Thursday, September 13, 2007

Nominee No. 4

Via ConfirmThem, the Washington Post reports here that Rod Rosenstein, U.S. Attorney for the District of Maryland, will be nominated to the Fourth Circuit to the seat formerly held by the late Judge Murnaghan. There have been stories like this before about Rosenstein's prospects.

If it's true, then there would be four pending nominations for the five vacancies on the Fourth Circuit.

Give us one more - from Virginia.

824 Supreme Court orders

It says here the Virginia Supreme Court entered 824 orders on motions other than for extension of time in 2005-2006.

Relaxed after drinking

The puppy Jenna, happy after a walk.

Tuesday, September 11, 2007

Dahlia Lithwick smacks down Steve Matthews on account of Rush Limbaugh

This column in Slate gives the latest nominees to the Fourth Circuit a big thumbs down - on the theory that one of them at least is a known associate of wingnuts on the Right.

This is encouraging to those of who never join anything and don't know anybody, maybe we'll be the only ones left to be judges in the end.

Oops, too late, I'm already associated with this group. (By the way, scroll down and read the first comment below the ODBA picture, what's that all about?)

Monday, September 10, 2007

On the late Ben Gardner

The whole time I've been a lawyer, Jim Elliott has told me stories about his friends, including one in particular named Ben Gardner from Martinsville.

Stories about him are in today's Martinsville paper and yesterday's paper, and this piece from the Danville paper reproduced on the law firm's website.

He had the sailing column on, and could write about whatever he wanted there, such as this. If you root around the website you can also find this story by Mark Taylor about having the last sail of the season with Ben Gardner and crew.


From last week:

The Joel Bieber blog has this post on the case of illegal use of a musical device in Portsmouth, involving ice cream trucks - which reminds of another case, the one with the preacher singing too loud in his case.

On the farm in Blacksburg, the scientists are converting poultry litter into fuel.

This incredibly interesting article deals with funky predictors that defy the experts, and the resulting decline of expert discretion, against the background of how Virginia predicts which sex offenders need to be committed, post-incarceration. Evidently, the Commonwealth uses some scoring system to big the worst offenders:

"You see, Virginia’s version of the SVPA contained a super-crunching innovation. The statute included a “tripwire” that automatically sets the commitment process in motion if a super-crunching algorithm predicts that the inmate has a high risk of sexual offence recidivism. Under the statute, commissioners of the Virginia Department of Corrections were directed to review for possible commitment all prisoners about to be released who “receive a score of four or more on the Rapid Risk Assessment for Sexual Offender Recidivism”. The Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR, and pronounced “razor”) is a points system based on a regression analysis of male offenders in Canada. A score of four or more on the RRASOR translates into a prediction that the inmate, if released, would in the next 10 years have a 55 per cent chance of committing another sex offence."

And, last, someone sent me this link to a website with some rather downhome constitutional arguments, on the topic of whether the Clean Water Act preempts Virginia's Dillon Rule, as regards the regulation of biosolids as fertilizer - that describes the history of litigation over anti-biosolid ordinances, in state and federal court in Virginia. It is interesting to me in part because of its characterization of the Bristol fiber case, in which I was a more than interested spectator. (One point omitted is that the Supreme Court eventually ruled in the Missouri case that Judge Jones got it wrong on the preemption issue.) In the Bristol case, we had to deal with making the claim, can a Virginia city have standing to sue the Commonwealth to enforce federal rights?

