Saturday, June 11, 2005

This week's Virginia Supreme Court opinions

Here are the summaries from the Court's website and here is Steve Emmert's review.

I may take a look at them myself later on this weekend.

McDonnell went to Bishop Ireton

One thing I never knew before I read this Post profile on Bob McDonnell was that he went to Bishop Ireton and his father still lives in Northern Virginia. (Two of my buds in law school went to Ireton.)

I'm not sure, though, whether that will help him get my wife's family's votes, since she and her sister went to O'Connell.

Brian Patton says Linda Tiller to run against Bud Phillips

Brian Patton says here that Russell County attorney Linda Tiller is said to be the Republican candidate to run against Del. Phillips. I know Ms. Tiller a little bit from a case way back when.

If my memory is correct, some years back, her husband Jerry Tiller ran as an independent in the Commonwealth's Attorney's race in Russell County, which surely didn't help the Republican candidate, who is now a federal magistrate judge. I never did hear what all that was about. Was that ten years ago? I can't remember.

I've not yet decided what to make of the new website, Check it out.

Richmond lawyer, cancer patient, blogger

102704 is the blog of Richmond lawyer Jim Guy about his experience with cancer, and is written up here in the Richmond paper.

The first post I read gives some cause for optimism, as it concludes with his answer to those "have asked me how long I'm going to keep the blog going. I'm not sure. I'm looking for a point where I can sign off, saying "and he lived happily ever after." It's hard to say when that will be, but I hope I'll know it when I see it."

Reading other posts, I must confess, selfishly, it occurs to me that Crohn's disease by contrast is a walk in the park. Good luck and good health to you, Jim.

The Washington County teacher who taught about creationism on the side

Findlaw News picked up Creationism Teacher Is Told to Stop, about a science teacher down the road at John Battle, between here and Bristol.

AWOL on Friday

On Friday, I went to this seminar of the Local Government Attorneys of Virginia, which included some excellent presentations by John Rife of the Linebarger Goggan firm (tax collection specialists) and Greg Haley from Gentry Locke.

Then, I went to the investitute of Judge Isaac St. Clair Freeman as the new judge of the 28th Judicial Circuit, which was held at the much-restored Lincoln Theater in Marion.

Then, I stopped by to sample the fare at Miller's Market at the junction of Rte. 80 and U.S. 11 at Exit 24. My friends there have got the stuff, go eat some.

Thursday, June 09, 2005

The South's earliest law school?

From the soon-to-open Charleston School of Law website: "In February 1826, The Forensic Club offered lectures in the law to begin what essentially was the South's earliest law school."

From the law school of the College of William & Mary: "The Chair of Law at William & Mary, created in 1779 by the Board of Visitors at the urging of Thomas Jefferson, was the first established in the United States. The first occupant of the Chair was George Wythe, in whose offices studied Thomas Jefferson, John Marshall, James Monroe and Henry Clay. Wythe, a leader in the struggle for independence, was a signer of the Declaration of Independence and a member of the Federal Constitutional Convention. He became a powerful force in the development of American legal education. During the decade of his professorship, he developed a comprehensive course of law study which emphasized the acquisition of practical skills in such areas as legislative drafting and oral advocacy. "

Who can be criminally liable for violating HIPAA

Here, via the HIPAAblog, is a Justice Department memo about the scope of the criminal enforcement provisions of HIPAA.

HIPAA has entered the legal vocabulary with almost the same ubiquity as terms like "the IRS", and even beyond those such as "CERCLA" and "COBRA."

Wednesday, June 08, 2005

They probably went wild and broke out the Grape Nehi down at the Southern Appeal

Front and center for Judge Pryor's confirmation have also been Steve and the gang at Southern Appeal, and no doubt they were more than pleased to report here today's cloture vote. With Pryor's situation resolved, the Southern Appealers may have to cut back their blogging to 4 days a week.

Motion to dismiss denied in Waffle House discrimination case

This story about a case in the E.D. Va. begins: "A federal court has refused to dismiss an equal-rights lawsuit claiming the staff of a Virginia Waffle House restaurant discriminated against five minority customers when they were served grits laced with flies."

The new book on Christiansburg

The Roanoke paper has this article on the new book, Christiansburg (Images of America: Virginia), my mom's hometown.

On the Fourth Circuit's partial birth abortion ruling and the elections

AFP has this article in which various pundits opine that, notwithstanding the fears of some Democrats, the recent ruling against the 2003 Virginia law banning partial birth abortion will not energize pro-life voters, because there is no one on the ballot to blame; instead, voters will blame "the justices of the Fourth Circuit" (or something like that).

