Saturday, November 12, 2005

Where we are going next week

Here Posted by Picasa is a clue.

Virginia farmers get llamas to protect their grazing animals

Here the Roanoke paper explains why some farmers are replacing dogs with llamas to combat coyotes in the pastures of Southwest Virginia.

The Slashdotters take on electronic voting machines and the need for a paper trail

This mess of commentary at Slashdot about how the legislature in Wisconsin has approved some paper trail requirement seems to say, more or less, that a paper trail is no panacea, and mostly worthless if the voter does not get to see the paper generated by his or her vote.

Also, it says that the vote machine companies are going to get rich selling ink for all those printers.

Paper filing of notice of dismissal beats electronically filed answer

In the very interesting case of Powell Construction Company, Inc. v. U.S. Crane and Rigging, Inc., the defendant claimed that the plaintiff's notice of voluntary dismissal under Rule 41, filed on paper, was ineffective, because the W.D. Va. requires electronic filing, and that because the defendant had subsequently e-filed an answer, voluntary dismissal could not be granted without leave of court.

Judge Wilson ruled that because of technical difficulties with the case, which had been transferred from the E.D. Tenn., the paper filing was permitted, and was in substantial compliance with the Federal Rules and the local standing order on electronic filing, and therefore it would be given effect.

On ballot fall-off in Virginia statewide office elections

Not everyone who voted on Tuesday cast a vote for every office. This kind of undervoting is described in Professor Sabato's reports on Virginia voting as "ballot fall-off." In his 2001 report (which can be downloaded here from the Center for Politics website), he had this summary of ballot fall-off in Virginia elections, stated as the percentage of all voters who voted in a particular race.

1977 - Governor, 98.5; Lt. Gov., 94.7; AG, 90.8
1981 - Governor, 98.8; Lt. Gov., 94.2; AG, 93.2
1985 - Governor, 97.5; Lt. Gov., 95.9; AG, 96.3
1989 - Governor, 98.2; Lt. Gov., 94.8; AG, 95.2
1993 - Governor, 98.7; Lt. Gov., 95.7; AG, 94.0
1997 - Governor, 98.4; Lt. Gov., 94.9; AG, 94.0
2001 - Governor, 99.0; Lt. Gov., 96.5; AG, 94.7

From this morning's numbers, it appears that in 2005 there were roughly 40,000 more votes cast in the Governor's race than the Attorney General's race, and roughly 4,000 more votes cast in the Attorney General's race than in the Lieutenant Governor's race.

McDonnell over Deeds by 513 as of 9:17 AM Saturday, November 12

The website figures keep changing, with the latest being 970,602 for McDonnell and 970,089 for Deeds.

William and Mary law faculty on the commission studying the future of Virginia courts

This article says Jayne Barnard, John Donaldson, Judge Walter Felton, and Fred Lederer, past and present law professors at William & Mary, are members of the study group assembled by Chief Justice Hassell to ponder the future of Virginia courts over the next 10-15 years.

I'd have to say that these four are among my favorites from my law school days.

Also, with Lederer in the group, there is a chance the Commission will make decent use of technology. In the article, Professor Barnard asks the question, "Will judges need blogs?" The Commission needs a blog, if you ask me. And some good cigars, for Professor Donaldson.

Friday, November 11, 2005

McDonnell over Deeds by 620 votes as of 6:02 PM Friday, November 11

On the website, the count at this hour is 970,583-969,963.

Is it normal for this many votes to change just through the corrections by the electoral boards?

I was (I think) the only spectator at the Bristol canvas, where there were no changes on the Attorney General vote count for the four precincts, so far as I could tell.

A Tennessee judge cannot run off his opponent

The ABA ejournal reports here that the Tennessee Court of Appeals informed "a state circuit court judge he cannot bar an attorney from practicing in his judicial district just because the attorney announced he is going to run against the judge in the next election."

What happened to the bushes in the end zone at Scott Stadium

It says here in the Charlottesville paper:

"The Department of Athletics already has removed a fence and hedge where students were crushed Oct. 15 during a mass dash to the field following the 26-21 win over Florida State University."

Don't usually get the Chief Justice

Via Althouse, it says here that Chief Justice John Roberts made a prior commitment to judge a moot court competition at Wake Forest and he's still going to be there.

Mid-day Friday - McDonnell leads Deeds by 904 votes

Or so says the SBE website.

