 to 5,356 in 2004. The number of cases concluded is expected to rise 4.2%, from 4,245 to 4,424. At the forecast caseload levels for 2004, the two judges in the Twenty-eighth Circuit would each average 2,678 commenced cases and 2,212 concluded cases. This number of commenced cases per judge would be 871 cases above the projected state average for 2004 of 1,807 cases per judge. The number of concluded cases per judge would be 478 cases above the projected state average of 1,734 cases per judge. If the additional judgeship is granted, the number of commenced cases per judge for the three judges would fall to 1,785, 22 cases below the projected state average of 1,807 cases per judge and 209 less than the 2003 average for rural circuits of 1,994. The number of concluded cases per judge would total 1,475, 259 less than the forecast average for judges statewide (1,734) and 443 fewer than the 2003 average for rural circuits (1,918 cases per judge).
Theme for the day - premature nastiness of governor's race
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