Friday, April 04, 2008

Wise County mountain lion?

Somebody sent these to my dad, with this note:

"This lion was hit between Cherry Reservoir Road and High Knob area (near Wise, VA) by a car. Game and Fish had to come and put him down.

He charged at the Fish and Game guy in the process. Look at his PAWS!"

I don't know whether this is true, or just one of those Internet deals.

A while back, I posted here with a link that still works to a piece about mountain lion sightings in Southwest Virginia.

There's no word yet on whether the lion was in town for the latest hearing on the Virginia City power plant, or if he was en route to see the animal lobbyists in St. Paul or Clintwood.

UPDATE: In the comments, Carl Kilo has forwarded the news article from the Coalfield Progress showing the lion story was a hoax debunked on - a real cat but from Arizona. Ah, the joys of the Internet.

SECOND UPDATE: Brian Peterson in the comments says the cat wasn't in Parkersburg, before it wasn't in Wise.

Thursday, April 03, 2008

Stuff I think I know about summary judgment

I know this:

"Corroboration is not required to defeat summary judgment. See, e.g., S.E.C. v. Phan, 500 F.3d 895, 909-10 (9th Cir. 2007) (district court erred on summary judgment by disregarding evidence that was “uncorroborated and self-serving”); Shekoyan v. Sibley Intern., 409 F.3d 414, 425 (D.C. Cir. 2005) (“corroboration of [plaintiff’s] version of the facts was irrelevant to the summary judgment analysis.”); Lee v. American Intern. Group, Inc., 31 Fed. Appx. 764, 765 (2nd Cir. 2002) (“The fact that plaintiff had no corroboration and that Miller denied it were of no significance on defendant’s motion for summary judgment.”)."

This I wrote in a brief to the Sixth Circuit, in response to where the District Court judge wrote this:

"Plaintiff has not produced the alleged text messages and, although she testified that she showed the text messages to “everybody” and a “ton of people” including family, friends, and coworkers (both at Applebee’s and at her second job), she has not produced an affidavit from any of those persons."

I may not win the appeal, but at least I got that off my chest.

Wise County Circuit Court opinion from April 1, 1991

Dear Counsel:

This is a case of unique species,
not stare decisis, but stare feces.
The court had serious fun with these complex issues as it spoke,
but this opinion, signed the first, is no April Fool joke.

The court considered the entire record as a whole,
and reviewed counsel arguments as they were told.
This is a feeble attempt at judicial humorous prose.
The findings of fact and conclusions of law disclose:

This case involves a V.E.C. "first impression" appeal
by an employee who said a rude word unreal.
Fired for misconduct connected with his job
by a C.E.O. who judged him an insulting insubordinate slob.

Claimant, Walter Cooper, by name
a 20-year employee of "the Pig", a grocery chain,
missed work due to a workers compensation claim,
and had attempted to organize the labor union game.

His four doctors could not agree
on when his exact return day would be.
So to determine his return to work position
management called Cooper to a 2 1/2 hour "Inquisition".

Cooper arrived at the private meeting with management three:
the C.E.O., personnel mg'r, store mg'r, and he.
Claimant intended to return to work right now,
but the C.E.O. flaunted his power somehow.

The C.E.O. quarreled about Cooper's union organizing smut;
told him to return to work, and "keep his mouth shut";
repeated several demands for claimant to quit -
to all of which Cooper replied, "you're full of shit".

Cooper was fired on the spot,
and V.E.C. benefits he was granted not.
Punish him - wash his mouth out with soap,
but don't hang him with a pink-slpi rope.

It would certainly be a legal mistake,
if one vulgar word would misconduct make.
This expression does not show flagrant disrespect,
nor deliberately defy proper authority I suspect.

Truth is a defense to the tort of slander,
but please forgive me for I meander.
Every dog is entitled to one lawful bite,
so why not allow one naughty word so slight?

If one indelicate word stirs the ire
that's no cause for a hard-working employee to fire.
Union activity is allowed by Federal law,
and is not a legitmate reason to withdraw.

