Judge Conrad's latest dismissal of the Equity in Athletics case

Here is the opinion in EIA v. Department of Education, wherein Judge Conrad of the W.D. Va. dismissed the latest incarnation of the lawsuit challenging the federal government's interpretation of Title IX of the Education Amendments as applied to the athletic programs of the Virginia's public colleges and universities.

So, there is still no joy for the men's swimming and diving, track and field, cross country, and wrestling teams at JMU.

More on gas in Virginia

Here are more parts of the Daniel Gilbert series on natural gas in Southwest Virginia, which I recommend no matter which side of things you're on.

Part Three explains the Harrison-Wyatt decision, about the ownership of coalbed methane under particular deed language.

Part Four says the coal companies still claim coalbed methane, despite the Harrison-Wyatt decision.

Part Five takes on Wachovia's role with the escrowed funds.

Part Six says sometimes gas companies don't pay, or get the paper work right, and nobody is checking up on them.

On firefighters getting promoted at the courthouse not the firehouse

In Wesley v. Arlington County, the Fourth Circuit in a 2-1 unpublished decision reversed summary judgment for the County, in a case where the plaintiff alleged that she was denied promotion on account of her race and gender. Judge Wilkinson dissented, pointing out that the other candidates were more experienced and the plaintiff had some performance issues, and concluded: "This case is, however, regrettably weak. The promotion in question should be earned at the stationhouse -- not the courthouse."

On putting the genie back in the bottle

The Supreme Court held in Mohawk Industries v. Carpenter written by new Justice Sotomayor that if the trial court makes you fork over discovery that you think is covered by the attorney-client privilege, you cannot take an immediate appeal under the collateral order exception to the requirement that only "final" orders are appealable.

And, the rationale was that the wrongful disclosure of privileged documents can be fixed after the end of the case, or appealed some other way perhaps - such as defying the Court's order and getting thrown in jail, which seems like something that would not ordinarily be the path of choice.

The gas royalty series in the Bristol paper

Here are parts one and two of what is said to be an eight-part series by Daniel Gilbert detailing some inequities in the Virginia law pertaining to royalties for natural gas and coalbed methane.

The escrow statute for recovering escroyed royalties for coalbed methane is Va. Code 45.1-361.22, and it provides: "The Board shall order payment of principal and accrued interest, less escrow account fees, from the escrow account to conflicting claimants only after (i) a final decision of a court of competent jurisdiction adjudicating the ownership of coalbed methane gas as between them or (ii) an agreement among all claimants owning conflicting estates in the tract in question or any undivided interest therein. Upon receipt of an affidavit from conflicting claimants affirming such decision or agreement, the designated operator shall, within 30 days, file with the Board a petition for disbursement of funds on behalf of the conflicting claimants. The petition shall include a detailed accounting of all funds deposited in escrow that are subject to the proposed disbursement. The amount to be paid to the conflicting claimants shall be determined based on the percentage of ownership interest of the conflicting claimants as shown in the operator's supplemental filing made part of the pooling order that established the escrow account, the operator's records of deposits attributable to those tracts for which funds are being requested, and the records of the escrow account for the coalbed methane gas drilling unit. The petition for disbursement shall be placed on the first available Board docket. Funds shall be disbursed within 30 days after the Board decision and receipt by the Department of all documentation required by the Board. The interests of any cotenants that have not been resolved by the agreement or by judicial decision shall remain in the escrow account."

Sounds like a party.

Pseudo-legality

From the Court's opinion in U.S. v. Phillips:

"Phillips filed this § 2255 motion on or about December 22, 2008, alleging that his conviction is illegal based on various and frivolous and pseudo-legal arguments. The 44-page motion argues, among other things, that key provisions of Titles 18 and 21 of the United States Code were not properly enacted and published and, as such, are not valid criminal statutes; that the government is not a legal 'person' for purposes of the Civil Rights Act and so his plea agreement cannot be a valid contract between two persons; that he is not guilty of a federal criminal offense because his criminal conduct occurred in the Commonwealth of Virginia, not on federal territory; that the United States Code has been copyrighted as the private international law applicable only in the District of Columbia; and that counsel was ineffective for failing to raise these arguments before advising him to plead guilty."

I kept a straight face until the last of these particulars.

Mistaken identity arrestee's Fourth Amendment claims fall to qualified immunity

As a longtime student of the law of the statute of limitations and the law of qualified immunity, I enjoyed reading Magistrate Judge Sargent's opinions in Durham v. Elkins as to the deputy and the Commonwealth's Attorney. I'm not sure that I agree with everything in these opinions, but all's well that ends well.

Those proposed Local Rules for the W.D. Va.

Here you can see the proposed local rules for the Western District of Virginia.

Gen. R. 2(b) is good - civil cases should be filed in the right jury division. Long live the Big Stone Gap courthouse!

Gen. R. 11 about juror contact is sound, and Judge Jones has included something on those lines in his pre-trial order for some time.

Gen. R. 12 says: "The Court may in its discretion impose the costs of a jury where a case is settled or otherwise disposed of after it is too late to reasonably notify the jury not to appear." I guess that's based on budget concerns, but a drag. Stick that in your eleventh hour settlement demand - "and you'll indemnify me against whatever the judge makes us pay for settling so late."

