Can Spring be far behind?

We had a glorious sunny (but windy) day, and for the forty-somethingth time, enjoyed Sunday dinner watching Tiger Woods win. (OK, I enjoyed the golf on TV, but we both enjoyed Emeril's pot roast - sans turnips and parsnips.)

Will the warm days continue, or perhaps next month there will be a blizzard? We'll get the word later this week from Punxsutawney Phil. Yesterday, the Saltville woolly mammoth from the Museum of the Middle Appalachians predicted more winter.

Still more on the need to pay more for lawyers to represent the poor in criminal cases

With this editorial, the Staunton paper joins the chorus of commentators urging the General Assembly to find the funds to fix the fact that Virginia is dead last in what it pays lawyers to fill the Commonwealth's constitutional obligation to provide counsel for the poor in criminal cases.

Pink gorillas, French maids, and hula girls

Erinn Hutkin wrote this delightful story about the history of a singing telegram company in Roanoke.

The article says in part:

"There were pink gorillas, French maids and hula girls. There were babies, Santa's elves and the Easter Bunny. They dressed as everything, delivering an average of 45 telegrams a week.

There were messengers thrown in swimming pools. The messenger who walked through downtown Roanoke delivering a cake the wind smacked in his face.

There were the messengers who got snowed in at Catawba and had to spend the night dressed as Tarzan and Jane.

Based in Towers Shopping Center, Minnix usually had nine messengers. She went to high school drama classes to find employees. She went to singing groups, such as the New Virginians at Virginia Tech. Beauty pageant girls were good, too -- accustomed to being in the public eye.

But since that time, the guys and gals of Giggle Grammms grew up. Times changed, too.

In a post-9/11 world, Minnix would not feel safe sending a Playboy bunny to a bachelor party anymore."

The lessons of the Roberts and Alito nominations

Via How Appealing, Terry Eastland writes this editorial in the Weekly Standard, which says in part:

"In the end, a big lesson from the search for O'Connor's successor--a lesson of both the Roberts and Alito nominations--is that quality matters. Democrats were unable to convince anyone but themselves that the nation must maintain the Court's 'balance' by having someone like O'Connor succeed O'Connor (assuming, that is, such a person could ever be found, her method of judging being entirely unpredictable). In Roberts and then in Alito, the country saw smart, experienced lawyers who could handle anything thrown at them--without losing their cool.

Another lesson is that quality nominees can make a winning case for judicial conservatism. In making clear the fundamental distinction between law and politics that lies at the heart of their judicial philosophy, both Roberts and Alito articulated a theme that Senate Democrats proved unable to counter effectively. And meanwhile, their cries of wolf, subjected to the immediate, withering scrutiny of informed commentators, didn't resonate. Polls taken after the hearings found that public support for Alito had actually increased. . . .

What's unknown, of course, is whether Bush's last years in office will offer
him another opportunity to pick a justice. If so, it's not too early to say that he should select another in the mold of Roberts and Alito."

More on the Carpitcher case and how the courts deal with recanted testimony

Laurence Hammack has this very interesting article in the Roanoke paper, with a broader view of the issue from the Carpitcher case, and concludes that other states are more liberal than Virginia in their willingness to overturn a criminal conviction where witnesses change their stories.

The article says in part: "Courts across the country have been wary of recanted testimony. Some witnesses might take back their testimony out of guilt for incarcerating a family member, the argument goes, and others might be pressured by people loyal to the defendant.

The problem, critics say, is when the skepticism goes too far -- as some say it did in Carpitcher's case."

The article also notes:

"Since Virginia loosened the state's 21-day rule, no one who claimed to be innocent has found a way through the narrow opening created by the General Assembly. . . . Although there is no longer a time limit on newly discovered evidence, the law places a number of other criteria on innocence claims. Among them is that when considering the new evidence, 'no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'"

The article cites Tucker Martin, the spokesman for Attorney General McDonnell, as saying that the bar for overturning convictions based on new evidence must be high, and the difficulty convicted defendants have experienced in obtaining writs of innocence shows that the law is working as it should.

When are releases of ERISA plan benefits effective?

Here is an SSRN abstract for a law review article on the validity of releases of ERISA benefit claims.

At one point, the author says: "In District 29, United Mine Workers of America v. New River Co., [842 F.2d 734, 736 (4th Cir 1988)] the Fourth Circuit held that an individual settling a wrongful termination grievance against a company (the “Initial Employer”) may have thereby unknowingly given up his entitlement to lifetime medical benefits. This holding illustrates why the Proposed Fiduciary Release Rules are required by ERISA to apply fiduciary principles rather than contract principles to assure that participants receive their earned employee benefits." The author's discussion of this case makes me think that perhaps current Fourth Circuit law is not in accord with the author's view of what ERISA requires. The author also cites Davis v. Bowman Apple Products, 2002 U.S. Dist. LEXIS 6204 (W.D. Va. Mar. 29, 2002), in which one of the judges of the W.D. Va. "relied on the totality-of-circumstances analysis . . . to invalidate a release of a participant’s breach of fiduciary claim for pension benefits."

Having scanned the article, I'm not sure that I understand or agree with all of it, but it is very interesting.

Law and order in Wytheville

In this interesting post, Jerry has juxtaposed accounts from Wytheville of a teacher case, a crack house that went up in smoke, and the Town's efforts to crack down on public urination.

Virginia trial lawyer on a bike

This article about indoor bike "travel" includes a few words and a picture of Richmond lawyer Colleen Quinn.

It says in part:

"Colleen Quinn, a trial lawyer in Richmond, has been experimenting with rides to out-of-the-way places for years as a cycling instructor for the Westwood Club and more recently, the James Center YMCA.

Quinn, who is a scuba diver with some travel experience, says she generally takes her classes somewhere exotic."

That Johnson City lawyer gets license suspension

The Kingsport paper reports here:

"The Tennessee Supreme Court has suspended a local attorney's license, prohibiting him from practicing across the state. . . .

This involves the same fellow who was held in contempt of court after he "allegedly encouraged a client to lie in an e-mail," and who has now sued those judges for $23.4 million.

$5 million verdict for AOL against spammer in the E.D. Va.

This story from Yahoo says that America Online has won a $5 million verdict against a spammer from Minnesota in a case before Judge Claude Hilton of the Eastern District of Virginia.

Is it unethical for a lawyer to advertise services as "cut-rate" or "lowest priced" or "discount"?

David G. has this interesting post about proposed ethics rules changes in Ohio, including whether lawyers in their ads should be able to make claims about how cheap their services are - when the terms are not used in a false of misleading fashion.

All the right buzzwords - Scalia, Abramoff, Federalist, Clarence Thomas, Nascar

This hatchet job by the NY Times ignores the incredible online backlash against the stupid ABC News report on which it is based, while misaligning all the favorite code words now being used over and over to attack from the Left - "Federalist Society," "Abramoff," even "Nascar."

Shame on you, whoever wrote this.

The Carpitcher opinion

In In re: Carpitcher, the Court of Appeals in a decision by Chief Judge Fitzpatrick and Judges Elder and Humphreys rejected the petition for a writ based on actual innocence of the Roanoke County defendant whose young female accuser has at times recanted her accusations.

The Roanoke paper had this article on the case.

Roanoke paper says no to Alito

The Roanoke paper comments: "Reject Alito's nomination," yet "Alito should not be rejected for ideological reasons" but instead because of his ideas about the separation of power among the three branches of the federal government.

Doe No. 5

In Doe v. Chao, the Fourth Circuit explained in a footnote: "We will refer to the four previous opinions in this case sequentially as Doe I, Doe II, Doe III, and Doe IV, with Doe I as the initial district court opinion, Doe II as our first opinion, Doe III as the Supreme Court’s opinion, and Doe IV as the district court opinion currently under review."

Since I botched my efforts to explain Doe I, Doe II, and Doe III, I'll pass on Doe V, except to note once again that this is the case that Joe Wolfe and Terry Kilgore had that went up to the Supreme Court.

Also, Doe V was written by Judge Karen Williams (the district judge was Glen Williams) but there was a dissent by Judge Michael, who noted that the outcome of the majority's reasoning would probably get to the same place, but "outcome never trumps reasoning."

4th Circuit takes minority view on issue of who is a law enforcement officer under the Federal Tort Claims Act

In United States v. Andrews, the Fourth Circuit in an opinion by Judge Williams, with Judge Shedd concurring, concluded that a Bureau of Prisons employee was not a "law enforcement officer" within the meaning of the exceptions to the Federal Tort Claims Act.

