Saturday, January 06, 2007

Can Williamsburg find a place to house enough foreign workers for the Jamestown 2007 celebration?

In some kind of triple-reverse irony, the Daily Press reports here that the hotels in Williamsburg have asked for permission to house foreign college students they need to work the hotels, particularly in light of the upcoming Jamestown 400th anniversary, which is expected or hoped to be a boon to Colonial Williamsburg (which has been otherwise somewhat on the wane).

It seems like not to long ago we went to the Outer Banks and everyone working there who was not white Southerner was white Russian - Russian college girls working the cash registers, serving the drinks, taking delivery of our rented linen at the end of the week.

The upcoming meeting of The Virginia Bar Association later this month in Williamsburg includes a focus on immigration issues, including a session titled: "From Jamestown to Washington, D.C. — The Challenge of Immigration: What if the Native Americans Had Built a Wall?"

Some of the Virginia political bloggers have been taking sides on the proposal by some Virginia legislators that the General Assembly should in the upcoming session apologize for slavery. The timing of this proposal is said to be linked to the Jamestown anniversary, as the first colonial slaves were imported to Jamestown (albeit in 1619, not 1607). The history of those "20 and odd" persons of color continues to evolve.

Friday, January 05, 2007

When is employer liable for subordinate's bad motive

SCOTUSBlog reports here that the Supreme Court has granted this cert petition, presenting this interesting question:

Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee.

I have written a little bit about this in the past; it is a particularly lively issue in government cases, where the decision-maker is a group of people.

SCOTUSBlog also reports
that the Supreme Court has agreed to hear another appeal related to the long-running litigation between athletic powerhouse Brentwood Academy and the Tennessee Secondary School Athletic Association.

When thinking like a lawyer is not enough

A report described here in Inside Higher Ed says that legal education goes only have way at best - students learn issue spotting but not how to translate the theory into practice.

Really interesting stuff being argued next week in Virginia Supreme Court

Among the highlights:

some kind of rehearing in Taboada v. Daly Seven, Inc., which is the same case in which the Court in a subsequent opinion called out the losing lawyer for bad stuff he said about them in his petition for rehearing

the appeal from the denial of post-conviction relief in the Aleck Carpitcher case, the famous and troubling case from Roanoke in which the child victim has recanted the trial testimony that led to the conviction

the defendant's appeal in Raytheon Technical Services Company, et al. v. Hyland, involving defamatory performance evaluations

a dispute between LLC members in Roden v. Lerner, where the delightfully-phrased issues are these: "1. The trial court erred in concluding that Lerner had attached a “reasonable” condition to her “push,” when Section 12(A) of Rodler’s Operating Agreement barred her from using Section 11 to obtain payments allegedly owed to Lerner, and LLCs owned or controlled by Lerner, making that condition defective, unreasonable, and unenforceable as a matter of law; 2. The trial court erred in striking down Roden’s “shove” as invalid when his “shove” complied with the requirements in Section 11 of Rodler’s Operating Agreement, and matched Lerner’s “push,” obligating Lerner to sell Roden her ownership interest in Rodler’s LLC, as Section 11 mandates."

perhaps a new twist on an old issue in W.R. Hall, Inc. v. Hampton Roads Sanitation District and Estes Express Lines, Inc., et al. v. Chopper Express, Inc., where both cases involve the issue of the validity under the public policy of the Commonwealth of contractual indemnification as applied to one party's future acts of negligence that result in bodily injury." There was an opinion from Judge Williams of the W.D. Va. on this issue when I was a law clerk in 1989-1990, and he concluded the contract was not against Virginia's public policy. That case involved a tenant who filed suit claiming the landlord's building had made her sick only to find out she had agreed in the lease to indemnify the landlord for personal injury resulting from the landlord's negligence, including her own injury.

Parikh v. Family Care Center, Inc., a non-compete case

Lambert, etc. v. Javed, et al., a Bill Eskridge case that sounds like a Bill Eskridge case, where it appears that the plaintiff filed Suit No. 1 which was timely, then filed Suit No. 2 which was untimely, and then after dismissal of Suit No. 2 based on statute of limitations had Suit No. 1 dismissed based on res judicata. I think the Fourth Circuit almost got to the question of the res judicata effect of a statute of limitations dismissal in Q Intern. Courier Inc. v. Smoak, 441 F.3d 214 (4th Cir. 2006), but instead passed the buck back to the E.D. Va. Anyhow, from Smoak, and Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), I'm thinking there is more to this issue than I would have guessed, the answer is not the same in every state.

the Nusbaum cases, where one of the issues is whether the trial court "abused his discretion by determining that Mr. Nusbaum deliberately physically attacked defense counsel because the evidence was insufficient to support that finding."