Civ. R. 11 requires briefing of motions, along the lines that are required now in Judge Jones's regular scheduling order, but this rule is broader because it would include discovery motions.

Civ. R. 16 now requires scheduling orders in all cases. Judge Williams has not been entering scheduling orders in cases unless someone asked for one, I think.

Civ. R. 26 deals with expert witness disclosures. The gist is if you are going to object to expert testimony, you need to file a motion in time for the Court to rule in advance of trial.

Civ. R. 51 says file proposed jury instructions a week before trial. I think Judge Jones has been ordering this for years. He generally wants them to be e-mailed to him in word processing format as well, so he can tidy them up, but that part is not in the rule.

Civ. R. 54 is cribbed from the D. Md., and sets forth the details of how to apply for attorneys' fees in a cases where those can be recovered. You need to file a little brief and have detailed time records.

Civ. R. 56 says file for summary judgment far enough in advance of trial for the Court to rule. The scheduling orders I've seen usually set a more explicit deadline than this rule provides.

None of this seems even mildly controversial to me. I wonder what jury costs are.

The end of babysitting and sleepovers

I read the "new" opinions in Kellerman v. McDonough. I thought both the majority and Justice Kinser's opinions were off the mark.

The majority opinion converts the mom hosting a sleepover into some kind of service provider with a duty of reasonable care, to protect the kids from criminals. That's an awfully casual basis for imposing what might be a tremendous liability for the normally unforeseeable acts of others. I guess the Chief Justice wants moms and babysitters to keep a stack of written waivers handy. At least the babysitters get paid - and now they need to charge enough to buy some good insurance.

Justice Kinser's parsing of the pleadings also seemed unreasonable. The Rules say: "An allegation of negligence or contributory negligence is sufficient without specifying the particulars of the negligence." The plaintiff had no obligation to specify any particular theory of negligence, under the rules as written. This part of Justice Kinser's opinion strikes me as another in a series of appellate decisions that have been too persnickety in their interpretation of whether issues were sufficiently raised in the trial court.

A football case, from a few years back

Here's part of an old brief, apropos of the high school football season:

Plaintiff was in a fight on school property at the High School, where he is a student and was a member of the football team. The altercation occurred on the football practice field following football practice. Plaintiff has acknowledged that school rules prohibit such fighting. He admits his role in the fight. He does not dispute the essential details of fight that were represented by other witnesses.

Plaintiff told his side of the story to the High School principal. The principal dealt lightly in deciding that the appropriate discipline was only one day’s suspension for both students. Plaintiff appealed to the Disciplinary Committee and then to the School Board. Plaintiff presented his side of the story with the aid of counsel to the School Board. Both the Disciplinary Committee and the School Board upheld the punishment decided by the principal. After the School Board’s decision, Plaintiff sued in the Circuit Court, claiming that the one-day suspension would violate his rights under the U.S. Constitution. He obtained an ex parte temporary injunction. The defendants removed the case. (Pursuant to 28 U.S.C. § 1450, the injunction remains in effect, subject to further order of this Court.) The defendants now seek summary judgment and dissolution of the injunction.

ARGUMENT

In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court decided what procedural protections are due under the United States Constitution in cases of student suspensions for 10 days or less. “[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him, and if he denies them, an explanation of the evidence the authorities have, and an opportunity to present his side of the story.” Id. at 581. The Virginia Supreme Court applies the same standard. See Wood v. Henry County Public Schools, 255 Va. 85, 92, 495 S.E.2d 255, 259 (1998).

On the undisputed facts of this case, Plaintiff received all the process he was due under the Constitution, and more. The offense with which he was charged was clearly defined. Although Plaintiff disputes who was to blame for the fight and whether his actions were justified, he has never denied his involvement. Plaintiff had not one but three opportunities hear the charge against him and state his response, and he was represented by counsel at both the second and third stages.

The procedural due process contemplated by Goss is limited and informal, and “due process principles have never assured a successful defense.” Bystrom v. Fridley High School 686 F. Supp. 1387, 1394 (D. Minn. 1987). The Court in Goss refused to require “that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” 419 U.S. at 583. Compare Bethel School District v. Fraser, 478 U.S. 675, 686 (1986) (“Two days’ suspension from school does not rise to the level of a penal sanction calling for the fully panoply of procedural due process protection applicable to a criminal prosecution.”). In essence, the student is guaranteed only the chance to alert the disciplinarian “to the existence of disputes about facts and arguments about cause and effect.” Goss, 419 U.S. at 583-84. “[T]he student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context.” Id. at 584. As the Eleventh Circuit concluded, “once school administrators tell a student what they heard or saw, ask why they heard or saw it, and allow a brief response, a student has received all the process that the Fourteenth Amendment demands." C.B. v. Driscoll, 82 F.3d 383, 386 (11th Cir. 1996).