Judge King dissented, with this comment:

"Although I am a lone voice on this panel, I am not alone in espousing this position. Six of the nine courts of appeal to have addressed this issue agree with my view. See Halverson v. United States, 972 F.2d 654, 656 (5th Cir. 1992) (concluding that "plain language" of § 2680(c) encompasses property detentions by law enforcement officers acting in any capacity); see also Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806-07 (9th Cir. 2003); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002); Cheney v. United States, 972 F.2d 247, 248-49 (8th Cir. 1992); Schlaebitz v. U.S. Dep’t of Justice, 924 F.2d 193, 194-95 (11th Cir. 1991); Ysasi v. Rivkind, 856 F.2d 1520, 1524-25 (Fed. Cir. 1988)."

Judge Turk rules that RLUIPA is constitutional after all

In Madison v. Riter, Judge Turk of the W.D. Va. on the second go-round has opined that the Religious Land Use and Institutionalized Persons Act as opposed to the claims of a particular institutionalized person is indeed constitutional, notwithstanding his earlier views expressed in Madison v. Riter, 240 F. Supp.2d 566 (W.D. Va. 2003), rev’d 355 F.3d 310 (4th Cir. 2003), cert. denied, 125 S. Ct. 2536 (March 30, 2005).

Judge Turk concluded "that RLUIPA is valid Spending Clause legislation that is not barred by the Tenth, Eleventh or Fourteenth Amendments, the separation of powers doctrine, or the Establishment Clause," and certified his rulings for immediate appeal to the Fourth Circuit.

Two great Title VII limitations questions in one case

In Vance v. Potter, Judge Glen Conrad of the W.D. Va. dealt with two interesting limitations questions:

The first was whether the 90-day limitations period for filing a Title VII claim after issuance of a right to sue letter can be tolled by a lawsuit that is dismissed without prejudice. Under Virginia law, a lawyer can file a half-baked claim, take a non-suit, and get the benefit of six months under the tolling statute, Va. Code § 8.01-229. In federal court, however, on federal law claims, there is no such tolling - so, in the Vance case, the answer was no.

The second was whether a claim was timely filed when the lawyer used electronic filing, and received the e-mail from the PACER system indicating the complaint was filed, but came to find out sometime later that the complaint has not been accepted for filing by the clerk's office because of problems with his credit card, needed for the filing fee. And, the answer was yes, at least for now, while electronic filing is still relatively new.

Direct evidence of the wrong guy's bad motive

In Baqir v. Principi, the Fourth Circuit in an opinion by Judge King, joined by District Judge Harwell with Judge Gregory dissenting in part, affirmed the entry of summary judgment on all of the plaintiff doctor's employment discrimination claims related to the termination of his employment as a doctor at Veterans Administration hospitals in North Carolina.

Judge Gregory's dissent was limited to the age claim. On age, alone among the several claims, the plaintiff claimed to have direct evidence, as one member of the board that recommended his termination told the plaintiff's wife over the telephone that he was being run off because of his age, that his kind of work was a young man's game.

Judge King allowed that this evidence did not create an issue for the jury, because the speaker was not the ultimate decisionmaker, but instead he was on the board two steps from removed from the medical director, who made the final decision. Judge King concluded that there was no evidence linking this direct evidence to the medical director, and also that there was no evidence that the medical director merely rubber stamped the recommendations he received.

Judge Gregory on the other hand was of the view that the decision making was all done together, and that there was evidence that the decisionmakers did not actually consider the plaintiff's lack of credentials when they were deciding to get rid of the plaintiff.

I think that both Judge King and Judge Gregory went too far in attributing the one board member's remarks to the entire credentials board, but I don't guess the point was critical to the conclusions of either judge.

I once wrote an article about proving the bad motive of a local government board in section 1983 cases, and one of the things discussed was when does the bad motive of the subordinate, like in Baqir, get attributed to the decisionmaker:

A number of courts have found that when the Board acts as a “rubber-stamp” or “cat’s-paw” for others who were illegally motivated, that motivation may be attributed to the Board. See Rios v. Rossotti, 252 F.3d 375, 382 (5th Cir. 2001) (“Statements of non decision makers become relevant, however, when the ultimate decision maker’s action is merely a ‘rubber stamp’ for the subordinate’s recommendation”); Azzaro v. County of Allegheny, 110 F.3d 968, 974 (3d Cir. 1997) (“To hold otherwise would be to grant public officials carte blanche to retaliate against employees as long as the retaliation is formally effectuated by the ‘rubber stamp’ approval of another public agent”); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (if a committee “acted as the conduit of a [supervisor’s] prejudice -- his cat’s paw -- the innocence of its members would not spare the company from liability”); Saye v. St. Vrain Valley School Dist. RE-1J, 785 F.2d 862, 867 (10th Cir. 1986) (“Where this line of causation exists, and the principal or superintendent predicated their recommendations on constitutionally impermissible reasons, these reasons become the basis of the decision by the Board members”); Haimowitz v. University of Nevada, 579 F.2d 526, 530 (9th Cir. 1978) (“where recommendations form the basis for the nonretention decision, this input is critical”); Bertot v. School Dist. No. 1, Albany County, 522 F.2d 1171, 1181 (10th Cir. 1975) (“The recommendation to the Personnel Committee, its recommendation to the Board, and the Board’s reasons for non-renewal of her contract are of critical importance in deciding whether the action adverse to her was for exercise of her constitutional rights”); Jamieson v. Poughkeepsie City School Dist., 2002 WL 480567 at *16 (S.D.N.Y.) (“a reasonable jury could find that Samselski’s alleged bias infected the overall decisionmaking process, even if she did not use racial animus to convince her fellow Board members to oust plaintiff”); McHugh v. Board of Educ. of Milford School Dist., 100 F.Supp.2d 231, 241-43 (D. Del. 2000) (denying summary judgment on “rubber stamp” theory, citing Azzaro).

The rubber-stamp argument fails if the advisors did not recommend the Board’s action or if the Board would have voted the same way regardless of the tainted advice. See Pennington v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001) (“Where a decisionmaker conducts his own evaluation and makes an independent decision, his decision is free of the taint of a biased subordinate employee”); Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th Cir. 1997) (“when the causal relationship between the subordinate’s illicit motive and the employer’s ultimate decision is broken, and the ultimate decision is clearly made on an independent and a legally permissive basis, the bias of the subordinate is not relevant”); Al-Zubaidi v. Ijaz, 917 F.2d 1347, 1351 (4th Cir. 1990) (“We agree that if [one member] sought to sink Al-Zubaidi, then [the lone member] was attempting to sink a ship that already was sinking”); McClure v. Cywinski, 686 F.2d 541, 550 (7th Cir. 1982) (“there is insufficient evidence to support an inference that Cywinski recommended McClure’s termination to Murray,” distinguishing Haimowitz); Malone v. Greco, 1995 WL 222052 at *9 (W.D.N.Y.) (“defendants assert that Mr. Paul had no influence over the Board or individual councilmen to affect the outcome of the vote on any resolution”).

Most courts have held that the Board cannot be liable for acting on the tainted recommendation of its advisors or of a minority of Board members without ratification or at least knowledge of the bad motive. See City of St. Louis v. Praprotnik 485 U.S. 112, 127 (1988) (“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final”); Matthews, 294 F.3d at 1297-98 (“The final policymaker, however, must ratify not only the decision itself, but also the unconstitutional basis for it . . . A well-intentioned lawmaker who votes for the legislation--even when he votes in the knowledge that others are voting for it for an unconstitutional reason and even when his unconstitutionally motivated colleague influences his vote--does not automatically ratify or endorse the unconstitutional motive”); Beattie v. Madison County School Dist., 254 F.3d 595, 604 (5th Cir. 2001) (“Without a showing that the board had actual knowledge of the alleged improper basis of Jones’s and Acton’s recommendation, the board cannot be liable for the alleged retaliation”); Gattis v. Brice, 136 F.3d 724, 727 (11th Cir. 1998) (plaintiff must “present evidence that Administrator Brice not only accepted the recommendation of his deputy chiefs, but knew of and ratified the improper motives behind their recommendation”); San Filippo v. Bongiovanni, 30 F.3d 424, 446 (3rd Cir. 1994) (“the University would not be liable if, oblivious to the motivation behind the decision to charge San Filippo and to initiate dismissal proceedings, the Board had decided to dismiss San Filippo for wholly legitimate reasons”); Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996) (affirming summary judgment under § 1983 when it was not shown that the policymaking official knew of and ratified the improper motives of his subordinates when he accepted their recommendations); Wulf v. City of Wichita, 883 F.2d 842, 869 (10th Cir. 1989) (“The superior fires the employee, believing, falsely in fact, that good grounds exist therefore. In such a situation, it is inconceivable that the superior or the City would be liable”); Flickinger v. School Bd. of City of Norfolk, 799 F. Supp. 586, 593 (E.D. Va. 1992) (“although it was undisputed that the School Board ratified Dr. Carter’s decision, there was not a scintilla of evidence that the School Board members knew of any basis, constitutional or unconstitutional, for Dr. Carter’s decision”).

