Saturday, April 29, 2006

Fourth Circuit nomination gossip I missed from March

This NRO post said back then:

"According to a senior staffer in Senate leadership, the Senate will likely turn to floor action in May on the long-pending nomination of Terry Boyle to the Fourth Circuit and/or the long-pending nomination of Brett Kavanaugh to the D.C. Circuit. The Kavanaugh nomination is still before the Judiciary Committee, but should be reported to the floor soon. . . .

According to a very knowledgeable non-Senate source, the news is much worse for Fourth Circuit nominee William Haynes: Senator McCain is committed to stopping Haynes's confirmation, and Senator Graham, as a favor to Senator McCain, will keep the nomination from being reported out of committee. If this news is accurate, it would appear that there is no hope for Haynes's nomination."

Time may running out on these nominations, for better or for worse.

On the case of the phony claim of a mouse in their soup

The Daily Press reports here on the guilty verdicts in the criminal case against the mother and son who made a false claim that they found a mouse in their soup at a restaurant in Virginia.

A Dickenson County case

This Rex Bowman story reads like something that could have happened in 1935.

Instead, the case was heard last week.

The Hook takes on a Charlottesville lawyer

Not that I agreed with all of it, but I was delighted by this profile from the Hook in Charlottesville of lawyer Benjamin Dick, whose most famous trial lately was the defense verdict in the farmer/lawyer murder case.

One of his accomplishments he lists as this: "being the first in the Dick genealogy to be a lawyer who won arguments before the Virginia Supreme Court, U.S. District courts, and the U.S. Fourth Circuit Court of Appeals."

As his most embarrassing moment, he replied: "After losing a lot of weight for health issues, my old pants dropped to my ankles while I held an arm full of groceries in a grocery store, scaring a poor old lady."

Since it seems likely that I have a remote ancestor (Maindort Doodes, whose son Doodes Minor supposedly became a citizen by an Act of Assembly in 1673) in common with many of the Virginia Minors (including perhaps that John B. Minor who referenced Maindort in his 1923 book, The Minor Family of Virginia), I doubt that I can make a similar genealogical claim. I do, however, have some old pants that are certainly capable of falling to my ankles in a grocery store.

Waldo strikes again

Now, Waldo Jaquith has created the aggregator of Virginia Political Blogs. Check it out - 80+ "political" Virginia blogs all in one place.

On why appeals court judges don't get to hang out with legislators

Marcia Oddi's Indiana Law Blog has this interesting post on the uproar in two states over contacts between state appeals court judges and legislators.

In Minnesota, "[f]or what may be the first time in its 40-year history, the state Board on Judicial Standards has opened investigative files on all seven Minnesota Supreme Court justices, the result of a complaint that alleges that one or more of them may have had improper conversations with a legislator regarding Minnesota's marriage laws."

In Kansas, a Senate panel pondered the question of "whether a Supreme Court justice's discussion with two senators about school funding has tainted other members of the court."

That interview with a U.S. District Court judge about blogs

I've seen a few references, including this one from Robert Ambrogi, to Ian Best's interview with a federal court judge in Nebraska about law blogs.

It reminds me of how much I enjoyed Howard Bashman's series of Twenty Questions, one of two judges the Nebraska judges reads every day, along with Professor Berman's Sentencing Law Blog. (I would read those blogs every day, too, if I was a federal judge; heck, I read them both almost daily as it is.)

Friday, April 28, 2006

Chief Justice Hassell addresses Sabato 101

The CD has this report on Chief Justice Hassell's appearance before Professor Sabato's PLAP 101 class. (In my day, it is GFAG 101.)

One of the things he is quoted is saying was this:

"According to Hassell, half of the population will encounter the judicial system at some point in their lives and half of these will not be able to afford good lawyers.

Hassell said he requested the General Assembly to give the judicial system an additional $25 million to pay court-appointed attorneys. He received about $8 million.