On that point, this is part of what we argued:

"There can be no doubt that there are constitutional constraints on the states’ regulation of local government. See Romer v. Evans, 517 U.S. 620, 626, 629-31 (1996) (upholding Equal Protection challenge brought by municipalities and others against a state law prohibiting municipalities from adopting laws designed to protect homosexual persons from discrimination); Lawrence County v. Lead-Deadwood School District, 469 U.S. 256, 268-69 (1985) (upholding school district’s Supremacy Clause challenge to state law requiring distribution of federal funds received by local school district); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) (upholding school district’s challenge to state law prohibiting school districts from using mandatory busing to achieve racial integration); Board of Education v. Allen, 392 U.S. 236 (1968) (upholding school district’s attack on state statute requiring school districts to supply books to parochial schools). Where the interests of state and local government diverge on constitutional issues, local government meets the requirements for standing. In particular, local government has standing to bring a Supremacy Clause challenge to state statutes limiting local government in violation of federal law.

“Courts that have faced suits based on federal statutes . . . have concluded that subdivisions do have standing to sue the state.” 13A WRIGHT, MILLER, AND COOPER, FED. PRAC. & PROC. JURIS. 2d § 3531.11. See Branson School District RE-82 v. Romer, 161 F.3d 619, 628-30 (10th Cir. 1998), cert. denied, 526 U.S. 1068 (1999) (“A political subdivision has standing to sue its political parent on a Supremacy Clause claim”); Rogers v. Brockette, 588 F.2d 1057, 1067-1071 (5th Cir.), cert. denied, 444 U.S. 827 (1979) (local school board has standing to bring action against state and others challenging constitutionality of state statute which required certain school districts to participate in subsidized breakfast program); Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 315 (D.N.J. 1995) (“municipalities may assert claims against the creating state under the Supremacy Clause”); San Diego Unified Port District v. Gianturco, 457 F. Supp 283, 289-290 (S.D. Cal. 1978), aff’d on other grounds, 651 F.2d 1306, 1309 n.7 (9th Cir. 1981) (“If the Supremacy Clause is to be effective in achieving its purpose, its dictates must be enforceable by political subdivisions of states as well as by individuals”). “Decisions ruling that state-created municipalities or other government districts lack Fourteenth Amendment rights against the states creating them do not apply to suits brought to challenge state activities under the Supremacy Clause on grounds of preemption by federal law.” 13A WRIGHT, MILLER, AND COOPER, supra, § 3531.11 at n.55. “[No] Supreme Court case has held that a political subdivision is barred from asserting the structural protections of the Supremacy Clause of Article VI in a suit against its creating state.” Branson School Dist. RE-82, 161 F.3d at 629.

Even under other provisions of the Constitution, standing for a political subdivision might be found. See Washington, 458 U.S. at 487 n.31 (upholding attorneys’ fee award to local school board against state; “[w]hile appellants suggest that it is incongruous for a State to pay attorney’s fees to one of its school boards, it seems no less incongruous that a local board would feel the need to sue the State for a violation of the Fourteenth Amendment”); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 1041-42 (1980) (White, J., dissenting from denial of certiorari) (arguing that denial of political subdivision standing was “inconsistent” with the Court’s holding in Board of Education v. Allen); City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 389-90 (4th Cir.), cert. denied, 516 U.S. 974 (1995) (in Contract Clause case, “whether the cities have standing to bring this suit is unclear”); Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991) (“Judicial support for [rule against standing] may be waning with time”); School Bd. of the City of Richmond, Va. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987) (upholding standing of school district of the City of Richmond in appeal against the Commonwealth in part “because of the direct economic injury it has suffered as a result of the state defendants’ unconstitutional conduct”); Benjamin v. Malcolm, 803 F.2d 46, 54 (2d Cir. 1986), cert. denied, 480 U.S. 910 (1987) (city has standing for third-party claim against state as to claims based on prison overcrowding); United States v. Alabama, 791 F.2d 1450, 1455 (11th Cir. 1986), cert. denied, 475 U.S. 1085 (1987) (citing Rogers, there is no per se rule against municipality suits in the Eleventh Circuit); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 504-05 (6th Cir. 1986) (“There may be occasions in which a political subdivision is not prevented, by virtue of its status as a subdivision of the state, from challenging the constitutionality of state legislation”); Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974) (Fourteenth Amendment claim of local board against state)."