Kelo bypass

This reason.com post describes the new stand taken by the head of BB&T, that the bank will not loan money for some construction on property taken from private parties by government to give to other private parties for development.

Buck the dog, as he was

My sister's dog, always mellow. 

Guide to dealing with PDF metadata

This WisBlawg post links to this National Security Agency report on sanitizing PDF files converted from MS Word.

More on the deficiency of funding for indigent defense in the Commonwealth

The Harrisonburg paper has this report on how Virginia does not pay enough for lawyers to present the poor in criminal cases.

The article quotes one lawyer as saying: "It puts me and anybody else who does court-appointed work in an automatic conflict of interest . . . It’s in my best interest to settle a case, and settle it quick."

Who owns the rights to Hank Williams' performance on the Mother's Best Flour Hour

In Polygram Records, Inc. v. Legacy Entertainment Group, the Tennessee Court of Appeals resolved the competing claims of three groups to intellectual property rights in the recordings from the 1950s of Hank Williams' performances on the radio.

The opinion contains this memorable paragraph:

"The chain of title Legacy relies on comprises a long and windy road during which there was a brief stop in a trash can at a radio station. If a song were written about this matter favorable to Legacy’s claim, it might be entitled, 'I Found a Gold Mine in the Radio Station Trash.' Indeed, although Legacy may have acquired certain tangible rights to WSM’s acetate tapes, and the performances by Hank Williams from the 40s and 50s embodied therein are golden, the gold attendant to Hank Williams’ performances may not be mined by Legacy. Accordingly, an appropriate title attributable to Legacy’s claim would be, 'Your Bucket Has a Hole in It.'"

The winners of the case were not the radio station group nor the record company, but the Hank Williams heirs.

Your new members of the Board of Governors of VBA

As shown here on the Virginia Bar Association's website, the new class of members of the Board of Governors includes Steve Busch from McGuire Woods, Rip Sullivan from Reed Smith, Karen McWilliams from DLA Piper Rudnick, and myself. The new law school representative is Professor Margaret Bacigal from the University of Richmond.

The president is Bill Van Buren, the president-elect is Glenn Lewis, and the chairman of the Board is Mike Pace.

I am delighted and challenged by the idea of joining a group of so many fine lawyers.

Professor Schwartz on section 1983 litigation - free article

I love the PLI lawyer's toolbox, with the series of free articles it sends to my mailbox.

Today, the link is to an article on the fundamentals of section 1983 litigation, by Professor Martin Schwartz, the author of the section 1983 litigation treatise.

Loudoun County as a case study in growth

The Christian Science Monitor has this article about suburban growth in Loudoun County, Virginia, titled "In a fast-growing county, sprawl teaches hard lessons."

The article says in part:

"The growing pains of Loudoun, the nation's fastest-growing county in the past five years, not only has residents up in arms, but have also drawn the attention of land-use experts across the United States. That's because exurbs - suburbs at the fringes of metropolitan areas - are growing faster than any other kind of community, according to census data. While high-speed growth has transformed suburbia for decades, what is new - and worrying - is that it's now occurring in areas without the infrastructure or experience to deal with it, these experts say."

On opportunities for inexperienced lawyers in federal court

Today I noticed this order from the U.S. District Court for the District of Massachusetts, which says in part: "the undersigned District Judge and Magistrate Judge, as a matter of policy, strongly encourage the participation of relatively inexperienced attorneys in all court proceedings," but also that "all attorneys appearing in court are expected to be appropriately prepared, regardless of experience."

Judge Bork, Dahlia Lithwick, et al. at the VBA meeting

On Saturday morning, the VBA meeting in Williamsburg featured a high-powered panel discussion including Judge Robert Bork, Slate writer Dahlia Lithwick, a district judge from Massachusetts, some guy named Bert, and two ex-William & Mary Law professors, Gerhardt and Smolla.

The topic formally was the Separation of Powers, which centered on three ideas: (1) the confirmation process for Supreme Court nominees is largely unsatisfactory, with the system that encourages the nominee to make himself "as small a target as possible," (2) the Schiavo case represents the new extreme in how far the Congress goes to interfere with the judiciary, and (3) the Supreme Court, at least according to Judge Bork, routinely oversteps its bounds in decision-making about social issues.

In other kinds of cases, the judge noted, the litigants can expect a "square, lawyer-like response," but in cases involving social issues the Court goes too far.

Regarding the Alito hearings, Ms. Lithwick said: "watching smart people talk about trivial things badly is depressing."

Professor Gerhardt noted that he was one of the law professor witnesses at the Alito hearings. I saw him on the C-SPAN morning call-in show that same week, and among other things, he refused to say whether he was for or against Judge Alito's nomination. His non-committal response made me think of Professor Tribe's explanation to Senator Specter (contained in this part of the transcript) about how it was that he was not there to testify against Judge Alito:

"SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?

TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.

SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?

TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation."

Bert Brandenburg is executive director of Justice at Stake, which has a website including this list of blogs.

Another swipe at peremptory strikes?

According to this article about the procedure in condemnation, one delegate has proposed a bill that would require the commissioners be selected "at random."

That sounds like what people say who oppose lawyer voir dire and peremptory strikes - just pick the jury at random, what could be more fair than that?

On Daubert in Virginia state court

On Friday and Saturday, I attended the Virginia Bar Association meeting in Williamsburg.

One session involved a discussion of whether and how Daubert applies in Virginia, and the thesis was put forward by the speakers, Judges Kelsey, Ney, and Baumgardner among them, that Virginia has the functional equivalent of Daubert in its case law applying the Virginia statute with the language of Rule 702, while avoiding the "Daubert Effect." The Daubert Effect was described as the paradox between the "liberalizing" intent of Rule 702 and the practical result that district courts in the exercise of their role as gatekeepers are keeping out more evidence, not less. Judge Ney was the trial judge in the case of John v. Im, in which the Virginia Supreme Court noted expressly that it was not making a decision about whether to adopt Daubert in applying Va. Code §§ 8.01-401.1 - 401.3: "We note, however, that we have not previously considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony. Therefore, we leave this question open for future consideration."

As to the Daubert Effect, Judge Kelsey cited what I believe was this study available from the Federal Judicial Center, which notes in the summary: "Reporting both on their general experience with expert testimony and on their most recent civil trial involving such testimony, judges and attorneys indicated that judges were more likely in 1998 than in 1991 to scrutinize expert testimony before trial and then limit or exclude proffered testimony."

Michael Imprevento of the VTLA reported that there is a hearing today (Monday) in the General Assembly on this year's version of the Daubert bill, which I believe is H.B. 807, on which the VTLA and VADA take opposite views.

Judge Kelsey noted the Supreme Court's recent decision in the Lincoln Property v. Roche case, where the plaintiff's purpose in avoiding removal to federal court was acknowledged to be the difference in the standard for admissibility of expert testimony. Indeed, the District Court in the Roche case excluded the plaintiff's expert and entered summary judgment on the merits for lack of evidence of causation.

Judge Kelsey's introduction was so excellent I wish he would write it down and publish it in the VBA Journal.

Write to your attorney general

In today's speech, the new Virginia Attorney General said, among other things:

"I will be seeking input from across the legal community. I want to hear the best ideas of the various bars, mandatory and voluntary, in the Commonwealth. I want to hear from the deans of our law schools. And I want to hear from the justices of our appellate courts. This is Virginia’s law firm, and I want Virginia’s legal community to, together, make it better and more effective."

On the racial makeup of juries in the W.D. Va.

In U.S. v. Drayton, the issue before Magistrate Judge Sargent was this:

"The defendant, who is black or African American, argues that, cognizant of a great disparity in the racial demographics of the Abingdon and Roanoke Divisions, the government intentionally brought this matter in the Abingdon Division in an effort to exclude blacks or African Americans from the jury pool and, thus, from the jury itself."