The Goss standard continues to be applied to similar cases in Virginia and throughout the country. See Martin v. Shawano-Gresham School Dist., 295 F.3d 701, 705-06 (7th Cir. 2002) (affirming summary judgment); Ratner v. Loudon County Public Schools, 16 Fed. Appx. 140, 2001 WL 855606 (4th Cir.) (unpublished) (affirming dismissal for failure to state a claim, citing Goss); West v. Derby Unified School Dist. No. 260, 206 F.3d 1358, 1364 (10th Cir. 2000) (affirming summary judgment on due process claim); Smith on Behalf of Smith v. Severn, 129 F.3d 419, 428 (7th Cir. 1997) (affirming summary judgment); Brian A. ex rel. Arthur A. v. Stroudsburg Area School Dist., 141 F. Supp.2d 502, 508 (M.D. Pa. 2001) (granting summary judgment); Long v. Board of Educ. of Jefferson County, Ky., 121 F. Supp.2d 621, 628 (W.D. Ky. 2000) (granting summary judgment); Smith ex rel. Lanham v. Greene County School Dist., 100 F. Supp.2d 1354, 1367 (M.D. Ga. 2000) (granting summary judgment); Carlino v. Gloucester City High School, 57 F. Supp.2d 1, 28 (D.N.J. 1999) (granting summary judgment on due process issue); Achman v. Chisago Lakes Independent School Dist. No. 2144, 45 F. Supp.2d 664, 671 (D. Minn. 1999) (granting summary judgment); Broussard by Lord v. School Bd. of City of Norfolk, 801 F. Supp. 1526, 1532 (E.D. Va. 1992) (granting judgment as a matter of law); Granowitz v. Redlands Unified School Dist., 105 Cal. App.4th 349, 354, 129 Cal. Rptr.2d 410, 414 (2003); Floyd v. Horry County School Dist., 351 S.C. 233, 236-37, 569 S.E.2d 343, 345 (2002); Atcitty v. Board of Educ. of San Juan County School Dist., 967 P.2d 1261, 1263 (Utah App. 1998) (“Goss remains the guiding decision in public school suspension cases of ten days or less.”); M.M. v. Chesapeake City Schools, 52 Va. Cir. 356, 2000 WL 33261105, *2 (Va. Cir. Ct. 2000).

Plaintiff cannot conjure up a procedural due process claim based on some real or imagined violation of the letter of the School Board’s written policies or the student code of conduct. “[T]he failure to conform with the procedural requirements guaranteed by state law does not by itself constitute a violation of federal due process.” Martin, 295 F.3d at 706. Even if plaintiffs can show that school policies were not followed to the letter, his constitutional claim must be measured not by the code book, but by the law of due process. “Alleged violations of due process in the deprivation of a protectable interest are to be measured against a federal standard of what process is due and that standard is not defined by state- created procedures, even when those state-created procedures exceed the amount of process otherwise guaranteed by the Constitution.” Riccio v. County of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990); compare Gray v. Laws, 51 F.3d 426, 438 (4th Cir. 1995) (“The Constitution’s due process requirements are defined by the Constitution and do not vary from state to state on the happenstance of a particular state’s procedural rules.”).

Finally, the bill of complaint suggests that the School District had no authority to discipline Plaintiff because of when, where, and how the fight occurred. This argument sounds more like a substantive due process claim. Some courts view a school suspension as an “executive decision” that does not implicate rights of substantive due process if “proper procedural protections are afforded,” since public education is not a fundamental right. See C.B. v. Driscoll, 82 F.3d at 387. Others courts have concluded that school disciplinary decisions do not violate substantive due process so long as they are rationally related to the school’s legitimate interests, or do not “shock the conscience.” See Smith ex rel. Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 173 (2d Cir. 2002) (teacher slapping student for no reason does not violation substantive due process, which protects “only against egregious conduct which goes beyond merely ‘offend[ing] some fastidious squeamishness or private sentimentalism’ and can fairly be viewed as so ‘brutal’ and ‘offensive to human dignity’ as to shock the conscience.”); Harris v. Robinson, 273 F.3d 927, 930 (10th Cir. 2001) (“shock the conscience” test applies to measure substantive due process in school discipline cases); Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000) (“In the context of school discipline, a substantive due process claim will succeed only in the ‘rare case’ when there is ‘no rational relationship between the punishment and the offense.’”) (quoting Brewer by Dreyfus v. Austin Independent School Dist., 779 F.2d 260, 264 (5th Cir. 1985)); Dunn v. Fairfield Community High School Dist. No. 225, 158 F.3d 962, 966 (7th Cir. 1998) (no substantive due process violation where the plaintiffs “freely conceded that they had violated a school rule, that the rule was designed to preserve discipline in the classroom and to punish student insubordination, and that these were legitimate interests on the part of the school district.”). In this case, there is no constitutional basis for the claim that the school’s disciplinary authority does not extend to these after-school events which occurred on school property, related to a school activity, and involved one student injuring another.