History of Legal Aid in Virginia

Worth reading are the articles by John Levy, Larry Harley, John Jeffries, Jack Harris, and others about the history of Legal Aid in Virginia, from the December 2006 magazine of the Virginia State Bar.

Professor Levy recounts how, among other things, going into Roanoke federal court with a woman co-counsel around 1970 and the judge and opposing counsel could not decide when to sit and when to stand, and also that a circuit court judge in Botetourt County once ruled that Legal Aid lawyers would not be allowed to practice there, and so the lawyers had to file suit in federal court to get this extraordinary prohibition overturned.

Professor Jeffries, who wrote the biography of Justice Lewis Powell, describes how Powell as president of the American Bar Association in 1964 acted boldly in support of what became the Legal Services Corporation, an effort which his supporters cited a few years later when he was nominated to the Supreme Court.

Thursday, January 04, 2007

What they said

Permit me to associate myself with the remarks of others (here and here and here, among other places) saying goodbye to the blogs of Norm Leahy and Conaway Haskins, two of the best.

As for me, I'm with Milbarge, who wrote I Survived the '06 Blogger Massacre.

What happens with local Republican legislators cannot agree on judgeship

Here it is reported that the juvenile court seat on the Eastern Shore is vacant and likely to remain so while the legislators fail to get it together:

ACCOMAC -- The Eastern Shore's Juvenile and Domestic Relations District Court judge's position, which has been open since last year, likely will go unfilled again this year because of a stalemate, some predict.

The General Assembly, which appoints judges, will convene Jan. 10.

The process could go as it did last year, with the General Assembly unable to decide whether Accomac attorney Thomas B. Dix Jr. or Eastville attorney Croxton Gordon should be appointed.

Last year, Dix was nominated by the House and Gordon by the Senate. Nothing can be decided until both houses agree.

Del. Lynwood Lewis said he suspects the House and Senate will maintain their positions during this year's session.

"I've been in politics long enough to know nothing is surprising," he said. "It's unfortunate, but it's how the process works."

Sen. Nick Rerras said he again will nominate Gordon. Del. Leo Wardrup, Republican of Hampton Roads, last year nominated Dix.

Wardrup was out of town for the holidays and could not be contacted, a legislative aide said last week. Dix said last week that he expected to again be nominated.

Customarily, the candidate endorsed by the local delegation -- Rerras and Lewis -- is the one approved.

"We are going to start fresh again," Rerras said, "and I plan on resubmitting Croxton Gordon."

Wednesday, January 03, 2007

On Charles King

The Roanoke paper has this article on the retirement of the long-time leader of Southwest Virginia Community College, near the border between Russell and Tazewell counties.

Should big-time women's college basketball teams continue to practice against males?

This Inside Higher Ed article says that some rogue outfit in the NCAA is proposing to ban the practice of women's basketball teams using groups of male players for practice.

This is another one of those articles that confirms the stereotype of the brainless forces of political correctness run amok.

Next, they'll rule the players on the women's teams cannot be allowed to play all-male video games, as a form of virtual practice, but instead must replace their NBA, Madden, and Tiger Woods games with some kind of female alternatives.

The year in review

The W.D. Va. website links to what seems to me like an unusually high number of opinions for my cases in 2006, and looking over what they say, they mostly all show an unusually high level of impatience on my part with getting the other side thrown out of court. Sometimes the Court's ruling was, "Wait."

