Saturday, July 30, 2005

Contempt finding in custody matter based on mental health provider's testimony without consent reversed

In Schwartz v. Schwartz, the Virginia Court of Appeals in an opinion by Judge Elder reversed the contempt citation and attorneys' fees award against the appellant, where the appeals court found that the contempt finding was based primarily on testimony from a mental health provider in violation of Va. Code § 20-124.3:1.

The Court explained:

"In 2002, however, the General Assembly passed new legislation specifically limiting the admissibility of mental health records in child custody and visitation proceedings,"

and concluded -

"We agree with mother and hold that, in this case 'in which custody or visitation of a minor child is at issue pursuant to § 20-124.2,”3 the trial court erroneously admitted testimony 'concerning a parent' that constituted 'information obtained during . . . therapy.'"

On the criminal contempt prosecution of the Petersburg sheriff

The power struggle between a local sheriff and court officials reached the Virginia Court of Appeals, as it considered a number of issues related to the criminal contempt conviction of the sheriff in Epps v. Com. In an opinion by Judge Frank, the Court held: (1) the court order with which the sheriff had refused to comply was not void, (2) the trial court erred in allowing the testimony of a sitting judge as evidence against the sheriff, (3) the ambiguity as to whether the contempt proceedings were civil or criminal was not ambiguous enough for the sheriff to show that his rights to the protections of criminal procedure were violated, and (4) notwithstanding his limited funds, the sheriff had no impossibility defense to the charge of contempt, as he could have complied with the order.

Does McDonnell Douglas survive Desert Palace?

In Diamond v. Colonial Life & Accident Ins. Co., the Fourth Circuit in an opinion by Judge Motz, joined by Judge Widener and Senior Judge Hamilton, affirmed summary judgment for the employer, where the plaintiff had raised various claims of employment discrimination.

In so doing, the Court rejected the plaintiff's argument "that the Supreme Court’s recent decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), rendered the 'shifting burden test . . . no longer . . . applicable' in Title VII cases at the '[s]ummary [j]udgment stage.'"

In response, the Court observed in a footnote:

"Notwithstanding our clear recognition in [Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004) (en banc)] of these principles and the continued vitality of the McDonnell Douglas framework, Diamond insists that after Desert Palace that framework is "no longer a tool which can be used to dismiss a Title VII case at the [s]ummary [j]udgment stage." Her argument finds no support in the text of Desert Palace, which does not even mention McDonnell Douglas. Moreover, since deciding Desert Palace, the Supreme Court has continued to invoke the burden-shifting framework in pretext cases. See Raytheon Co. v. Hernandez, 124 S. Ct. 513, 517 n.3, 518 (2003); see also Johnson v. California, 125 S. Ct. 2410, 2418 n.7 (2005). Our sister circuits have also rejected the view that Desert Palace nullified the McDonnell Douglas framework. See, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005); Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1018 (8th Cir. 2005); Cooper v. Southern Co., 390 F.3d 695, 725 n.17 (11th Cir. 2004)."

War protester's conviction of being in restricted space where the President was visiting upheld

Earlier in the week, in the case of U.S. v. Bursey, the Fourth Circuit in an opinion by Judge King, joined by Judge Motz and Senior Judge Siler from the Sixth Circuit, upheld the criminal conviction of a fellow who showed up to protest at an appearance by President Bush at the airport in Columbia, SC.

The charge was brought under 18 U.S.C. § 1752, under which "It shall be unlawful for any person . . . (1) willfully and knowingly to enter or remain in . . . (ii) any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting. . . ." The protester was tried before a magistrate judge and fined $500. On appeal, the amici supporting the appellant included: DKT LIBERTY PROJECT; PEOPLE FOR THE AMERICAN WAY; NATIONAL LAWYERS’ GUILD; FIRST AMENDMENT FOUNDATION; PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS; and PEOPLE’S LAW OFFICE OF CHICAGO. Arguing for the appellant were Jeffrey E. Fogel, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York, and P. Lewis Pitts, Jr., ADVOCATES FOR CHILDREN’S SERVICES, Durham, North Carolina.

The appellant raised two issues, that the "restricted area" was not really restricted, and that his remaining in the area was not willful and knowing in violation of the statute. The Court rejected both contentions, in affirming the conviction.

Are family courts finally coming to Virginia?

Some judges have dusted off their crystal balls in Colonial Heights, where The possibility of Family Court factors into courthouse decision.

The article says that Chief Justice Hassell is trying to drum up support for the Family Court system that was proposed more than 10 years ago but never funded:

"In September, a Supreme Court committee assigned to the project will report an updated proposal on Family Court to the Judicial Council of Virginia. If approved, it will be introduced to next year's General Assembly.