Webster defines "shit" as "foolishness" or "nonsense".
Such an editorial makes good common sense
to describe the C.E.O. as "full of" nonsense,
when he attempts to gag the union at Cooper's expense.

Unions displease some executive bosses,
but not employees who carry their crosses.
V.E.C. and "the Pig" hide behind a dirty phrase
to conceal their prejudice against a union craze.

The V.E.C. conclusion is unsupported by substantial and/or simple evidence
for this reasonable judicial mind accepts a difference.
Here the questions of law are also interpreted by this magistrate,
and the facts do not constitute misconduct, nor insubordinate.

This court finds in favor of the claimant,
and orders the V.E.C. to Cooper make payment.
Counsel for Cooper shall pen a final decree,
and deliver it accordingly for entry to me.


J. Robert Stump
(footnotes omitted)

Judge Stump was affirmed on appeal. See Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).

He said it

"Mr. Jay, is the government running with the fox and chasing with the hounds?"

Justice Scalia, at the oral argument in U.S. v. Clintwood Elkhorn Mining.

Wednesday, April 02, 2008

Death penalty moratorium?

When I wrote this post, one of my auditors declared that Governor Kaine would not stop executions in Virginia.

But, he has now - for a while - and for a pretty good reason.

Tuesday, April 01, 2008

On the future of the federal courthouses in the W.D. Va.

In March, the Danville paper had this article, speculating on the future of the federal courthouses in Danville (and Big Stone Gap).

The article quotes Libby Sharp from the clerk's office in Big Stone Gap.

The article says in part:

"In 2007, a congressional committee conducted a comprehensive study of U.S. District courtrooms to determine how often they were being used and for what.

"Many, many courts across the United States were (under consideration for) being closed," said Libby Sharp, deputy clerk in charge of the Big Stone Gap district courts.

Local attorney Lewis Goodman, who works at the Danville Regional Law Center, said, "Danville is high on the underutilization list and is threatened."

The 341 meetings constituted about 10 percent of the usage of the building, according to local legal experts.

So if the government does want to close down underutilized courthouses, losing them pushes Danville up the list.

"Ultimately there's a concern…a reduced amount of 341s in Danville will reduce (overall) caseload (which) will justify closing the courthouse," said Mark Williams, a bankruptcy lawyer with Williams, Morrison, Light and Moreau.

Danville wouldn't be the only court in the district. Big Stone Gap managed to escape that fate last month.

Sharp said Big Stone Gap was facing being shut down because there was no resident judge and the district didn't have as many filings as it used to.

But after consideration and a plea from the court, the committee in charge unanimously decided to keep the system in Big Stone Gap.

Caseloads have dropped throughout the region, according to John Corcoran, clerk for the Western District of Virginia. That includes Danville, but doesn't make it unique, he said."

Daniel Gilbert's series on judicial selection

Here are the articles, worth reading:

Virginia Legislators Have Major Role In Judge Selection, March 30

Virginia Judge Selection Process Dates To Reconstruction, March 30

Political ties often key for attaining position on the bench, March 31

Virginia judge-selection process linked to politics, March 31

Data Will Help Lawmakers Determine Judges Qualifications
, April 1

Local Bar Associations Felt Neglected Over Endorsements, April 1

This group of articles is pretty well-done, and quotes many people, including me.

The lamest comment attributed to our representatives in Richmond in these articles was from Senator Wampler, if this sentence is accurate: "A weakness of the merit-based system, Wampler believes, is that it allows candidates who feel 'lukewarm' about being a judge to be considered in the process. 'You don’t want somebody lukewarm' on the bench, he said." I know he has wrestled sometimes with getting judgeships filled, but I don't think this came off the way he intended.

Also, it might be concluded from Gilbert's articles that the likelier "lukewarm" judges are the ones selected because of their connections rather than their interest and aptitude, and so they don't seem to particularly enjoy the work or the isolation of the bench. There just might be some of those.

The Lawson girl who wasn't born when I started with the firm

MML's youngest is the new Miss Abingdon. Well done, Maggie.

He said it

"The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman."

Robert H. Jackson, in his famous speech on The Federal Prosecutor.