Saturday, January 07, 2006

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 generated a couple dozen comments, some of them surprisingly insipid for 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.

Friday, January 06, 2006

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.

Thursday, January 05, 2006

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

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.

Tuesday, January 03, 2006

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."

Monday, January 02, 2006

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.'"

Sunday, January 01, 2006

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.