What might be next on the lame duck governor's agenda?

This Votelaw post links to this post which calls on Governor Warner to give back the right to vote to 200,000+ convicted felons in the Commonwealth, claiming that "Virginia is one of only four states that disenfranchise all former offenders for life, even after they complete their sentences (the other three are Alabama, Florida, and Kentucky). These four states along with Armenia are the only democracies in the world that disenfranchise all former offenders for life. 80% of Americans believe that those who have served their time should be allowed to vote."

Unlikely new ban on employment discrimination by the Commonwealth

The Washington Post reports here that Virginia Governor Mark Warner has imposed by executive order a prohibition against discrimination in employment by the agencies of the Commonwealth against homosexuals.

I would expect 90% of the General Assembly, including all of the Republicans, all of the rural legislators, and most of the rest, to vote against this, but then again I never thought Kaine would get elected, so what do I know?

I would think that Virginia's idea of an appropriate non-discrimination statute for state employees is Va. Code § 2.2-2902, which says in part: "No employee of or applicant for employment with the Commonwealth shall be required, as a condition of employment, to smoke or use tobacco products on the job, or to abstain from smoking or using tobacco products outside the course of his employment."

On the withholding of taxes from the proceeds of a Title VII settlement

In Rivera v. Baker West, Inc., the Ninth Circuit in an opinion by Judge Bybee considered the plaintiff/appellant's two contentions regarding the District Court's ruling that the employer was correct in paying taxes out of the settlement money for a Title VII claim:

The appellant's position was this: "first, he argues that the settlement proceeds paid by Baker were intended to reimburse Rivera for personal physical injuries and should therefore be excluded from his gross income under 26 U.S.C. § 104(a)(2); second, he argues that, even assuming the settlement proceeds represent lost wages, an award of back pay under Title VII is not subject to income tax withholding."

The Court ruled that "the district court did not clearly err in finding that the settlement proceeds were not intended to compensate for personal physical injuries, but instead represented lost wages," and "[b]ecause the district court reasonably classified the settlement proceeds as back pay, the district court properly held that Rivera’s settlement proceeds were subject to withholding."

The Court noted that the settlement agreement "does not expressly state that the damages paid to Rivera compensate for personal physical injuries or physical illness" and explained that "if there is no express evidence of the parties’ intent in the settlement agreement, we look to the intent of the payor." There was language in the settlement agreement "stating that Baker would pay Rivera $40,000 'less all lawfully required withholdings.'"

In concluding that the wage part of a settlement agreement under Title VII is subject to withholding taxes, the Court cited the Fourth Circuit's opinion in Hemelt v. United States, 122 F.3d 204 (4th Cir. 1997), along with opinions from the Sixth and Eighth circuits.

That's us, for sure

Dad printed this one out and I liked it so much I posted it on here. It is of Dana and me, having a good day in Savannah. 

On Junior Cox and the Feed Room

I hope that fans of the Feed Room downtown in Bristol read this article on Junior Cox and will go by there before the restaurant closes at the end of the month and give him and Mary Ann all the money that's in your pocket and shake hands with Jean - out of admiration for a job well done.

I guess I've eaten there 100 times, and had take-out delivered by Junior another couple dozen times, including three meetings in a row last month. Anybody who had a lunch meeting with me in my office in the past five years (or is it 10?) got chicken salad in a pita, vegetable soup, chips, and sweet tea from the Feed Room. It has been my wife's favorite place to eat lunch in Bristol.

The Feed Room space was a lunch counter back at the time of this postcard of State Street from the 1940s, which shows the H.P. King building on the right.

Martinsville prosecutor wins defamation case against news organization for publishing criminal defendant's letter to editor

The Roanoke paper reports here about the plaintiff's verdict in the very interesting case in which the Commonwealth's attorney sued a local tabloid and won a $75,000 verdict for defamation on account of the tabloid's publication of a letter from a criminal defendant in which were made serious allegations against the prosecutor.

The big Illinois tobacco verdict gets reversed

In Price v. Phillip Morris, the Illinois Supreme Court reversed the $10 billion judgment against the tobacco company.

Man sues rape victim after DNA clears him despite her identification of him as the criminal

The Daily Progress reports here that a Virginia man against whom a charge of rape was dismissed because of DNA evidence is suing the victim who pointed him out in court as the man who raped her.

Courtroom testimony is generally privileged, I wonder what the victim said before that.

