Chief Judge Wilkins on the death penalty

As described here on the SC Appellate Law Blog, Chief Judge Wilkins of the Fourth Circuit expects that the death penalty will not soon be outlawed in the United States.

The civil rights case of the baseball heckler

Via this How Appealing link, in the case of Swiecicki v. Delgado, the Sixth Circuit reversed the dismissal of a civil rights suit brought by a man who after heckling the Indians at Jacobs Field was booted from the stadium, wrestled to the ground, and arrested for disorderly conduct. The District Court had granted summary judgment to the security guard defendant on various grounds, including the statute of limitations, whether the defendant was a state actor, and qualified immunity.

The ruling on state action might be affected by this Supreme Court filing described on the SCOTUSblog, about another security guard case.

The opinion concludes: "For a baseball fan to make a “federal case” out of being ejected from a game may well strike many as a colossal waste of judicial resources. A jury might well agree. But this is the type of case where the ultimate result is totally dependent on whose version of the facts one believes. Under these circumstances, the grant of summary judgment to the police officer on the basis of qualified immunity is inappropriate."

I guess that's the difference between the major leagues and the minor leagues. In Judge Williams' famous opinion in Simmons v. Baltimore Orioles, 712 F. Supp. 79 (W.D. Va. 1989), the heckler got his in the parking lot after the game at the hands of the player he'd been heckling, and then sued everyone from the parent club on down.

Judge Jones allows punitive damages at 15,000 to 1, where the compensatory award was $1

When I first heard about the verdict in the case of Givens v. O'Quinn, I thought there was no way the punitive damages would hold up. The jurors awarded first $0 then $1 as compensatory damages, but $5,000 and $15,000 in punitive damages against the defendants.

In a post-verdict opinion, however, Chief Judge Jones explained that the ratio of punitive to compensatory damages is not dispositive when only nominal damages are awarded, and proceeded to deny the defendant's challenge to the punitive award.

In another part of the opinion, the judge rejected the defendants' arguments about error in the jury instructions, because the lawyers failed to make timely objections. I have always tried to raise every possible objection to jury instructions but what usually happens is that the Court will act on the valid objections and fix the instructions, and the bogus objections don't do any good, and so we have not had a case that was appealed where the appeal turned on some legal issue related to the instructions.

Another state creates ethics problems for law bloggers

According to this Ars Technica post, authorities in New York have decided that law blogs are lawyer advertising.

I'm not sure that all law blogs are created equal when it comes to whether they should be considered a form of advertising. According to Alton, this blog supposedly made the RK enemies list, whatever that means. If the blog turns people off instead of turning them on, is it advertising? On the other hand, being on RK's boo-hoo list might be a badge of merit in some circles.

Two really interesting opinions this week from the Virginia Court of Appeals

In Anderson v. Com., the Court of Appeals in a wide-ranging opinion by Judge Kelsey affirmed the defendant's conviction for a 1992 rape and robbery that was based on DNA evidence. The defendant was arrested on similar charges in 2003 and DNA samples taken at that time led to a match in the Commonwealth's DNA databank. The defendant raised a number of interesting issues, including whether the taking of his DNA violated his Fourth Amendment rights, whether the delay in his prosecution violated his due process rights, and whether the failure to present all the witnesses necessary to prove the chain-of-custody of the DNA violated his right to confront his accusers under the Sixth Amendment. In addition, the defendant argued on the robbery charge that after he raped her, the victim willingly gave up her purse, which prompted Judge Kelsey to write in response: "Under this theory, a thief who threatens to shoot a victim before taking her money commits robbery. But a thief who first shoots the victim and then asks for her money does not, apparently because the inherent intimidation of being asked for money by someone who has just shot you should be dismissed as a matter of mere timidity. Suffice it to say, violence immediately preceding a demand for money has always been understood as sufficient to convert mere thievery into robbery."

In O'Connell v. Com., the Court of Appeals in an opinion by Judge Beales rejected the defendant's attempt to rely on the victim's contributory negligence as a defense to the charge of involuntary manslaughter, where the victim died because he wrecked while in a drag race with the defendant. The opinion addresses the law of several states in reaching the conclusion that contributory negligence may only in some limited way go to the issue of causation, but in this case, "a driver’s losing control and crashing is a “reasonably foreseeable” result of a drag race."

Upholding the constitutionality of the Virginia alcoholic beverage laws

On Monday, in the case of Brooks v. Vassar, the Fourth Circuit in an opinion by Judge Niemeyer, with Judge Traxler concurring in part and District Judge Goodwin concurring in part, upheld the constitutionality of two Virginia statutes: Va. Code § 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and Va. Code § 4.1-119(A), which authorizes state-owned and -operated ABC stores to market and sell only wine produced at Virginia "farm" wineries.

In addition, "[w]ith respect to challenged provisions of the ABC Act that permit in-state producers of wine and beer, but not out-of-state producers, to bypass the three-tier structure and sell directly to in-state retailers and consumers — Virginia Code §§ 4.1-112.1(B); 4.1-207(4),(5); 4.1-208(1),(7) — we conclude that Virginia legislative amendments enacted while this appeal was pending render the challenge to those provisions moot and therefore bar us from considering the district court’s order and the amended provisions."

Finally, the Court agreed that the case could be brought under 42 U.S.C. 1983, such that the prevailng plaintiffs on the issues the Commonwealth did not appeal could claim their attorney's fees under 42 U.S.C. 1988.

Interesting First Amendment opinion from Judge Wilson

In Nolan v. Terry, the plaintiff were two former guards at the Botetourt Correctional Center, who brought suit claiming that they were retaliated against by the warden and his second-in-command for their protected speech on matters of public concern.

