Sunday, December 31, 2006

CNET reports on the recommendations of AG McDonnell's Internet task force

CNET's Anne Broache reports here on recommendations from the report of the task force assembled by Virginia Attorney General Robert McDonnell on online safety for kids. Included is discussion of the recommendations that ISPs keep records longer so that law enforcement can catch online criminals, and the registration of online handles for sex offenders who use the internet.

The full report of the task force is here.

The task force members, by the way, included the following:

Honorable Eileen M. Addison, Comm. Attorney York County and City of Poquoson
Elizabeth Banker, Associate General Counsel, Yahoo!
Dr. Sally K. Boese, Virginia Association of Independent Schools
Kenneth and Mary Alice Booth, Concerned Parents
Elisabeth A. Bresee, Vice President, Capital One
Honorable Mike Brown, Sheriff, Bedford County Sheriff’s Office
John L. Brownlee, United States Attorney, Western District of Virginia
Dr. Billy Cannaday, Jr., Superintendent of Public Instruction, Virginia Department of Education
Michelle Collins, National Center for Missing and Exploited Children
Charles D. Curran, Chief Counsel, Policy & Regulatory, American Online
Liz Eraker, Policy Analyst, Google, Inc.
Colonel W. Steve Flaherty, Superintendent, Department of State Police
Dianne Florence, President, Virginia PTA
David Foster, Arlington School Board
Anne Gavin, State Government Affairs Regional Manager, Microsoft Corporation
Robert E. Gwaltney, Assistant Special Agent in Charge, FBI Richmond
Honorable Michael N. Herring, Commonwealth’s Attorney City of Richmond
James L. Hilton, Chief Information Officer, University of Virginia
Honorable Janet D. Howell, Senate of Virginia
Honorable Robert Hurt, House of Delegates of Virginia
Virginia James, Cox High School
Bobbie Kilberg, President & CEO, Northern Virginia Technology Council
Rick Lally, President, Hampton Roads Technology Council
Ray LaMura, President, Virginia Cable Telecommunication Association
Rick Lane, Vice President, Government Affairs, News Corporation
Honorable Ryan T. McDougle, Senate of Virginia
Col. Rodney D. Monroe, Chief, Richmond Police Department
Officer Stan Moorefield, C.C.P.S., Virginia Association of School Resource Officers
Honorable Mark D. Obenshain, Senate of Virginia
William A. Pusey, Jr., Concerned Home School Parent
Thomas M. (Tommy) Quigley, Jr., Virginia High School Student
Donna Rice Hughes, Enough is Enough
Chuck Rosenberg, United States Attorney, Eastern District of Virginia
John Ryan, Vice President and Chief Counsel, America Online
Dr. Steve Shelby, West End Presbyterian Church
Honorable Kim Slayton-White, Commonwealth’s Attorney Halifax County
Carter Slough, Virginia High School Student
Robert J. Stolle, Executive Director, Greater Richmond Technology Council
Mr. John Titus, Principal, James River High School
Rosemary Trible, Community Leader
Joel Wiginton, Vice President & Senior Counsel, Government Affairs, Sony

Saturday, December 30, 2006

Fourth Circuit and RLUIPA

Loblaw has this post titled "Fourth Circuit Knocks the Teeth out of RLUIPA."

In Madison v. Virginia, on appeal from the W.D. Va., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Michael and Duncan, held that the Religious Land Use and Institutionalized Persons Act is constitutional as applied to the Commonwealth of Virginia except to the extent that it authorizes awards of money damages.

On the Spending Clause issue, the Court rejected Virginia's arguments, including the claim that the Supreme Court's decision in Rumsfeld v. FAIR somehow restricted the authority of Congress - since after all, that case "rejected a Spending Clause challenge."

On the money damages issue, the Court concluded "that RLUIPA's 'appropriate relief against a government' language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages." The Court went on to conclude that the Civil Rights Remedies Equalization Act was inapplicable to RLUIPA.

This outcome sounds like one of those Rehnquist-era federalism decisions, but since the panel included Judge Michael it seems unlikely that there would be a different outcome on rehearing by the en banc court.

In Lovelace v. Lee, Judges Michael and Wilkinson disagreed on the claims of a Muslim inmate at Keen Mountain against prison officials under RLUIPA and the First Amendment. Judge Kiser for the W.D. Va. granted summary judgment for all defendants on all claims.

Judge Michael, joined by Judge Motz, vacated summary judgment against a correctional officer in his individual capacity on the plaintiff's Free Exercise and RLUIPA claims, and vacated summary judgment against the warden in his official capacity. Judge Wilkinson agreed the claims against the individual officer should go forward, but dissented as to the official capacity claims against the warden.

In response to Judge Wilkinson's strongly-worded dissent, Judge Michael explained: "Today's remand provides nothing akin to a license for courts to plunge into prison policymaking or prison management. We merely require that the prison itself explain in a responsive fashion why the Ramadan policy's burdens on religious exercise are justified under RLUIPA's standard. It is our dissenting colleague who delves into prison policymaking by coming up with his own reasons as to why the policy's restrictions are necessary to insure safety and security. If a court could, as the dissent would have it, offer explanations on its own, then prisons would be effectively relieved of their responsibilities under RLUIPA. Or what is more fundamental, court-generated explanations would cut severely against Congress's intent to provide inmates with greater protections in the area of religious exercise."

Of the claim against the warden, Judge Wilkinson wrote: "Thus the majority's remand must be seen for precisely what it is: an invitation to finetune prison policy from the judicial perch. While a prison policy may well be called into question where it imposes a substantial burden on religious freedom, this is not such a case. It is plaintiff Lovelace who must prove under the statute that the policy, as opposed to Lester's violation of it, somehow imposed a substantial burden upon his religious exercise, and he has not even begun to do so. To enlarge a case involving an essentially individual act into a wholesale attack upon a sound prison policy, on no fewer than three different grounds, not only makes a mountain out of a molehill but also reinforces the old adage that no good deed goes unpunished. Under the majority's view, the most progressive and enlightened prison policy imaginable, a policy that accomodates every religion in every way, would be called into question by a single policy violation. Forcing prison officials to pay for their own progressive steps to protect religious liberty runs counter to the precise statutory and constitutional provisions that the majority purports to enforce. I therefore concur in the judgment remanding the case for further proceedings against defendant Lester, but I respectfully dissent from the majority's RLUIPA, free exercise, and due process determinations as to the prison policy itself."

Somewhat obscured by these fireworks, the Court's discussion about qualified immunity strikes me as wrong. Judge Kiser held that the individual was entitled to qualified immunity because the constitutionality of RLUIPA was clearly established. Judge Michael rejected this conclusion, because at the time of the events in question, no court had yet ruled one way or the other on the constitutionality of the new statute. RLUIPA was passed by Congress after the Supreme Court held that its predecessor was unconstitutional. To say that its constitutionality was clearly established in 2002, when it was an open and difficult question for the appeals courts when they made their decisions in 2003 and later, seems to turn the qualified immunity analysis upside down. RLUIPA was born of constitutional uncertainty, which is the very stuff of which the qualified immunity defense is made.

Thursday, December 28, 2006

The public defenders for the W.D. Va.

I finally noticed here the list of attorneys hired to staff the new office of the Public Defender for the W.D. Va. The list includes:

Randy V. Cargill, AFPD (Roanoke)
B.S. 1978 United States Military Academy (2nd in class)
J.D. 1984 University of Virginia
1985-1991 U.S. Army Judge Advocate General’s Corps
1991-2006 Private practice in Roanoke

Nancy Dickenson, AFPD (Abingdon)
B.A. 1982 Randolph-Macon College
J.D. 1987 University of Richmond
1994-1995 Commonwealth’s Attorney for Russell County
1995-2006 Private practice in Lebanon, Virginia

Andrea Lantz Harris, AFPD (Charlottesville)
B.A. 1988 University of Notre Dame
J.D. 1994 University of Louisville
1999-2006 Charlottesville Public Defender’s Office

Frederick T. Heblich, Jr., AFPD (Charlottesville)
B.A. 1971 University of Virginia
J.D. 1982 University of Virginia
1982-2006 Private practice in Charlottesville

Monroe Jamison, Jr., AFPD (Abingdon)
B.A. 1984 University of Kentucky
J.D. 1987 University of Kentucky College
1989-2006 Private practice in Abingdon

Fay Spence, AFPD (Roanoke)
B.A. 1982 St. Leo College
J.D. 1987 William & Mary
M.A. 2005 Old Dominion University
2005-2006 Public Defender, City of Newport News, Virginia

Christine Spurell, Legal Research and Writing Specialist (Abingdon)
B.A. 1988 Oberlin College
J.D. 1991 Harvard University (Editor & member of the Articles Office, Harvard Law
Review)
1991-1993 Prettyman Fellow, Georgetown Law Center
1994-1996 Law Clerk, Chambers of the Honorable Vanessa Ruiz, D.C. Court of
Appeals
1996-2001 Private practice, Washington, D.C.
2001-2003 Associate Chief Counsel, Food & Drug Administration Rockville, MD
2004 Law clerk, chambers of the Honorable Elizabeth McClanahan, Court of
Appeals of Virginia, Abingdon
2005-2006 Private practice in Abingdon, Virginia

Statewide or by congressional district

Sometimes you hear the idea that the Electoral College, for the selection of U.S. Presidents under the Constitution, should not be winner-take-all for each state. An alternative proposed by some is that the electoral votes should be awarded based on the vote in each congressional district, with the two leftovers going to the overall winner.

