Friday, September 02, 2005

This year's pirated golf photo

We were just happy to be there. Posted by Picasa This photo with the rest of them can be found here.

VBA collecting for lawyers in the Katrina zone

It says here: "All members of the legal profession in Virginia are invited to make donations to help their Gulf Coast colleagues."

UPDATE: Here is the American Bar Association's Katrina resource page.

Richie Cunningham would be cheered by this

It says here: "Fats Domino, who is in the Rock and Roll Hall of Fame and whose manager had reported him missing in the wake of Hurricane Katrina, has been rescued by boat from his flooded home."

A few new Wahoos from the wake of Katrina

USAToday says here: "The University of Virginia in Charlottesville said it will enroll academically qualified Virginia residents with the aim of transferring credits back once storm-affected schools reopen. By late Thursday, 87 students had been offered spots." The same story is told here in the Richmond paper and here in the Roanoke paper.

Thursday, September 01, 2005

What of the Vioxx MDL proceedings in the E.D. La.?

From the E.D. La. website: "The offices of the United States District Court for the Eastern District of Louisiana are closed until further notice. By order of Chief Judge Helen G Berrigan, all deadlines and delays in matters pending before this court are suspended until ordered otherwise."

Wednesday, August 31, 2005

Breath test not hearsay affected by Crawford

In Luginbyhl v. Com., the Virginia Court of Appeals in an opinion by Judge Annunziata joined by Judge Haley held that a certificate of blood alcohol content from a breath test machine was not hearsay for purposes of the Confrontation Clause.

Interestingly, Judge Benton dissented, on the view that the breath test operator's attestation was hearsay testimony.

Still more on Judge Michael of the W.D. Va.

This editorial in tomorrow's Daily Progress begins: "Judge James H. Michael Jr. looked every inch the distinguished jurist, and sounded every vowel like a Virginia gentleman."

U.Va. trainer Joe Gieck to retire, no comment from Antonio Banks

Here it says that long-time trainer Joe Gieck is hanging up his cleats.

Here somebody listed the time in the 1995 game when Gieck looked like he was going to trip Virginia Tech defensive back Antonio Banks going down the sideline for a touchdown as one of the top 10 all-time greatest Hokie sports moments (at least as of 1997). I guess that manuever didn't hurt Gieck's career; in fact, probably some of the secret societies will give him a medal.

But did she win?

The Lee County native next door directed my attention to this article in the Kingsport paper, which begins: "Three members of a Pennington Gap family were arrested Tuesday during the Lee County Fair after a couple entered their toddler in the Wee Little Princess contest in an allegedly stolen dress."

The article notes that the Wee Little Miss contestant is 21 months old. The article notes that the arresting officer consulted with both the Commonwealth's attorney and his assistant, who both happened to be at the fair on that same night.

More on Judge Michael of the W.D. Va.

Larry O'Dell wrote this report, with quotes from Professor Howard and Judge Jones. Liesel Nowak of the Charlottesville paper had this report, quoting Howard, Judge Wilkinson, Robert O'Neil and others. The Charlottesville paper ran this obituary. Lea Setegn wrote this report for the Richmond paper.

The offender with something extra

In today's Johnson City paper, a story is accompanied by a photograph with this caption: "James W. Fitzpatrick reportedly took this scorpion with him to the Unicoi County Courthouse when he went to pay a fine."

On the role of local government attorneys

This commentary from Kerry Dougherty in the Norfolk paper concludes:

"It's time to re-examine the role of city attorneys across Virginia. These lawyers are paid by the taxpayers, yet they serve at the pleasure of city councils and as the councils' attorneys. At times they seem to be serving two masters.

Their advice is supposed to protect the public interest. For instance, city attorneys are supposed to caution councils against holding illegal secret sessions. They're also supposed to help protect the public in contracts and complicated land deals.

But it's wrong for city councils to enlist 'their' attorneys to help them circumvent the will of the people."

Well, that's not quite right. The local government attorney does not have an attorney-client relationship with "the people" as such, although some members of the people have told me from time to time in no uncertain terms what I should do as a local government attorney (or perhaps even, where I should go).

