Justice Agee to the front of the line

Justice Agee's nomination now has a hearing before the Senate Judiciary Committee set for May 1, which has some Republicans complaining about the lack of hearings for those who were nominated before him.

Ah, the evil zombies

"The appointment of the receiver removed the wrongdoer from the scene. The corporations were no more Douglas's evil zombies. Freed from his spell they became entitled to the return of the moneys-for the benefit not of Douglas but of innocent investors-that Douglas had made the corporations divert to unauthorized purposes."

Posner, J., in Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995).

Now, how can I work an "evil zombies" reference into the brief I've been working on? It might not be a problem.

On Judge Farmer's position

Daniel Gilbert has this article about the legislature failure to fill the juvenile judgeship in the 29th district.

As regards the prospect that the circuit court judges will reappoint Judge Farmer, Senator Puckett is quoted as saying, somewhat ominously, "The judges in the 29th Circuit could have an opportunity to reappoint him if they think I’ve made a bad judgment."

Someone told me the other day that Judge Farmer cannot be reappointed by the judges, per some provision in the Code, but I can't find any such limitation. See, e.g., Va. Code 16.1-69.9:2.

Three federal appeals court judges before Memorial Day?

This post and this post, among others, say there is a deal in the Senate to confirm three judges to the United States Courts of Appeals before Memorial Day, later this month.

The unknown - which ones.

Sort of a Virginia book I got in Charlottesville

Playing with Wikipedia, I wrote the little article on a judge of the W.D. Va. named Alexander Rives, who was the brother of William Cabell Rives, who was the grandfather of Amelie Rives, whose marriage to John Armstrong Chanler is the subject of Archie and Amelie: Love and Madness in the Gilded Age, by Donna M. Lucey.

Having read the book, I would say that it is a somewhat lame account of a fascinating story. I say lame by contrast with the account of the family of the Roosevelts in Mornings on Horseback: The Story of an Extraordinary Family, a Vanished Way of Life and the Unique Child Who Became Theodore Roosevelt, from about the same era, or by contrast with the account of Virginia history as for example in the Virginius Dabney book, which I have been reading.

Part of the book is about the litigation by Chanler over his sanity. He escaped from the asylum and hid out in Virginia, then turned up and had some kind of hearing in Virginia, where his lawyers included Micajah Woods, the Commonwealth's attorney in Charlottesville, another interesting character from that era. According to this account in the New York Times of Chanler's reappearance, his lawyers were Woods and John W. Daniel and Armistead Gordon from Virginia, and Augustus Van Wyck from New York.

Ms. Rives was kin somehow to Thomas Nelson Page, another well-known Virginia lawyer, who was a co-author of at least one book with Gordon, who like Woods was a president of the Virginia Bar Association.

The General Assembly has spoken

In Southwest Virginia, as someone told me a while back, Judge Pat Johnson got the circuit court job in the 29th circuit, Greg Matney from Tazewell County got the general district court job, and nobody got Judge Farmer's job on the juvenile court, which may mean that he gets to keep it until next year.

And, John Cook got in for Lynchburg circuit court, along with Ludwig and Wilson up in Staunton and Harrisonburg. Those were the ones I was following.

Evidently, they punted on the State Corporation Commission, plus I can't tell how many of the local judgeships, besides the juvenile court position in the Dickenson/Buchanan/Tazewell/Russell district.

But, they did find time to commend Judge Wood, and rightly so.

Virginia wins again

Today in Virginia v. Moore, the Commonwealth won before the United States Supreme Court. In an opinion by Justice Scalia, with Justice Ginsburg concurring separately in the judgment, the Supreme Court reversed the Virginia Supreme Court's decision in Moore v. Com., which reversed (unanimously) the Virginia Court of Appeals decision en banc in Moore v. Com., which (with Elder, Benton, Fitzpatrick, and Frank dissenting) reversed the panel decision in Moore v. Com., which reversed the conviction in the trial court.

The issue was "whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law." The Court's answer is no. So, Moore's conviction is affirmed.

Lyle Denniston at SCOTUSBlog has this post about the decision. AP writer Pete Yost has this article about the decision.

UPDATE: The commenter below says the conviction could still be overturned back in the state courts on state law grounds.

State law grounds, such as what, I wonder - the Virginia Constitution? Not likely. Justice Ginsburg's concurring opinion says plainly, "Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons." If that's true, the proceedings on remand may not be very interesting.