Virginia has the lowest amount of compensation for court-appointed attorneys in the nation, according to Hassell.

'That is just wrong, wrong, wrong,' Hassell said."

Unhappy Hyundai news

It says here that the head man of Hyundai has been arrested in Korea.

Ah, well, I'm still keeping my brown car.

On Frank W. Rogers, Jr.

The text of SJ 5018:

"WHEREAS, Frank W. Rogers, Jr., of the City of Roanoke, an esteemed attorney for over 50 years, died on July 11, 2005; and

WHEREAS, Frank W. Rogers, Jr., was affectionately called "Bo," in part to denote his close relationship with his twin brother Robert, who was known as "Bob"; and

WHEREAS, while growing up and throughout their adult lives, Bo and Bob Rogers were nearly inseparable and aspired to similar ideals and goals in life; and

WHEREAS, in their childhood, Bo Rogers and his siblings spent numerous hours on Saturdays playing in their father's law office, observing his passion and diligence for the law; consequently, the Rogers children were likewise inspired to make a difference in their community; and

WHEREAS, Bo Rogers, along with his brother Bob, attended Episcopal High School in Alexandria, received their undergraduate degrees from Princeton University, and their law degrees from the University of Virginia School of Law; after deciding to specialize in tax law, Bo earned a master's degree from the Georgetown University Law Center; and

WHEREAS, after receiving his degrees, Bo Rogers honorably served his country with the Judge Advocate General's Corps in the United States Army and was discharged in 1958 as a captain; and

WHEREAS, returning to Roanoke in 1960, Bo Rogers and his brother Bob joined the prominent law firm that his father helped to found (now Woods Rogers PLC); Bo became the senior member of the law firm's tax group; and

WHEREAS, during a long and prestigious career, Bo Rogers was selected for inclusion in both The Best Lawyers in America and Virginia Business Magazine's Legal Elite; and

WHEREAS, throughout a life of significant professional achievement as a practicing attorney for over 50 years, Bo Rogers served his fellow citizens with uncommon dedication; and

WHEREAS, committed to improving the quality of life for all of the citizens of the Commonwealth, Bo Rogers gave his time and considerable expertise to numerous civic organizations, serving as president of the Roanoke Bar Association and as a member of the boards of Hollins University, Episcopal High School, the YMCA, the Roanoke Symphony Society, and the Virginia Historical Society; and

WHEREAS, Bo Rogers was a faithful member of St. John's Episcopal Church and served as a member of the vestry and as a junior warden; and

WHEREAS, Bo Rogers had an extraordinary zest for life, a remarkable gift for instantly making everyone he met feel at ease, and will be fondly remembered for his immense generosity and kindness; and

WHEREAS, Bo Rogers will be sorely missed by his devoted wife of 50 years, Laurine Kunkel Rogers, his son and two daughters, his four wonderful grandchildren, other loving family members, numerous friends and colleagues, and the parishioners of St. John's Episcopal Church; now, therefore, be it

RESOLVED by the Senate, the House of Delegates concurring, That the General Assembly mourn the loss of an exceptional attorney and outstanding Virginian, Frank W. Rogers, Jr.; and, be it

RESOLVED FURTHER, That the Clerk of the Senate prepare a copy of this resolution for presentation to the family of Frank W. Rogers, Jr., as an expression of the respect in which his memory is held by the members of the General Assembly."

Lawyer gets reprimanded for blog post has this article about a temporary prosecutor in California who was reprimanded by the trial judge for what he wrote on his blog about a misdemeanor case.

Thursday, April 27, 2006

W&L law gets Sabato as graduation speaker

It says here that Professor Sabato is the man for the Washington & Lee law school graduation.

There is no word yet on whether Not Larry Sabato will get any such invitations.

Feddie's career plan

Steve Dillard wants President Bush to forget what Dillard wrote about Harriet Miers, and give Steve a federal judgeship (before it's too late).