In 2006, it seems to say here that George Allen lost the statewide vote but was the winner in 7 of 11 Congressional districts in Virginia.

Wednesday, December 27, 2006

Non-filing of discovery mania

By rule and standing order in our federal court, discovery material is not to be filed.

Rule 5(d) of the Federal Rules of Civil Procedure says:

"All papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service, but disclosures under Rule 26 (a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing:
(i) depositions,
(ii) interrogatories,
(iii) requests for documents or to permit entry upon land, and
(iv) requests for admission."

The standing orders include this one for Judge Jones ("That in civil cases, except prisoner actions, assigned to Judge James P. Jones, discovery material will not be accepted for filing by the clerk of court on or after October 1, 1996, unless filing of same is ordered by the court.") Judge Williams is arguably the exception, but I think Rule 5(d) applies to his cases as well.

Nevertheless, we have in our district the practice of filing "discovery letters," which I never do. If the discovery request itself is not to be filed, why would the cover letter be filed? Similarly, I am opposed to the filing of deposition notices and other flotsam and jetsam related to discovery unless and until the Court orders their filing, or their are part of a motion, or they are attached to some subpoena on which a return of service has to be filed. It seems to me that these papers should not be filed because they are no use to the Court and their filing is at odds with possibly the letter and certainly the policy of the rule against filing discovery material.

Am I wrong about this?

Wallace bows out, will others do likewise?

ACSblog posts that Fifth Circuit nominee Michael Wallace is asking that his nomination be withdrawn, the post notes the usual complaints about Fourth circuit nominees Boyle and Haynes and that the Washington Times has editorialized that President Bush should name other people to try to get some more appeals court judges confirmed while he still has the chance.

There is no shortage of good judges who could do the job.

Friday, December 22, 2006

A dog's life

Chrissy was a former Death Row inmate, whose sentence was commuted to house arrest, when we brought her home from the Animal Shelter. Still, she felt the Call of the Wild, and lived in absolute certainty that beyond the friendly confines of the fences of our backyard, there were kitties and squirrels running amok, and other puppies wanting to play. So, Chrissy sought every way she could to see more of the Outside. When a misplaced winter boot knocked off a chunk in the side gate, leaving just enough room for a black nose and two black eyes, ever after the puppy Chrissy used that spy hole to peer out at the Town.

The house where we lived was old and odd. At one time in its history it had been rented out as two apartments, upstairs and down. In the back, there was a rickety wooden staircase leading up to the small deck by the upstairs door. The kitchen and downstairs bathroom were a single story, attached to the back of the house, next to the stairs. From the deck atop the stairs, the puppy learned she could slide through the rails and step on to the shingled roof of the kitchen.

"What's that?" asked my wife, standing at the bathroom sink. She heard a noise on the roof above her, and looked up to see the puppy's tail swishing above her. The dog had walked over the crest of the kitchen roof, so she could peer around the corner to see the World, and now she could also look through the sky-light down into our bathroom. We ran out to the backyard to rescue the puppy. Terry, the next door neighbor, hollered out, "Hey, Steve, you've got a dog on your roof."

From then on, we had to block the stairs, so the puppy could not go all the way to the top. So long as we lived there, the dog lounged on the stairs. When she grew too old and wide to fit through the rails, she liked to sleep under the stairs, on the cool bricks, peering out at trespassers in the alley behind the house -- the kitties and squirrels and sometimes dogs and people. If they trespassed too long, Chrissy would run up the length of the yard to bark at them through the wire fence. As for the squirrels and the kitties who dared to set foot inside the fence, the puppy chased after them, hoping to sink her teeth into their swishy-swishy tails.

As Chrissy became old, we moved from the old house with the rickety stairs to a new place, in a neighborhood with many dogs, and bunnies and squirrels, and little girls who called out, "Hey, can we pet Chrissy?" There was an exciting boy-dog across the street. Chrissy won every staring contest with the curious young cows who caught her eye in the field behind us.

But in the years at the new house, our walks got shorter and shorter. At first, she could walk to the other end of the street, then just to the stop sign, then just two doors down, then one door, then to the mailbox, then not at all. To the end, she took in a breeze like some people take in a concert, with her head back, eyes blinking, enjoying the the full range of the symphony of scents. Her last day was Wednesday, a sunny day, the hardest day.

Monday, December 18, 2006

Jimmy Stewart and his old dog



With the end near for our dog, I am reminded of Jimmy Stewart's poem about his dog, which is more compelling when you watch this clip from the Tonight Show.

Waiting for Hillary

The Washington Post has this article about how the so-called balance of power on the Fourth Circuit may change if the Bush administration continues to fiddle with the increasing number of vacancies.

One quote from the article: "Imagine the people Hillary Clinton would appoint to the 4th Circuit."

That's what I did here. I note that Ms. Tate is tight with the Senator Webb camp, that's one way to become a federal judge.

There's a typo in that earlier post, I wrote Nadine "Strosser," when I meant Nadine Strossen. "Strasser" was the name of the evil Nazi major shot by Bogart at the airport in the final scene of Casablanca. I apologize for this error.

Sunday, December 17, 2006

New dean at ASL

It says here that the Board of Trustees of the Appalachian School of Law have selected Professor Wes Shinn as the new dean.

Professor Shinn at one time was part of the Stone Pigman firm in New Orleans. (I always look people up on Westlaw.) Stone Pigman is, among other things, the liaison counsel for Merck in Louisiana where the Vioxx MDL proceedings are ongoing.

Dairy diet litigation gets booted from E.D. Va.

The Washington Post reported here on the dismissal of litigation against the dairy industry for promotion of the "dairy diet." The article says in part:

"But a federal judge has ruled that under Virginia law, Holmes and other people can't take on the industry in court -- only a government entity such as the Virginia attorney general's office can. The decision last week by U.S. District Judge Leonie M. Brinkema in Alexandria threw out the lawsuit Holmes filed last year.

In her ruling last Thursday, Brinkema said Virginia consumer protection law allows people to seek monetary damages but not a broad injunction regulating an industry. She did not address the science of the debate, writing that such federal agencies as the Food and Drug Administration and the Federal Trade Commission are better equipped to do so.

In the lawsuit, filed in Alexandria Circuit Court and moved to federal court, the physicians committee accused the dairy industry of promoting the weight-loss notion through a "massive, deceptive advertising campaign." The committee says overwhelming scientific evidence shows that dairy products cause weight gain or have no effect. The only studies showing otherwise, the committee contends, are industry-funded.

Holmes is the sole plaintiff in the lawsuit, filed against such companies as General Mills Inc. and the Dannon Co. Inc. and three dairy industry trade groups. In addition to damages for Holmes, the suit seeks an order halting the dairy industry campaign."

Saturday, December 16, 2006

Seven candidates for Albemarle circuit court answer questions

The Daily Progress has this report on a forum for the candidates to succeed Judge Peatross.

Locally, the General Assembly will replace Juvenile and Domestic Relations Judge Gene Lohman. I don't think we will see a similar event for would-be judges looking to replace him.

Best reason to boycott Kingsport

They're putting in those red-light cameras, according to this report.

Some guy with the City is quoted as saying: "This has never been about revenue. It was about safety from the beginning. It still is and will continue to be."

I guess he never read the study described here, or the others like it.

Tuesday, December 12, 2006

Not a convert

Somewhat in the manner of the Jaded JD, it has been written over at the Booby Hatch that "Mr. Minor" hasn't a clue.