The motion was denied, since the defendant could not show intent to discriminate.

Once in my life I have exercised a peremptory strike against a black member of the jury pool, after he had tried every way in the world to get out of the case during voir dire, stating in fairly stark terms that he was biased in favor of the other side. The judge would not strike him for cause, but opposing counsel laughed later, "I think your strikes are safe from constitutional challenge."

The next big Southwest Virginia DNA case

The Roanoke paper reports here that DNA testing is being used to nail the suspect in the Town of Appalachia voting fraud case, on which Tim McAfee is the special prosecutor.

The plan is to see whose saliva was used on the envelope used to send in an absentee ballot.

In the office here, I discovered some years ago that we have a little gadget with a sponge on it, sort of like this, to be used in place of licking envelopes. I had not previously thought of it as as mechanism for avoiding identification - sort of an envelope glue anonymizer.

On the passing of my former client Buck the dog

I am informed that my sister's dog Buck was struck by a car and died a few days ago. He was 14, almost as old as our dog Chrissy, older than Joan's younger two children.

When Joan lived in Washington County, a neighboring farmer accused Buck and one of their other dogs of killing a cow. Charges were brought under the county dog ordinance, and I went to "dog court" (the docket for county cases, prosecuted by the county attorney). In theory, the stakes were high - a dog found to have destroyed livestock could be ordered killed or banished from the County.

We settled with the farmer, but I was more than willing to vouch for the sterling character, reputation, and demeanor of Buck, who was just about as likely to kill a cow as I would be.

I have no picture of him, but the image I have is of him walking around Joan's house, and when I asked where he was going, Joan's explanation was something like, "oh, he's afraid there might be some cats in there, so he's going somewhere else."

Know thyself

So said Thales, or perhaps it was the Oracle at Delphi.

In this Boston Herald report, Senator Edward Kennedy of Massachusetts acknowledge that "he himself probably couldn’t pass Judiciary Committee muster," at the same time he vowed to dissociate himself from a club that discriminates against women.

That Civil War "public" documents case

S.C. Appellate Blog posts here and Southern Appeal posts here on the case of the Confederate-era documents. A bankruptcy court ruled that they were "public documents," but now the district court has ruled that they aren't, and so the State of South Carolina may have to appeal the case to the Fourth Circuit.

Coal vs. gas in West Virginia

Sunday's Charleston Gazette had this very interesting article titled "Turf war shaping up between coal, gas" on disputes between coal interests and gas interests in West Virginia.

On Philip Hirschkop

Law.com has this wild profile of Virginia lawyer Philip Hirschkop, retiring at age 69, and most famous for his role in the Loving case.

The article says in part:

"In one six-year span, 17 disciplinary complaints were brought against him at the Virginia State Bar -- a distinction Hirschkop bears proudly. The complaints, he says, were 'never for screwing a client -- only for making public statements' about pending litigation."

The articles also says:

"He also donned a 10-gallon hat and cowboy boots to win the acquittal of Texas oil magnates Nelson Bunker Hunt and W. Herbert Hunt in a federal wiretapping case.

The decision to represent the archconservative oilmen was a tough one for Hirschkop, says John Kenneth Zwerling, an Alexandria lawyer whose wedding Hirschkop had officiated at while wearing a coonskin cap. 'The [Hunt brothers] bought him a membership in the John Birch Society,' he says. 'And he bought them a membership in the ACLU.'

The Hunt brothers and other famous clients helped provide Hirschkop with the kind of money a radical lawyer could only dream of, especially 30 years ago. In his best years, Hirschkop says, he's earned well above $1 million."

More on Billy Wagner and Southwest Virginia

With the move of Southwest Virginian Billy Wagner to New York City, you see more articles like this one from the New York Daily News, which begins:

"Billy Wagner is from a lot of places. You are on the road to one of them, in southwest Virginia, where breathtaking views and crushing poverty are in a dead heat, and where Wagner once was bounced around as if he were the family Spaldeen.

You leave the town of Tazewell and turn left at Frog Level, and pass through Thompson Valley, not far from Criggers and Pucketts Store. You climb up mountains, and switchback your way down the backside. You ride by a field with scores of brightly colored barrels, each with a rooster on top, a cock-fighting breeding camp. You go alongside a meandering creek, and see red dirt and grazing cows in sloping valleys.

Seventeen miles beyond Frog Level, you finally get to Tannersville, a hamlet of 392 people and six roads, a dozen miles from the nearest supermarket. Ten people come into the post office, and that's on a busy day, says Evelyn Barton, the postmaster. A faded wooden sign by the volunteer fire house welcomes you to 'The Home of Billy Wagner.' In Tazewell, where Wagner starred in football and baseball for Tazewell High, a fancier sign also claims the town as his home."

A commentary on the Coleman case

Kerry Dougherty has this harsh commentary in Saturday's Norfolk paper titled Supporters of dead killer can eat crow at DNA result.

Latest commentary from Judge Humphrey

Virginia Court of Appeals Judge Robert Humphrey has this commentary titled Colonial Vestige: Anglo-American System Requires Competent Judges, Lawyers, Juries in today's Richmond paper.

He says in part:

"Judges must be selected and retained based on their knowledge of the law and an even-handed demeanor in enforcing it; the bench and bar must insist that lawyers conduct themselves professionally and quickly and firmly sanction those who do not; and, finally, citizens must be willing to take their obligation to serve on juries seriously. Our society depends on these things because the only alternatives to a vibrant and effective court system are anarchy and violence."

On the hazards of a coal miner's work

The Media General papers' Rex Bowman penned this article titled Miners aware of job's dangers, with interviews of SW Virginia coal miners on the hazards of their profession.

Lately it seems that I talk to people in and around the coal business almost every day. Each of them has recalled underground accidents that happened to them or people they know.

Here is a link to a paper from 1987 titled "A Hundred Years of Mining Explosions in Southwest Virginia."

From the way, wayback machine - the next-to-last governor's inauguration in Williamsburg

Charlottesville's Bob Gibson has this timely report on the subdued circumstances of the swearing-in of Thomas Jefferson as the Governor of Virginia in 1779.

Friday's opinions from the Virginia Supreme Court

To get into the latest round of Virginia Supreme Court decisions, start with the court's synopsis page and Steve Emmert's website.

I must confess that the most interesting case to me so far is the mechanic's lien issue in Britt Construction, Inc. v. Magazzine Clean, LLC, where the Court held Va. Code § 43-4 "requires that a general contractor, as a condition of perfecting a mechanic’s lien, contemporaneously file with the memorandum of lien a 'certification' that a copy of the memorandum has been mailed to the property owner."

One of the interesting things about is to eliminate some of the high-stakes ambiguity about how to perfect a mechanic's lien, the General Assembly has codified a "safe harbor" form, which was was nonetheless relegated to this footnote in the Court's opinion:

"The absence of any reference to a certification of mailing in the 'safe harbor' form of Code § 43-5 does not affect our analysis of Code § 43-4. That form addresses only the sufficiency of a memorandum of lien and affidavit filed under Code § 43-4. Also, the 'safe harbor' forms of Code §§ 43-8 and –10 are not relevant to the issue before us because they pertain to subcontractors and to persons furnishing labor or materials to a subcontractor and, thus, do not affect the unambiguous requirements imposed on a general contractor by Code § 43-4."

Unless my memory is mistaken, I've seen a circuit court rule the other way on the issue of this appeal.

Whoa, the President keeping campaign promises, high-powered nominees turning out to be high-powered

Via How Appealing, this Sunday NY Times article titled Democrats See Wide Bush Stamp on Court System apparently says that some Democrats are appalled that President Bush is following through on his campaign pledge to nominate conservaties to the federal bench, and that the two Supreme Court nominees have known their stuff too well to be affected by the sometimes less-than-spirited, sometimes mean-spirited cross-examination by the Democrats on the Senate Judiciary Committee.

My two impressions of the Alito hearings, of which I watched and read a great deal, were these: (1) Alito is outstanding in every way, yet another example of a system that somehow produces good outcomes in spite of itself, and (2) the Democratic Senators were not doing a very good job. I mean, that CAP stuff was nonsense, the Vanguard stuff was nonsense, the 1980s memos were nonsense, and for every Alito case or Alito opinion the Democrats cited, the Republicans could cite that many more.