The Court granted the defendants' motion for summary judgment, concluding that the alleged "speech" was not protected, as the subject matter was job-related grievances, rather than matters of public concern, under the Supreme Court's decisions in Garcetti v. Ceballos and Connick v. Myers.

Which brings to mind another question, why are these leading First Amendment cases lawsuits against big city prosecutors like Connick in New Orleans and Garcetti in Los Angeles?

The rocks-scissors-paper order

Someone told me today that he never saw the famous federal court order directing counsel to resolve a discovery dispute by playing rocks, scissors, paper on the steps of the courthouse or some other neutral site.

So, by way of How Appealing, here it is, and it says in relevant part:

"This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is

ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801."

Attorney General's debunks the views of the Legal Review Committee

In this opinion, the Attorney General's office explains why the marriage amendment will not have the broad effects that are hypothesized in the D.C. law firm's brief written for the Virginia Legal Review effort.

The opinion says that the amendment won't affect contracts, because the right to make contracts has nothing to do with being married or not being married, and the same is true with wills, advanced medical directives, joint property ownership, and insurance contracts. The opinion goes on to explain that the domestic relations laws are not tied to marriage, either, and in a lengthy footnote, distinguishes the minority view of the courts in Ohio, where 2 out of 10 courts have ruled that Ohio's marriage amendment made the enforcement of the domestic violence law unconstitutional.

These kinds of legal arguments against the marriage amendment are at best speculative and at worst phony. Notwithstanding my respect for Claire Gastanaga, who seems to be everywhere all the time in this debate, I think her legal arguments are mostly bogus and provide no basis for making a decision about how to vote on the marriage amendment.

That is not to say that there are no interesting legal issues to consider in deciding whether whether it is a good idea to amend the Constitution on top of the statutory prohibitions against same sex marriage. There are only two ways that it might be, if you are an opponent of same-sex marriage. One is if you think that like the court in the Goodridge case in Massachusetts, the Virginia Supreme Court is going to apply the provisions of the state constitution to declare that state laws prohibiting same sex marriage are unconstitutional. That seems unlikely.

The other is whether a constitutional amendment is necessary or desirable to clarify and emphasize what is the public policy of the Commonwealth in opposition to same sex marriage, so that Virginia courts can refuse to apply judgments and laws from other states that allow same sex unions. We know from the Virginia-Vermont dispute that already at least one circuit court in Virginia has refused based on the public policy stated in existing Virginia law to apply the domestic partner law of Vermont.

If it is true that the proposed amendment is not of much practical use to the opponents of same sex marriage, there's nothing left to say for it other than it is an over-reaching, somewhat irrational response, to the over-reaching, irrational efforts by the proponents of same-sex marriage to litigate their way around the democratic process. In that case, I don't approve of either the cause or the effect.

I guess you have to show up in person for these

On the daily e-mail of U.Va. stuff appears this:

PROSTATE EXAMS OFFERED
September 13, 2006 | Daily Progress
The University of Virginia Health System will offer free prostate screenings from 7:45 a.m. to 10:30 a.m. Saturday.
(Not available online.)

On open access to the courts

This editorial in the Charlottesville takes on closed proceedings in circuit court, and commends the circuit court judge for opening records afterwards in the case of some students involved in an alleged school bomb plot.

On the Virginia Legal Review Committee

Somewhat in the manner of Wisconsin's Attorneys Against the Ban, opponents of the same-sex marriage amendment in Virginia have collected lawyer names for a Virginia Legal Review Committee.

Related to this effort, the website post a link to this brief from a D.C. law firm, speculating on the effects of the amendment on Virginia law. Arnold & Porter has previously evidenced its willingness to try to correct the backwardness of the Commonwealth, as in the case of the Commonwealth against Roger Keith Coleman, which resulted in litigation against the firm for defamation. Their most famous pro bono case was the representation of Clarence Earl Gideon before the U.S. Supreme Court by former Justice Fortas. The supervisor of the project does not appear to be a Virginia litigator or business or domestic relations or criminal defense lawyer, but that doesn't matter, I don't guess. Some of the names I recognize on the list certainly are Virginia lawyers with expertise in those areas.

One of these days, I'll post my views on the amendment. I think that probably I am against it, just because it is mean-spirited and mostly a waste of time. The key legal issue, in my view, is wholly omitted from the Arnold & Porter brief, and that is whether a constitutional amendment, as opposed to mere legislation, would improve Virginia's position if and when the question is raised as to whether Virginia's institutions are obligated by the Full Faith and Credit clause of the U.S. Constitution to honor same-sex marriages or other domestic arrangements that are recognized by the laws of other states, principally Vermont and Massachusetts. I would not expect that the Virginia Supreme Court, notwithstanding its lame decision in the Martin case, will ever come out with an opinion like Goodridge. Indeed, the more liberal appeals courts in New York and Washington state have refused to join Massachusetts in finding state marriage laws unconstitutional.

Besides the legal arguments, I think the stigmatization of homosexuals for mostly political purposes is offensive, and an unfitting subject of legislative priority.

I agree with the Arnold & Porter brief only in its conclusion that the untested language of the amendment is indeed, untested, and uncertainty invites litigation. The application of the amendment to private arrangements strikes me as remote. The point of the amendment is to deny to same-sex couples the hundreds or thousands of benefits to which married couples are entitled by operation of law. Married couples don't have to make private contracts. As for the application of the amendment to opposite-sex couples, my outlook starts with the notion that "[c]onstitutional provisions in pari materia, like statutes, are to be construed together, and effect is to be given to the policy established by the Constitution." Swift & Co. v. City of Newport News, 52 S.E. 821, 823 (Va. 1906). The attempt to isolate the later sentences in the proposed amendment from the first sentence strikes me as unsound, and that first sentence makes plain that that the amendment is targeting same-sex marriage.