I'm arguing collateral estoppel this afternoon, yet hoping that the adjudication from the Booby Hatch will not be binding.

Monday, December 11, 2006

Bad news from Roanoke

Ruby the Tiger has been put to sleep, or so it says here. The Roanoke paper has pictures of Ruby here.

Sunday, December 10, 2006

Motley crew


I just saw this month-old collage, and decided to pirate it. Here's the place of origin. Well done, Badrose.

An unexpected dividend of blogging is having met all those people, or most of them.

Blog v. dog

As we debate morning, noon, and night how much longer to keep Chrissy, I recollect this Scheherazade post, where she asked the question, which would you give up, the blog or the dog?

My answer in January, 2004:

"My dog is 13, bad legs, bad hearing, bad breath, bad manners. She was once declared 'cute' by a future federal judge as she wagged her tail at him in the middle of our town.

I'd say we'd give up about everything we've got for her, if it comes to that, but I'm afraid it won't."

Almost three years later, that's about the size of it - there's nothing much we can do but try to figure out when enough is enough. In this old photo, the dog looks like she is expressing her view of the situation.



S. also wrote this memorable post about her favorite Google search term, which makes me think that things could be worse.

The Christians and pagans in Albemarle County

Reason has this post which begins:

"Albemarle County Virginia public schools allowed pagans to distribute flyers in the backpacks of school children inviting them and their families an event this weekend where they can learn about and participate in pagan yuletide rituals. Some outraged Christian parents objected. But the delicious part of this story is that a threatened lawsuit by Jerry Falwell's Liberty Counsel legal aid group is the reason the pagans can issue such invitations through the public schools."

On the bright line rule of Jones v. Jones

Back in October, in the case of Jones v. Jones, the Virginia Court of Appeals in an opinion by Judge Humphreys joined by Judge Elder and Senior Judge Annunziata held that the notice of appeal was a nullity because appellant's counsel was suspended from practicing law at the time it was filed.

The ABA Journal eReport published this article about the case, which begins: "If an attorney with a suspended license files a notice of appeal, the client will pay a price, even if neither the lawyer nor the client knew of the suspension, the Virginia Court of Appeals has ruled."

Carolyn Elefant weighs in: "Stupid result, in my view. Where an attorney knowingly files an appeal and isn't licensed to practice, he deserves blame for the result. But where an attorney doesn't know, why should the client be penalized? In this case, the events all took place over a short period, with the former attorney withdrawing at the beginning of July 2005, the new attorney filing notice of appeal August 9, 2005 and the suspension ending on August 25, 2005. Had the client's new attorney realized that he was suspended through the end of August 2005, he could have asked the client's former attorney to lodge the appeal (or the client could have filed pro se) and stepped in to the case when his suspension concluded. The court's approach rejected this sensible outcome and penalizes the client for an easily avoidable situation."

Fair or not, it sounds like a Virginia ruling to me. Appellate practice in Virginia is gotcha-law. The Court of Appeals based its decision on Nerri v. Adu-Gyamfi, 270 Va. 28, 613 S.E.2d 429 (2005), which in turn relies on Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671 (2002), the case involving the multi-million dollar judgment from Buchanan County where only the Kentucky lawyer signed the notice of appeal. Similarly, the Washington Post series on the sorry state of funding for indigent defense in Virginia noted the high level of appeals in criminal cases that are dismissed on procedural grounds. It's pass/fail, the Rules are not intuitive, counsel has relearn them for every appeal. Somehow, the federal appeals court manages to get by without the same harshness, in fact, the clerk's office pretty much spoon-feeds the lawyers from start to finish. I've never heard any of the judges or justices state why they believe the state court rules are just. Steve Emmert in his commentary on the case charitably attributes to Virginia's appellate benches the view that they "genuinely dislike procedural dismissals, and try to avoid them where they can."

Also, I don't know whether the outcome in Jones would be different in a federal case As Marcia Oddi explains here, linking to this article by Howard Bashman, lawyers get fried in federal appeals, too (particularly by two famous Seventh Circuit judges).

I also wonder whether Jones would have been different if the client had also signed the notice of appeal - unlike the parties in the Wellmore case, an individual could represent himself or herself.

Get your bargain lawyer

Some excerpts from the ALJ lawyer fee survey, with rates for associates of different degrees of seniority:

Dickinson Wright (226) (Detroit)
1st $160 5th $200
2d $165 6th $220
3d $175 7th $230
4th $185 8th $240

Dinsmore & Shohl (306) (Cincinnati)
1st $160 5th $200
2d $170 6th $210
3d $180 7th $215
4th $190 8th $225

Hiscock & Barclay (160) (Syracuse, N.Y.)
1st $160 5th $170
2d $160 6th $180
3d $170 7th $180
4th $170 8th $195

Morris, Manning & Martin (174) (Atlanta)
1st $170 5th $305
2d $225 6th $315
3d $270 7th $340
4th $285 8th $350

Phillips Lytle (173) (Buffalo, N.Y.)
1st $130 5th $175
2d $145 6th $185
3d $150 7th $195
4th $165 8th $210

Shumaker, Loop & Kendrick (162) (Toledo, Ohio)
1st $165 5th $195
2d $170 6th $200
3d $180 7th $215
4th $190 8th $220

Those were the lowest figures on the list.

Carolyn Elefant at My Shingle says small firm lawyers ought to use this list to show what bargains they are.

Saturday, December 09, 2006

Still more on one space v. two spaces

Via this week's Blawg Review, I learned of AdamsDrafting, which has this post siding with the one space camp, of which I am a member.

It says in part:

"The Chicago Manual of Style 2.12 (15th ed. 2003) says 'A single character space, not two spaces, should be left after periods at the ends of sentences (both in manuscript and in final, published form) and after colons.' To my mind, that settles it, but I’ll note that The Associated Press Stylebook (2004) also calls for one space. So does Bill Walsh’s Lapsing into a Comma (2000). . . .

Of course, law firms and most lawyers are wedded to two spaces. It would be a mistake to assume that this is the result of a reasoned decision. Instead, you can attribute it to the same oblivious conservatism that has caused them to perpetuate any number of other deficient usages.

As the online Chicago Style Q&A states, there's no evidence that using two spaces makes text easier to read. Consequently, the only conceivable defense of the practice is that it's harmless. But as also noted in the Chicago Style Q&A, using two spaces is inefficient, requiring an extra keystroke for every sentence, and is harder to control, in that any document created using the two-space rule is likely to contain a 'a smattering of instances of both three spaces and one space after a period, and two spaces in the middle of sentences.'

So if you're still using two spaces, stop it - your credibility is at stake!"

Friday, December 08, 2006

Plaintiff/counter-defendant cannot remove case based on federal question in counterclaim

In Great Eastern Resort Association v. Bluegreen Corporation, Judge Wilson ordered the remand of a case where the original plaintiff sued some former employees in state court, the employees counterclaimed under the Fair Labor Standards Act, and the original plaintiff filed a notice of removal based on the counterclaim.

Can you even bring a counterclaim under the FLSA in state court? Maybe so.

Maybe he needed a referral from my wife's uncle

In Underwood v. U.S., on the petitioner's claim for post-judgment relief from his conviction, Judge Wilson concludes his opinion with these words:

"Underwood, who is not an uneducated man stubbornly states, apparently for effect: 'my lawyer done me wrong.' Yet, here the facts are equally as stubborn, and his lawyer is simply that, a lawyer. He is not a magician. He cannot make the stubborn facts disappear."

The uncle, by the way, is the author of Inclined Toward Magic: Encounters With Books, Collectors, and Conjurors, which I think is his mostly first-person account of a lifetime of collecting books about magic. He also put together a book called Wizard Exposed: Magic Tricks by and Interviews With Harry Houdini Howard Thurston and Other Past Masters of Magic. Many years ago, we had dinner at the in-laws with David and one of his old magician buddies, who then performed a few magic tricks, successfully and without damage to persons or property.

Tuesday, December 05, 2006

Pain doctor's conviction affirmed

In U.S. v. McIver, the Fourth Circuit in an opinion by Judge Duncan affirmed the conviction of a physician for over-prescribing pain medication.

The facts of the case prompted this insightful Loblaw post, which says in part:

"A doctor getting prosecuted for overprescribing narcotics? That’s pretty common. But what’s uncommon – I hope – in this Fourth Circuit appeal is how the defendant got caught. A patient’s insurance company contacted the DEA because the patient was filling so many prescriptions for oxycodone. I suppose that is one way to keep insurance costs down."