By law, the School Board has control over school property, without limitation as to the time of day. See Va. Code §§ 22.1-79, 22.1-125; compare New Jersey v. T.L.O., 469 U.S. 325, 339 (1985) (recognizing the “substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds”); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“School officials have the authority to control students and school personnel on school property”). The School Board has an obligation to provide a safe environment for its students. See, e.g., Va. Code § 22.1-279.6 (school boards will have “policies on alcohol and drugs, vandalism, trespassing, threats, search and seizure, disciplining of students with disabilities, intentional injury of others”) (emphasis added); 8 VAC 20-131-260 (requiring schools to have procedures “for responding to violent, disruptive or illegal activities by students on school property or during a school sponsored activity” as part of their program for student safety); compare Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S. Ct. 2559, 2565 (2002) (“the school has the obligation to protect pupils from mistreatment by other children”) (citation omitted). The School Board’s enforcement of its policy against fighting in this case “furthers the district’s legitimate interest in maintaining a safe environment and is rationally related to that interest.” Peterson v. Independent School Dist. No. 811, 999 F. Supp. 665, 673 (D. Minn. 1998). Compare Escatel ex rel. Escatel v. Atherton, 2001 WL 755280, *7 (N.D. Ill. 2001) (“Given that there is no fundamental right to an education, the defendants’ policy permitting expulsion must be sustained if it is rationally related to a legitimate state interest”); Craig v. Selma City School Bd., 801 F. Supp. 585, 595 (S.D. Ala. 1992) (upholding suspensions and expulsions of students who fought after a football game on school proper, noting that “[t]he purposes of the defendants in seeking to enforce school regulations and to protect other students as well as school property from violence are certainly legitimate”).

The District Court granted summary judgment in the case.

Don't I post this every year about now?

Here's my alltime favorite piece of writing about college football in Tennessee. Probably I posted it last year and will again next year, until the IP police tell not to do it any more:

It's Football Time in Tennessee
by Jake Vest -- Orlando Sentinel -- Jake Vest is the creator of the comic strip That's Jake.

Re-printed in Knoxville News-Sentinel January 14, 1996

I grew up just down the river from Knoxville's Neyland Stadium in the poor direction -- out toward the rock quarries, dairy farms and tobacco patches.

On a crisp mid-October Saturday you could climb a hill, and if the wind was just right, you could hear the rich people booing Bear Bryant and the Tide.

I spent a lot of time climbing those hills and listening.

Football was the second favorite sport out in the greater Forks of the River metropolitan area, right behind squirrel hunting -- which you didn't need a ticket to do.

Sometimes the squirrel hunters would carry transistor radios so they could listen in on John Ward, the Voice of the Vols, calling the shots for that other sport. If Tennessee was driving for a score, there would be a general, temporary cease-fire.

Now that is devotion. Anything that gets a Tennesseean s mind off hunting is something special.

If it was a particularly big game, even the dogs would stop barking. They knew Ward's voice, and they could tell when he was getting serious, a fact that may seem like a stretch to some but you've got to remember we had some mighty good dogs.

Out in my part of the woods, an affection for the Big Orange was something you took up early in life and held onto.

One of my first memories is of sitting on the front porch in a swing with my grandfather, that s Pappaw in East Tennessean, listening on the radio to Tennessee play Ole Miss. That was back in the days when the forward pass was considered an alternative lifestyle, something you did if you weren't man enough to play real football, and both teams rushed about 300 times for a total
of about 150 yards.

Every time Ole Miss would gain a step, Pappaw would cuss and spit tobacco juice. By halftime, the side yard looked like an oil spill.

What's most remarkable about this is that I don t think Pappaw had any notion of what a football game was. It wasn t mentioned in the Bible, so he had no reason to have ever read about it; and he sure had never attended a game. He had no idea what those Mississippians were doing. But he knew they were doing it to us. And he was against it. He never set foot in the University of Tennessee campus in his life, but he was a Vol and a mighty good one if I say so myself.

If you can understand my Pappaw, you can probably understand the relationship between Tennessee football and Tennessee football fans. If you can't, there's not much reason to try to explain it.

It's an us vs. them proposition. If you're one of us, you know how we feel; if you're not, I'm not sure you want to know.

Some people make the mistake of separating the game from all the stuff that surrounds the game and therefore can't see what's the big deal. College football in general, Southern college football in the particular and Tennessee Volunteer Go Big Orange college football, to be precise, is much much more than that.

It's crisp autumn afternoons with chicken barbecuing, bands playing and trees trying to out-pretty each other. It s riding down the river as part of the Vol Navy and singing Rocky Top 400 or 500 times in an afternoon. It s a cold beer and a turkey sandwich at Sam & Andy s down on Cumberland Avenue before the game. It s tailgating around Kent Boy Rose's orange and white motor home -- one of the hundreds of that color that line Neyland Drive on game day, right outside Neyland Stadium where General Neyland used to coach. It's memories of Tennessee Walking Horses strutting the sidelines and of cannons in the end zone. It's Old Smokey howling for a touchdown. It's John Ward hollering GIVE HIM SIX when the good guys score and hollering STOPPED BY A HOST OF VOLUNTEERS when the bad guys get stuffed. It's Bobby Denton calling the play by play and telling a fired-up crowd "It's fooootball time in TENN-E-SSEEEEE!" It's old women and little babies decked out in orange. It's African-Americans and redneck farmers high-fiving, hugging and saying "How bout them Vols?" after a touchdown.

It's touchdowns.

It's road trips to Birmingham, radio talk shows, shakers, and flags flapping in the wind. It's dancing to the Tennessee Waltz after the game and sipping illicit Tennessee whiskey during it.