Case Number: 2:06CV00062 Issued: 12/22/2006 PUBLISHED

Case Number: 2:06CV00011 Issued: 11/20/2006 UNPUBLISHED

Case Number: 1:05CV49 Issued: 11/9/2006 PUBLISHED


Case Number: 2:06CV00011 Issued: 10/19/2006 PUBLISHED

Case Number: 1:05CV00049 Issued: 10/6/2006 UNPUBLISHED

Case Number: 1:05CV00066 Issued: 9/12/2006 UNPUBLISHED

Case Number: 1:05CV00053 Issued: 9/3/2006 UNPUBLISHED

Case Number: 1:05CV00053 Issued: 7/20/2006 UNPUBLISHED

Case Number: 2:06CV00016 Issued: 5/22/2006 PUBLISHED

Tuesday, January 02, 2007

Not sure what the judge had in mind on this one

In Yates v. UMWA 1974 Pension Plan, the Fourth Circuit in a published opinion by Judge Michael reversed Judge William's decision that the plaintiff was entitled to a service pension from the UMWA 1974 Pension fund.

Eligibility for service pensions is determined by years of classified work with employers who were signatory to collective bargaining agreements with the UMWA. Yates was a truck driver in the mines for over 40 years, and 12 of those years were for a non-signatory subsidiary of Pittston, called Erwin Supply, which had its own union contract and did not participate in the pension fund.

In this pension case, Judge Williams applied liability principles from the Coal Act, which deals with health insurance. The Coal Act was born of the perceived funding crisis for the funds that pay the health insurance claims of the "orphan" pensioners, disabled retirees, and dependents, whose companies were no longer in business. The Act incorporates a variety of creative mechanisms to find companies to pay the health care costs of the beneficiaries, including the retroactive reach back provisions that the Supreme Court held were unconstitutional as applied in Eastern Enterprises v. Apfel. Judge Williams reasoned in his opinion that "[i]f signatory status can be imputed for liability under the Coal Act, then signatory status can be imputed for benefits under the Coal Act."

On appeal, the appeals court reversed, because the plaintiff was not making a claim for benefits under the Coal Act. Unlike the Benefit Funds, the Pension funds required no federal bail-out - the pay-outs from the pension fund are a matter of actuarial calculation, unlike the ever-escalating costs of health insurance. Consequently, the Coal Act was passed solely with respect to health insurance, and its liberal liability provisions have no application to the determination of service with a non-signatory employer can be considered signatory service for purposes of pension benefits.

Evidently, somebody at the Funds thought Yates was entitled to credit for these years of service, as the plaintiff's brief notes that a hearing officer gave Yates full credit and the Funds paid his pension on that basis for some time. Maybe the judge was looking for some kind of application of the W.D. Va.'s own version of the Goose and Gander rule. The problem is that the Funds in this instance are not one monolithic whole.

Those W.D. Va. judges

The federal offices were closed today, but an agreed order that was e-mailed to the Court last night was entered before 9:30 AM.

No matter how oppressed they may be by their low salaries, those W.D. Va. judges churn out the work.

On the retirement of assistant U.S. attorney in Northeast Tennessee

The Knoxville paper has this delightful story on the career of retiring AUSA Guy Blackwell, who is retiring.

Among the highlights:

Blackwell was the lawyer who would have tried the Butcher bank fraud cases - "When we showed (Butcher and his lawyers) the exhibit list, that's when they started talking about a plea agreement."

He prosecuted a case involving an Indian burial site in the national forest, and afterward, "out of respect for Native American burial customs and beliefs, Blackwell went to Cherokee, N.C., and took part in a Cherokee purification ceremony because it had been necessary for him to handle the remains and artifacts as exhibits in the trial."

The article also says, somewhat inscrutably, "One of his first cases in Greeneville was the very last moonshine case ever brought in a federal court." That statement is almost surely in error, the last moonshine case has not yet been brought, has it?

The only good thing about having a bad cold

I just called in sick and at the office they didn't recognize my voice on the phone.

The only good thing about having a bad cold is that you can imagine you sound maybe just a little bit like Barry White.

Monday, January 01, 2007

See it now, in Michigan

In Michigan, they had some kind of referendum against affirmative action, which is making the higher ed people crazy because their side lost, so they filed suit in federal court to overturn the state law referendum, and got "the other side" (presumably, the same side, as the case was in effect part of state government suing the state government) to stipulate to the issuance of a preliminary injunction by the District Court against the implementation of the new law. A real person intervened, and on his appeal, the Sixth Circuit reversed the issuance of the preliminary injunction.

The opinion says the preliminary injunction was improper because the University had no chance of winning on the merits.