Bear Bryant and civil rights

Today's Bristol paper had an article on the local author of Career in Crisis: Paul "Bear" Bryant And the 1971 Season of Change, David Briley, a professor at ETSU. The article is here, and it is far better than average for the otherwise incompetent Bristol paper.

It notes: "The scholarly accent to Career In Crisis is based around a lawsuit that was filed by the Afro-American Student Association. The association filed a lawsuit against Bryant, the University of Alabama, its board of trustees, chairman of the executive committee, university president and secretary of the U.S. Department of Health, Education and Welfare on July 2, 1969."

As I've written elsewhere, the first bowl game I recall was the 1973 Sugar Bowl.

Friday, December 01, 2006

Last look back at Commonwealth Conservative caption contests - my personal favorites

With both thumbs still upright, the finale of celebrity thumbwrestlemania was declared a draw.



When neither would agree to be the tail end, they both showed up only half-assed.



Overestimating the comic book literacy of the Blacksburg co-eds, he never understood the failure of what he thought was his best line: “If you like my Hulk, wait ’til I show you my Thing.”



Deciding what face to wear for rural voters, she chose the mule chewing briars.



After the Communists invaded Afghanistan, my original thought was to boycott the World Series, but then Mondale suggested the Olympics.



The whole gang on Easter Island loves the Reds.



In subsequent litigation, the manufacturer came to regret its advertising claim that the new model was great for cooking brats.

More on Chief Judge Wilkins taking senior status

Here are more articles on the "retirement" of Chief Judge William Wilkins of the Fourth Circuit:

From The State in South Carolina: Judge Wilkins stepping down

From the AP: Chief judge of 4th Circuit to step down

From the Richmond paper: Appeals court's chief judge to retire

The gossip at Southern Appeal is that Judge Wilkins plans to run for Governor of South Carolina, which sounds absurd to some of the commenters.

Time Magazine takes on the Derek Tice case

The Time article begins:

"Eight years ago, Derek Tice walked out onto his porch and found an entire swat team with all their guns pointed at him. He was convicted of murder, twice, in two separate trials, and sentenced to life in prison. To many observers in Norfolk, Virginia at the time, it had seemed like an open and shut case — a tape of Tice's own confession to the 1997 rape and murder of Navy newlywed Michelle Moore Bosko, 18, was played for the juries. But Tice and two other former Navy sailors convicted in the murder later insisted that they had fabricated the confessions after detectives had subjected them to harsh and manipulative questioning. The one other man convicted for the murder — and the only one whose DNA was linked to the crime — has since recanted his claim that the other men were involved and now insists that he acted alone. The whole argument may seem like a stretch — it certainly did and does to the victim's family — but on Wednesday a Virginia judge accepted enough of it to rule that detectives had not honored Tice's right to remain silent and overturned his sentence after almost a decade in custody."

UPDATE: The Washington Post has this editorial on the case.

Volokh on Miller-Jenkins

This Volokh post takes on the Virginia Court of Appeals' decision in the Miller-Jenkins case.

One of the commenters gets to the nub of the matter, as I see it:

"I am curious as well whether under Vermont law the child custody determination is considered an intrinsic claim/remedy in the dissolution of the civil union as it is in divorce actions. This would create the Catch 22 where a parent wishing to dissolve a civil union (so as to sever the property/inheritance/etc. rights created thereby)might have to submit to Vermont's jurisdiction over custody issues because their new home state doesn't recognize civil unions or a cause of action to dissolve them."

The related discussion poses the question, could a Virginia court dissolve a Vermont "civil union"?

Another hearsay gem from Buchmeyer

This one made me laugh out loud:

Prosecutor: On the photograph, what are on the brown, blood-like smudge?

Mr. Heu: From my zoological background, I keyed in on it because it had ants on it. [This was significant because it] indicated to me that it was fresh material rather than something that was days or weeks old.

Prosecutor: First of all, is there a difference between worker ants and soldier ants?

Mr. Heu: Yes. The soldier ants have large heads and the worker ants have small heads. The worker ants go out to forage - to find something. If it's a large find, the word will go back to the ant nest. The ants will send out more workers and if it's a big find, they'll send soldiers along.

Defense Attorney: I object to the materiality of the witness' statement.

The Court: Your objection is on the grounds of relevance?

Defense Attorney: Yes, sir. It's also hearsay as to what the ants tell each other.

The Court (wisely): Objection overruled.

On being oppressed by paper money

Overlawyered has this post which says a federal judge has ruled that "the U.S. Treasury Department is violating the law by failing to design and issue currency that is readily distinguishable to blind and visually impaired people."

The opinion from the D.C. District Court is here.

Thursday, November 30, 2006

Chief Judge Wilkins takes senior status?

SC Appellate Law Blog reports here that Chief Judge Wilkins is sending notice today that he is taking senior status. The post goes on to speculate on the future makeup of the Fourth Circuit. It says Judge Karen Williams will be the next chief judge. As described here, I am a fan of Judge Karen Williams.

I figure by this time in 2009, Gerald Gray, Mary Lynn Tate, and Nadine Strosser will be on the Fourth Circuit, at the rate things are going.

Wednesday, November 29, 2006

New rule on pro hac vice counsel in Virginia

Virginia Lawyers Weekly is reporting that the Virginia Supreme Court has adopted a new rule restricting the appearance of out-of-state counsel pro hac vice in Virginia cases.

I hate these kinds of rules when I go to West Virginia or Kentucky. Here on the Virginia-Tennessee border, I have not heard that there is a problem of Tennessee-only licensed lawyers running amok on the Virginia side.

So long as there is local counsel licensed Virginia at every hearing and every deposition and on every paper, and so long as pro hac vice lawyers are subject to Virginia discipline, the rest seems like a waste to me, including the fees and paperwork.

More on the Miller-Jenkins opinion

Michael Hardy wrote this article for the Richmond paper, which begins: "In an emotional struggle over parental rights arising from a former lesbian union, the Virginia Court of Appeals ruled yesterday that Vermont courts, not Virginia's, have exclusive jurisdiction in the custody battle. The decision, based on a narrow jurisdictional issue, is a preliminary round in the court battle that probably will reach the Virginia Supreme Court and perhaps the U.S. Supreme Court. Lawyers for the losing, biological mother yesterday vowed to appeal."

The Rutland, Vermont Herald has this report, which begins: "It didn’t take long Tuesday for news of a Virginia court’s ruling in a child custody case to travel north more than 550 miles to Janet Miller-Jenkins’ home in Fair Haven."

The New York Times has this article by Adam Liptak, who concluded: "The decision averted, at least temporarily, a collision between the civil unions for same-sex couples recognized in Vermont and the Virginia law."

Overlawyered has this post, which says in part: "Some social-conservative commentators had unwisely applauded the efforts of Liberty Counsel, a misnamed Religious Right litigation strike force, to help client Lisa Miller evade the jurisdiction of a Vermont court order ordering visitation rights to former partner Janet Jenkins."

Tuesday, November 28, 2006

Reefer madness

From an opinion by Magistrate Judge Sargent of the W.D. Va.:

"While there are disputes in the evidence with regard to whether Williams had been advised of his Miranda rights prior to making the statement at issue and whether the statement was made in response to a question, I find that the more credible version of the events comes from Haley. I base this finding on the fact that Williams admitted that he had begun smoking marijuana from the moment he awoke that morning and continued to do so until the vehicle was pulled over."

Virginia Court of Appeals tiptoes around DOMA in Miller-Jenkins case

In Miller-Jenkins v. Miller-Jenkins, the Virginia Court of Appeals avoided application of the federal Defense of Marriage Act.

The Court wrote:

"Simply put, DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ’s custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers."

The result sought by DOMA, 28 U.S.C. 1738C, was that "in the event Hawaii (or some other State) permits same-sex couples to marry, other States will not be obligated or required, by operation of the Full Faith and Credit Clause of the United States Constitution, to recognize that marriage, or any right or claim arising from it." H.R. Rep. 104-664, 23, 1996 U.S.C.C.A.N. 2905, 2929. Arguably, perhaps, the custody rights at issue arose from Vermont's recognition of rights for same-sex civil unions. On the other hand, I suppose the Court is saying that the custody rights at issue arose from the Virginia Ms. Miller-Jenkins' decision to litigate custody in Vermont.