It's memories: The time we beat the unbeatable Auburn and the unstoppable Bo Jackson couldn't go anywhere but backward; the undertalented Daryl Dickey shutting the overactive mouths of a Miami team in the Sugar Bowl we were supposed to lose by 22 but won by 28; holding Larry Csonka and Floyd Little out of the end zone to preserve a bowl victory over Syracuse; reminding Ken Stabler that left-handers can lose football games too; Condredge Holloway hopping out of an ambulance to return to the UCLA game and rally the troops to a tying touchdown; Jack Reynolds cutting his car in half after a loss and earning the nickname Hacksaw.

It's Doug Atkins, the Majors boys, Bob Johnson, Charlie Rosenfelder, Karl Kremser, Richmond Flowers, Herman "Thunderfoot" Weaver, Dewey "Swamp Rat" Warren, Tony Robinson, Curt Watson, Steve Kiner, Willie Gault, Carl Pickens and Reggie White and all our other heroes running through that big T while the Pride of the Southland band plays and over 100,000 of us holler and carry on like free-will Baptists having a spell. It's also memories of my daddy sitting on the front porch during the last autumn Saturdays of his life listening to the game on the radio and cussing and spitting tobacco juice every time an opponent gained a step on us. He would understand what I'm talking about.

So would Pappaw.

I could go on, but you probably get the picture. If you don't, you won't ever so there's no reason to go further.

I guess it's the kind of feeling that just runs in the family.

You can't negligently misrepresent your own intentions

I don't remember if I knew this or not, but in the case that was tried in July and continues on, one thing that I wrote about was the Virginia Supreme Court has concluded it is impossible to state a constructive fraud claim based on a misrepresentation about one's intention to do something in the future:

"Under no circumstances ... will a promise of future action support a claim of constructive fraud." Supervalu, Inc. v. Johnson, 276 Va. 356, 368, 666 S.E.2d 335, 342 (2008). Supervalu cites and is based on the Court's prior statements in Richmond Metro. Auth. v. McDevitt Street Bovis, Inc., 256 Va. 553, 560, 507 S.E.2d 344, 348 (1998); Blair Constr. v. Weatherford, 253 Va. 343, 347, 485 S.E.2d 137, 139 (1997); and Colonial Ford Truck Sales v. Schneider, 228 Va. 671, 677, 325 S.E.2d 91, 94 (1985), all of which recognize a distinction between actual and constructive fraud in connection with promises of future conduct. In a footnote, the Supervalu majority specifically overruled a statement in Eden v. Weight, 265 Va. 398, 578 S.E.2d 769 (2003), "[t]o the extent that this statement implies that an action for constructive fraud may lie if the evidence demonstrates a present intent not to fulfill a promise of future action."

The federal courts have observed this distinction in deciding like cases. See RBA Capital, LP v. Anonick 2009 WL 960090, *4 (E.D. Va.) ("Since '[u]nder no circumstances, however, will a promise of future action support a claim of constructive fraud,' and the Anonick's basis for the fraud claim involves a promise of future action, their allegations clearly will not support a claim for constructive fraud") (granting motion to dismiss, quoting Supervalu); Barrigan v. Elite Funding, 2009 WL 54514, *4 (E.D. Va.) ("an unfulfilled promise of future action . . . cannot form the basis for a successful constructive fraud claim.") (granting summary judgment, citing Supervalu, McDevitt, and Colonial Ford); White v. Potocska, 589 F. Supp.2d 631, 656 (E.D. Va. 2008) ("there is no claim of constructive fraud under the 'present intention' theory of fraud") (granting summary judgment, citing Supervalu); GIV, LLC v. International Business Machines Corp., 2007 WL 1231443, *5 (E.D. Va.) ("Such a misrepresentation, however, is not actionable as a constructive fraud," emphasis in the original) (granting motion to dismiss, citing Blair Constr.).

On Batson and earrings

The VLW Blog has a post up about non-discriminatory reasons that have passed muster under a Batson challenge to the use of peremptory strikes.

I tried a case back in January before Judge Turk, where I represented a African-American claiming racial discrimination and retaliation. The only black man in the venire was a distinguished, well-dressed gentleman of about 60, wearing a big gold earring. He was probably the most distinguished-looking, best-dressed person in the building that day. I thought that striking that guy on account of his earring was surely a pretext for race. Unfortunately, Judge Turk had already addressed the issue in the Claytor case cited by VLW, and every other case I found goes the same way - an earring-based strike does not violate Batson. In Claytor, "[t]he prosecutor explained that the earrings suggested to him that the prospective juror had made a life-style choice that was not consistent with mainstream society."

I wanted to cite to Judge Turk this Ebony article from 1998, but I don't guess it would have been relevant to what the lawyer was thinking.

Nomination of Tim Heaphy announced today

In this press release, the White House announced the nomination of Tim Heaphy as the next U.S. Attorney for the Western District of Virginia. That's all to the good, as he is a fine fellow (haven't I said that before?). He was looking forward to the nomination when I saw him and kids enjoying dinner al fresco on the downtown mall in Charlottesville, earlier this summer.

That jury trial earlier in the week

On Wednesday and Thursday, I tried a case in the W.D. Va., representing two fellows from Texas who were sued for fraud, where the amount in dispute was fixed at $2.3 million, and we got a defense verdict. The jurors deliberated for over three hours, counting the time they were eating pizza for dinner. My opposing counsel were Hunter Sims and Johan Conrod from Norfolk.