If so, the issue might be more important if Senator Warner runs for re-election, since unlike state government officials, he has some say in who gets to be on the federal courts of appeals, especially some seats on the Fourth Circuit.

Norfolk paper likes Judge Humphreys for DNA review, tells him how to do it

The Norfolk paper in this editorial comments favorably on the selection of Court of Appeals Judge Humphreys to head a review into the state crime lab's handling of DNA cases and proceeds with a checklist of things for him to do.

Scott County electoral board backs Ms. Kilgore

Here in the Roanoke paper is an article that says the new members of the Scott County electoral board, with a majority by law being Democrats, have endorsed the good works of the country registrar of voters, Ms. Kilgore.

UPDATE: I don't know why I wrote "Republicans" earlier, sorry about that. The makeup of the electoral board is tied to the outcome of the last governor's election. Va. Code § 24.2-106 ("In the appointment of the electoral board, representation shall be given to each of the two political parties having the highest and next highest number of votes in the Commonwealth for Governor at the last preceding gubernatorial election. Two electoral board members shall be of the political party that cast the highest number of votes for Governor at that election.")

Perhaps I was having some kind of flashback to a hard-fought electoral board case from about 10 years ago.

Carrying on about Crawford

In Hodges v. Com., the Court of Appeals in an opinion by Judge Elder, joined by Judges Frank and Humphreys, rejected, among other things, the defendant's constitutional arguments about the use of hearsay evidence to convict him, construing the Supreme Court's recent application of the Confrontation Clause of the Sixth Amendment in Crawford v. Washington, 541 U.S. 36 (2004).

More on the dispute over who is the Floyd County prosecutor when the elected officer is off to Iraq

The Roanoke paper reports here on oral argument before the Virginia Supreme Court in the dispute of who gets to be the prosecutor in Floyd County.

The state association of commonwealth's attorneys has taken the side of the incumbent, while the local bar association wants one of their own picked as the replacement for the incumbent.

No jurisdiction in Court of Appeals to consider propriety of remand order in administrative law case

In Department of Professional and Occupational Regulation v. Lancaster, the Court of Appeals in an opinion by Judge Benton concluded that it had no subject matter jurisdiction of what it concluded was an appeal of a non-final order remanding a disciplinary matter back from the circuit court to the state agency.

225 unreturned calls?

In this story from the Bristol paper, an accused murderer "complained that he made 225 calls to attorney Barry Proctor's office that went unreturned."

I imagine Mr. Proctor, a good guy and good lawyer who has done very well in representing defendants in a high profile murder cases that come to mind, was not entirely displeased when the court let him out of the case.

Tuesday, June 07, 2005

117 pages from Judge Sargent in the ex-Paramont employees pension case

Without commenting on the merits of the opinion by Magistrate Judge Sargent in Adams v. Brinks, its length gave me occasion to recollect that I once filed a brief that was 105 pages long.

Some time later, I confessed to the judge that even my wife had chided me over the contradiction between a 105 page paper and calling it a "brief." He replied: "well, did she also say what would be perfectly obvious to everyone else, which is that there's no way you expect the judge to read all that, do you?" I had no response. Fortunately, someone must have found the good parts, as the motion was granted.

The Rolling Stones in Charlottesville, now this?

I'm not sure what to make of this statement, from RollingStone magazine online: "Sirius satellite radio will air an exclusive JIMMY BUFFETT concert live from Bristol, Virginia, on June 15th to launch its new Radio Margaritaville channel."

UPDATE: Of course, it was a typo. The concert is at the Nissan Pavilion, in Bristow, Virginia, outside of Manassas.

I saw Buffett in Charlottesville, some time or another, way back when.

I greatly enjoyed the recent WSJ article about Jimmy Buffett and Warren Buffett.

First judgment for Virginia under federal Do Not Call

It says here: "A Newport News, Va., firm has been ordered to pay $196,000 for violating the federal Do Not Call law. Virginia Attorney General Judith Jagdmann said it was the first time Virginia has prosecuted a company under the federal statute."

Federal employment cases by the numbers

Via LawMemo Employment law blog, I see that in How Employment Discrimination Plaintiffs Fare in Federal Court by Kevin Clermont, Stewart Schwab, downloadable via SSRN, the authors conclude regarding federal court employment discrimination plaintiffs that "relatively often, the numerous plaintiffs must pursue their claims all the way through trial, which is usually a jury trial; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs."

Two dash or not two dash

In this free story from VLW are reported plans to reorganize the Virginia Code in 2007, including a move from a "one dash system" (e.g., § 2.2-3119) to a "two dash system" (perhaps, e.g., § 2-31-19). In other words, Virginia is taking a bold leap to, er, be like Tennessee.