In one memorable phrase, the Court says: "One does not generally think of the First Amendment as protecting the State from the people but the other way around—of the Amendment protecting individuals from the State." Regarding the Supreme Court's recent rulings on affirmative action, the Court says: "Grutter never said, or even hinted, that state universities must do what they barely may do."

Finally, the Court observes: "this is an unusual way to use the federal courts. Ordinarily, one might wonder why a court would hesitate to delay the implementation of a state law for six months when the State's Governor, the State's Attorney General and its Universities stand together in urging its suspension. That is particularly so when they offer reasonable administrative grounds for the delay—uncertainty about how the law will be interpreted and uncertainty about applying it during this year's enrollment cycle. Yet none of those administrative grounds explains why the federal courts should delay the law's implementation on federal grounds."

Perhaps the reason why the University chose not to file in state court is because the lawyers suspected that they would lose on appeal before the Republican-majority Michigan Supreme Court - unless some party opposite associates Jeffrey Fieger into the case.

Three blogs gone by

Three of my favorites who've packed it in or moved on - CrimLaw, Southern Appeal, Stay of Execution. Thanks, Ken Lammers, Steve Dillard (and gang), Sherry Fowler, and well done.

UPDATE - Q&O lives on but Jon Henke has joined up with the Nationals in Washington, and not the baseball team neither. Well done, Jon.

Sunday, December 31, 2006

CNET reports on the recommendations of AG McDonnell's Internet task force

CNET's Anne Broache reports here on recommendations from the report of the task force assembled by Virginia Attorney General Robert McDonnell on online safety for kids. Included is discussion of the recommendations that ISPs keep records longer so that law enforcement can catch online criminals, and the registration of online handles for sex offenders who use the internet.

The full report of the task force is here.

The task force members, by the way, included the following:

Honorable Eileen M. Addison, Comm. Attorney York County and City of Poquoson
Elizabeth Banker, Associate General Counsel, Yahoo!
Dr. Sally K. Boese, Virginia Association of Independent Schools
Kenneth and Mary Alice Booth, Concerned Parents
Elisabeth A. Bresee, Vice President, Capital One
Honorable Mike Brown, Sheriff, Bedford County Sheriff’s Office
John L. Brownlee, United States Attorney, Western District of Virginia
Dr. Billy Cannaday, Jr., Superintendent of Public Instruction, Virginia Department of Education
Michelle Collins, National Center for Missing and Exploited Children
Charles D. Curran, Chief Counsel, Policy & Regulatory, American Online
Liz Eraker, Policy Analyst, Google, Inc.
Colonel W. Steve Flaherty, Superintendent, Department of State Police
Dianne Florence, President, Virginia PTA
David Foster, Arlington School Board
Anne Gavin, State Government Affairs Regional Manager, Microsoft Corporation
Robert E. Gwaltney, Assistant Special Agent in Charge, FBI Richmond
Honorable Michael N. Herring, Commonwealth’s Attorney City of Richmond
James L. Hilton, Chief Information Officer, University of Virginia
Honorable Janet D. Howell, Senate of Virginia
Honorable Robert Hurt, House of Delegates of Virginia
Virginia James, Cox High School
Bobbie Kilberg, President & CEO, Northern Virginia Technology Council
Rick Lally, President, Hampton Roads Technology Council
Ray LaMura, President, Virginia Cable Telecommunication Association
Rick Lane, Vice President, Government Affairs, News Corporation
Honorable Ryan T. McDougle, Senate of Virginia
Col. Rodney D. Monroe, Chief, Richmond Police Department
Officer Stan Moorefield, C.C.P.S., Virginia Association of School Resource Officers
Honorable Mark D. Obenshain, Senate of Virginia
William A. Pusey, Jr., Concerned Home School Parent
Thomas M. (Tommy) Quigley, Jr., Virginia High School Student
Donna Rice Hughes, Enough is Enough
Chuck Rosenberg, United States Attorney, Eastern District of Virginia
John Ryan, Vice President and Chief Counsel, America Online
Dr. Steve Shelby, West End Presbyterian Church
Honorable Kim Slayton-White, Commonwealth’s Attorney Halifax County
Carter Slough, Virginia High School Student
Robert J. Stolle, Executive Director, Greater Richmond Technology Council
Mr. John Titus, Principal, James River High School
Rosemary Trible, Community Leader
Joel Wiginton, Vice President & Senior Counsel, Government Affairs, Sony