Friday, August 19, 2005

C. Bascom Slemp almost gets into Wikipedia

Here is a new Wikipedia entry in progress for former 9th District Congressman C. Bascom Slemp, the namesake of the federal courthouse in Big Stone Gap.

Still more on Kelo

The Fredericksburg paper says here: "Areas such as our own, where land is at a premium (and new sources of tax revenue are always welcome), are seen as particularly juicy targets. Virginia lawmakers owe their property-owning constituents the peace of mind that their homes won't be traded in for more lucrative uses."

Sliding scale zoning in Fauquier County challenged in court

According to this article from, a suit has been filed challenging the "sliding scale" zoning for rural and agricultural districts in Fauquier County.

My alma maters meet the press

U.S. News has this report ("Jefferson's Public Ivy") on the University of Virginia, while Newsweek/MSNBC has this take ("Hottest Small State School") on the College of William & Mary.

E-filing snafu merits remand

This Findlaw article describes a case where the final order went down just as the District Court was starting its use of the e-filing system and some of the lawyers for whatever reason did not get notice until after the appeal time had passed. The Eighth Circuit remanded the case for a hearing.

The O'Reilly factor

Bill O'Reilly is always saying: "Jessica's Law could be and should be enacted quickly in every state."

It appears that AG candidate Bob McDonnell agrees, as to Virginia.

Thursday, August 18, 2005

The important stuff Virginia lawyers debate

Here Jaded JD reveals that he and I have been debating the correct spelling of "Reuben" (so I say) as in the good sandwich.

He didn't cite the Google vote: "Reuben sandwich" - 22,800 results; "Rueben sandwich" - 3,510 (with the dreaded Google question, "Did you mean: 'Reuben sandwich'").

Why new pharmacy schools in Grundy and Johnson City?

This post says: "USA Today on Wednesday examined the nationwide pharmacist shortage (USA), which is most severe in high-growth states -- such as California, Florida and North Carolina -- and in more rural states -- such as Missouri, Maine and West Virginia. The nation's 37,000 chain stores had about 6,000 open pharmacist jobs in January. . . ."

Federal tort trials and verdicts, 2002-2003

Here, via this RiskProf post, is a study of the outcomes of tort cases in federal court during the period 2002-2003.

Some highlights:

"From 1985 to 2003 the number of tort trials terminated in U.S. district courts declined 79%."

"The growing use of alternative dispute resolution (ADR) is frequently cited as a primary contributor to the falling trial rate. The AOUSC reports that in 2002 mediation and arbitration programs were used in 49 Federal judicial districts and impacted more than 25,000 civil cases. Other legal scholars have speculated that the increased complexity and costs inherent in taking a case to trial have contributed to the decreasing number of trials in U.S. district courts."

In 2002-2003, "[p]laintiffs won in almost half of tort trials, and the estimated median award garnered by plaintiff winners in these trials was $201,000."

"Plaintiffs prevailed in over half of personal injury tort trials involving Federal employers’ liability (69%), motor vehicle (57%), and marine (54%) claims. In comparison, plaintiffs won less frequently in assault/libel/slander (38%), medical malpractice (37%), and product liability (34%) tort trials decided
in U.S. district courts."

"Although judges found for plaintiffs more often than juries, the estimated median damage award was higher in jury ($244,000) than in bench ($150,000) tort trials."

Tuesday, August 16, 2005

Jerry on the caliber of my section 1983 litigation posts

Jerry says here there may or may not be a bunch of buckshot in my section 1983 litigation posts, there's really no telling either way.

The point was that the Supreme Court has been making it more difficult for people to sue state officials and local governments to enforce some kinds of federal law rights, including Medicaid, housing subsidies, etc., and this is sort of a trendy topic (thus the NYT piece) because Judge Roberts argued one of the main cases. FERPA is the federal law requiring schools to keep records on students private.

This is not the first time I've been heckled about acronyms and other obscurities on this blog, but JF is right, it's what I like.

Monday, August 15, 2005

On the agenda for the next Richmond trip

I don't expect it will agree with me, but I'm thinking about a Sailor sandwich, if I get there before the place closes down.

The Kelo kicker from

According to this post, the authorities in Connecticut are not only taking the land, but charging rent for the period during which the takings were litigated. Holy catbirds!