I had not met Mr. Sims before the end of the case. We had a laugh about his being the No. 2 Virginia SuperLawyer. I don't know if there are any "super" lawyers, but I am impressed that the best Virginia lawyers I've ever met, like Mr. Sims and maybe fifty others I could name off the top of my head, are all gentlemen (and gentle ladies) to the core. And, I expect that whenever I see Mr. Conrod from now on we will enjoy retelling our adventures from this case, of which there were a few.

Fourth Circuit en banc upholds Virginia's partial-birth abortion statute by 6-5 vote

Today in Richmond Medical Center v. Herring, the Fourth Circuit en banc upheld the Virginia law on partial-birth "infanticide," with the six including Niemeyer, Chief Judge Williams, Wilkinson, Shedd, Duncan, Agee, and the five including Motz, Michael, Gregory, King, and Traxler. The opinion writers were Niemeyer and Michael. Earlier, the District Court and the panel of the Court had ruled that the statute was unconstitutional.

The case was argued back in October, 2008. And, if the case was argued in October 2009, with one or more of the Obama administration's nominees to the Fourth Circuit on the court, the opposite result would have been most likely.

Speaking of the Fourth Circuit, I might yet roll up to the Greenbriar for part of the Judicial Conference, which is this week, at least for Saturday morning's remarks by the Chief Justice.

Why I'm voting for Brownlee

Why I'm going to Richmond this weekend to vote at the Republican convention for John Brownlee:

1. He was the U.S. Attorney for the W.D. Va., the head lawyer for the United States of America in (the better) half of Virginia. That's more like being Attorney General than about any other law job there is. If you look'em up on Westlaw, Mr. Brownlee's name is on Westlaw hundreds of times, just like the Attorney General's name is on every case the Commonwealth appeals or defends in federal court.

2. In the Purdue Pharma case, the Pocahontas murder cases, the Bedford fundraiser case, the Dr. Knox case, among others, that office made some gutsy calls, I think - not all of them right necessarily but none based on expediency. The buck stops with the boss when decisions about high-profile cases are made - fairly or not.

3. We've debated before whether prosecutorial experience is better than not for an Attorney General. It is. It might even be better than patent litigation experience or antitrust litigation experience.

4. The newspapers were usually on his case. The newspapers are usually wrong.

5. I first met Brownlee in federal court in Big Stone Gap in 1995 - he's lived all over Virginia, as a student in Fairfax County and Lexington and Williamsburg, as a law clerk and lawyer in Abingdon and Roanoke and Northern Virginia. I doubt that Southwest Virginia will ever be much of a priority for the other fellows.

6. His wife and the girls - lovely. He must be doing something right. And - she is on a first-name basis with Johnny Wood, from her time on TV here in Bristol.

7. He is a veteran of the military, and clerking for Judge Wilson, and working for Woods Rogers, and which of these was the more demanding I couldn't say - probably clerking for Judge Wilson. I'd vote for anybody who clerked for Judge Wilson, as those ex-clerks feel the influence of their old judges, always. The Woods Rogers litigators (including alumni) I've known all share a high level of diligence and competence, and you want them with you rather than against you.

8. He's a conservative but a free thinker, with a sense of humor. I've spent a little bit of time with him, as he came to our blogger meeting in Martinsville and one of our bar meetings in Bristol when I was running those and more recently we've met at campaign events, and he speaks well and laughs easily. I rate him as a good guy, besides everything else.

9. OK, I'll add this one - he supported the effort of my client Buchanan County to get $1 million in forfeiture money from the Big Coon Dog case remitted from the United States Department of Justice.

On the next U.S. Attorney for the W.D. Va.

The Roanoke paper reported earlier that Tim Heaphy will be the U.S. Attorney for the Western District of Virginia.

As I wrote here, I knew Tim Heaphy a little back in the day. And, I've seen him a few times since, at VBA meetings and in the Abingdon courthouse, a fine fellow and excellent lawyer. He and Toby Vick got the acquittal for the defendants in the Byrd Brothers trial that I watched a bit of, December before last.

Watch what you ask for

VLW Blog cited to this opinion by Judge Moon, in McIntyre v. Aetna, wherein Judge Moon refused to grant the parties' motion to vacate a final judgment on appeal to the Fourth Circuit. Judge Moon held, consistent with any number of prior W.D. Va. cases, that if the parties burn the court's time by taking a case to final judgment, they're stuck with it. To similar effect were Judge Jones's rulings in Evans v. Mullins and U.S. Trustee v. Equipment Services.

We got Judge Glen Williams to grant vacatur in a case one time, following the steps set forth in Fobian v. Storage Tech. Corp., 164 F.3d 887 (4th Cir. 1999), but it seemed kind of a close-run thing. It is the only context I know of where the District Court gives an advisory opinion, so the Court of Appeals knows to remand the case to it to act on the motion.

On rural broadband

The Washington Post article that weighs the merits of rural broadband against the stories of Rose Hill and Lebanon cites my sister Joan.

Article on SVLAS

This article begins: "A six-year increase in legal aid for victims of domestic abuse in Southwest Virginia has been a success. The Southwest Legal Aid Society (SVLAS) greatly increased its outreach over that period, and the result has been a dramatic 35-percent decline in the number of requested protective orders; a much greater decline than seen statewide."