DOMA was passed under the authority of Congress under the second sentence of the Full Faith and Credit Clause: "The Effects Clause is an express grant of authority to Congress to enact legislation to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States. To state it slightly differently, Congress is empowered to specify by statute how States are to treat laws from other States. Read together, the two sentences of Article IV, section 1 logically suggest this interpretation: While full faith and credit is the rule-that is, while States are generally obligated to treat laws of other States as they would their own-Congress retains a discretionary power to carve out such exceptions as it deems appropriate." H.R. Rep. 104-664, 25, 1996 U.S.C.C.A.N. 2905, 2930.

The attempt by the Court in Miller-Jenkins to distinguish between marriage and its "effects" is at best inadequately explained. By glossing over the conflict between DOMA and the Parental Kidnapping act, the Court avoided the monumental question of whether DOMA itself is constitutional.

Anyhow, this decision advances the issue for resolution by the U.S. Supreme Court, one of these days, since it is based on the federal Parental Kidnapping statute. The decision also highlights the irrelevance of the recently-passed marriage amendment in Virginia. The Court blows past all Virginia law provisions as fully preempted by the federal law. An amendment to the Virginia constitution would be no less preempted.

Environmental court in Wise County?

Here you can find the following letter to the editor of the Roanoke Times:

Once again, Southwest Virginia is leading the way in the state for litter control and local environmental protection.

The assign-a-highway program that utilizes the endless supply of labor from probationers got its start in Buchanan County, has spread to almost all the coalfield counties and is now adopted in several other state jurisdictions, including the Eastern Shore.

Judge Joe Carico, a former prosecutor and deputy attorney general, has launched the state's first environmental court in the Wise County General District Court. He has levied hefty penalties, up to $5,000, against litterbugs and people who dump trash and waste along roadsides and into streams.

Many coalfield counties have adopted ordinances, allowing their litter wardens to bring such cases to court under Virginia statute. Enforcement that hits the pocketbook stops littering and dumping.

Only the most dedicated idiots now dump trash in our region, and they are routinely caught with hidden cameras and very dedicated litter control wardens.

It's now hard to find roadside trash in Buchanan, Tazewell and Dickenson counties, and Wise and Russell counties are gaining ground.

Carico deserves our thanks for being innovative. Hopefully, his idea will catch on in the rest of the region and state.

FRANK KILGORE
ST. PAUL

Sunday, November 26, 2006

McDavid

After I came back from this year's trip to Italy, I wrote that Florence was a bit overrun with commercialism, and we saw the David indoors and outdoors, but I never thought it would come to this, via BoingBoing.

Posner on raising the minimum wage

Judge Posner writes here:

"Increasing the federal minimum wage, currently $5.15 an hour, is a priority of the new Democratic Congress. Democratic leaders want to raise it by 40 percent, to $7.25 an hour. From an economic standpoint, even from an egalitarian standpoint, raising the minimum wage, especially by such a large amount (roughly 10 percent of the American workforce makes less than $7.25 an hour, which is double the percentage of the workforce that is paid the current minimum wage), would be a grave mistake."

I once dealt with an expert witness who in calculating future wages used some rate of wage growth based on the historic rate of increases to the minimum wage by Congress. The minimum wage? That's just some artificial number with no relation to the market, I declared. He said, well, that depends on your politics. I said, that's exactly right, it's all politics. I suppose he was correct that the wages paid for some lower-income jobs are affected by the minimum wage, but betting on Congress seemed like poor science to me.

On no federal class action in the Vioxx cases

The ruling by Judge Fallon denying certification of a nationwide class action in the Vioxx cases is here, noting that "courts have almost invariably found that common questions of fact do not predominate in pharmaceutical drug cases."

Indeed, the big products liability class actions are almost all in state court and not federal court, but not in Virginia, where there is arguably no authority for class actions, as discussed here.

New W.D. Va. standing order on filing cases

I read this new order and wondered whether it is somehow related to the opinion in Cornett v. Weisenbarger by Judge Williams, dealing with a case of late payment of the filing fee (among other things).

It would seem to simplify the issue Judge Williams confronted, in addition to dealing with multiple payments of the filing fee.

The filing fee is the weakest link in electronic filing, I've had the experience myself where the credit card on file had expired, and so the clerk's office would not charge the account until someone called and gave them the new expiration date.

Perhaps they could hold symposia in the Rotunda

Professor Althouse reports from the halls of the academe here on the "fat studies" movement. Would that be a "growing" movement, I wonder?

Friday, November 24, 2006

On O.J.

I'm sick of news stories about the man Fred Goldman supposedly refers to only as "the killer," but I must confess that over the years, I have read many books about the lawyers from the O.J. Simpson case, of which the most compelling is the later edition of the Schiller book that includes the chapters on the civil case.

While the O.J. criminal trial was going on, we had a client who was on trial for sex harassment, call him "James." He claimed to be a big O.J. fan, watched the replays of the trial every night on cable. So I told him I had an idea for his defense that he would surely appreciate - we would declare to the jury that "James" was just as innocent as O.J.!

The client vetoed this brain wave.

Progress

From this ranking of law reviews, I surmise that the William & Mary Law Review has long since escaped the effect of its association with me, but perhaps retained the same as regards Dawn Figueiras.

Wednesday, November 22, 2006

Waldo takes on judicial selection

In this cvillenews.com post, Waldo Jaquith tries to figure out who will replace retiring Circuit Court Judge Peatross and how will he or she be selected. And, the commenters don't like one of the names being bandied about.

Does the mineral rights owner own the plain old rocks, too?

The Charlottesville paper had this interesting story, which says in part:

"In Tennessee, a mineral-rights owner has declared common rocks as his property and intends to harvest them although the owner of the land objects. The landowner and his neighbors are fighting the precedent in court.

The case might have implications for those parts of Virginia where mining and mineral rights have a history.

. . .

But coal mining is no longer a major force in the region north of Chattanooga, Tenn., where Ed Lewis lives. So Mr. Lewis never expected that anyone would exercise an option on the mineral rights on his property.

But the former owner retained those rights and now claims that the rocks on the property are his to be mined.

It’s not coal that he wants, but a newly fashionable form of resource wealth: building stone. Sandstone, flagstone, fieldstone have become popular for building or decorating fireplaces, walls, fences. Tennessee stone is now shipped all over the country."

On Hughes v. Moore

On the front page of this week's Virginia Lawyers Weekly is an article about the decisions by Magistrate Judge Sargent and Judge Glen Williams in the Hickman case from the W.D. Va.

The article points out that the leading case in dealing with the exception to the physical injury requirement for negligence claims is Hughes v. Moore. Judge Williams' opinion attempts to harmonize Hughes and the Virginia Supreme Court's later decision in Myseros v. Sisler.

What the article does not mention is that the lawyers in Hughes v. Moore, decided back in 1973, were Glen Williams for the plaintiff and Charles Flannagan for the defense. Judge Williams (as a lawyer) convinced Lee County Circuit Court Judge Cridlin at trial to allow recovery for the plaintiff, and Judge Flannagan (as a lawyer) appealed. The plaintiff's verdict was $12,000, where the medical bills were $112.

Tuesday, November 21, 2006

Right up there with Wilt Chamberlain

This USAToday profile of Dawn Staley is great.

It says in part:

By basketball standards, it has been hard for the 5-6 Dawn Staley to measure up.

She was always told she was too short, too little, too slow. But the more she was told she couldn't, the more determined she became.

"I grew up in the projects of North Philly," Staley says, "and the mentality of growing up there has helped me to maintain a certain level of aggressiveness, mental and physical toughness."

Staley, 36, is a three-time Olympic gold medalist, a five-time WNBA All-Star and made three Final Four appearances at the University of Virginia, where she was two-time NCAA player of the year.

. . .

The diminutive Philly kid is now using her basketball knowledge to make her mark in the coaching community.

After leading Temple to four NCAA Tournament berths, she was named an assistant on the 2006 USA women's world championship team. The two-time Atlantic 10 coach of the year hopes to be an assistant on the 2008 Olympic team and possibly the head coach at the 2012 Games. And there could be a WNBA head coaching position in her future.

. . .

Staley's impact on the women's game hasn't been limited to the basketball court. She has made a difference through her foundation.

Beginning next season, the WNBA's annual community award will be named the Dawn Staley Community Leadership Award.

"She is the face of women's basketball right now because of her big heart," says Cynthia Cooper, the four-time WNBA champion and currently women's basketball coach at Prairie View A&M University. "She constantly gives back to the community. I think her heart comes from her parents, her background and the trials and tribulations she had not only growing up, but excelling at basketball."