Continuing on the theme of federal programs and section 1983 claims

In Caswell v. City of Detroit Housing Commission, the Sixth Circuit held that the plaintiff has no section 1983 claim based on the alleged denial of the benefits of the Voucher Program created by regulations implementing Section 8 of the United States Housing Act of 1937. In reaching its conclusion, the Court applied the FERPA case, Gonzaga University v. Doe, 536 U.S. 273 (2002), argued by John Roberts, that was cited in today's article on Medicaid in the NY Times, discussed below.

The Court said:

"Accordingly, when Sandoval and Gonzaga are read together, it becomes clear that in order for Caswell to bring a viable claim under § 1983, he must show that the right, of which he seeks vindication, is conferred by Congress in “clear and unambiguous terms.” Gonzaga, 536 U.S. at 290; id. at 286 (“[W]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.”). Furthermore, the right conferred must be “phrased in terms of the persons benefited.” Id. at 284 (internal quotation marks omitted). “Statutes that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.” Sandoval, 532 U.S. at 289 (internal quotation marks omitted). The Court made clear in Gonzaga that where a statute simply prohibits certain conduct, or sets forth a policy, that statute does not create a cause of action or other rights for the individual protected by the statute. See 536 U.S. at 287-288."

On the popularity of Coach Welsh

Virginia papers have published many articles lately about former U.Va. football coach George Welsh, including this one from the Norfolk paper. For a pretty dry character, his popularity is great.

Not that I get carried away with these things, but well I recall the night when they unveiled the bust of the Coach at Scott Stadium, and he was the star of that night's episode of Cavalier Man, and the scene that night brings to mind a snippet from Martin Gilbert's Churchill: A Life, in which Churchill reports on a victory parade reuniting some old regiments from the Boer War, and he wrote that "old friends breaking from the ranks gripped each other's hands and shouted, everyone was carried away, and I waved my feathered hat, and cheered and cheered until I could cheer no longer for joy that I had lived to see the day."

Mudd case clarifies the law of attorneys' fees in Social Security cases

In Mudd v. Barnhart, the Fourth Circuit in a published opinion by Judge Michael, joined by Judge King and District Judge Spencer, affirmed the determination by Judge Conrad of the W.D. Va. on attorneys' fees in a Social Security case, notwithstanding the Commissioner's argument that "the amount requested ($12,231.50) divided by the number of hours spent in court-related work (16.6) yielded 'a windfall to counsel" in the form of an hourly rate of $736.84.'"

The Washington Post on the coal boom

Via this RK post, I see today's Washington Post article titled Next Generation Moves Into the Black, which begins: "A new generation of miners is in training in central Appalachia, where a onetime hub of the nation's coal industry is recovering from prolonged slumps that shuttered mines, bankrupted companies and whittled away the life from communities."

The article says:

"Many people are skeptical of whether the miner hiring boom is here to stay -- and whether it will have the broad impact it had generations ago in lifting miners and their families from poverty.

This is still a depressed corner of the Virginia, where in many stretches, one in four people live below the poverty line. Old mountain burgs and coal hollows that once hummed with life still line winding country passes, only now many are depressed, their company stores boarded up. As jobs left in recent decades, so did the people.

Now, as the industry experiences an increase in prices, local governments -- which depend on taxes from coal companies to finance roads and other public works -- also find themselves better off. And small businesses that supply coal companies with equipment have started to sprout up throughout Virginia's seven coal-bearing counties."

Interesting article on federal rights, section 1983 litigation, Medicaid, and Judge Roberts

The NY Times (registration required) has this interesting article on the trend in the law that Medicaid recipients cannot sue state actors under section 1983 to enforce some provisions of the Medicaid law.

Sunday, August 14, 2005

Governor Richardson declares a border emergency

I've not quite been following the campaign issue of illegal immigrant workers in Virginia, but in New Mexico, the Democratic governor and former Clinton cabinet member Bill Richardson has declared an emergency on the Mexican border.

Perhaps Jeff Schapiro will join the government of Mexico in denouncing this step as based on improper "generalizations" and involving demonization of Hispanics.

