On qualified immunity

I read with great interest the Fourth Circuit's opinion in the case of Ridpath v. Board of Governors, and find much noteworthy within it.

For one thing, the Court splits 2-1 on the issue of whether the plaintiff has stated a due process/liberty claim. If three Fourth Circuit judges cannot agree, that's pretty good evidence to me that the constitutional right asserted by the plaintiff is not clearly established. If it's not clear to Judge Widener that the plaintiff has a claim, how could the defendants have known any better?

The case is about some guy suing a football coach and Marshall University administrators for throwing the blame on him for an NCAA rules violation, with the result that the NCAA ruled that part of the "corrective action" the University should take was to correct the plaintiff out of his job, which in turn made him untouchable in the NCAA compliance racket. That "liberty interest" area of the law seems like murky territory to me - I've never seen one get past a motion to dismiss. Judge Widener might be right in his dissent when he focuses on the case law that says defamation is not a constitutional violation. There is something fuzzy about this claim, to my mind, and it has to do with the interaction between the University and the NCAA. Fuzzy claims, one would hope, are the ones on which the defendants are entitled to qualfied immunity.

Second, there is a footnote bashing citation to unpublished case law. I have always believed that qualified immunity is one sub-issue where the unpublished law frequently ought to be considered, not for the purpose of considering what the law is, but for the secondary and sometimes historical issue of whether the right at issue was not clearly established. The Court says in footnote 15: "On this issue and others, the Administrators extensively rely on unpublished decisions of this Court. Of course, under Local Rule 36(c), citations to unpublished decisions are disfavored. These citations might be warranted if, for example, there were no published decision on point. Because such circumstances are not present here, however, we do not address the unpublished decisions cited by the Administrators." Now, I don't know what the lawyers were doing in this case, but I know what I was trying to do when I have cited unpublished case when litigating qualified immunity in the past. I suspect, however, that Local Rule 36(c) will not present the same obstacle on this point as it has in the past, once the rules change takes effect on citation to unpublished opinions.

Third, on the First Amendment question, the panel refers to "the McVey rule." I was the lawyer for the defendants in the McVey case. It seemed to me at the time like a very good case for determination on the pleadings, because the plaintiff's First Amendment claim was based entirely on an innocuous writing that was made a part of the complaint. The majority notes in its footnotes that its decision does not preclude the individuals from relitigating qualified immunity on summary judgment. And, so we did in McVey, and won the case, which judgment was affirmed on appeal. 44 Fed.Appx. 630 (4th Cir. 2002). In McVey, the original panel agreed 3-0 that the denial of the motion to dismiss should be affirmed, but otherwise was split 1-1-1 in a curious sort of way. Judge Niemeyer wrote that if the facts turn out one way, the defendants would win; Judge Murnaghan wrote that if the facts turn out another way, the defendants would lose; and Judge Michael wrote in the manner of that fellow in the movie Oh, Brother, Where Art Thou?, who said "I'm for yours truly, too." Actually, what he wrote was this: "I concur in Judge Niemeyer's opinion for the court, except to the extent it is qualified by Judge Murnaghan's separate opinion. In addition, I concur in the judgment." McVey v. Stacy, 157 F.3d 271, 282 (4th Cir. 1998) (Michael, J., concurring in part and concurring in judgment).

And so it is that I will be unable to hit the lecture circuit explaining the McVey rule, when it has puzzled me like a Rubik's cube in some aspects for almost a decade.

Fourth, the majority variously cites Jenkins v. Medford. Jenkins is the poster child for qualified immunity appeals of motions to dismiss. Judge Ervin in his dissent in Jenkins bemoaned the way the majority had taken the issue of qualified immunity and come out with an opinion that said the plaintiff could not state a claim, when there were all kinds of facts that remained unknown. I suspect that the Jenkins case has done in the political firing claims of road deputies in four states.

Finally, the lawyers for the defendants do not seem to have done themselves any favors, as they have boogered up some of the procedure. One appellant was booted out for lack of standing because he had not raised qualified immunity at all in the district court. As to the others, the official capacity appellants were booted because qualified immunity has nothing to do with official capacity defendants. As to the remaining individuals, the Court had to consider whether it could consider their qualified immunity claims, when they were not raised in the answers or any motions to dismiss, but instead in the third round of briefing motions to dismiss.

The car wreck that cost the West Virginia chief justice the election

WV Record has this analysis of the claim being made by the former Chief Justice of the West Virginia Supreme Court that he lost the election because his injuries from a car wreck on which he has now filed suit, seeking lost wages for his former position, left him looking kind of weird at a campaign appearance that was filmed and used against him in television commercials.

Qwest and Osama

One of my good lawyer friends included this post on his daily list of links, and it pertains to the NSA phone call database, reaching this conclusion: "Perhaps Osama is holed up in a mountainous tribal region where even the telephone companies are not controlled by federal authorities? I've got it! Bush can't find Osama because Qwest won't cooperate!"

Oddly enough, my long distance carrier is Qwest, and I'm in that other mountainous tribal region, Southwest Virginia.

Of Cossacks, Pandora, dastardly deeds, wholesale campaigns, and knights in shining armor

This great article from the Bristol paper contains a lot of Wise County lawyer-speak.

The gist is that the defendants in the Appalachian election fraud case are complaining that the Commonwealth's attorney is telling the witnesses they don't have to talk to the defense lawyers. The paper's website has this link to one defendant's motion, which refers to the conduct of the Commonwealth, "through its knights in shining armor."