The only point that any of them made that made any sense to me is how do Alito or Roberts decide which areas of the law are settled and which are not - although not because I agree with the Democrats that there are more settled areas, but because I suspect there are fewer - and everyone knows it. If Professors Tribe and Chemerinsky (two names at random) were on the Supreme Court, some precedents would fall, as surely as some precedents may fall with Sam Alito instead of Sandra Day O'Connor on the Supreme Court.

My favorite part of the hearing was the testimony of the Third Circuit judges, particularly Judge Aldisert, at age 86. I suppose but for the fickle pick of fate, he might have been on the Supreme Court, if say President Johnson had been re-elected - which gets back to the Times article, which concludes with the point that some Democrats acknowledge the only thing to do to change the course of events is to win elections, as their strategems to gum up the nomination process has not worked.

Fourth Circuit puts the brakes on district court sentencing discretion

This post from Decision of the Day begins:

"Today, the Fourth Circuit remands a case in which District Judge Brinkema [of the E.D. Va.] sentenced a drug defendant to the eight months she would have received under state law as opposed to the 46-57 months recommended by the federal guidelines. The Court takes issue with the judge’s failure to consider the risk of disparity in sentences among federal defendants, most of whom would not be so lucky as to have a Judge Brinkema presiding over their criminal trials. The court also holds that it is unreasonable to consider state sentences in determining a federal sentence except in unusual circumstances."

Professor Berman has this interesting post about the case, and he wrote: "I've now had a chance to read Clark closely, and it is first-rate work by all the judges. Even Judge Luttig's opinion, which is most emphatic about the error in considering state sentencing practices, includes the important and valuable caveat that 'the consideration of state sentencing practices is not necessarily impermissible per se.'"

The case was U.S. v. Clark, and each member of the panel of Judges Luttig, Motz, and King wrote separate opinions.

In recent years, I've heard a lot about the perceived sentencing disparity between the federal courts and Virginia state court. Someone is alleged to have once famously declared that for possession of OxyContin, in federal court a defendant gets four years in the penitentiary, where as in state court for the same offense, the defendant would get probation and signed up for food stamps. The vaunted gun offense program in Richmond, Project Exile, allowed the City to make use of the stiffer sentences in federal court.

I note also that my good friend Chad Dotson, the Commonwealth's attorney in Wise County, was just before Christmas made a special assistant U.S. attorney, and I suspect this was done primarily for the very purpose of allowing him to bring to bear the threat of federal sentencing to his dealings with criminal defendants in Wise County.

No constitutional claims against employees of prison operated by private company for federal government

In Holly v. Scott, the Fourth Circuit in an opinion by Judge Wilkinson, joined by District Judge Harwell, with Judge Motz concurring in the judgment, held that there can be no Bivens claim against the employees of a federal prison operated by a private company.

The opinion explains that the plaintiff "is a federal inmate at Rivers Correctional Institution, a privately run facility in North Carolina operated by the GEO Group, Inc. under contract with the federal Bureau of Prisons."

Judge Wilkinson notes the reluctance of the Supreme Court to expand the judge-made concept of a Bivens claim: "The Court’s repeated reluctance to extend Bivens is not without good reason. A Bivens cause of action is implied without any express congressional authority whatsoever. This is hardly the preferred course. The Supreme Court has 'recently and repeatedly said that a
decision to create a private right of action is one better left to legislative judgment in the great majority of cases.'" He adds: "As the last twenty-five years of Bivens jurisprudence demonstrate, so well-suited is Congress to determine the policies pertaining to a remedial scheme that neither the absence nor the incompleteness of such a scheme represents an invitation for a court to step in to correct what it may perceive as an injustice toward an individual litigant."

Judge Wilkinson found two factors that justified denial of a Bivens claim against the employees of the private prison: "First, defendants are private individuals, not government actors. Second, Holly has an adequate remedy against defendants for his alleged injuries under state law."

Judge Motz in her concurring opinion maintains that private contractors providing medical care in state prisons have been held to be state actors for many years, but nevertheless agrees that there is no Bivens claim because the plaintiff has a state tort law remedy against the defendants.

Mike at Crime & Federalism thinks the Supreme Court's Malesko decision contains plenty of cues which Judge Wilkinson chose to ignore, and links to these post from All Deliberate Speed and Decision of the Day.

Gov. Warner and the politics of crime

In this Talkleft post, Gov. Warner: Critics Claim He Moved Left on Crime Issues, there is a link to this NY Times article, "Governor Finds New Middle Ground in Death Penalty Debate."

The Times article says:

"But in four years as governor, Mr. Warner has incrementally and with little fanfare established groundbreaking policies on the use of DNA testing to confirm, or challenge, criminal convictions, many of them in death penalty cases. Last week, he became the first governor to order a DNA test involving a man who had already been executed."

The Talkleft writer says the idea that Governor Warner has made progressive use of DNA to get votes is laughable: "Can anyone name a politician who ran for high national office on a liberal crime platform?"

Reading all this gave me cause to recollect this Will Vehrs post, with the comments, mostly saying that having the Coleman DNA tested was good politics, except perhaps - as Jerry postulates, with the victim's family.

We really want something reversed, by thunder, and we're not saying what

The best bit of this Appellate Law & Practice post says:

"The plaintiffs also had a due process claim, which was dismissed, and their 'appellate brief thunders that this ruling should be reversed.' But, it seems they don’t actually explain what their argument is. And, the court slams the lawyers by saying, 'Their appellate brief thunders that this ruling should be reversed — but that remonstrance, twice repeated, is unaccompanied by any vestige of developed argumentation. Gauzy generalizations are manifestly insufficient to preserve an issue for appellate review.' (Of course, judges often indulge in generalizations.)"

The post is about an opinion from the First Circuit, in Torres-Arroyo v. Rullan, worth reading in and of itself, and not only for its use of the term, "sockdolager."

Paraskevidekatriaphobia

This article ponders the origins of the phobia of Friday the 13th, and includes a link to this abstract of a study of the medical effects of Friday the 13th.

Friday the 13th was lucky for that other Steve Miner, the film director.

Some posts on the Coleman case

Milbarge at BTQ says:

"Cases like Coleman's and other [?] recent exonerations are just clearing the decks of old cases where the trial predated modern testing. In the present, and future, testing will happen pre-trial."

Professor Berman says:

"Though this interesting development is unlikely to alter the death penalty debate as much as if the DNA test came out the other way, I suspect this finding will be rightly used by death penalty supporters to highlight that death row defendants' claims of innocence must always be examined with skepticism."

Ronald at reason.com says:

"The good news is that Virginia did not execute an innocent man."

The Washington Post article quotes one law professor as saying:

"The opportunity to bring new people into the abolitionist movement has been lost."

Lawyer fined for bumping and shoving opposing counsel

The Norfolk paper reports here than an 81 year-old lawyer was fined $250 for contempt of court on account of his bumping and shoving opposing counsel in court during a sidebar conference in a will contest in Virginia Beach circuit court.

Georgia Tech AD diagnosed with Crohn's disease, quits work

It is reported here and elsewhere that Dave Braine, the longtime athletic director at Georgia Tech and earlier at Virginia Tech, has quit his job because of Crohn's disease.

Besides Va. Tech, Braine's background includes stints at VMI, Richmond, and Virginia:

"After teaching and coaching at Manatee High School in Bradenton, Fla., he joined the Virginia Military Institute football staff as a freshman coach in the spring of 1967, kicking off his long career in collegiate athletics. Later he coached at Richmond from 1971-73, highlighted by the Spiders' 1971 Southern Conference title and Tangerine Bowl berth. After two seasons as an assistant coach at Tech, Braine moved to Virginia as administrative assistant and secondary coach under Dick Bestwick in 1976. In 1978, he became assistant athletic director at Virginia."

Prayer lawsuit filed against Fredericksburg

The Fredericksburg paper reports that a city council member has sued the city over its new prayer policy.

The story begins:

"Fredericksburg City Councilman Hashmel Turner has filed suit against his fellow council members, saying that the city's new prayer policy violates his constitutional rights."

DNA results says Coleman was almost certainly guilty

The Richmond paper has this report.

Governor Warner's website has this link to the report from the lab in Canada, along with this statement from the Governor.

UPDATE: TalkLeft has this post, with statements from Peter Neufeld and Amnesty International.

Next big tort class - people who ride in cabs

Scientific American reports here:

"When strolling alongside a busy city street on a smoggy summer day, it may seem as if riding in one of the taxis streaming by might provide a respite from the exhaust-choked air. Instead new research from London reveals that taxi rides take a toll on your lungs as well as your wallet.