On the upcoming W.D. Va. capital murder case

In U.S. v. Bodkins, Judge Conrad ruled on a variety of interesting issues in the case of two defendant charged with some kind of capital murder case. The Court agreed to allow defendants some additional peremptory strikes, depending on the size of the jury pool. The Court announced that the questioning of the jury on death penalty issues would be done in groups of three. The Court agreed to warn the jurors not to read about the case on the Internet (including, I suppose, in places like this blog). The Court refused to exclude evidence of a statement by the decedent to his girlfriend, made a half hour before he was shot and reported to authorities a day or two later. The Court rejected the defendants' arguments that their out-of-court, non-testimonial hearsay statements implicating each other should not be admitted, applying Crawford v. Washington, 541 U.S. 36 (2004), Ohio v. Roberts, 448 U.S. 56 (1980), Bruton v. United States, 391 U.S. 123 (1968), and Lilly v. Virginia, 527 U.S. 116 (1999). The Court denied the defendant's motion for severance. The Court refused to order production of redacted presentence reports on other witnesses.

The Lynchburg paper has this article bout the case, which says that the trial scheduled for four weeks will begin on Monday in Lynchburg. According to the article, in the case, the government "accuses a Danville man of hiring two Tennessee men to murder a Danville man he believed to be a police informant." The two defendants facing the death penalty are from Johnson City.

Still more on the Virginia DUI case

The Winchester paper, in this article about the Fairfax County district court ruling that part of the Virginia drunk-driving law is unconstitutional, quotes one prosecutor as saying: "I wonder if the judge has his resume ready." Ouch.

I haven't studied this issue, but I've been thinking about it. If the legislature can't draw the line and say that 0.8 BAC is too drunk to drive, how can it say, for example, that some particular age is too young to give consent? I thought that such distinctions are the very stuff of legislative discretion, and there is no constitutional infirmity so long as the legislature acts within the broad limits of constitutional due process. Maybe I'm missing the point.

The finances of the use of biosolids in Virginia

The regulation of biosolids as fertilizer remains a controversial land-use and environmental topic in Virginia. Localities who have tried to outlaw or regulate the use of biosolids have general lost in court, as state law has been found to preempt more restrictive local ordinances. In this article, the Lynchburg paper studies the dollars and cents of the biosolid business in Virginia.

The article says: "A survey of nearby states indicates that Virginia is the only state with no permit fees for the land application of biosolids."

It notes:

"In Central Virginia, biosolids are spread in Bedford and Appomattox counties, an application has been approved for Campbell County and one is pending in Amherst County.

Statewide, 250,000 dry tons are spread each year."

A government official explained that "that the biosolids program saves taxpayers money because land application of the treated sewage waste is cheaper than landfilling or incinerating. Without land application, ratepayers would pay more for sewage treatment, he said."

Another official was quoted as saying that biosolids have “saved the local farm community in excess of $12 million.”

Alpha ponders coal-import facility

The Norfolk paper reports here on consideration by Alpha Natural Resources and others of a coal-import facility on the coast of Virginia, looking to the future when the United States may become "a net importer of coal."

There's probably some guy driving through Danville, looking for Manassas

The Charlottesville paper has this fun article (and picture) about a road sign that indicated you could go south out of Charlottesville to get to Northern Virginia's Interstate 66.

On the phenomenon of the Kitty Genovese case

This Virginia Gazette article asksShould witnesses step in to halt crime?

The article describes the many witnesses to a recent sex crime - the witnesses called police, but did not intervene, and goes on to discuss just why that happens, citing a William & Mary professor, on the social research that has been done since the Kitty Genovese case, a murder witnessed by 38 people.

The professor cited two findings: "diffusion of responsibility" - the idea that with more witnesses, people feel less personally responsible to act, and "social influence of interpretation of the situation" - that people don't want to embarrass themselves by making a mistake over whether something needs to be done or what to do.

Fee meter reaches almost $1 million for City of Richmond in police shooting case

The Richmond paper reports here:

"Richmond taxpayers have spent almost $1 million in legal fees defending the city, its police department and Detective David Melvin against a federal lawsuit brought by the family of Verlon Johnson, an unarmed suspect shot to death by Melvin more than three years ago.

Private firms have billed the city at least $912,000 in the ongoing case, according to records from the Richmond city attorney's office. The biggest of them, McGuireWoods LLP, has submitted invoices for more than $677,000."

Disabled plaintiff bring suit for Virginia Lottery access

According to this article in the Roanoke paper, a lawsuit has been filed in Richmond Circuit Court claiming that some convenience stores that sell lottery tickets are not in compliance with accessibility requirements.

The article says:

"Four Roanoke Valley convenience stores have been named in a lawsuit filed against the Virginia Lottery, which claims that the lottery continued to do business with the convenience stores even though they violated disability laws and its own regulations.

The lawsuit was filed by four men with disabilities throughout Virginia - including the chairman of the board of the Blue Ridge Independent Living Center in Roanoke - and names convenience stores in Roanoke, Salem, Abingdon and Winchester."