Thursday, November 10, 2005

McDonnell over Deeds by only 947 votes at 7:07 PM November 10

Waldo has this post about the shrinking margin as reported on the State Board of Elections website.

On chads in Virginia

The prospect of a recount in the race between McDonnell and Deeds brings to mind Bush v. Gore.

In connection with Bush v. Gore, the Commonwealth filed an amicus brief, by Attorney General Mark Earley and his Chief Deputy Randolph Beales and Solicitor William Hurd, with this interesting snippet about the 1989 recount in Virginia:

"In 1989, there was a statewide recount in the Virginia gubernatorial race. Based on official returns, the Democrat, L. Douglas Wilder, appeared to defeat the Republican, J. Marshall Coleman, by a margin of 6,854 out of 1,787,424 votes cast, a margin of less than one half of one percent. Coleman then petitioned for a recount, which Virginia law provides must be conducted under the auspices of a special three-judge court. Va. Code § 24.2-801 (formerly § 24.1-249). It is most instructive that, although the recount procedures were vigorously contested, the counting of indented chads was recognized by all sides as being out of bounds. Instead, invoking the bipartisan precedent of the 1985 McCloskey/McIntyre Congressional contest, Coleman sought to count as votes only those punch card ballots where two or more corners had been detached. Coleman v. Wilder, Cir. Ct. City of Richmond (No. N 8541-1) (1989), Petitioner's Memorandum Regarding Recount Procedures, at 25-26. Wilder was unwilling to go even that far, stating:

A physical recount of the punch card ballots used in this election would be fraught with tabulation errors. The ballots are designed with the specific intent to be read and counted by machine tabulators, and, as a consequence, they are not easily read by the human eye . -- [T]he counting of votes by such machines is inherently more reliable than a manual count. Displacing the machine generated results with the results of a hand counting of punch cards would be a giant step away from achieving an accurate vote count.

Id., Respondent's Memorandum Concerning Recount Procedures, at 25. The recount court resolved the issue by denying any manual recount of punch card ballots, but allowing them to be re-read by re-programmed and re-tested computers. Id., Order Fixing Procedures, at 6, 8."

Wednesday, November 09, 2005

President Bush goes where the General Assembly feared to tread

This story describes the ceremony at which Muhammad Ali, among others, received the Presidential Medal of Freedom.

In the 2004 session of the Virginia General Assembly, Republican Delegate Mark Cole vetoed a commendation for Ali, which made me irate at the time.

Went bust like McClellan on the fields of Northern Virginia

This analysis by somebody at Redstate concludes: "had Jerry Kilgore even come close to matching Bush's anemic performance in Northern Virginia last year, he would now be Governor-elect."

Check it out, as there are some fun maps.

More on the ghost precincts

In this article from the Norfolk paper, Bob McDonnell "said three precincts listed as having not reported are 'ghost precincts' that have no voters living in them."

That's a fun concept, ghost precincts.

What happens when two Charleston WV lawyers get together at the WVU law school before a football game

Here it says: "A Charleston lawyer is accused of throwing a can of beer at another Charleston lawyer on the West Virginia University law school steps just before last Wednesday's football game, according to a criminal complaint in Monongalia Magistrate Court."

No wonder they've not been counted

Waldo says here that the three precincts not showing up with votes for the McDonnell-Deeds Virginia attorney general race do not actually exist.

In retaliation, voters from those three precincts called for a boycott of Waldo's online stuff.

(That was a joke.)

Best name on a write-in ballot I've heard today

I watched the City of Bristol electoral board canvas the vote, and the funniest thing I heard was that somebody wrote in "Frank Beamer" for the seat in the House of Delegates held by Joe Johnson.

I wonder if Roy Jessee got any votes this year over in Scott County, or elsewhere.

Tuesday, November 08, 2005

Checking the bellwethers

From Sabato, "2001 Gubernatorial Election in Virginia: The Return of Two-Party Competition," (U.Va. Center for Governmental Studies, 2001), the bellwethers of particular note are the jurisdictions that have picked the winner in the race for governor 9/9 or 8/9 times since 1969: Fairfax City, Fairfax County, City of Galax, Prince Edward County, City of Salem, Montgomery County, City of Newport News, Lunenberg County, Southampton County, City of Franklin, and City of Lexington.