If it survives, Family Court will then enter into planning stages and each Virginia court would assess its facilities and report back what it needs to accommodate the new system."

I remember attending a meeting of the Bristol Bar where candidates for the never-funded Family Court judgeship asked for the bar's support. That seems like a long time ago.

Your first American legislative session in Virginia on July 30, 1619

This fine post contains A salute to July 30, 1619, and the folks of Jamestown.

It says in part: "The first elected assembly in the New World has its inaugural meeting today in Jamestown, Virginia in 1619."

Writing resources

In this Minor Wisdom post, Raymond points to his discovery of a page full of links on writing at N.C. State.

The page begins with six excellent rules from George Orwell:

* Never use a metaphor, simile, or other figure of speech that you are used to seeing in print.
* Never use a long word where a short one will do.
* If it is possible to cut a word out, always cut it out.
* Never use the passive where you can use the active.
* Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
* Break any of these rules sooner than say anything outright barbarous.

Slashdot takes on embryonic stem cell research

For a lively debate among the Slashdotters, here is a run of comments kicked off by a report on some medical research involving the spines of rats.

The Remote Area Medical event at Wise

Here is the story in today's Bristol paper, with the headline, "Too Many to Treat." The story says: "Friday’s numbers puts RAM on track to top its record-breaking visit to Wise last year, when 6,000 uninsured, unemployed or underinsured made the clinic the largest in the nation. It even topped some international records for most patients treated in a single day."

Here are recorded the impressions of the Tim Kaine campaign staffers who attended the RAM event.

This article in the Coalfield Progress said: "A record 140 physicians, nurses, lab technicians, pharmacists, radiologists and other employees of the University of Virginia will staff the RAM event and offer medical services to an anticipated 6,000 patients, according to the UVa Health System."

Here is the link for the Remote Area Medical Foundation, based in Knoxville.

Here is a pile of information from Southwest Virginia GMEC of U.Va.-Wise about the state of the population and the health care business in far SW Virginia.

Those stupid signs on the interstate

It says in the Kingsport paper: VDOT hails smart traffic technology after I-81 closure.

I rode to Roanoke earlier this week and marveled once again at why are there more lanes on Interstate 81 at Bristol than at Salem-Roanoke, and why is Exit 118 so ugly, and will all of Interstate 81 have those canyon walls one of these days. Also, I've been listening to debate on the radio about exactly who is to blame for the lack of progress on the Coalfields Expressway.

The lack of animated traffic control signs was not at the top of my list of grievances against VDOT. I suspect that the new signs are yet another experimental gimmick for which the Commonwealth (and/or the federal government?) has overpaid, like this one.

Friday, July 29, 2005

How do you define belly dancing in Norfolk?

The answer is, very carefully, according to this great story in the Norfolk paper.

The upset eBay buyer case

CNET reports here on the story of the upset eBay buyer who made a house call.

Is zoning the cause of the housing bubble?

Will has this post which points to a recent study on the "zoning tax."

Strangely enough, I just read this article which suggests that there is a "zoning tax" but not in very many places, just New York and California.

South Carolina city's parade ordinance unconstitutional

In Cox v. City of Charleston, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judges Traxler and King, affirmed the District Court's ruling that two sections of the parade ordinance of the City of Travelers Rest, S.C., are unconstitutional, as the ordinance contains no small gathering exception and it arbitrarily prohibits parades on Sunday mornings.

The unsupported damage claim in federal court

Earlier this week, in an unpublished opinion in the case of Bizprolink, LLC v. America Online, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Traxler and Duncan and Senior Judge Siler from the Sixth Circuit ruled that the trial court had erred in dismissing the plaintiff's case for failure to produce better evidence of its damages, instead of the lesser remedy for the alleged discovery violation of limiting the plaintiff's damages evidence at trial to what evidence it did have.

So, what are they saying here? The trial court cannot rule both that the universe of evidence that the plaintiff can use at trial is X, and that X will not support a jury verdict for the plaintiff and therefore there should be no trial? Maybe that's not it.

The County Supervisor certification program

Worried about the skills of your local representative on the county board of supervisors? Maybe you need to send him or her off to this Virginia Tech-VaCo program to learn more about how to be a good supervisor.

"The program will provide participants with an overview of basic issues, expectations, and practices associated with serving as a county supervisor as well as detailed information regarding local government."

Virginia Wine & Garlic Festival is located where?