Finally, on judicial selection, the appointment of judges (such as we do in Virginia) is taking a beating lately. This article from the K.C. Star describes the furor over the "Missouri" plan right there in Missouri, while this post describes a study that says appointed judges are no better than elected judges (even though they write more).

On Frosty Landon

This Bacon post tells of his retirement.

Whenever I see him out and about, I like to give him grieve over whatever is my latest FOIA snafu - it must be his fault, because he is Mr. FOIA.

What the RedStaters are saying

Here (with 50+ comments) and here are posts at ConfirmThem on the nominations of Getchell and Matthews.

One commenter says:

"Why did Bush needlessly nominate someone not on the Warner/Webb approved list? Such foolishness! As we have already discussed, without Graham's support, Matthews is dead on arrival. Now Gretchell is dead on arrival. Oh, by the way, Conrad from North Carolina is also dead on arrival. As I have said before, maybe Bush is trying to generate an election issue in 2008. He must know perfectly well that Conrad, Gretchell and Matthews are nonconfirmable - all are very conservative white Southern males and we all know that the Dems hate those types! My only hope is that these Fourth Circuit three will make Keisler look like a liberal in the Dems' eyes and encourage his confirmation as a compromise."

Another says:

"This is just crazy. Why in the name of our sweet savior didn't Bush nominate Getchell a year ago? Either insanity, incompetence on an historic level or deliberate malfeasance."

Sunday, September 09, 2007

On the Tennessee tax on illegal drugs

A while back, I had this post about the Tennessee tax on illegal drugs.

Now, a panel of the Tennessee Court of Appeals has ruled that the tax is unconstitutional, as reported here and discussed in this TalkLeft post.

The opinion in the case of Waters v. Chumley is here.

Once again, I look to Bill Hobbs for comment, and it sounds like now he thinks it is a bad idea.

By the way, Bill Hobbs has out a short book about Fred Thompson, titled Who is Fred Thompson? Earlier this year I went to a dinner and briefly Fred Thompson was there, and the woman standing next to me asked the same question. I told her as best I could, but I didn't think to charge her anything.

I wonder what is Fred Thompson's position on the taxation of illegal drugs. Evidently, he is taking questions from bloggers, or some of them, as noted here.

On books

Ray Ward has been reading Thomas Merton's The Seven Storey Mountain, which I have read at some time or another.

Or was it The Seven Pillars of Wisdom? I think I have read both.

The book I just read was a biography of James Smithson, whose bequest led to the creation of the Smithsonian. Before that, I read a collection of O. Henry stories, the two latest Gabriel Allon books by Daniel Sylva, and The Forest by Edward Rutherfurd.

Somehow, Dana picks the books, I just read them.

Lame DOJ take on net neutrality

This Concurring Opinions post debunks a public comment from the Antitrust Division of the Department of Justice on net neutrality.

The government says:

"The Department submits, however, that free market competition, unfettered by unnecessary governmental regulatory restraints, is the best way to foster innovation and development of the Internet. Free market competition drives scarce resources to their fullest and most efficient use, spurring businesses to invest in and sell as efficiently as possible the kinds and quality of goods and services that consumers desire. Past experience has demonstrated that, absent actual market failure, the operation of a free market is a far superior alternative to regulatory restraints."

That's great - if the government would act to force and enforce competition. If there really was competition, net neutrality would not be an issue.

Here's more from Techdirt: "Does the DOJ not realize that the market for broadband is already heavily regulated, which is why most consumers here only have one or two choices -- compared to other countries that have created more open markets on top of the infrastructure, allowing for competition, faster speeds and increased innovation?"

On mountaintop removal

This article is summarized:

"This Comment examines the legal strategies and techniques utilized in a series of environmental lawsuits challenging mountaintop removal coal mining. This case study also explores the role that Public Justice plays in affecting positive change through public interest law. Many are unaware of both the devastation mountaintop removal coal mining causes in the Appalachians and the contributions of trial lawyers to public interest law. To shed light on both these issues, this Comment discusses the background of mountaintop removal coal mining and Public Justice, the history of litigation and legal strategies used to further the campaign against such devastating mining techniques, and the role of politics, policy, and publicity."