Tuesday, August 30, 2005

Golf prowess noted

This article on the Appalachian School of Law fundraiser weekend notes that the team of "Charlie Fugate, Roy Jessee, William Kimbler, Steve Minor and Mitch Mobley" finished third in the second flight of the afternoon round.

It doesn't mention that there were only three teams in the second flight of the afternoon round.

Update on the New Orleans blawggers on my list

Ray got out, Ernie is said to be on his way out. No news at La-Legal.

Krispy Kreme in Bristol to close on Thursday?

The Bristol paper reported here that the Krispy Kreme store situated at the junction of State Street and Euclid will close on Thursday, after 31 years, because the home corporation wants more money for the land than the local franchise holder is willing to pay.

The doughnut shop is a Bristol landmark and will be sorely missed.

On the late Judge Michael of the W.D. Va.

The website of the U.S. District Court for the Western District of Virginia has this notice regarding the death yesterday of Judge Harry Michael, who served this district since his appointment by President Carter in 1980.

The end of VCEDA?

First, Dickenson County declares it wants out of the Coalfield Economic Development Authority. Now, the Coalfield Progress reports here that Wise County might do likewise.

This doesn't make sense to me.

Here is the VCEDA chapter of Title 15.2. It begins with these findings of fact:

"The economy of Southwest Virginia has not kept pace with that of the rest of the Commonwealth. The economic problems of Southwest Virginia are due in large part to its present inability to diversify. The Southwest has suffered, and continues to suffer, widespread unemployment in great disproportion to the rest of the Commonwealth.

The Virginia Coalfield Economic Development Authority will assist the seven county and one city coal producing areas of the Commonwealth to achieve some degree of economic stability.

It is hereby further declared that the foregoing is a public purpose and use for which public moneys may be spent and such activity will serve a public purpose in providing jobs to the citizens of the Commonwealth."

Blacksburg parents sue to challenge Virginia law on registration for the draft

According to this Roanoke Times article by Kevin Miller and Tonya Moxley: "An anti-war couple from Blacksburg is challenging the constitutionality of a Virginia law that blocks young men from obtaining a driver's license unless parents pre-register their sons for the military draft."

The article notes that the Virginia law passed in 2002 "requires males younger than 18 to have a parent or guardian authorize the DMV to forward their information to Selective Service, which will register the men once they turn 18. A parent's signature is required for a learner's permit, driver's license and photo ID."

Strangely, the suit was filed in state court in Montgomery County, which seems an unlikely venue. The Commonwealth is represented by Jasen Eige, formerly a SW Virginia lawyer himself.

Sunday, August 28, 2005

On Judge Michael of the Fourth Circuit

A West Virginia newspaper had this profile on Judge Michael of the Fourth Circuit, to which the SC Appellate blog linked some time ago.

Those liberal law professors

This account in the NY Times of a recent study into the political campaign contributions of law school professors begins: "Professors at the best law schools are generally assumed to be overwhelmingly liberal, and now a new study lends proof. But whether the ideological imbalance matters - to the academic environment students encounter, to the kinds of lawyers the schools produce and to the stock of ideas the professors generate - depends on whom you ask."

The article notes that at the University of Virginia, the contributions were split about 50/50 between Democrats and Republicans.

When I went to law school at William & Mary, one of my friends from the University asked me what it was like. Near as I can tell, the professors are all liberals, I said, not that I knew much about them. She decided to go there, in spite of them or in spite of me, I'm not sure which.

Falwell's sterling character denies him relief once again in the federal courts

Years ago, in the libel case brought by the Rev. Jerry Falwell against Larry Flynt over an ad parody in Hustler magazine, the jury found for the defendant, finding that "no reasonable man would believe that the parody was describing actual facts about Falwell." Falwell v. Flynt, 797 F.2d 1270, 1273 (4th Cir. 1986). The U.S. Supreme Court relied in part on this finding to overturn the verdict in favor of Falwell on his claim of intentional infliction of emotional distress. See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) ("We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.")