Former Richmond prosecutor turns up in Australia

Someone sent me a link to this article, which describes the ruling of a court in Australian on whether Joe Morrissey can practice law as a prosecutor Down Under, notwithstanding his difficulties with the Virginia State Bar. The answer: apparently not.

Judge Hull retires

Over yonder on the Tennessee side of Bristol, the local federal court is the E.D. Tennessee's Greeneville Division, where Judge Thomas Hull has been on the bench since his appointment by President Reagan in 1983. In 2002, he took senior status, and Judge Greer was appointed by President Bush.

The Greeneville paper reports here that Judge Hull is retiring completely as of tomorrow.

The best part of the article is this statement by Magistrate Judge Inman:

“I first came to know Judge Thomas G. Hull when he was a state Circuit Court Judge, and I was a young lawyer in Morristown. I immediately liked and admired him, both personally and as a judge. His sense of humor and common sense made unpleasant trials more palatable.

“He maintained that personality when he became a federal district court judge. When I first went on the state bench in 1984, I tried to emulate much of his manner in the trial of cases.

“It is impossible to recite in a few short paragraphs what Judge Hull has meant to me, to the United States District Court for the Eastern District of Tennessee, and to his hometown of Greeneville. But for Judge Hull, I would never have been a state court judge, and neither would I have become a United States magistrate judge.

“But for Judge Hull and his dogged determination, the District Court and Greeneville would not have the amazingly beautiful, technologically superior, and functional U. S. Courthouse.

“Judge Hull has been, and remains, a remarkable man. Many people, including myself, owe him much. The Jimmy Stewart movie, ‘It’s a Wonderful Life,’ comes to mind. What would this court and this town have been like if there had been no Tom Hull? We all have been very fortunate that there was, and is, a Judge Tom Hull.”

Wednesday, April 26, 2006

Justice O'Connor to speak at William & Mary law graduation

It says here that retired Justice O'Connor, now chancellor of the College of William & Mary, will be the graduation speaker for the law school at William & Mary.

Even more amazing, it says the ceremony will be held in the Sunken Gardens, which sounds like a better venue than the football stadium.

On the Appalachian School of Law's march to full accreditation

This statement from the ASL website says:

"The Appalachian School of Law was provisionally approved by the American Bar Association in Academic Year 2000-2001. In Academic Year 2005-2006, Appalachian School of Law applied for full approval from the American Bar Association. In connection with that application, President Ellsworth and Dean Kinsler appeared before the ABA's Accreditation Committee on April 20, 2006.

On April 24, 2006, the Accreditation Committee recommended ASL for full approval. Although this is an important accomplishment, one step remains before we are fully approved. This step will occur in mid-June, at which time the ABA's Council of the Section of Legal Education and Admissions to the Bar will consider the Accreditation Committee's recommendation."

I say well done, to so many people.

Municipal wi-fi comes to Southwest Virginia

The Bluefield paper reports here on the onset of free wi-fi in Bland County.

Office manager in Dr. Knox case fails to preserve claim for fees on criminal charges on which she was acquitted

In Boone v. U.S. Attorney, Chief Judge Jones of the W.D. Va. ruled that the office manager who was acquitted as to some counts in the Dr. Cecil Knox case could not recover her attorneys' fees under the Hyde Amendment because she had filed too late and because she had waived her claim for fees on the counts as to which she was acquitted as part of her plea deal on other counts with which she was charged in the sixth indictment.

The Roanoke paper had this article about the decision, and the article says of the defendant as saying that she "would not have signed the agreement as I had no intention of waiving the opportunity to file suit against the government on those unfounded drug charges."

On attorneys' fees in a small interpleader case

In Reliastar Life Ins. Co. v. Lemone, Magistrate Judge Urbanski decimated the attorneys' fee claim of the plaintiff insurance company in a federal interpleader case, where the "boot" was about $28,000 and the fees sought were over $13,000.