The Dawn Staley Foundation at the Hank Gathers Recreation Center in Philadelphia focuses on academics and athletics and provides middle-school children with positive influences in their lives.

Staley's background and world travels prompted her to start the foundation and are what helps her recruit and relate to players from all backgrounds.

Sunday, November 19, 2006

By the numbers

An SAT-style question - what's the next number in this sequence - 1984, 1987, 1988, 1989, 1991, 1992, 1994, 1997, 1998, 2003, ?

Hint:

Nov. 25, 2006: ?
Nov. 19, 2005: Tech, 52-14
Nov. 27, 2004: Tech, 24-10
Nov. 29, 2003: U.Va., 35-21
Nov. 30, 2002: Tech, 21-9
Nov. 17, 2001: Tech, 31-17
Nov. 25, 2000: Tech, 42-21
Oct. 2, 1999: Tech, 31-7
Nov. 28, 1998: U.Va., 36-32
Nov. 28, 1997: U.Va., 34-20
Nov. 29, 1996: Tech, 26-9
Nov. 18, 1995: Tech, 36-29
Nov. 19, 1994: U.Va., 42-23
Nov. 20, 1993: Tech, 20-17
Nov. 21, 1992: U.Va., 41-38
Nov. 23, 1991: U.Va., 38-0
Nov. 24, 1990: Tech, 38-13
Nov. 11, 1989: U.Va., 32-25
Oct. 29, 1988: U.Va., 16-10
Sep. 19, 1987: U.Va., 14-13
Oct. 25, 1986: Tech, 42-10
Oct. 19, 1985: Tech, 28-10
Sep. 29, 1984: U.Va., 26-23
Nov. 19, 1983: Tech, 48-0

Law books I'd like to get for Christmas

In no particular order,

1. Evan Schaeffer, Deposition Checklists and Strategies
2 and 3. Pozner & Dodd, Cross-Examination: Science and Techniques, Second Edition and Herb Stern, Trying Cases to Win: Cross-Examination
4. Ruggero Aldisert, Winning on Appeal: Better Briefs & Oral Argument
5 and 6. Bryan Garner, Garner's Modern American Usage and The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts
7. Cliff Atkinson, Beyond Bullet Points: Using Microsoft PowerPoint to Create Presentations That Inform, Motivate, and Inspire
8 and 9. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law and Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution
10 and 11. Andrew Kaufman, Cardozo, and Gerald Gunther, Learned Hand: The Man and the Judge
12. Mark Steiner, An Honest Calling: The Law Practice of Abraham Lincoln

Somehow I've managed to get by without these before now.

Thursday, November 16, 2006

Old dog's last road trip



We took the old dog to Midlothian for the long weekend.

I can't say that she had a good time, but in this picture she has her ears up and is ready to see what's going on in the world.

To walk outside, she uses a "rear-end leash" bought from HandicappedPets.com. To walk inside, well, she can't really walk inside any more.

Monday, November 13, 2006

Watch what you ask for

From the Winchester paper comes the following tale of the retrial of a wrongful death case, resulting in a sharply reduced verdict for the grieving widow:

Widow of motorcycle crash victim gets $1 for sorrow, nothing for economic losses

By Erica M. Bush
The Winchester Star

Winchester — The widow of a motorcycle accident victim will receive $1 for her sorrow and nothing for her economic losses, a jury decided on Thursday.

The Frederick County Circuit Court jury made its ruling in the retrial of a wrongful-death suit that had awarded $961,065 to the survivors of the crash victim.

Another jury previously found Minnick’s Auto Repair of Winchester liable for the July 25, 2004, death of 32-year-old Anthony Wright.

....

The wrongful-death lawsuit — filed by Wright’s widow, Christa — claimed that the Minnick’s tow truck driver, Bernard W. Everhart Jr., drove recklessly and backed into the road without looking for traffic, which caused Wright to crash after trying to avoid the truck.

....

On March 31, jurors in the first wrongful death trial awarded the plaintiffs — Christa and Anthony’s brother, Michael Wright — $10,534 for hospital expenses, $7,996 for funeral costs, and $942, 535 for the loss of income, services, protection, and care that had been provided by the victim.

A new trial was ordered after the jurors failed to award an amount to the plaintiffs for their sorrow.

Legally, the jurors should have awarded some amount, which could have been as low as $1.

On Thursday, the new jury awarded Christa $10,534 for hospital expenses and $7,996 for funeral expenses. She received $1 for her sorrow and nothing for her economic loss.

“They killed him and that’s it!” she said as she dropped to the floor screaming and crying in the hallway of the courthouse after the verdict was read.

Taking the stand on Thursday, Christa Wright fought back tears as she told the court she and her husband of 12 years were soulmates.

....

But James T. Bacon, the attorney for Minnick’s, argued that Anthony was separated from Christa at the time of the accident and that she should not profit from his death.

Witnesses testified that the couple were estranged at the time of the accident.

....

Bacon asked the court to award Christa $1 for her anguish and nothing for the loss of income.

He also said Christa was with a boyfriend at the time of the accident.

Christa admitted that she stayed with the man the defense described as her boyfriend after Anthony’s death, but said they were just friends.

She also admitted having an intimate relationship with Anthony’s brother, Michael, after her husband’s death.

Michael, who Plofchan called to the stand on Thursday, said his brother and Christa had mentioned going to see a divorce attorney, but had called it off.

....

In his closing arguments, Bacon asked the jurors not to award Christa the $1 million the prosecution was asking for. “The plaintiff would not have profited while her husband was alive, and she should not profit from his death,” he said.

Bedford judge goes fishing

Here is a story about a Virginia general district judge in a fishing contest.

Fascinating stuff

Via Blog 702, the Tenth Circuit in Sims v. Great American Life Ins. Co. takes on the interplay between the Erie doctrine and the Federal Rules of Evidence.

The gist is that Erie does not apply to matters covered by the FRE, but nevertheless state policy informs the application of the FRE.

On democracy in action

Judge Posner has this interesting commentary on the 2006 election - the gist being, the system works.

Balkin has this interesting post on how it's not over yet for the conservatives - the gist being, conservatives never quite got control, but their fortunes can be somewhat retrieved in 2008.

The Richmond paper points out that changes in the Congress will mean less clout on the Hill for Virginia, although they might mean more clout for Southwest Virginia with Boucher back on the majority side.

Sunday, November 12, 2006

Chad packs it in

My good friend Chad Dotson is going to stop blogging, going the way of past favorites Jaded JD, Have Opinion, and Sic Semper, among others.

I've known Chad for several years and he's had his fun with the blog but I think that it has also made some history. I've learned a lot reading his blog, and met a lot of people who read it and had something to say about it.

Well done, Chad.

Here was my first Chad Dotson post, and here was more of the same.

Thursday, November 09, 2006

Should there be a U.S. District Court for Technology?

This piece from ZDNet speculates on the need for a specialized federal court to deal with technology issues.

Still voting paperless in the Commonwealth

This note says nobody knows the vote count in Virginia, because the technology is still wrong.

Bunch of clowns

The Senate Republicans responsible for the failure to get nominees confirmed to vacancies on the Fourth Circuit and elsewhere are the dumbest bunch since whoever was responsible among the Democrats for not confirming Judge Jones to the Western District of Virginia back in 1980.

Friday, November 03, 2006

On the Minors of Virginia

Here is the legislation that made my alleged ancestor Doodes Minor a citizen of Virginia, in 1673, as it says:

WHEREAS at a grand assembly holden at James Cittie the twentieth day of September, in the twenty-third year of the raigne of our Soveraigne Lord the King that now is, and in the yeare of our Lord 1671, it was enacted and ordained that any stranger desireing to make this country the place of their constant residence, might upon their petition to the grand assembly, and takeing the oaths of allegiance and supremacy be admitted to a naturalization. Whereupon John Peterson, Rowland Anderson, Michaell Vanlandigam, Minor Doodes, Doodes Minor, and Herman Kelderman, aliens, makeing humble suite as aforesaid, Bee it therefore enacted by the governour, councill and burgesses of this grand assembly and by the authority thereof, that the said John Peterson, Rowland Anderson, Michaell Vanlandigam, Minor Doodes, Doodes Minor, and Herman Kelderman, and every of them be and are by vertue hereof, and the afore recited lawe, whereon this is grounded capable of free traffique and tradeing of takeing up and purchaseing,

Wednesday, November 01, 2006

True Minor Wisdom

Ray says one space is enough.