In fact, taxi cabins expose drivers and riders to more air pollution than any other form of transportation, according to the results of a survey by Surbjit Kaur and her colleagues at Imperial College London."

What PACER ought to be like

LawPundit says the welcoming screen to the federal court's online system should be like this:

"Welcome to ECF/PACER, the electronic database website of the federal U.S. Courts. According to Freedom of Information principles, all citizens are entitled to free and easy access to government documents. This website is designed to provide that service for the federal US courts. Thank you for visiting and come again."

Lawyer's end-run around state court subpoena for testimony about client in case of missing child

In State of Ohio v. Doe, the Sixth Circuit ruled against an Ohio lawyer who had removed to federal court the matter of a state court subpoena that would compel her her to give testimony about what a former client, now deceased, told her about the disappearance of a young girl. The Court concluded that the case should have been remanded to state court.

The Court said:

"Having had her day in court, Lewis seeks to profit from outrunning her first state court contempt order by raising federal arguments that she failed to raise when she had the chance. Lewis 'has experimented with the state courts and been beaten, and now seeks a different forum.' Rosenthal, 148 U.S. at 147. Section 1442(a) of the removal statutes does not confer federal jurisdiction for such purposes."

On the passing of the Patrick County pig once referred to as a legend

Rex Bowman of the Richmond paper has this story on the life and times of Oinky Doodle, gone but not forgotten.

This must-read begins:

"Oinky Doodle, Patrick County's most famous junkyard hog, known for his gluttonous love of Tootsie Rolls, Coca-Cola and peanuts, is dead. The big pig was 12.

He also ate York peppermint patties."

Of like cultural and literary merit is this account of Oinky Doodle's owner, who dreams of having Burt Reynolds play him in the movie.

Who needs Alito when you could have a robot

Via Slashdot, this article describes an automated, online dispute resolution system being expanded in Europe.

More on Governor Warner and the voting rights of convicted felons in Virginia

The New York Times has this editorial, which begins:

"In his few remaining days in office, Gov. Mark Warner of Virginia has an opportunity to strike a blow for democracy with the stroke of a pen by restoring the right to vote to more than 240,000 felons who are now out of prison. This is manifestly the right thing to do. Mr. Warner, who is likely to be a presidential candidate in 2008, should not let political considerations deter him because taking a principled stand in favor of ex-prisoners' voting rights would only augment his reputation."

Must be the blog

It says here that Florida appellate blogger Matt just ran his first marathon and got married.

Well done.

I'd like to thank the Academy, or at least GovtCheese

It says here that we got win No. 6.33 in the 34th Commonwealth Conservative caption contest, which also means that we have lost the other 27.66.

It takes six wins to be bowl eligible, but it takes 20 wins to become a member of the World Golf Hall of Fame.

The daily rapsheet updated on Vick

I'm reading that Marcus Vick was arrested again, this time on a charge of brandishing a firearm at a Suffolk McDonald's sometime last night.

For the latest, try this Google news search.

On John Tucker and the Coleman case

The Chicago Sun-Times has this short interview with John Tucker about the latest developments in the Roger Keith Coleman case. Tucker wrote the 1997 book about the case. He lives in Virginia with his wife, William & Mary law professor Jayne Barnard.

What he learned at MIT

There's some lasting truth in what this guy learned at MIT - including, among other things:

"Don't work with anyone else if you don't need to." Well, I work with others whenever I can, but as a related principle, even when you work with others, you're still responsible. The lawyer who blames another lawyer or some non-lawyer for anything only makes himself look bad.

"Trying to learn everything from scratch is a loser's game - take advantage of available literature." I'm looking for lawyering ideas to steal every day.

"Keep the design as simple as possible." The whole point of lawyering is communication, with simplicity as the eternal goal.

"I noticed the students who had perfect grade points weren't the whiz-bang smartest - they were the ones who kept regular schedules and maintained discipline, closing their dorm room doors to study, eating regular meals and going to sleep at midnight." The lawyers who take all the money have both discipline and whiz-bang. The ones with neither are not long for the profession.

"Even when your expectations are low (and to be pragmatic and realistic, they often have to be), maintain high standards." Other lawyers, the clients, and the judges are always keeping score, whether you win or lose.

"So when I join a company and hear how smart the people there are - I'm not impressed. Unless they're also good people to work with. That's a lot harder to find." The difference between the best and the worst lawyers I've met has more to do with character and discipline than smarts. Everyone I met in college and in law school was smart.

"You can have smart people, lots of money and the latest technology, but your execution can still suck." See all the above.

"Don't trust politicians." At the University, the self-promoting student government types were called "politicos." Within the profession, I read about lawyer politicos, but I am unaware of many around here. Perhaps the local ones have no use for me.

Good thing the federal courts have no jurisdiction in domestic relations cases

This article about Governor-elect Tim Kaine records this heart-warming exchange between Kaine and the late Judge Robert Merhige:

"Anne Holton, Kaine's wife, was a clerk for Judge Merhige. So it was Judge Merhige who became almost a second father-in-law to the incoming governor. He even offered some warm advice at the Kaine-Holton wedding reception. Kaine recalled the exchange.

'Tim, you really better be good to Anne.' 'I'm going to be good to her, judge, because I love her. You know that.'

'No, I mean you better be good to her because I will kick your ass personally if I ever think you're not.'"

Wonder whether these two legal encyclopedias are worthwhile

I just came across West's Encyclopedia of American Law and the Gale Encyclopedia of Everyday Law.

I have no idea what they are.

Unrelated to this, I've been meaning to check out Wex, but not gotten to it.

Today Bristol, tomorrow the world

Neal writes here that he is now some sort of official Democrat in the City of Bristol, Virginia.

Neal says all the elected officials in Bristol are Democrats but for the Commonwealth's attorney. I would never have guessed the politics of the other constitutional officers, but maybe all that means is that I've not been paying attention.

Back on the active list

I've restarted reading Jerry Lawson's Netlawblog.

Federal court in Illinois opens help desk for pro se litigants

This AP story details the opening of the help desk for pro se litigants as part of the service provided by the United States District Court for the Northern District of Illinois.

The article begins:

"Mountains of paperwork and confusing legal terms can be intimidating to the thousands of people who forgo a lawyer and represent themselves in court. But a federal court here is staffing a new help desk with an attorney to assist people involved in civil cases, and experts say it is believed to be the first of its kind in the nation.

The attorney offers free advice on how to file motions and interpret documents, and tells people if a lawsuit would be a waste of time."

On working in coal mines

The New York Times has this interesting article titled "Miners Steering Next Generation to Different Jobs."

The gist from the author's perspective is that the workforce underground is old, made up mostly of workers who went into the mines in the 1970s.

From the bill bin

Senator Chichester proposes that all punitive damages go to the state Literary Fund, SB 68.

Delegate Suit proposes a definition of "public use," HB 94.

Delegate Marshall would ban state and local government from denying access to the Boy Scouts and Girl Scouts, HB 203.

Delegate Cosgrove would allow the Commonwealth to appeal from a general district court ruling that a statute is unconstitutional, HB 99.

Delegate Albo would eliminate caps on court-appointed counsel fees, HB 313.

Delegate Lingamfelter proposes a resolution urging eight-year terms, instead of life tenure, for federal district and circuit court judges, HJ 28.

Delegate Shannon wants to add a new crime for battery against a sports official, HB 243.

Delegate Carrico wants to criminalize cursing and abusing emergency personnel, HB 371.

Delegate Kilgore wants court-appointed counsel to be paid only if they get those timesheets in before 10 days after trial, HB 127.

The Falwell forecast on Alito

In this story from the Lynchburg paper, the Reverend Jerry Falwell predicts that the number of votes in the U.S. Senate in favor of the nomination of Judge Samuel Alito to the U.S. Supreme Court will be "in the high 50s or low 60s."

On the Philip Thurman case

The Connection group has this very poignant article on the case of Philip Thurman, who was imprisoned for 20 years for a crime he did not commit before Governor Warner pardoned him after DNA evidence indicated his innocence.

On the Virginia Sarb-Ox case

In the latest opinion in Welch v. Cardinal Bankshares, Inc., Judge Glen Conrad of the W.D. Va. granted the defendant's motion to dismiss, concluding that the administrative proceedings were not yet ripe for district court enforcement of the plaintiff's asserted right to reinstatement after prevailing on his claims under Sarbanes-Oxley against the Southwest Virginia bank.