It all kind of makes you want to get in on a case like that.

Norfolk federal court building to go up not out?

The Norfolk paper reports here that the latest plans on expanding the federal courthouse in downtown Norfolk are to go up in the air.

The article says that unnamed courthouse employees are bummed at the thought of holding court while all the necessary construction work is being conducted.

Does the Cowboy Church buck heads with Bedford zoning?

This fine article says that officials in Bedford County are cracking down on the Cowboy Church (on Horseshoe Bend Road) as being a non-permitted use under the zoning ordinance.

Representatives of the Cowboy Church threaten legal action, including resort to the Religious Land Use and Institutionalized Persons Act. They say: "If he was having a square dance, nobody would have bothered him."

What the article does not explain is, what is the Cowboy Church? And, what are all these cowboys doing in Virginia?

The factsheet on Judge Boyle

Via Howard Bashman, former clerks for Fourth Circuit nominee Judge Boyle are circulating this factsheet in response to the Salon.com article about him.

Another black eye for the ABA on rating judges?

As reported here in the Washington Post, the ABA committee has decided unanimously that Michael Wallace, who went to Harvard and U.Va. Law and clerked for Justice Rehnquist, is unqualified for confirmation to the Fifth Circuit.

That seems odd, but then I read here and here and here that Wallace was impeachment counsel for Senator Lott, and it seems simply suspicious - either the committee has completely lost its bearings or they found out something horrible about the nominee. This is the same committee that said nominees Boyle, Owen, Alito, and Roberts are well qualified, and at one time said that Myers, Pryor, Brown, and Griffith are qualified.

It appears that there's a U.Va. man on the committee, but the nominee didn't even get his vote.

Pam Reeves in the hunt for Tennessee AG

On the Tennessee side, Knoxville lawyer Pam Reeves, a former president of the Tennessee Bar Association with some ties to Bristol (and who was born in Marion, Virginia), is after the position of Attorney General for Tennessee, according to this report.

So far as I know, she has the full support of all the bloggers on Johnson Street in Bristol, Virginia.

On Judge Luttig's resignation

I was quite surprised to hear on the radio this afternoon that Judge Michael Luttig of the Fourth Circuit is leaving the bench for a job with private industry. The Washington Post has this report, and the New York Times has this report.

Looking at what's left on the Fourth Circuit, Judge Boyle remains unconfirmed, Mr. Haynes remains unconfirmed to replace Judge Widener (who was born in 1923 and has been on the Court for 34 years), no one has been named to replace Claude Allen as the nominee to replace the late Judge Murnaghan, and now there will be a fourth vacancy. At the current rate, none of those vacancies will be filled during the term of President Bush.

Here's my two cents, unvarnished by any notion of politics: There are three district judges in Maryland - Quarles, Bennett (who does sort of look like the President), and Titus (who does sort of look like the Vice-President) - who have been confirmed by the Senate during the Bush administration - any of them could be confirmed to a seat on the Fourth Circuit. Judge Spencer from Richmond or Judge Smith from Norfolk - or maybe Judge Kelsey of the Virginia Court of Appeals - would be good choices to succeed Judge Luttig. Don't dilly-dally.

The ABA on the NSA wiretap program

Ars Technica has this post with links and a description of a collection of point/counterpoint essays collected by the American Bar Association on the legality of the NSA warrantless wiretap program.

On making new lawyers

The May edition of the ABA Journal has this account of the current debate about the efficacy of law school as we know it.

The graduation speech list, Year IV

Some old, some new, all links good as of this minute:

Albert Einstein, Swarthmore, 1938

Franklin Roosevelt, University of Virginia, 1940

Ronald Reagan, Eureka College, 1957

Barbara Bush, Wellesley College, 1990

William Kunstler, University of Buffalo, 1995

Guy Kawasaki, Palo Alto High School, 1995

Kermit the Frog, LIU, 1996

Justice Stephen Breyer, Stanford, 1997

Bob Newhart, Catholic University, 1997

Patrick Buchanan, The Citadel, 1999

Tom and Ray Magliozzi, MIT, 1999

Conan O'Brien, Harvard, 2000

Ray Bradbury, Cal Tech, 2000

Chief Justice William Rehnquist, George Washington University, 2000

George W. Bush, Yale, 2001

Scott Turow, Northwestern, 2001

Wynton Marsalis, Connecticut College, 2001

Al Franken, Harvard, 2002

Christopher Reeve, Washington University School of Medicine, 2002

Fred Rogers, Dartmouth, 2002

Judge Janice Rogers Brown, Catholic University, 2003

Mortimer Caplin, University of Virginia, 2003

Elaine Chao, Regent University, 2003

Alan Greenspan, Wharton School, University of Pennsylvania, 2005

Steve Jobs, Stanford, 2005

Lawsuit threatened against the Commonwealth over skating event for the blind

The Norfolk paper reports here that a blind woman who fell down at a state-sponsored skating event plans to file suit for $1.5 million.

The article begins: "Perhaps it was a bad idea to strap skates on a blind woman and send her off unescorted around a roller rink. Perhaps not."

On lawyers misbehaving

The Norfolk paper reports here that a woman lawyer has complained that while she was working as an assistant prosecutor, a defense lawyer grabbed her by the throat.