We had a federal interpleader case a few years back. In those statutory interpleader cases, the diversity that is required for subject matter jurisdiction is between the claimants to the property, not between the plaintiff and the defendants, and the jurisdictional amount in controversy requirement is much less than $75,000, and frequently, unlike in this case, the plaintiff can file the case, get an injunction that prevents the claimants from suing them while they fight it out among themselves, and then get an award of attorneys' fees out of the money in dispute. I would say you can't beat a deal like that, but evidently there is a reasonable limit when the boot is small on how much you can try to get as fees.

On the Jewell Ridge Lateral

Nibbling at the edges of the energy business, as I do, it is interesting to learn about such things as the transportation systems for coal and gas. One developing story of interest to me is the construction of a new natural gas pipeline from the coalfields along the Tazewell/Buchanan County border and the interstate gas line and the gas storage facilities in Smyth County.

In East Tennessee Natural Gas, LLC v. 1.28 Acres, dealing with a series of condemnation cases, Magistrate Judge Sargent describes some of the background of the project:

"The Jewell Ridge Lateral, once constructed, will connect CNX Gas Company, LLC’s, ('CNX Gas'), existing Cardinal States Gathering System in Tazewell County to ETNG’s existing pipeline system in Smyth County. The Certificate also authorizes the installation of two 'taps,' which would allow the communities of Richlands and Cedar Bluff to access a supply of natural gas in the future. The capacity of the Jewell Ridge Lateral will be 235,000 Dths, ('dekatherms'), per day or 235 million cubic feet of natural gas per day. . . .

According to Clinton Montgomery 'Monty' Collins, ETNG’s Project Manager for the Jewell Ridge Lateral project, the Certificate the FERC granted requires that the pipeline be constructed and in service within one year from February 8, 2006, the date on which the Certificate was issued. Collins testified that the pipeline would be constructed in sequence starting with the northern end of the pipeline at Jewell Ridge and traveling south to Smyth County. Collins described the process as a 'moving assembly line.' According to Collins, the route of the pipeline takes it across the land of approximately 79 different landowners, including four major mountains, Paint Lick Mountain, Brushy Mountain, Walker Mountain and Clinch Mountain and seven waterbodies. . . .

Claude D. Morgan, Vice President of Operations for CNX Gas, testified that CNX Gas has signed a contract with ETNG to move natural gas from its Cardinal States Gathering System in Tazewell County through the Jewell Ridge Lateral to the existing ETNG pipeline in Smyth County. Morgan stated that CNX Gas currently uses the Columbia Transmission System, specifically the KA20 pipeline, to move its natural gas to market from this area. According to Morgan, the Jewell Ridge Lateral is needed because the Columbia Transmission System is limited in the amount of gas it can transport, especially during the summer months. The KA20 pipeline is an interstate pipeline that serves mainly eastern Virginia and has no storage facilities on the pipeline. Thus, Morgan testified, the pipeline’s capacity at any one time is limited to the demand for natural gas in the market area that it serves.

Morgan stated that CNX Gas’s Cardinal States gas field produces 165 dekatherms or 165 million cubic feet of natural gas a day. The current capacity on the KA20 pipeline during the summer months is 135 million cubic feet a day. Morgan stated that currently left CNX Gas with 30 million cubic feet of gas a day that it does not have the pipeline capacity to move during the summer months. He stated that the estimated daily loss of revenue to CNX Gas as a result of the inability to move this gas is $225,000.00 to $240,000.00 a day, with resulting lost severance tax revenues of approximately $6,000.00 a day. Morgan testified that during the summer months of 2005, CNX Gas lost the ability to market more that 1.1 billion cubic feet in natural gas from this gas field because it had no way to transport the gas to market. Some of this gas is coalbed methane, which is released as a byproduct of mining activity, and it cannot be shut in. Thus, if there is not enough capacity on the pipeline to move that gas on any given day, Morgan stated, it simply is released into the atmosphere and lost. One of the advantages of moving gas on the ETNG system would be that the ETNG system has storage capabilities, according to Morgan.