The Roanoke paper has this article about the case, titled "Cardinal Bankshares wins round with ex-CFO."

The article notes:

"The case has attracted national attention because former CFO David Welch and attorney Bruce Shine of Kingsport, Tenn., have argued, successfully, that Welch should have been protected from firing because of whistle-blower protections granted by the Sarbanes-Oxley Act of 2002. His case was one of the first national tests of those protections and was the first case to find for a claimant."

Dr. Knox staffer files for $250,000 in fees

The Roanoke paper reports here that the office manager charged with Dr. Cecil Knox is seeking reimbursement of her attorneys' fees under the Hyde Amendment, claiming that the government's prosecution of her was unjustified.

The U.S. attorney responded with a writing showing that the woman had expressly waived her right to seek such relief.

Johnson City lawyer sues judges for $23 million

The Kingsport paper reports here that a Johnson City, TN lawyer has sued two state court judges for $23 million.

This is the same fellow who was charged with contempt of court after one of his clients supposedly turned over e-mails from him advocating perjury.

Evidently, he is representing himself in this new civil case, if you can believe that.

Just when I got it at work and at home

It has been declared that DVD is dead.

At least we're not ahead of The Curve.

On the ABA ratings

This current list of ABA ratings shows not only that the ABA rated Judge Alito as "well qualified," but also that the majority vote on Gregory van Tatenhove, the latest nominee for the Eastern District of Kentucky was "not qualified," with a minority voting for "qualified."

Quarterbacks with Crohn's

The NY Times had this story and the CCFA website had this story on David Garrard, the Jaguars' quarterback with Crohn's disease.

A.J. Suggs, another quarterback with Crohn's disease, had sort of a misfit college career at Tennessee and Georgia Tech.

Recalling the Southmountain case

The recent events in West Virginia have given me pause to recollect the Southmountain explosion from some years ago. On December 7, 1992, an explosion killed a number of coal miners in the Southmountain No. 3 mine in Wise County.

In Fleming v. Apple Coal, 49 Va. Cir. 290 (1999), Judge Stump sustained the worker's comp bar plea of the parent company of Southmountain, leaving the plaintiffs with workers compensation as their exclusive remedy under Virginia law. (Virginia law does not make the same exceptions to the comp bar as does West Virginia law, see W.Va. Code § 23-4-2(c),(d).)

In Fleming v. U.S., 152 F. Supp.2d 886 (W.D. Va. 2001), Judge Jones found for the government after a bench trial under the Federal Tort Claims Act, in which the plaintiffs sought to prove that the negligence of MSHA inspectors was a proximate cause of the explosion. The Federal Tort Claims Act is the exclusive remedy for claims against federal employees who commit torts while acting within the scope of their employment.

BTQ takes on the Coleman case

Milbarge has this lengthy post about the Coleman case, which includes the obligatory reference to this blog as the SW Virginia embassy to the legal blogosphere.

M. says:

"If the new DNA tests clear Coleman, I expect abolitionists to say 'I told you so' and supporters to say 'It doesn't change our overall need for capital punishment.' If the tests inculpate Coleman, I expect supporters to say 'I told you so' and abolitionists to say 'It doesn't change the systemic problems with capital punishment.'"

I'd say that's right.

UPDATE: Also, this post on the Coleman case from reason.com generated a couple dozen comments, some of them surprisingly insipid for reason.com readers.

More on the voting rights of convicted felons in Virginia

This ACSblog post reports on the continuing efforts to get Governor Warner to restore the vote to convicted felons in the Commonwealth.

It cites one source which claims that one stated purpose of Virginia's constitutional provision barring felons from voting was to take the vote from black people, and notes that presently one in six black adults in Virginia is disqualified from voting.

One in six are convicted felons? That's extraordinary, if true.

To my limited observation, the more frequent complaint of convicted felons in this part of the world is not about voting but that they cannot own guns.

Vick gets the boot

The AP is reporting that Virginia Tech has ousted quarterback Marcus Vick from its football team.

The Washington Post has the same story here.

Governor Warner orders DNA testing in Coleman case

The Washington Post is reporting that Governor Warner has ordered DNA testing of evidence from the case of Roger Keith Coleman from Buchanan County, who was executed in 1992 for the murder of Wanda McCoy.

The Post story begins: "Virginia Gov. Mark R. Warner (D) has ordered DNA testing that could prove the guilt or innocence of a man executed in 1992, marking the first time a governor has asked for genetic testing of someone already put to death."

The AP has this story.

Brevity is enjoined as the hallmark of good . . . anything

Evan in this post agrees with the virtue of the one-page summary, for one's own benefit in trial practice.

A while back, I read Guy Kawasaki's post describing the 10/20/30 Rule of PowerPoint - ten slides, 20 minutes, 30 point type. Interesting.

As for Virginia's Rule 1:4, where it says that "[b]revity is enjoined as the outstanding characteristic of good pleading," I've always wondered, who granted that injunction and was there a bond?

International Coal Group contracts

The Contracts Blog maestro has this post with a link to this collection of International Coal Group contracts, at onecle.com.

On the state of corporal punishment in Tennessee

Knight on Family Law has this post on a 1993 case describing the state of the law as it pertains to getting a spanking in Tennessee.

Is the Manassas zoning ordinance limiting extended family members from living together unconstitutional?

This post from Law Librarian Blog seems to think so, as it begins: "The city of Manassas, VA, has come up with one outrageous, probably unconstitutional, and clearly bigoted zoning ordinance."

Would the display in the old Sullivan County courthouse pass muster under the Mercer County case?

I had to laugh reading the Sixth Circuit's ruling in the Mercer County case, which looked at a courthouse display of the Ten Commandments and other "heritage" documents, identical in fact to what was before the Supreme Court in the McCreary case, that the display in Mercer County did not violate the Establishment Clause as construed in the McCreary case.

The ACLU lawyers had to scratch their heads over that one.

So, the difference, according to the Sixth Circuit, is not just what the display says, but the history of how it got there. The County in McCreary lost in court before changing its display, while the litigation record of Mercer County was pure. Since Sullivan County, Tennessee, is in the Sixth Circuit, I have to conclude that there is at least a chance that the Sullivan County display might pass muster, at least with one panel of the Court of Appeals, notwithstanding the pessimism of the County attorney.

Willful nonpayment of taxes not serious crime under federal bar discipline rules

In In re: Wray, the Fourth Circuit in an opinion by Judge Luttig, joined by Judges Niemeyer and Traxler, reversed the E.D. Va. on the issue of whether the appellant's misdemeanor conviction of willful failure to pay federal income taxes required his disbarment from federal court practice under the Federal Rules of Disciplinary Enforcement.

Don't send this to people in your office

Instead, forward this list of top 10 time wasting websites to your opposing counsel.

Look, there's a Guy Kawasaki blog

What does it mean when a 40-something country lawyer is excited to discover the new Guy Kawasaki blog? Or that two plus years ago, I linked to a speech he gave at a California high school in 1995?

These are not very important questions.

Still more on the Roger Keith Coleman case

Once again, the AP has a story about whether Governor Warner will order DNA testing from the Roger Keith Coleman case.

The article explains the hype about the case: "If the tests show Roger Keith Coleman did not rape and murder his sister-in-law in 1981, it would mark the first time in the United States an executed person is scientifically proven innocent, say death penalty opponents, who are keenly aware that such a result could sway public opinion their way." That seems like an amazing fact to me, that there are no such cases.

The article says: "Tom Scott, a Grundy attorney who helped prosecute the case, said he has no objection to retesting the DNA, and is confident doing so would confirm Coleman's guilt--provided the sample has been properly preserved and not tampered with."

I've heard that from others - that testing would reinforce the evidence that Coleman was guilty, and that this case will have no effect on the death penalty in Virginia.

On the high tech enterprises coming to Russell County

Today's Washington Post includes "Mining Coal Country for Tech Workers," which says that Russell County is "where government contractors CGI-AMS Inc. and Northrop Grumman Corp. will in the next few months start building multimillion-dollar technology centers and hire hundreds of software engineers at salaries far above the region's average, bringing a taste of Washington's lucrative tech sector to a coal country enclave."

The gist of the article is that labor costs are forcing tech jobs out of the D.C. area into rural areas.

The article notes: "The average salary for the 300 people CGI-AMS expects to hire in Lebanon, for instance, will be $50,000 -- far above the town's $27,606 average annual wage but about half the salary an advanced software developer in Northern Virginia might earn."