Last week, in Lamparello v. Falwell, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Michael and King, reversed the district court's entry of an injunction prohibiting the defendant from maintaining a "gripe website critical of Reverend Jerry Falwell." The Court concluded that there was no likelihood of confusion between Falwell's trade names and the defendant's "gripe website." The Court said: "After even a quick glance at the content of the website at, no one seeking Reverend Falwell’s guidance would be misled by the domain name — — into believing Reverend Falwell authorized the content of that website. No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions, and his interpretations of the Bible."

So, I conclude from these two cases, under these cases based on the First Amendment, Rev. Falwell's protection from those who would say transparently bogus things about him is that no one would believe them, and he can obtain a judicial remedy against only those commentators with expression that has some verisimilitude (but is not quite true, as truth, presumably, might also defeat some kinds of claims).

Here are reports on the opinion from Anne Broache of CNET, Eric Goldman, Paul Alan Levy, the AP, Brian Peterson, SC Appellate blog, Susan Crawford, and Warwick Rothnie, among the many to comment on this case which involves the intersection of intellectual property law with the underlying clash of views between Mr. Lamporello and Rev. Falwell over homosexuality - there's something in it for all variety of different blogs.

Interesting Tennessee bar journal article

Last week, I came across a 1990 article from the Tennessee Bar Journal, which began:

"Did you know:

• A goose is not an animal, but a jackass is a horse, according to the Tennessee Supreme Court

• An elephant was once hanged in Tennessee for killing its trainer

• By law, the robin is a song bird -- it was once a game bird in Tennessee

• It's against the law to carry a deer inside your car in this state

• One of Tennessee's largest hospital malpractice verdicts involved a patient bitten by a spider"

The elephant I knew about, from the Book of Lists #3.

On a code of ethics for bloggers

Here, here, here, and here are the kinds of blogging codes of ethics that came up on the first page of a Google search.

Interesting, but not very interesting. Be nice, don't lie, give credit where credit is due, etc., the kinds of things we learned before first grade, or maybe in 10th grade when we wrote the first term paper according to the rules of Turabian, or as someone suggested on Saturday, at the start of first year, when we first heard about this.

More on the Virginia Campaign Finance Disclosure Act, etc.

Of course, the part of the blogging summit that interested me was the law talk.

Here is the Virginia Campaign Finance Disclosure Act, and here are the Disclosure Requirements for Political Campaign Advertisements, both discussed discussed (in quite lively and candid fashion by Chris of the SBE) on Saturday.

§ 24.2-901 contains these definitions:

"Contribution" means money and services of any amount, and any other thing of value, given, advanced, loaned, or in any other way provided to a candidate, campaign committee, political committee, inaugural committee, or person for the purpose of influencing the outcome of an election or defraying the costs of the inauguration of a Governor, Lieutenant Governor, or Attorney General. "Contribution" includes money, services, or things of value in any way provided by a candidate to his own campaign and the payment by the candidate of any primary filing fee.

"Expenditure" means money and services of any amount, and any other thing of value, paid, loaned, provided, or in any other way disbursed by any candidate, campaign committee, political committee, inaugural committee, or person for the purpose of influencing the outcome of an election or defraying the costs of the inauguration of a Governor, Lieutenant Governor, or Attorney General.

"Independent expenditure" means an expenditure made by any person or political committee that is not made to, controlled by, coordinated with, or made upon consultation with a candidate, his campaign committee, or an agent of the candidate or his campaign committee.

"Political committee" means any state political party committee, congressional district political party committee, county or city political party committee for a county or city with a population of more than 100,000, organized political party group of elected officials, political action committee, other committee, person or group of persons which receives contributions or makes expenditures for the purpose of influencing the outcome of any election.

Regarding "services," section 24.2-902 says: "Services shall not be deemed to include personal services voluntarily rendered for which no compensation is asked or given."