Former town treasurer suing Culpeper

One of the Culpeper papers reports here on a First Amendment claim brought against the town by its former treasurer.

For a while, the Fourth Circuit found that qualified immunity was appropriate in a quite a lot of First Amendment cases. See Gillen v. Huggins, 127 F.3d 1099 (4th Cir. 1997) (unpublished) (denial of immunity reversed); Davis v. Carteret County, 121 F.3d 697 (4th Cir. 1997) (unpublished) (immunity affirmed); Scallet v. Rosenblum, 106 F.3d 391 (4th Cir. 1997) (unpublished) (immunity affirmed); Carrington v. Hunt, 105 F.3d 646 (4th Cir. 1997) (unpublished) (immunity affirmed); Conner v. McGraw, 104 F.3d 358 (4th Cir. 1996) (unpublished) (denial of immunity reversed) (“We hold today just as in the area of the Elrod/Branti line of cases, the Pickering/Connick line of cases was, and today is, not much clearer when applied to particularities;” defendant immune); Bishop v. City of Suffolk, 86 F.3d 1148 (4th Cir. 1996) (unpublished) (immunity affirmed); Gamache v. Cavanaugh, 82 F.3d 410 (4th Cir. 1996) (unpublished) (denial of immunity reversed); Dabbs v. Amos, 70 F.3d 1261 (4th Cir. 1995) (unpublished) (denial of immunity reversed); Orga v. Williams, 68 F.3d 460 (4th Cir. 1995) (unpublished) (immunity affirmed); Sizemore v. Aliff, 64 F.3d 659 (4th Cir. 1995) (denial of immunity reversed); Olivo v. Mapp, 57 F.3d 1067 (4th Cir. 1995) (unpublished) (denial of immunity reversed); DiMeglio, 45 F.3d at 793 (denial of immunity reversed); Maciarello v. Sumner, 973 F.2d 295 (4th Cir. 1992) (denial of immunity reversed); but see Robinson v. Balog, 1998 WL 786885 (4th Cir. 1998) (immunity reversed); McVey v. Stacy, 1998 WL 598444 (4th Cir. 1998) (affirming denial of immunity); Myers v. Town of Landis, 107 F.3d 867 (4th Cir. 1997) (unpublished) (affirming denial of immunity); Phillips v. Nielsen, 99 F.3d 1130 (4th Cir. 1996) (unpublished) (immunity reversed).

Even in cases where immunity was denied, the court would sometimes note that this conclusion is rare or that the defendant might yet succeed if it would later present evidence on some element of the defense. See Cromer v. Brown, 88 F.3d 1315, 1326, 1330 n.11 (4th Cir. 1996) (“We believe that Cromer’s is one of the ‘infrequent cases where an employee’s right to speak on a matter of public concern was clearly established. . . [O]ur holding is a narrow one. It is the infrequent Connick claim that will survive a qualified immunity defense”).

Clash of the titans

The Norfolk paper has this interesting account of the developing battle between Verizon and Virginia cable operators over telecommunications services.

The article says, in part:

"After years of dominating their distinct territories – one in dial-tone service, the other in TV entertainment – technology has blurred those divisions. With both companies holding the end of a wire into homes and offices, they have crossed over into each other’s businesses to fight for the ultimate customer: the consumer who bundles voice, video and broadband Internet service."

This column from the Washington post says: "A choice of broadband access that's limited to the cable company and the phone company would be extraordinarily bad."

Tim Kaine in Marion

It says here in the Washington Post that Tim Kaine was in Marion, at the Pioneer Restaurant.

Dog-mauling death case being prosecuted as involuntary manslaughter

The Fredericksburg paper has this story about the upcoming trial in the involuntary manslaughter case against a woman whose two pit bulls killed another woman.

The article says in part:

"The shocking nature of Sullivan's death, combined with the unprecedented involuntary-manslaughter charge, has garnered far-reaching interest in the case.

Sheriff's Maj. Michael Timm said there will be extra security measures whenever the trial takes place.

The case has also spurred a concerted effort to strengthen the state's dangerous-dog laws.

State Sen. Edd Houck, D-Spotsylvania, is in the midst of a push to have the law specifically spell out sanctions for owners of dogs that attack people or other animals.

Houck, who is currently gathering input from residents and law enforcement representatives, expects to present a bill at the next General Assembly session."