I have said the same, here and here and here.

I look for such things, as noted here by Professor Bainbridge.

Tuesday, October 31, 2006

More Mississippi reaction to ABA's unqualified rating of Michael Wallace

This article from the Sun Herald in Mississippi lays out the local reaction to the ABA's unanimous rating of Fifth Circuit nominee Mike Wallace as "unqualified."

Wallace's friends are guessing that the reasons for the rating are these: a dispute over the Legal Services Corp., which Wallace chaired in the late 1980s; Wallace served as counsel to then-Senate Majority Leader Trent Lott during the impeachment of President Clinton; his fierce opposition to the Voting Rights Act.

The article concludes:

"Others who grew up with Wallace see a different person. Walker Jones, the head of litigation at Baker, Donaldson in Jackson, hired Wallace in the 1980s and worked with him for 18 years at the Jackson firm of Phelps, Dunbar, where Wallace continues to practice.

"I just couldn't believe the criticisms," said Jones, who was not contacted by the ABA. "They had an axe to grind. Mike is a very intelligent guy who has respect for precedent. I just don't understand this vague category of judicial temperament."

"I know a lot of the judges on the 5th Circuit, and he's better than 95 percent of them, in my opinion."

Rusty Gill, a Biloxi lawyer, has known Wallace since they played peewee baseball when they were six years old. The two went to Biloxi High, where they both played football. "Everybody knew Mike was going to go far," said Gill. Told of the unanimous ABA finding against him, Gill said, "It's unanimously wrong."

"He'd be a great judge.""

First sign of annual shooting woes

It says here:

"Four-year-old Dasaun Taylor sank a greater percentage of baskets than UVa senior guard J.R. Reynolds, who was on hand Monday for Community Day at the child development center in Charlottesville."

Sunday, October 29, 2006

What he said

Like Norm Leahy, I'll vote no, the main reason being that the amendment is pointless legally and gay-baiting for votes strikes me as unacceptable.

Having said that, I think the amendment will pass by a wide margin, and that people who instigated the same-sex marriage through litigation campaign will see their efforts result in widespread "anti-equality" legislation for decades to come, and deservedly so in the sense that extreme action always leads to extreme counter-action and the courts should not be used as a substitute for the legislature in effecting social change on matters so controversial and incompatible with the normal mechanisms of judicial review.

Also, I think most of the claims of both the "yes" and "no" advocates in Virginia were completely bogus, and that many of the people engaged in such advocacy knew full well that were they were saying was bogus but said it anyway to try to get votes for their side.

On the New Jersey decision and the slippery slope

This Volokh post discusses the phenomenon in the New Jersey same-sex marriage case that a list of statutes were possibly misused unjustly.

"Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as saying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little." And see the Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages."

. . .

Now maybe this entire discussion, though detailed and prominently placed, is all makeweight; maybe the court would have reached the same result even if such laws hadn't been enacted, and would have found that something else besides those laws "provide[s] committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples." But if we take the New Jersey Supreme Court at its word, it sounds like in New Jersey antidiscrimination laws, domestic partnership laws, and hate crime laws did indeed help bring about same-sex civil unions, just as they did in Vermont (PDF pages 59-61) and, as to same-sex marriage, in Massachusetts.

One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter (see PDF page 37), but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions)."

To apply this discussion to Virginia, I expect that from this day forward, any statute or other rule that implies protection against discrimination on the basis of sexual orientation will be opposed, citing the New Jersey case, on the basis that some future court will cite the new rule in support of something else quite different.

Wednesday, October 25, 2006

The top ten non-policy reasons why I will vote for Senator Allen

Last year, I posted my ten non-policy reasons why I would vote for Jerry Kilgore.

Gerald Gray wrote back to me and said those reasons are all really bad.

Nevertheless, I am offering again this year the top ten non-policy reasons why I will vote for Senator Allen.

1. Allen was a Judge Williams clerk. And, he appointed Justice Kinser.
2. Allen has been giving pleasure to Hokie fans since his college days.
3. When he was a teenager, his family was tight with Nixon.
4. Susan Allen outrode the Tennessee governor’s wife on the Virginia Creeper Trail.
5. Like Elvis, Allen is of The Chosen Ones. (Isaiah 41:8-41:9.)
6. Allen was going to put Disney in Northern (and not Southwestern) Virginia.
7. Copenhagen, it makes me feel so good. (And, Fresh Cope it satisfies since 1822.)
8. His influences include “the cow boss that I buckarooed for on a ranch near Winnemucca, Nevada.”
9. He once told CNN the Southwest Virginia story “about a horse thief. And the jury goes through the whole case and they say not guilty, but you have to return the horse.” (I love that story.)
10. Gerald Gray isn’t running.

Another nephew football picture



I guess I'm among the very few who see a running back wearing No. 21 and think of Jim Kiick of the Miami Dolphins' Super Bowl teams.

NJ S.Ct. finds same-sex marriage ban violates equal protection guarantee of state constitution

In Lewis v. Harris, released this afternoon, the New Jersey Supreme Court held that the state's statutory ban on same-sex marriage did not violate the petitioners' fundamental rights, but that it was in violation of the guarantee of Equal Protection under the New Jersey constitution.

The opinion is written in such a way that it could never be followed in Virginia. The Court cites all the protections against discrimination based on sexual orientation written into the law of New Jersey. None of this background exists in Virginia law. I doubt that the analysis in this case would make it any more likely that some day the Virginia Supreme Court will find that the statutory ban on same-sex marriage violates the Virginia Constitution.

In the opinion, the Court noted: "The State rests its case on age-old traditions, beliefs, and laws, which have defined the essential nature of marriage to be the union of a man and a woman. The long-held historical view of marriage, according to the State, provides a sufficient basis to uphold the constitutionality of the marriage statutes. Any change to the bedrock principle that limits marriage to persons of the opposite sex, the State argues, must come from the democratic process."

On the first question, the Court agreed: "Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right. When looking for the source of our rights under the New Jersey Constitution, we need not look beyond our borders. Nevertheless, we do take note that no jurisdiction, not even Massachusetts, has declared that there is a fundamental right to same-sex marriage under the federal or its own constitution."

On the Equal Protection question, the Court observed initially that the rational basis test of federal constitutional analysis did not apply to equal protection under the New Jersey constitution, and proceeded to frame the issue in terms that make history and tradition irrelevant. "At this point, we do not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people." Citing the many protections against discrimination based on sexual orientation, the Court concluded that there was no public interest, at least not in New Jersey, to support this different treatment.

The opinion distinguishes New Jersey from other states that "have expressed open hostility toward legally recognizing committed same-sex relationships," and includes Virginia in that list, along with Alaska, Georgia, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, Texas, and Utah.

Excellent Chief Justice story

It says here that a couple of fellows from West Virginia walked up to the U.S. Supreme Court building and got in to see Chief Justice Roberts, with the aid of an old photograph: "Sporting a World War II veteran's cap and carrying an old picture of Roberts' father taken at a family reunion in Florida with nine of his aunts and uncles, DiBacco finagled his way into Roberts' office Sept. 26."

The story goes on: "Though it may have been some attorneys' dream, McCune said he had no interest of turning the conversation into a legal discussion. Instead, the three talked about their roots in West Virginia."

I didn't know the Chief Justice had roots in West Virginia.

The obligatory group photo is here.

Why not to nominate Engelbert Humperdinck in Virginia

As Election Law notes here, the AP is reporting that "U.S. Senate candidate James H. 'Jim' Webb has lost his last name on electronic ballots in three Virginia cities where election computers can't cope with long names."

As for Engelbert, you can go here and find out if he is still willing to sing you to sleep after the lovin' with a song he just wrote yesterday.

Now you can Broogle the courts of the Fourth Circuit (or some of them)

Here you can see how Brian Peterson has created a customized Google search, that includes opinions from the Fourth Circuit and some courts in the states that make up the Fourth Circuit, including the Virginia appellate courts and the Western District of Virginia.

I just made up the term "Broogle" in his honor. Well done, Brian.

(OK, there are a few other Broogle references out there.)

Tuesday, October 24, 2006

How many times have you wanted to do something like this?

According to this article in the Richmond paper, a prosecutor in the City of Danville has filed suit against a juvenile and domestic relations district judge to get her to rule in a case, and got the circuit court to so rule.

District judge still going at 92

In the Middle District of Pennsylvania, they have a judge named Malcolm Muir, who is still hearing cases at age 92.