Section 24.2-910(B) requires:

"Any person who is not a political committee and who makes independent expenditures, in the aggregate, in excess of $500 for a statewide election or $200 for any other election shall maintain records and report pursuant to Article 4 of this chapter all such independent expenditures including:

1. Any funds expended for the purpose of influencing the outcome of any election for public office; and

2. Any funds expended to publish or broadcast to the public any material referring to a candidate by name, description, or other reference and (i) advocating his election or defeat, (ii) setting forth his position on any public issue, voting record, or other official acts, or (iii) otherwise designed to influence individuals to cast their votes for or against him or to withhold their votes from him."

Regarding the scope of the disclosure requirements, section 24.2-941 says: "The disclosure requirements of this chapter apply to any sponsor of an advertisement in the print media or on radio or television the cost or value of which constitutes an expenditure or contribution required to be disclosed under Article 4 (§ 24.2-914 et seq.) of Chapter 9 of this title except that the disclosure requirements of this chapter do not apply to (i) an individual who makes uncoordinated independent expenditures aggregating less than $1,000 in a political campaign or (ii) an individual who incurs expenses only with respect to a referendum."

Section 24.2-942 contains these definitions:

"Advertisement" means any message appearing in the print media, on television, or on radio that constitutes a contribution or expenditure under Chapter 9 (§ 24.2-900 et seq.) of this title. "Advertisement" shall not include novelty items authorized by a candidate including, but not limited to, pens, pencils, magnets, and buttons to be attached to wearing apparel.

"Print media" means billboards, cards, newspapers, newspaper inserts, magazines, mass mailings, pamphlets, fliers, bumper stickers, periodicals, website, electronic mail, and outdoor advertising facilities. A "mass mailing" is a mailing with more than 500 pieces.

The State Board of Elections has this summary on political advertisements.

Here (I think) is the Virginia Supreme Court's opinion in Virginia Society for Human Life v. Caldwell, in which the Court responded to the following certified question:

"Whether Va. Code Ann. §§ 24.2-901, -908, -910 & -1014 apply to issue advocacy groups, or whether the use of the phrase “for the purpose of influencing the outcome of an election” and related phrases limits the application of those statutes to groups that expressly advocate the election or defeat of a particular candidate."

The Court held "that the phrase 'for the purpose of influencing the outcome of an election,' as used in Code §§ 24.2-901, -910, and –1014, as well as its implication for terms used in Code § 24.2-908, may be narrowly construed to limit the application of those statutes to groups that expressly advocate the election or defeat of a clearly identified candidate."

The U.S. Supreme Court opinions cited by the Court in VSHL v. Caldwell are Buckley v. Valeo and McIntyre v. Ohio Elections Commission.

Bystander at the Blog Summit

I've been reading the commentary of those who attended the Summit on Blogging (Brian Patton, Behan, Jon Henke, Martin Johnson from SouthNow, and for a while Rick Sincere, sat our table, not to be confused with the lively bunch to my left) and those who didn't (Jaded JD, Ken Lammers). Jeff Schapiro graciously withstood our cross-examination during lunch.

My thoughts? I doubt there is much call for a blogger's code of ethics, aimed at preempting regulation, unless the bloggers get caught up in some kind of notorious law-breaking. The EFF Legal Guide does the best job I've seen of laying out the legal landscape for bloggers.

How could the state legislature be convinced to bail out Virginia Beach

In this article, the Norfolk paper quotes a Tidewater legislator regarding the likelihood or lack thereof of statewide support to fund the takings necessary to preserve NAS Oceana: "I can’t see people from Southwest Virginia saying, 'Oh, yeah, Oceana is a great idea.’ And I can’t see people in Northern Virginia agreeing to send their transportation money down here."

On the zoning appeal over giant American flag on Route 50

The Clarke County paper has this account of a property owner's appeal of the denial of his right to have an 80-foot high flag pole on his property, where the zoning limit is 40-feet.

On litigating the day laborer site in Herndon

This story from The Connection describes threats of litigation to challenge the decision by the Town of Herndon to approve a site for immigrant workers to gather in search of work.

On impact fees and adequate-public-facilities ordinances

In this commentary, some local government officials in Stafford County explain that: "current calculations put the infrastructure cost to the county of a new home at $38,000."