Congressman Boucher on DTV

In this article, Congressman Boucher explains that there will be no law requiring the changeover to digital television without the inclusion of a subsidy for poor, rural, analog television owners to get a $50 set-top converter box.

Monday, June 06, 2005

Predicting gridlock for the West Virginia part of Interstate 81

This article reports some expert's forecast that traffic will soon grind to a halt on the stretch of Interstate 81 in West Virginia, which according to this page is a distance of 23 miles.

I knew that high school yearbook editing experience would come in handy some day

Once again, victory in the Commonwealth Conservative Caption Contest.

The answer on medical marijuana and interstate commerce

Regarding the medical marijuana case, in October 2003, I wrote in this post: "How will they distinguish the Agricultural Adjustment Act case from 1942?"

And, from today's decision in Gonzalez v. Raich, we know the answer is, Wickard is controlling, the federal power to regulate interstate commerce trumps whatever rights a state has to legalize medical marijuana.

I heard Marc Bernier's token liberal commentator, Ellen Ratner, wailing and moaning about this decision this morning on the radio. Perhaps she can't figure out which side of the bread has the butter on it; this reaffirmation of federal power is a "victory" for the "liberals," all of whom plus Justice Kennedy joined in the majority opinion in the case. Ellen shrieked, "this [medical marijuana] will never pass Congress!" The only solution for those who agree this is a problem is to vote in a different Congress. I don't see why she expected the Court to help on a question like this one, where the federal power is so entrenched in New Deal-affirming precedent.

Two sets of online polling figures


Do you think it is unethical and should be illegal for legislators to represent paying clients before state agencies? (2044 total votes)

Yes,It's unethical and should be illegal - 70.5%

No, It's ethical and should remain legal - 29.5%

From the Augusta Free Press Election 2005:

Who should be the next attorney general in Virginia? (365 votes total)

Steve Baril 12%
Creigh Deeds 33%
Robert McDonnell 54%
Other 1%

Sunday, June 05, 2005

Ex-U.Va. football coach in Berlin

During a break in the action at The Memorial, I flipped over to the NFL Europe game, and the coach looks familiar. That's the old U.Va. guy, I thought. What was his name? The answer is Rick Lantz, and evidently he's still going strong over there (even though his team the Thunder lost to Cologne in the game broadcast this afternoon).

By gosh, the course where they played the Memorial just looks fantastic. Add that to the list of golf tournaments I'd like to go see.

They could nail me for this every day of the week

It says here in the Fredericksburg paper:

"I came across a story about a preacher who in 1923 was arrested and convicted in Newport News for singing religious songs too loudly while driving through town in his car. The Virginia Supreme Court upheld the conviction."

Heartwarming tale of federal practice in Eastern KY

From 3L post, I see that I'm not the only one who took note of the comment by Judge Hood of the E.D. Ky. in this Post article that he's proudly packing heat.

Does Judge Hood still come to Pikeville, I wonder.

Save a burger for Jerry

I finally read (and heard) here the actual details of the Cookouts for Kilgore on June 7. (I guess I'm slow.)

The message is that Mr. Kilgore will join the cookout people via a conference call with a special guest.

I hope none of the Kaine people try to listen in on the call.

Only in the Appalachian League

As reported in this Johnson City Press story, a while back, City Council member and then mayor Pete Paduch tried and failed to get into a Johnson City Cardinals game without paying, and later confessed that he did not have the $3 for a ticket. Now, the Cardinals are planning a promotion based on this story:

"Foundation President Jeff Banyas said the JCSF officials figured they might be able to turn all of that negative attention into a plus this year by promoting the Aug. 8 game against the Bluefield Orioles as Mayor’s Night, during which all fans may enter free if they tell ticket booth workers, 'I don’t have $3.'"

Funky headlines for this AG story

Under the headline, "Neophyte Claims Inroads in Va. Race, Lt. Governor Contest Shows GOP Divide," the Washington Post has this story about the race between Steve Baril and Bob McDonnell.

It looks like they took a headline for a Bolling-Connaughton story and put it on a Baril-McDonnell story.

Alien invasion

It says here in the Richmond paper that the National Republican Party is getting ready to send in a bunch of its professionals to help out Virginia Republicans in this fall's elections.

On whether and how judges write their own opinions

Which Judges Write Their Opinions (and Should We Care)? by Stephen Choi, Gaurang Gulati, available for download via SSRN, deals with the interesting topic of whether it is possible to figure out which judges do most of their own writing, and what is the usefulness of knowing who all contributed to the writing of opinions.

The article notes that postings on the Greedy Clerks message board indicate "that Judges Posner, Easterbrook, Garza, and Niemeyer are among those federal circuit judges most likely to author their own opinions."