Morgan testified that, since Hurricane Katrina struck the Gulf Coast last fall, there had been a shortage of natural gas available for use. In fact, Morgan stated that, had the United States not experienced a mild winter this year, the country would have found itself in 'dire straits' due to the current shortage of natural gas. . . .

Burton Perry, Senior Manager of Mining and Coal Resources for Pocahontas Land Corporation, a subsidiary of Norfolk Southern, testified that his company owned the mineral rights to a number of coal seams running under the property identified in case no. 1:06cv00036, ('the Pocahontas Land case.') Perry testified that there were current permits allowing mining on this property and that White Wolf Energy, Inc., ('White Wolf'), intended to open an underground mine on this property soon. Vaughn Miller, Manager of Land for the International Coal Group, a company affiliated with White Wolf, also testified that White Wolf owns a lease on all the coal seams owned by Southern Region Industrial Realty, Inc., ('Southern'). Miller further testified that White Wolf intended to open a major underground mine on this property to mine the War Creek coal seam in the next two years.

Perry testified that the only way to prevent surface subsidence from underground mining of coal was to extract only 50 percent of the coal and to leave the other 50 percent in place. If that were required in the mining of the coal reserves located under the proposed route of the Jewell Ridge Lateral across this property, Perry stated it would require leaving in place approximately one-half million tons of marketable coal. Perry also testified that there were extensive old mine works in various coal seams under the property."

In the end, Magistrate Judge Sargent recommended in favor of granting immediate possession to East Tennessee.

Tuesday, April 25, 2006

Watch what you ask for

In Wachovia Bank v. Schmidt, the Fourth Circuit booted the case for lack of subject matter jurisdiction, got reversed by the Supreme Court on the jurisdictional issue, and then on remand ruled against the Bank on the merits, in an opinion by Judge King.

The issue was about the arbitrability of a dispute between some investors and the Bank over their losses as the result of an illegal tax shelter, on which the Bank supposedly gave some advice. The answer was - not arbitrable, where the alleged bad acts by and large preceded the writing with the arbitration clause, which seems like a pretty good reason to conclude the arbitration clause does not apply.

Speaking of BTQ

They've got a post here to a new Scott Turow book premised on the statute of limitations.

Rats, I wanted to write that book, and call it something like "For Whom The Statute Tolls," or maybe "While The Plaintiff Slept," or "Tough Guys Don't Non-suit."


I used to keep a copy of my favorite statute of limitations opinion (United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998)) in my middle desk drawer, and take it out every now and then and laugh.

Judge Persin rejects claim that special prosecutors used fake orders to get fugitive back to Virginia

The Kingsport paper reports here that Judge Persin for the Wise County Circuit Court has rejected the motion of the one-time fugitive David Stanley for the recusal of special prosecutors Gerald Gray and Greg Kallen.

The article includes this fun sentence: "Gray told Person [sic] that Stanley's insinuations on Monday that he and Kallen broke into the Wise County Courthouse under the cover of darkness to forge a court document were 'patently absurd.'" Now, that is absurd.

Still a Rick Monday fan, 30 years later

Milbarge from BTQ sent me a link to this story about the ceremony to honor Rick Monday at the ballpark in Houston. The article explains: "Monday was playing center field for the Chicago Cubs on April 25, 1976, at Dodger Stadium when he noticed two protesters kneeling on the grass in left-center, intending to burn the American flag. He immediately bolted toward them and snatched it away."

Also - "The Baseball Hall of Fame recently named Monday's quick-thinking act as one of the 100 Classic Moments in the history of the game." Certainly it is one my favorites, and I previously noted it here and here.

Sunday, April 23, 2006

Lengthy report on the inmates with clemency petitions before Governor Kaine

The Norfolk paper has this remarkably detailed report on the four convicts now seeking clemency from the Governor from the sentences they received for the murder in 1997 of a sailor's wife.