On software piracy

The Washington Post reports here that the federal court in Alexandria heard the guilty plea of Nathan Peterson, age 26, who pirated $20 million worth of software by illegally selling copies over the Internet, at a profit of $5.4 million to himself.

Supposedly, his website now says: "This site has been permanently shut down by the Federal Bureau of Investigation and the Department of Justice."

On tort reform in West Virginia

This editorial notes that medical malpractice rates may soon go down in West Virginia.

It did not comment on whether the changes in the law were the cause as opposed to improvements in the stock market.

Both sides trying to oust the lawyers from the criminal case against the former mayor of Lynchburg

According to this AP report, not only is are the prosecutors seeking disqualification of John Fishwick from the defense team in the Carl Hutcherson case, but also the defense team is seeking disqualification of Tom Bondurant and the rest of the W.D. Va. prosecutors because Mr. Bondurant, like Mr. Fishwick, will be a witness on the charge against Mr. Hutcherson for lying to a government official.

Musician-debtors about to lose their instruments in latest chapter of the Audubon Quartet case

For several years, the Roanoke paper has described the dispute among the members of a string quartet, which appears to be reaching its conclusion, as one of them is about to collect on his judgment against two of the others by taking their instruments, as part of their bankruptcy cases. As the Roanoke paper reports here, the "tools of the trade" exemptions to which the debtors are entitled under Virginia law are not nearly enough to cover their valuable instruments. Once their estates are liquidated and the proceeds paid over to the creditors, I suppose the remainder of the debt is discharged, unless I am misreading what the paper has reported.

Regent law grad specializes in ordinances restricting adult businesses

An Arizona paper has this profile of Scott Bergthold, a graduate of the law school at Regent in Virginia Beach and lawyer practicing out of Chattanooga, who specializes in writing "regulations for governments across the country that tighten restrictions on strip clubs and adult bookstores by banning alcohol consumption, nudity and contact between dancers and customers."

Perhaps he will come and share the knowledge some day with the LGA, whose members include the Virginia experts on this topic.

Why root for No. 35 at the Virginia games

Here is the good story of Drew Shiembob, a freshman walk-on with the University of Virginia basketball team.

The new justice of the Tennessee Supreme Court

This page from the TBA website has a group of pictures from the investiture ceremony for Justice Cornelia Clark of the Tennessee Supreme Court.

On the lone juror

I just read an article that says Lone juror caused Merck's Vioxx mistrial.

At lunch today, I told a tale of a civil case I defended in federal court, where one of the jurors called me after the trial, and told me that the initial vote on liability was 6-1 for the defense but the 6 eventually gave in to the one and gave the plaintiff a little bit of money, so little that plaintiff's counsel filed a motion complaining that the amount was lower than the law would allow.

The call set me into a panic for a while as I tried to figure out whether I had done something wrong in listening to a juror talk about a case. Ultimately, I was advised to put whatever he said out of my mind, because there was nothing I could do about it and the jurors are prone to lie - the ones that say they were in there pulling for you are the ones that were most likely blackening your name.

Parsing the Roanoke Times editorial on the ruling re: optical scan ballots

They said: "A three-judge panel of the Richmond Circuit Court issued rules last week for a retabulation -- not a recount -- in the razor-thin attorney general's election. Without double-checking ballots, questions will linger over whether more Virginians voted for Robert McDonnell or Creigh Deeds."

I say, what? The vote is being re-counted the same way it was counted the first time, by looking at the printouts from the optical scan machines.

They said: "The Richmond judicial trio received the unenviable task of setting the rules for next week's recount. Though both candidates agreed on most of the rules, the judges undermined the integrity of the process by choosing not to recount about 500,000 ballots cast on optical-scan forms and punch cards."

I say: There was no authority for this request under Virginia law, as the lawyers for Deeds conceded and the panel so held.

They said: "Deeds' attorneys argued election officials should run those ballots through tabulating machines again, separating out undervotes -- ballots on which it appears neither candidate received a vote -- for review. That way if, for example, a machine missed a Roanoke absentee voter's choice because he colored outside the bubble, officials could count the vote."

I say: Undervotes are normal. The existence of an undervote is no evidence that the vote count for the Attorney General's race is wrong.

They said: "McDonnell's attorneys opposed that move, arguing that reprocessing the ballots could introduce new errors."

I say: Why not? Virginia law is on their side.

They said: "The judges sided with McDonnell. Election officials next week will mostly just double-check their math, rerunning ballots only if the court finds something wrong with printouts from the initial tabulation."