On the Irish literary form

Responding to one of my posts about a notorious Virginia Supreme Court case, a reader once sent me this:

There once was a couple named Zysk
Who did quite a bit more than just kiss
She sued him for herpes
He said, "I demur, please.
I think it was your *."

This limerick led to another -

From: Steve Minor
Date: Thu, 26 Aug 2004 01:39:12 -0400
Subject: Re: Zysk

Yours deserves a "punctual" reply:

There can be no worse destination
For sodomy or fornication
Than here in Virginny
For instead of sin, we
are only allowed "!"

Hello Bristol Republicans

Come and say hello to Lee Ann Necessary on Thursday, lunchtime at K.P. Duty.

And, if you were making a list of good reasons to support John Brownlee, wouldn't she be one of them?

On the connection between the Uniform Arbitration Act and the Federal Arbitration Act

Today, in A & G Coal v. Integrity Coal Sales, Chief Judge Jones of the W.D. Va. held that the parties' dispute was subject to arbitration.

His analysis began with this point: "Since the purchase orders at issue involve interstate commerce,1 the Federal Arbitration Act (“FAA”), 9 U.S.C.A. § 1-16 (West 1999 & Supp. 2008), applies."

Is that right? My answer would be, yes, but . . . . I made this more complicated in Penn Virginia v. CNX case, arguing that the state arbitration act applied unless and until it was preempted by the FAA, and that it was not where state law was more pro-arbitration even than the FAA (to overstate the point, slightly).

On being a Super Lawyer

Here the VLW posts a motion filed by Mr. Bondurant, opposing the opposing counsel's motion for continuance, and noting among other things that after all, counsel holds himself out as a "Super Lawyer."

Well, I'm a "Super Lawyer" - super enough not to buck heads with Mr. Bondurant when I can avoid it.

Oof, Supreme Court rejects FDA preemption in Wyeth case

In Wyeth v. Levine, decided today, the United States Supreme Court rejected the argument that federal law regulating the labelling of drugs does not preempt state law tort claims against drug manufacturers related to the sufficiency of the labelling of their products.

The vote was 6-3, evidently, with Roberts, Scalia, and Alito on the losing side. I think that if the vote had gone the other way, Congress would have changed the law promptly, or tried to, as in the Ledbetter case.

Still, the preemption arguments makes an awful lot of sense, when the government controls what can and cannot be said in the drug labels, down to the period and comma.

On replacing Judge Blankenship

The Wytheville paper has this article that says some Southwest Virginia legislators might take a second swipe at picking a successor to Judge Keith Blankenship, who resigned from office, leaving a vacancy on the district court for the 27th District. The article says Del. Crockett-Stark is throwing her support behind Dawn Cox, a Republican from Grayson County.

On picking judges in Virginia

Today's Washington Post has this article about a citizen group that is ticked off over the way Fairfax County Judge Gaylord L. Finch Jr. was appointed in this session of the General Assembly.

The group "is advocating term limits for judges and an overhaul of the state's process of evaluating judges. It also wants public participation in judicial selection from start to finish, hearings that are open to the public and anonymity or immunity for those who testify against sitting judges."

The cow chase case

Rex Bowman reports here on the Floyd County trial against the animal control officer who chased a cow and killed a farmer.

Another Bill Eskridge case

Today the Virginia Supreme Court decided in Johnston Memorial Hospital v. Bazemore that the plaintiff in a lawsuit that is a legal nullity (because the plaintiff had not qualified as personal representative to file a wrongful death case) cannot take a nonsuit.

One would imagine that a lawsuit that is a legal nullity cannot be res judicata on the merits, but I suppose they wanted the nonsuit to toll the statute of limitations.

Well done, Rip Sullivan

In Remora Investments, LLC v. Orr, the Virginia Supreme Court in an opinion by Justice Lemons affirmed the decision by the Fairfax Circuit Court that one member of a limited liability company lacks standing to sue another member or manager of the LLC for breach of fiduciary duty, but instead the duty is owed to the LLC itself.

I think that Rip Sullivan was on the winning side here, and I was rooting for him (as of now, until I'm on the other side of this issue).

Well done, more or less

In Seguin v. Northrop Grumman, the Virginia Supreme Court in an opinion by Justice Koontz held that an order compelling arbitration is not appealable, notwithstanding loose talk in a prior opinion in the case of Amchem Products v. Asbestos Cases Plaintiffs, 264 Va. 89, 563 S.E.2d 739 (2002).

I made this argument in opposition to a petition before the Virginia Supreme Court, but the Court simply denied the petition in my case, finding no error in the ruling on arbitrability. So, I know that the Virginia arbitration act is a uniform act, and there are dozens of cases interpreting its provisions in other states, and yet in Seguin the Virginia Supreme Court chose to ignore this aspect, because ... that's the way they roll. There will never be a dispute over the Virginia Supreme Court citing foreign law, because they won't do it - they don't like to cite any non-Virginia law, even when it would make life better for Virginia lawyers, as when uniform acts are applied uniformly.