At this hour, the Democrats are winning in Fairfax County and Newport News and City of Franklin and Lexington, swept Prince Edward, and got swept in Salem and Lunenberg, with the others still mostly uncounted, according to the website.

Anyhow, Fox News just said that Kaine is the winner.

The Hanover county courthouse and modern federal courthouse design

Via this bespacific post, this interesting article relates the importance of the Hanover County Virginia courthouse, among other things, to the evolving theories about federal courthouse design.

President Bush on Jerry Kilgore

Via Hans, here are the remarks from President Bush at his campaign rally for Jerry Kilgore.

Monday, November 07, 2005

Forget Booker, tell me about something important

In U.S. v. Morris, the Fourth Circuit in an opinion by Judge Shedd concludes that the change in the law wrought by the Supreme Court's decision in Booker was no biggie, and therefore should not be given retroactive effect.

Professor Berman has this post with his initials thoughts about the decision.

Why not a free ginzu knife or chia pet to go with that law degree

If I understand this site correctly, the people at this outfit claim to be able to ship you a "verifiable" Juris Doctor or Ph.D. in a few days, for a price, or a college degree overnight.

The Virginia hockey player workers' compensation case

Here is the AP story about the ruling by the Virginia Court of Appeals that a hockey player injured in a fight on the ice was entitled to workers' compensation. Here is the unpublished opinion by Judge Elder in the case of Norfolk Admirals v. Jones. The opinion notes: "The commission found that fighting is an integral part of the game of hockey and that claimant’s job on employer’s hockey team was to be an 'enforcer.'"

I may have to revise some of my earlier remarks about the "arising out of" requirement.

Sunday, November 06, 2005

On the free speech rights of lawyers regarding pending cases in Virginia

In Anthony v. Virginia State Bar, the Virginia Supreme Court in an opinion by Senior Justice Russell imposed the sanction of a public reprimand imposed by the Bar on Joseph Anthony, the lawyer who filed a federal lawsuit claiming some form of collusion between some Roanoke lawyers and the Virginia Supreme Court. After he was sanctioned by Judge Osteen, sitting by designation in the W.D. Va., he then appealed to the Fourth Circuit with bad things to say about the district court judges, and appealed to the United States Supreme Court with bad things to say about the Fourth Circuit.

The case was heard only by Justices Lacy, Keenan, Koontz, Kinser, and Lemons, in addition to Senior Justice Russell.

I suppose this is the final chapter of the Snyder-Falkinham case, which was ostensibly settled, then the plaintiff got new counsel to try to get out from under the settlement, but the Virginia Supreme Court held that the settlement was binding. Eventually, she hired Mr. Anthony, and his bold claims generated a fair amount of publicity, almost ten years ago.

What's wrong with Va. Code § 65.2-301

In Va. Code § 65.2-301, the General Assembly created an exception to the exclusive remedy provisions of the Workers' Compensation Act for employees who are the victims of sexual assault. The intent of the statute, or so I have always thought, was fairly progressive, to give assault victims the choice between either worker's compensation or a civil lawsuit. Instead, the Virginia Supreme Court seems determined that there are no cases to which this statute applies.

In Butler v. Southern States Cooperative, Inc., the Virginia Supreme Court in an opinion by Justice Koontz held on Friday that a woman's injury as the result of an assault by a co-worker did not arise out of her employment, and therefore workers compensation did not apply, and the applicability of section 65.2-301 need not be considered. Notwithstanding the language of the opinion in Butler, that the Court was merely applying long-standing principles, it might be argued that the Supreme Court's jurisprudence in this area has been uneven, at best, since the much-maligned decision in Haddon v. Metropolitan Life Ins. Co., 239 Va. 397, 389 S.E.2d 712 (1990), which was overruled in Lichtman v. Knouf, 248 Va. 138, 445 S.E.2d 114 (1994), on the repetitive-injury is not an accident issue, but not the "arising out of" issue. The Court in Haddon (where defendant convinced the circuit court that the plaintiff's claim involved "an accident arising out of and in the course of her employment"), and the legislature in Va. Code §§ 63.1-23.1 and 65.2-301, apparently recognize the possibility that a co-worker battery can arise out of the injured victim's employment, but the Supreme Court ever since has refused to admit any such possibility, which makes section 65.2-301 a dead letter. Some of the justices claimed that the "arising out of" issue was not before the Court in Haddon, but they were in the minority, at least in 1991. See Kelly v. First Virginia Bank-Southwest, 404 S.E.2d 723 (1991).