I say: The judges applied the law, blame the legislature if you don't like it. See Va. Code § 24.2-802 ("The redetermination of the vote in a recount shall be conducted as follows: . . . 4. For optical scan tabulators, the recount officials shall first examine the printout to redetermine the vote. Only if the printout is not clear, or on the request of the court, the recount officials shall rerun all the ballots through a tabulator programmed to count only the votes for the office or issue in question in the recount and to set aside all ballots containing write-in votes, overvotes, and undervotes. The ballots that are set aside and any ballots not accepted by the tabulator shall be hand counted using the standards promulgated by the State Board pursuant to subsection A.").

They said: "That is not much of a recount. Officials cannot find miscounted votes if they only make sure they carried the seven. No doubt the first tabulation had a minimal margin of error, but its closeness demands extra scrutiny the second time round."

I said: See all of the above.

They said: "The panel left Deeds the option of challenging ballots on a locality-by-locality basis. Things will get ugly if his campaign cherry picks localities with heavy Democratic registration for challenges."

I said: I hadn't heard that one, the undervotes they were complaining about were in Chesterfield and Virginia Beach.

They said: "No one wants this recount to degenerate into Florida's 2000 debacle with officials peering at hanging chads, but next week's recount goes too far in the opposite direction by removing nearly all chance for correcting mistakes."

I said: Watch what happens. Don't blame judges for applying the law. If the law is no good, write a note to the governor.

Sheriffs - state or local

CrimLaw asks: Are Sheriffs state or local government officials?

The answer in Virginia, for the most part is: state.

Virginia sheriffs sued in their official capacities are "state" rather than local government offices for purposes of the Eleventh Amendment and are not "persons" for purposes of section 1983. See Blankenship v. Warren County, 918 F. Supp. 970, 974 (W.D.Va. 1996), on reconsideration, 931 F. Supp. 447, 449 (W.D.Va. 1996) ("[T]he court concludes that the Sheriff and the Sheriff’s Department are arms of the Commonwealth of Virginia and that they, therefore, are entitled to invoke the defense of immunity from suit pursuant to the Eleventh Amendment") (Michael, J.); McCoy v. Chesapeake Correctional Center, 788 F. Supp. 890, 893 (E.D.Va. 1992) (Doumar, J.) (holding that city jail and sheriff department employees are state offices and officials for purposes of Will and the Eleventh Amendment; "[i]n Virginia, sheriffs are state officials, VA. CODE ANN. § 15.1-40.1 (1991), whose positions are constitutionally created, VA. CONST. ART. VII, § 7").

In a wide variety of contexts, the courts have held that Virginia sheriffs are state and not local officials. See Strickler v. Waters, 989 F.2d 1375, 1390 (4th Cir.), cert. denied, 510 U.S. 949 (1993) (Portsmouth, Va., sheriff not considered local official); Jenkins v. Weatherholtz, 909 F.2d 105 (4th Cir. 1990) ("In Virginia, a sheriff is an independent constitutional officer whose duties and authority are defined by statute"); Perdue v. Penalosa, 1994 WL 559140 (4th Cir. 1994) (unpublished per curiam) (city jail run by sheriff’s department not a "person" under Will as a state agency); Brickey v. Smyth County, 944 F. Supp. 1310 (W.D.Va. 1996) (Jones, J.) (deputy sheriffs are not county employees for purposes of the FLSA); Keathley v. Vitale, 866 F. Supp. 272, 276 (E.D.Va. 1994) (Clarke, J.) (Virginia Beach sheriff "is a 'constitutional officer' who serves "independent of municipal government"); Olivo v. Mapp, 838 F. Supp. 259, 261 (E.D.Va. 1993) (Virginia sheriff serves independent of state government and his duties prescribed by state statute); Himple v. Moore, 673 F. Supp. 758, 759 (E.D.Va. 1987) ("in Virginia, the sheriff is a constitutional officer who serves independent of county and city governments"); Sherman v. City of Richmond, 543 F. Supp. 447 (E.D.Va. 1982) (same); Hilton v. Amburgey, 198 Va. 727, 96 S.E.2d 151 (1957) (sheriff considered to be state rather than local employee); Board of Supervisors of Rockingham County v. Lucas, 142 Va. 84 (1925) (deputies not local employees); Burch v. Hardwicke, 71 Va. (30 Gratt.) 24, 35-36 (1878) (sheriff characterized as state employee).