Saturday, October 21, 2006

What he said

Steve Dillard: "No appellate court should ever require the lawyers who practice before it to double space footnotes and block quotes in a brief."

Steve might have agreed with me when I freaked out on a Richmond brief printer for changing the font size of a brief without telling me. (No one else did.)

Lessig on net neutrality

Here L. Lessig debunks someone else's debunking of his latest article on net neutrality.

When does statute of limitations run on defamatory website posting?

This Jurist post cites a decision by a federal judge in Texas to the effect that the one-year Texas state for defamation claims begins to run when the defamatory material is posted, regardless of how long it stays posted.

So, maybe we're in the clear for anyone we've defamed before October 21, 2005, as the Virginia statute is also one year.

Just in time for Halloween - Judge Kelsey's article should scare every Virginia lawyer

In the latest VSB magazine appears an article titled Procedural Defaults in Virginia Trial Courts, by Judge Kelsey of the Court of Appeals.

Some of the highlights:

You can lose your right to claim the trial court should not have sustained the defendant's demurrer to your first pleading. Judge Kelsey explains: "The Virginia Supreme Court, however, has held that 'when a circuit court sustains a demurrer to an amended motion for judgment which does not incorporate or refer to any of the allegations that were set forth in a prior motion for judgment, we will consider only the allegations contained in the amended pleading to which the demurrer was sustained.'"

Res judicata can apply to claims never stated in a pleading. Judge Kelsey explains: "Another variant of procedural default, res judicata, should also be considered. In 2003, a divided Virginia Supreme Court held the narrow 'same evidence test' exclusively governed claim preclusion principles under Virginia law. That holding has been superseded by the recent promulgation of Rule 1:6, which broadened res judicata to cover, with some exceptions, all unpled claims arising out of the same 'conduct, transaction, or occurrence.' Such unpled claims will be 'extinguished regardless of whether the claimant is prepared in the second action to present evidence or theories of the case not presented in the first action, or to seek remedies or forms of relief that were available but not demanded in the first action.'" Now, I had not understood Rule 1:6 to supersede anything, but rather to express the ancient Virginia proscription against splitting the cause of action.

A defendant is in default if he submits only a demurrer and the demurrer does not cover the whole complaint. Judge Kelsey explains: "If the defendant files a demurrer as to some counts in a complaint, but not others, the others will be in default absent a timely responsive pleading directly addressing them." This is an area of the law made even more confusing by the recent changes to the rules. What pleadings cover the whole case?

Judge Kelsey finds some pitfalls in the language of the form scheduling order. He notes: "Rule 1:18’s pretrial scheduling order ... warns that experts 'will not ordinarily be permitted to express any non-disclosed opinions at trial . . . .' Two lesser-known deadlines ... appear in Rule 1:18’s pretrial scheduling order. This order provides that any motion in limine 'which requires argument exceeding five minutes' must be noticed for a hearing and presented to the trial court for decision before the day of trial. The order also requires that all 'dispositive motions shall be presented to the court for hearing as far in advance of the trial date as practical.'" The scheduling order is rarely used in Southwest Virginia, and its provisions mostly ignored, in my experience.

Judge Kelsey reminds us of the perils of Rule 1:1, as he says: "[T]he contemporaneous objection rule can almost never be satisfied merely by indorsing a court order 'seen and objected to.' Only if 'the ruling made by the trial court was narrow enough to make obvious the basis of appellant’s objection' will the otherwise inadequate indorsement suffice to preserve the issue on appeal."

Judge Kelsey concludes:

"I have no doubt that some procedural default principles may need to be recalibrated, either more tightly or loosely, to better balance the equities of particular forms of waiver. But whether that is true or not, this much is certain: No procedural default principle has ever produced even the slightest injustice to litigants who know the principles well enough to stay out of trouble. The benign goal of procedural default law, therefore, is to render itself harmless by being so well known."

Another point of advice - read everything Judge Kelsey writes, and listen to whatever he says.

Interesting unpublished opinion affirming denial of preliminary injunction in West Virginia non-compete case

In McGough v. Nalco Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Michael and Motz affirmed the denial of a preliminary injunction against the former employee for violation of his non-compete agreement, where the trial court judge in balancing the hardships under the Blackwelder test found that they "approached equipoise," but the non-compete was probably unenforceable under West Virginia law.

The panel remanded the case, however, for consideration of the plaintiff's trade secret claims as the basis for injunctive relief.

This case and the Gastonia case were the only two cases decided by the Fourth Circuit this week after oral argument, the other 65 or so cases were decided on the briefs without argument.

Wish I'd been there

JAMES RIVER 26, MIDLOTHIAN 14

Richmond Times-Dispatch

Oct 21, 2006

Grant Collins tossed two touchdown passes, and Andrew Brooks (my nephew) blocked a punt (he says he blocked two punts) resulting in one score and caught a pass for another as James River stopped Midlothian in the Dominion District (battle for the Coal Bowl and Chesterfield bragging rights).

Collins (12 of 18, 169 yards) chalked up TD passes of 27 yards to Larente Hamlin and 6 yards to Brooks for the Rapids (1-3, 1-6 - OK, so it was their first win of the season). His quarterback counterpart, Eric Waagner (8 of 19, 109 yards) passed for one TD -- 27 yards to Kevin Solomon -- and ran for another.

Markese Stovall began the scoring with a 1-yard run for James River in the first quarter. Thomas Metcalf recovered Brooks' block in the end zone for a third-quarter touchdown.

James River 6 7 7 6 -- 26
Midlothian 0 7 7 0 -- 14

JR -- Stovall 1 run (kick failed)

M -- Solomon 27 pass from Waagner (Moore kick)

JR -- Hamlin 27 pass from Collins (Brecht kick)

M -- Waagner 1 run (Moore kick)

JR -- Metcalf block punt recovered in end zone (Brecht kick)

JR -- Brooks 6 pass from Collins (kick failed)

Thursday, October 19, 2006

The specialist

In Chadwell v. Lee County School Board, before granting partial summary judgment to the individuals based on legislative immunity, Chief Judge Jones included this footnote:

"Political discrimination cases from Lee County are not novel, regardless of the particular political party in power. See Cooper v. Lee County Bd. of Supervisors, 188 F.3d 501 (4th Cir. 1999); McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987); Ramey v. Harber, 589 F.2d 753 (4th Cir. 1978); Gilliam v. Lee County Sch. Bd., No. 2:01CV00083, 2002 WL 31906274 (W.D. Va. Dec. 30, 2002)."

Besides his role in the Chadwell case, Judge Jones was the judge in Cooper and Gilliam and a lawyer in McConnell and Harber.

(OK, this is interesting to me largely because I was a lawyer in Chadwell, which goes on, and Cooper and Gilliam.)

That Virginia Court of Appeals split on funky Crawford application

In Gilman v. Com., on rehearing en banc, the Virginia Court of Appeals split 5-5 on whether to affirm or reverse the conviction of a woman found guilty of criminal contempt of court based on the affidavit of a juvenile court judge.

In the panel decision, Judge Fitzpatrick dissented, on the issue of whether the affidavit was used "testimonial hearsay" used in violation of the defendant's rights under the Sixth Amendment as construed by the Supreme Court in the famous Crawford decision.

What makes it funky to me is that I'm not sure that the juvenile judge could testify. The Code says: "No judge shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties." Va. Code 19.2-271. If the Commonwealth can't use an affidavit, and can't call the judge as a witness, how can it prove this kind of criminal contempt case? I wonder.

Whoever heard of 28 U.S.C. 2105?

In Hyman v. City of Gastonia, the Fourth Circuit in an opinion by Judge Karen Williams, joined by Judge Gregory and District Judge Floyd, held that it was without jurisdiction for the appeal pursuant to 28 U.S.C. 2105, which says simply: "There shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters in abatement which do not involve jurisdiction."

I'm not at all sure that I understand what are "matters in abatement."

In Virginia civil procedure, we know that "pleas in abatement" have been abolished, and that statutes deal with the question of, for example, when and whether death, change of name, or marriage shall result in abatement of an action.

Of the Gastonia decision, Howard Bashman notes:

"Recognizing that "Section 2105 [of Title 28, U.S. Code] may be '[o]ne of the most commonly ignored provisions of the Judicial Code,'" today a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a decision refusing to ignore the statutory provision. . . .

Today's ruling arguably creates a circuit split and also criticizes other federal appellate courts for having construed the statutory provision in a manner that could cause federal appellate courts to give advisory opinions in violation of Article III's case or controversy requirement."