Here is a map that shows where will be held the Virginia Wine and Garlic Festival - in Amherst County, October 8 and 9. Heck, you can get there from here, why not do it?

I never heard of it before I saw this Crescat post.

On racism, schools, and SUVs

I've posted a couple of comments to the effect that I think the claim that candidate Kilgore's comments about "good students" not being admitted to Virginia schools does not seem to have anything to do with race, but that's just my opinion. (I would link to them, but they're on Waldo's site, which is only live about half the time.) The odd part is the claim that they are good students from Northern Virginia. I always though the complaint around here was that the high achievers in the lower performing rural schools could not get into to William & Mary or U.Va. while 25 kids from one Northern Virginia school did, or 15 kids from some prep schools in New Jersey did. That may be a different form of prejudice, but not precisely about race.

On the other hand, I certainly agree with this post, which suggests that GM's advertising is not subtle in pointing out that among the intended beneficiaries of the company's latest pricing gambit are would-be buyers other than white males, who don't have to dicker with white male car salesman to get the benefit of the program.

Thursday, July 28, 2005

How to look like a sore winner

In Ford v. General Electric Lighting, LLC, Judge Wilson whacked the successful defendant's application for costs as excessive, including the costs of deposing some of the witnesses twice, without leave of court.

How did they get to do that, I wonder, but then again I once had a case where the Court let the defendants depose my guy three times, over a period of years including two trials.

A survey on trial practice from the National Center for State Courts

The NSCS has some questions here about your last trial, wherever or whenever it was.

Looking down the list of questions, I think there has been substantial voir dire by the lawyers and written instructions in the jury room in every jury trial I've ever had, but I may be mistaken about the latter.

Pleading states Virginia law defamation and outrage claims against NY Times for articles on anthrax investigation

In Hatfill v. NY Times, the Fourth Circuit in an opinion by Judge Shedd, joined by Chief Judge Wilkins with Judge Niemeyer dissenting, held that the district court erred in dismissing for failure to state a claim the complaint of Dr. Steven J. Hatfill against the NYT and columnist Nicholas Kristof for what was published about him in connection with the anthrax investigation by the FBI. Kristof was dismissed from the case prior to the appeal for lack of personal jurisdiction.

Judge Shedd explained, first of all: "To the extent that the district court applied a stricter standard to Hatfill’s complaint than the ordinary standards under Rule 12(b)(6), that was error." Judge Shedd concluded the pleading was sufficient as to both defamation and intentional infliction of emotional distress under Virginia law and federal pleading standards. Judge Shedd also concluded that the whole of the refiled claim was timely, even though the defendant argued and the district court concluded that the refiled claim was broader than the original claim that was non-suited, as to which there was tolling of the limitations period under 8.01-229E3.

Judge Niemeyer in dissent concluded that the columns did not impute any criminality to the plaintiff, and that the defendants conduct was not that outrageous.

Interestingly, I think that on these two torts, defamation and intentional infliction of emotional distress, there is a very wide gap in the pleading standards under state and federal law - the state law is much more demanding on what is necessary to plead either claim, and much more than notice pleading is required in state court.

Stupid open-air malls

This article about whether shoppers don't go as much to the new Richmond-area open-air malls when the temperatures are soaring makes me think somehow of the old Yogi Berra phrase when he said, speaking of a restaurant, "Nobody goes there any more, it's too crowded."

The Washington Post takes the road to Damascus

In The Roads to Damascus, the Washington Post describes Damascus and the Creeper Trail.

The Atkins case goes to trial

The Norfolk paper reports here on the continuing criminal proceedings against Daryl Atkins, of the famous Supreme Court case by the same name.

The article says:

"The bad news for Atkins: He’s been scoring higher on recent intelligence tests – up to 76. One theory is that the time Atkins has spent working on appeals with his attorneys has sharpened his mind."

Republicans sue their carrier for failure to pay the eavesdropping damages

The AP reports here that the Virginia Republican Party is suings its liability insurance carrier in federal court in Richmond.

As if the bar exam was not difficult enough

Rex Bowman of the MG papers reports here that the bar examinees were melting in Roanoke this week.

The thermometer on Jim Elliott's truck said it was 101 outside as we were driving through Salem yesterday.

When I'm King for a Day, the dress code for the bar exam will be relaxed.

Sunday, July 24, 2005

Kilgore polling bummer

The latest poll showing Kilgore down to Kaine is not going to make me go out and tear off my Kilgore bumper sticker, but it did give me cause to look up this chart showing that in the last race I was following, there was a low point for the Republican candidate at about this time of the summer.

Perhaps it's the weather.