The article also says: "Speculation about when a Starbucks will appear is rampant on the streets of Lebanon."

The Padilla case turned upside down

Via this How Appealing post, I read this interesting editorial in the Washington Post, titled "The 4th Circuit v. Mr. Bush."

The editorial concludes:

"But keeping a man locked up, even at his own request, so that his challenge to his detention remains viable, is no way to vindicate his rights. Mr. Padilla has been asking for years to face trial; the government has finally - belatedly - agreed. The Supreme Court should not let the 4th Circuit get in the way."

On the career of Jackie Stump

The Roanoke paper has this retrospective on the legislative career of Jackie Stump, the UMWA official who has given up his seat as delegate on account of medical issues.

The article says in part:

"Stump, 59, was a key United Mine Workers Association leader during the union's 11-month strike against Pittston Coal Co. during 1989 and 1990. It was the union's first sit-down strike since the 1930s, as union members and supporters let themselves be arrested for sitting in roads to block Pittston coal trucks.

Stump was among those arrested, which may have made him the only Virginian to have gone almost directly from incarceration to a seat in the Virginia House of Delegates."

Can be there be a wrongful discharge claim in Virginia based on constructive discharge?

In the list of petitions granted for December 20, the Virginia Supreme Court agreed to hear the case of Mansoor v. County of Albemarle, which presents the very interesting question, as to whether the trial court "erred as a matter of law in ruling that no claim may be stated in Virginia for constructive discharge in violation of public policy." In other words, can the employer be liable for running off the employee, with an intent that violates the public policy of the Commonwealth, instead of firing him or her outright, with such illegal motivation?

The trial court was correct that there is no Virginia Supreme Court case law on point, in my opinion, while "[t]he circuit courts have pretty much been evenly split on the question of whether a constructive discharge claim can be used in a wrongful termination case in the Commonwealth of Virginia." Gochenour v. Beasley, 47 Va. Cir. 218, 221 (Rockingham County, 1998).

The Mansoor case could answer one of the several unanswered questions about the law of wrongful discharge in Virginia, despite two decades of litigation. One reason why there are so many unanswered questions is that the tort of wrongful discharge is entirely judge-made, and so we can only learn the answers bit by bit as the right cases percolate through the courts, which I think is a good reason why the Court should not have recognized the new cause of action in the first place. The legislature can and does create specific statutory wrongful discharge claims wherever it sees fit to do so. On the federal side, there has been 40 years of give and take between the courts and the Congress, as the law under various employment discrimination statutes has been shaped and reshaped. The many doctrines that have evolved under the federal law, including the McDonnell-Douglas proof scheme and recognition harassment and constructive discharge as forms of unlawful discrimination, are familiar to practitioners (while less familiar to most state court judges), but these concepts may have no particular relevance to development of the state law tort of wrongful discharge, in which the courts have a fundamentally different task, since they are not interpreting legislative intent.

Thus, the Supreme Court refused to apply McDonnell-Douglas: "Given the Commonwealth's strong commitment to the employment-at-will doctrine, and because we conclude that Virginia's procedural and evidentiary framework for establishing a prima facie case is entirely appropriate for trial of wrongful discharge cases, we reject plaintiff's invitation to adopt the McDonnell Douglas indirect, burden shifting idea. The McDonnell Douglas outline, refined in later cases, was adopted by the Supreme Court in the context of Title VII actions under the federal Civil Rights Act. There was no focus, as here, on the employment-at-will doctrine." Jordan v. Clay's Rest Home, Inc., 253 Va. 185, 192, 483 S.E.2d 203, 207 (1997).

On Judge Bumgardner

The Staunton paper has this interesting profile of Judge Rudolph Bumgardner III, who is about to retire from the Virginia Court of Appeals.

Judge Bumgardner was on the panel before whom I argued on October 6.

On summary judgment and the testimony of interested parties

In Stratienko v. Cordis Corp., the Sixth Circuit considered the plaintiff's argument that summary judgment was not proper where the evidence on which the District Court relied came from persons with an interest in the outcome of the case.

The plaintiff cited this language from the Supreme Court's decision in Reeves: "[T]he court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."

The Sixth Circuit explained that this does not mean that the undisputed evidence from interested witnesses cannot be used in support of summary judgment, concluding that the issue "is not whether the district court could consider the affidavits of Cordis but instead whether the affidavits were uncontradicted."

This case gives me cause to recollect a passage from the little book I have on English legal history, which says in part: "The parties themselves, and interested persons, were excluded from the witness box at common law on the assumption that their testimony would be biased and therefore worthless." Baker, An Introduction to English Legal History 288-89 (Butterworths 2d ed. 1979).

Preemption on steroids

In Palkow v. CSX Transportation, the Sixth Circuit dealt with an interesting case, where the plaintiff lost a federal court trial, then sued a witness claiming perjury, and the witness removed the case, claiming that there was a federal question because the second action was a form of collateral attack on the earlier, unappealed judgment for the defense.

Reversing the denial of the motion to remand the second case back to the state court, the Court concluded that there was no basis for federal jurisdiction. In connection with its preemption discussion, the Court characterized the "complete preemption" exception to the well-pleaded complaint rule, recognized in connection with the statutes such as the Labor-Management Relations Act and ERISA, with these words: "to use the jargon of the day, it is 'preemption on steroids.'"

A bad football trip

I contrast our good fortune in enjoying the Nashville trip with what happened to the group from Bland County, described in this story, which says they were mugged in Jacksonville the night before the ACC championship game.

On the Music City Bowl

I've gone to the five of the last few bowl games in which Virginia played, all of them within reasonable driving distance of Southwest Virginia - the last two in Atlanta, the two in Charlotte, and Friday's game in Nashville.

Nashville, surprisingly or not, is a good place for a bowl game - there was lots going on Thursday night near the downtown hotels, and then the stadium was an easy walk across the river on Friday. Inside, the stadium was not much different than the other NFL stadiums I've seen - and the football food was cheaper and better than some I've had. Since the weather cooperated, and the right team won the game, it was a great trip.

I was feeling so fine afterwards, the next day, I went and bought a new car. The color is "Golden Beige," of which Dad said, "it looks more like mud than my car."

On lawyer humor before the Supreme Court

In this New York Times article about the recent study of the frequency of laughter attributed to the remarks of different U.S. Supreme Court justices, there is also the following on lawyer humor:

"Lawyers get laughs sometimes, too, but it is a dangerous business. In the guidebook the court provides to lawyers preparing to argue before it, there is this stern warning: 'Attempts at humor usually fall flat.'

Thomas C. Goldstein, a Washington lawyer who appears before the court frequently, said humor 'is a land mine.'

'You have to follow the justices' lead,' Mr. Goldstein said. 'You have to be a straight man.'

Lawyers confuse one justice with another surprisingly often, and those mix-ups are, of course, an opportunity for humor.

Last November, Sri Srinivasan, a government lawyer, apologized to Justice David H. Souter for referring to him as Justice Scalia.

'Thank you,' Justice Souter said, with characteristic self-deprecation, 'but apologize to him.'"

My favorite of the name mix-ups is still from the oral argument in Bush v. Gore. See pages 33-35 of this transcript, concluding with "Mr. Klock - I'm Scalia."

A few memorable times I've heard lawyers or witnesses before Judge Williams tell a joke to make a point. At one key juncture in an important hearing, the witness asked the judge if he could tell about a cartoon he'd seen to make his point. "Well, all right," said the judge. "But it had better be a good one."

The first time I saw a lawyer make a joke and pull it off with some panache, the lawyer was a fine fellow named Michael J. Passino from Nashville, explaining why the United Mine Workers had tried yet again during the Pittston strike to remove the case before Judge McGlothlin to federal court. His name popped in my head the other day as I was walking back along Union Street after the Music City Bowl. I retold his joke for about the 100th time (over the past 15 years) as we were driving back from the game. He didn't win the motion, but he made an impression on me.

On old DNA evidence in the Old Dominion

Today's NYT has an editorial that begins: "A harrowing postscript to official justice is taking place in Virginia, where the discovery of a forgotten generation's blood samples in old forensic files has led to modern DNA tests that have already cleared five inmates convicted of rape, with hundreds of other felony cases to be examined."

First things first

Jerry observes the contradiction, between today's Roanoke Times editorial that says the General Assembly should not be distracted from the real business of government by silly social issues, and today's Roanoke Times editorial urging the General Assembly to act on the silly social issue of Indian tribe recognition.