On the victim's identification of the criminal and qualified immunity

In McKinney v. Richland County Sheriff's Department, the Fourth Circuit in an opinion by Judge Luttig, joined by Judges Williams and Michael, reversed the denial of qualified immunity in a case where a teacher sued the law enforcement officer, who had obtained a warrant against him because the nine year-old crime victim had identified the plaintiff as the criminal. The Court ruled, the crime victim's identification was enough to satisfy the requirement of probable cause.

No sauce for the goose

In Wendt v. Leonard, the District Court found that because of the Anti-Injunction Act which limits the ability of courts to act to prevent state law tax collection efforts, it had no subject matter jurisdiction to enjoin the defendants from seizing the plaintiff's boat for unpaid taxes, and then awarded attorneys' fees against the plaintiff under 42 U.S.C. § 1988.

The plaintiff thought about this for a while and then filed a motion under Rule 60(b)(4) as to the fees, claiming that the fee award must be void, because if the District Court had no subject matter jurisdiction over the merits, then it was similarly powerless as to the attorneys' fees.

The Fourth Circuit, in an opinion by Judge Traxler, joined by Judge Gregory and District Judge Harwell, affirmed the denial of the post-judgment motion, concluding that section 1988 gives the district courts the power to impose attorneys' fees in cases filed under section 1983, even those over which the court lacks subject matter jurisdiction.

Just in time for Christmas

In Rogers v. United States Postal Service, the plaintiff sued the Postal Service in the amount of $500 seeking indemnification for a piece of insured mail she sent from the Virgin Islands, where the plaintiff's client's agent signed for the package and then the client never got it.

In the opinion, Judge Turk granted summary judgment for the Postal Service.

On the late Carl Smith

This article describes Carl Smith from Wise County, who gave millions to the University of Virginia for projects in Charlottesville and in Wise, and who died last week at age 78.

On using less paper

This CSM article begins: "For office innovators, the unrealized dream of the 'paperless' office is a classic example of high-tech hubris. Today's office drone is drowning in more paper than ever before.

But after decades of hype, American offices may finally be losing their paper obsession. The demand for paper used to outstrip the growth of the US economy, but the past two or three years have seen a marked slowdown in sales - despite a healthy economic scene."

The state bar associations of the United States

I wanted a list of the state bar associations and surprisingly didn't find one to my liking, so I made this one:

Alabama State Bar
Alaska Bar Association
Arkansas Bar Association
State Bar of Arizona
State Bar of California
Colorado Bar Association
Connecticut Bar Association
Delaware State Bar Association
The District of Columbia Bar
The Florida Bar
State Bar of Georgia
Hawaii State Bar Association
Idaho State Bar
Idaho State Bar Association
Illinois State Bar Association
Indiana State Bar Association
Iowa State Bar Association
Kansas Bar Association
Kentucky Bar Association
Louisiana State Bar Association
Maine State Bar Association
Maryland State Bar Association
Massachusetts Bar Association
State Bar of Michigan
Minnesota State Bar Association
The Mississippi Bar
The Missouri Bar
State Bar of Montana
Nebraska State Bar Association
State Bar of Nevada
New Hampshire Bar Association
New Jersey State Bar Association
New York State Bar Association
State Bar of New Mexico
The North Carolina State Bar
State Bar Association of North Dakota
Ohio State Bar Association
Oklahoma Bar Association
Oregon State Bar
Pennsylvania Bar Association
Rhode Island Bar Association
South Carolina Bar
State Bar of South Dakota
Tennessee Bar Association
State Bar of Texas
Utah State Bar
Vermont Bar Association
Washington State Bar Association
The West Virginia State Bar
State Bar of Wisconsin
Wyoming State Bar

On Judge Cridlin

I wasn't there, but I read in the Powell Valley News that Judge Joseph N. Cridlin was the grand marshal of the Christmas parade this year in Jonesville.

The newspaper article says in part:

"He graduated from Jonesville High School in 1929 and attended The College of William & Mary in Williamsburg, obtaining his law degree. Cridlin credits his decision to become a lawyer to his father, George P. Cridlin, who began practicing law in Jonesville in 1901. . . . Cridlin began practicing law in 1935 and was appointed Circuit Court Judge in 1960, seving until his retirement in 1974.

. . . Cridlin also commented that he resides on his farm and enjoys 'coming to town' with his daily business duties conducted at Cridlin Law Office."