The statute applies only "where the nature of such employment substantially increases the risk of such assault," which sounds something like the "arising out of" requirement. Discussing (or refusing to discuss) this element of the statute, however, the Supreme Court once said: "We need not suggest examples of such employment." Reamer v. National Service Industries, 237 Va. 466, 472, 377 S.E.2d 627, 630 (1989). That could be because there aren't any, as the law now stands. The last time (not counting Haddon) an assault victim was limited to her worker's compensation remedy was the newspaper deliverywoman who got shot at 2 a.m. in Plummer v. Landmark Communications, Inc., 235 Va. 78, 366 S.E.2d 73 (1988).

YMCA can be immune as a charity under Virginia law

In Ola v. YMCA of South Hampton Roads, the Virginia Supreme Court in an opinion by Justice Agee affirmed the Circuit Court's decision that the plaintiff's personal injury claim based on negligence was barred by the doctrine of charitable immunity.

The Norfolk paper has this article on the decision, quoting defense lawyer Tim Richardson. Richardson is one of the few who graduated with me twice, both as a Philosophy Major graduating from the College of Arts and Sciences at U.Va. in 1986 and as a Juris Doctor at William & Mary in 1989.

Also, the Suffolk paper has this report.

Virginia Supreme Court reversed trial court ruling on evidence in food poisoning case

In Bussey v. E.S.C. Restaurants, Inc., the Virginia Supreme Court in an opinion by Justice Lemons reversed the orders by the trial court overturning the verdict for the plaintiff in a case where she claimed that she suffered food poisoning on account of bad food at the defendant's restaurant (a Golden Corral).

On the lack of medical testing to prove that the plaintiff suffered a bacterial infection, the Court explained: "We have never required positive proof by scientific testing to establish a factual basis for medical diagnosis and opinion."

The AP had this report about the Court's decision.

On Shanna the cow

Here the Roanoke paper had an article about a Hokie Holstein who predicts the outcome and score of Virginia Tech's football games.

The secret about next Tuesday

Here someone identified as the Secretary of the Board of Elections says: "Most people don't even realize there's an election."

Why Alito's the Man

A couple of the Powerline guys got this well-written, simply stated article published in the Washington Post, explaining why it is good thing that Harriet Miers is out and Samuel Alito is in. One thing they point out is this: "The Republican talent pool is deep and broad, in a way that it was not when Presidents Richard Nixon and Ronald Reagan were appointing judges." I certainly agree with that.

They claim that the reason why court nominations have become more contentious is that liberals rely on the courts to overcome the unpopularity of liberal ideas: "Liberals increasingly came to view the court as a legislature of last resort, where policies too liberal and too unpopular to be enacted by real legislatures could be mandated by fiat of the court's liberal majority."

They describe what they claim conservatives want in judges: "We want judges who won't make stuff up," to which they add the corollary, that "judges also don't have the discretion to ignore language that is in the Constitution or the laws," including limitations on the powers of Congress.

They conclude: "The Miers-Alito moment shows that conservatives prefer demonstrated excellence to its absence, openness to stealth, and adherence to constitutional text to the promise of any particular result."

I recommend this article, whether you agree with it or not, as it is well-written.

Why do most Virginia medical malpractice claimants get nothing

In this Richmond paper article from last week, the authors look to explain why is is that "[t]hree out of four medical malpractice cases in Virginia that ended during the past three years brought patients nothing."

New York Times on what to do with coyotes

This article on the NY Times suggests that what we need to do with coyotes is get them a bus ticket to the big city, or at least to the "goose-plagued subdivisions" of the suburbs, which "could use well-mannered, responsible predators."

More on the state of eminent domain law in the Commonwealth

Greg Edwards of the Richmond paper has this interesting article on the state of the law of eminent domain in Virginia, and proposed changes.

I read somewhere the other day, can't recall the source, a prediction that few states would do much in response to Kelo, notwithstanding the many complaints about it.

What happens when Virginia solicitors general argue at the Supreme Court

This story about a light bulb popping during oral argument in the Virginia college bookstore case on Halloween is fun. Once the justices realized what had happened, the chief justice said it was "a trick they play on new chief justices all the time."