On sovereign immunity and the Virginia Tech victims

The Washington Post ran this article about how some law firm has been retained by some of the families of victims from the shootings at Virginia Tech.

Part of the discussion is whether the Commonwealth could rely on sovereign immunity, and the caps contained in the Virginia Tort Claims Act.

In "Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit," 43 A.L.R.4th 19 (1986 & Supp.), the authors wrote:

"To balance the public's right of action pursuant to such waiver of immunity with the government's need to protect public coffers from potentially devastating claims, several jurisdictions have adopted statutes and ordinances, often incorporated in waiver legislation, limiting the amounts or kinds of damages recoverable against government tortfeasors.[FN3] Courts have almost uniformly recognized that legislative bodies have the power to prescribe such limits, and that the limits prescribed are constitutionally valid (§§ 3-7, infra). Though they may abridge the remedies of victims of government, as opposed to private torts, damage limitation statutes or ordinances are almost unanimously viewed as having a rational basis in the government's need to provide for effective risk management (§ 3[a], infra), although one court has applied the strict scrutiny test in concluding that a statute limiting recovery to "economic losses" unconstitutionally deprived a government tort victim of a fundamental right.[FN4] In addition to repelling equal protection attacks on damage limitation laws, the courts have also consistently rejected arguments that such enactments violate due process (§ 4, infra), or that they abridge state constitutional guaranties of access to courts for redress of grievances (§ 5, infra), or impair vested rights (§ 6, infra). With respect to the latter arguments, the courts have reasoned that damage limitation statutes involve no denial of redress or impairment of rights where there was no right of action at all prior to waiver of governmental immunity, that a right to redress does not include a right to full compensation, and that the restriction of damages recoverable by victims of proprietary conduct is not objectionable where waiver legislation, by effectively abolishing proprietary-governmental analysis, broadens the class of persons entitled to relief."

The issue suggested by the discussion in the article is not the validity but the scope of the liability cap under the Virginia Tort Claims Act:

"Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."

Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.

Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.

Grenier counters that he has not "found any case law that backs up the commonwealth's argument."

In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.

In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.

"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said."

This BLT post says the lawyers are also working on a federal civil rights action. The state law of sovereign immunity has no application to a federal civil rights action; the state and its agencies cannot be sued in federal court because of the Eleventh Amendment, but state actors can be and are sued individually under 42 U.S.C. 1983 - but not for negligence, and in their individual capacities they have the defense of qualified immunity.

On the new Fourth Circuit nominees

President Bush has announced the nominations of E. Duncan Getchell, Jr., of McGuire Woods and Steve Matthews of Charleston to the Fourth Circuit.

ACS Blog links here to comments by Senator Warner in the Norfolk paper and in a press release from Senator Webb, to the effect that the White House will deserve what it gets for not picking someone from the list tendered by Warner and Webb.

The Richmond paper has this report, titled "White House defends nominee for 4th Circuit: Neither Warner, Webb recommended Getchell in bipartisan judge picks." This article says Senator Webb's office was likely to stop the Getchell nomination from getting anywhere.

The Washington Post had this report. Paul Fletcher had this post. Sean Andrussier had posts here and here.

If the White House had acted months (or years) ago, these nominees would have made it without any problem. But then, this is the same bunch that thought the Harriet Miers nomination really was a good idea, or so says Jan Crawford Greenburg.

Updated ABA trial standards

Here is the 2007 version of Civil Trial Practice Standards, from the ABA.

Cav Man v. Akron Zip

Sometime this week, cast a vote in the CapitalOne Bowl mascot challenge.

OK, it may not be as exciting as a sausage race, such as these.