On ex parte contact with ex-employees

I read the opinion by Judge Kiser in Bryant v. Yorktowne Cabinetry, granting summary judgment in a Title VII case.

The opinion referenced an earlier decision by Magistrate Judge Urbanski that I missed. In this earlier Bryant v. Yorktowne Cabinetry, Judge Urbanski denied the defendant's motion for an order prohibiting ex parte contact between the plaintiff and the defendant's former employees, distinguishing the earlier decision by Judge Sargent in Armsey v. Medshares Management Services, Inc., 184 F.R.D. 569 (W.D. Va. 1998), based on the plaintiff's representation that "that she does not intend to impute liability on [the corporate defendant] through the statements, actions or omissions of [the former H.R. person] or other former employees, but was simply seeking to discover the facts of the case, including the identities of persons involved." In Armsey, the purpose of the ex parte communications was to obtain facts from them that would be binding on the defendant for purposes of establishing liability.

Interesting.

I saw an appeals court judge on the street today

She said, put that on your blog.

And why not? That doesn't happen every day, or even every year.

Last year, my wife saw this judge and her gang one afternoon, and she told me later that family was having more fun than anyone else at the Homestead that day. Good for them.

On concealed weapon permits

This article in the Bristol paper makes it look like Judge Freeman is adding some extra-statutory factors in his disposition of concealed weapon permit cases in Smyth County.

The article didn't say why the two guys over age 75 decided now was the time to get a permit. It did say the Court of Appeals reversed the Circuit Court in one case (the case is online but the opinion is not) and that Senator Puckett, who has already derailed the reappointment of District Judge Farmer because of "complaints" about him, has received complaints (and made a complaint) about Judge Freeman.

I never heard of Senator Puckett as judicial watchdog before the Democrats took the Senate, why is that I wonder? From what I know of him, I'd say he's trying to do the right thing, but he ought to caucus privately with somebody like Del. Joe Johnson about matters such as this.

Important decision for small business

In Jennings v. Kay Jennings Family Limited Partnership, issued last week, the Virginia Supreme Court took on for the first time the meaning of the requirements to bring a derivative action under Va. Code 50-73.62.

That section says: "A limited partner may bring an action in the right of a limited partnership to recover a judgment in its favor to the same extent that a stockholder may bring an action for a derivative suit under the Stock Corporation Act, Chapter 9 (§ 13.1-601 et seq.) of Title 13.1. Such action may be brought if general partners with authority to do so have refused to bring the action or if an effort to cause those general partners to bring the action is not likely to succeed. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the limited partners and the partnership in enforcing the right of the partnership."

In the Corporation Act, the relevant statute, Va. Code 13.1-672.1, provides: "A. A shareholder shall not commence or maintain a derivative proceeding unless the shareholder:

1. Was a shareholder of the corporation at the time of the act or omission complained of;

2. Became a shareholder through transfer by operation of law from one who was a shareholder at that time; or

3. Became a shareholder before public disclosure and without knowledge of the act or omission complained of; and

4. Fairly and adequately represents the interests of the corporation in enforcing the right of the corporation."

At the request of both sides, the Court in Jennings looked to the discussion of the federal rule dealing with derivative actions, FRCP 23.1, as discussed in Davis v. Comed, Inc., 619 F.2d 588 (6th Cir. 1980), and like cases - and so it did, which in itself is interesting.

The trial court's decision to deny standing was affirmed, because of the would-be plaintiff's adverse economic interests, even though not directly related to the claim at issue, and because the other owners opposed the litigation, even though the other owners were few. The Supreme Court rejected the plaintiff/appellant's arguments against the way these factors were analyzed.

I think this decision will apply to corporation cases under Va. Code 13.1-672.1, although that Code section contains an additional substantive element, that the shareholder "[b]ecame a shareholder before public disclosure and without knowledge of the act or omission complained of." This provision is not in FRCP 23.1, and not to my knowledge in any version of the Model Business Corporation Act.

The significance of this decision, viewed through the prism of the latest cases where I am dealing with these issues, is that the shareholder who breaks off to go and compete against his old company should not be allowed to use derivative actions as a weapon of competition. The innocents who are not out stealing the business from the company would not be similarly disqualified from standing to proceed with the derivative action.