In Virginia, as in Arizona, "[t]he right to appeal is not absolute but exists only by statute." Southern California Edison Co. v. Peabody Western Coal Co., 194 Ariz. 47, 52, 977 P.2d 769, 774 (1999). Arizona’s Uniform Arbitration Act “expressly permits appeal from an order denying arbitration but is silent as to an order compelling arbitration.” Id. (citing A.R.S. § 12-2101.01). From the limited list of appealable orders, "our legislature has made its intent clear that most interlocutory orders, including those compelling arbitration, are not appealable." Id. The Court concluded that "even in an independent proceeding in which the question of arbitrability has been raised, an order compelling arbitration will always adjudicate 'fewer than all of the claims.'" Id. This rule is "good policy in an arbitration case" because it would "support the purposes of that procedure - prompt, efficient, and inexpensive dispute resolution," avoiding "a multitude of appeals . . . when arbitration might determine all issues to the parties' satisfaction." Id. at 52-53, 977 P.2d at 774-75.

Like the Arizona court, a court in Kansas cited the prefatory comment to the Uniform Arbitration Act, which says: "The section on Appeals is intended to remove doubts as to what orders are appealable and to limit appeals prior to judgment to those instances where the element of finality is present." National Educ. Association-Topeka v. Unified School Dist. No. 501, 260 Kan. 838, 841, 925 P.2d 835, 837-38 (1996) (quoting Unif. Arbitration Act, 7 U.L.A. 2 (1985)). See Southern California Edison, 194 Ariz. at 52, 977 P.2d at 774 ("our legislature has made its intent clear that most interlocutory orders, including those compelling arbitration, are not appealable. This, too, was the intent of the UAA drafters.") (citing the same Prefatory Note.) In the Kansas case, the Court went further, adding:

The chairman of the committee that drafted the uniform act explained the rationale for making certain orders, but not others, appealable: "Appeals likewise are commonly neglected in arbitration statutes. Under the new act, the appealable orders are specifically designated and are confined to those final in nature, such as orders denying motions to compel arbitration or granting motions to stay arbitration. Orders directing, or refusing to stay, arbitration are not appealable but the point at issue can be raised on appeal from an order confirming the award should one be rendered. Appeals are permitted also from the judgment or decree rendered on an award." Pirsig, The New Uniform Arbitration Act, 11 Bus. Law, April 1956, at 44, 51. (Emphasis added.)

National Educ. Association-Topeka, 260 Kan. at 841-842, 925 P.2d at 38 (citation omitted).

You'd think that Virginia Supreme Court would embrace the idea that the outcome in this case is justified in part by the purpose, structure, and drafting history of the Uniform Arbitration Act, or any uniform act.

Tennessee Supreme Court in Virginia

Today's TBAtoday says:

"Next Thursday, March 5, the Tennessee Supreme Court will hold a public meeting in Bristol on legal needs and access to justice issues in east and northeast Tennessee. The meeting will be moderated by Supreme Court Justice Gary Wade and feature a panel with state Representative Jon Lundberg, 2nd Judicial District Chancellor E.G. Moody, Sullivan County Circuit Court Clerk Tommy Kerns, private attorneys and representatives from Legal Aid of East Tennessee and the Oak Ridge office of the Legal Aid Society. The meeting begins at 3 p.m. at the Bristol Public Library, 701 Goode Street, Bristol, Va. 24201."

Funniest thing I heard said about me in 2009

Someone told me at the VBA meeting in Williamsburg that someone else had said this: "Steve Minor . . . is an acquired taste."

On the USDA broadband grant program

Southwest Virginia through LENOWISCO and other entities has been a prime beneficiary of the grant program mostly bashed in this Washington Post article, which does cite the example of Tannersville, Virginia, here in the Ninth District. The Tannersville grant was written by my sister, who also wrote the grant for Rose Hill, where she lives and works.

Speaking of Joan, here is where she uploaded a video to her blog, which she made with the Christmas present she got from her brother.

On court-packing, stacking, etc.

The Post has this on too-smart law professors thinking up ways to get the Supreme Court to do what they want.

People who are aggrieved by the Supreme Court always think of ways to change it, not because they are high-minded but because they want to get different outcomes. And, everyone knows this, and so the proposals go nowhere - now as when Jefferson was president and Marshall the Chief Justice.

Two new judges for the 29th

Daniel Gilbert reports here that Mike Bush and Richard Patterson will get district judgeships in the Russell, Buchanan, Tazewell, Dickinson district.

I never heard of Richard Patterson but that's ok, he probably never heard of me.

The Gilbert article includes some additional gratuitous John Farmer bashing from Senator Puckett, which seems lame.

On being the swami

Here it was written in 2006 that by November 2009, Mary Lynn Tate would be on the Fourth Circuit.

Here it says she has put in for the job.

From NYT to cvilleweekly

This post laments the subpoena served on my good friend Waldo Jaquith by my good friend James Creekmore in connection with some case, and here is the Motion to Quash filed by Waldo himself, and here an outline by Conrad Shumadine from Norfolk says this on the state of the law of a reporter's privilege in Virginia:

"Courts have adopted a three-part test to determine when the qualified privilege attaches. The test balances (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001); Philip Morris Co. v. American Broadcasting Co., 36 Va. Cir. 1, 18 (Richmond 1994); Hatfill v. New York Times Co., 459 F. Supp. 2d 462, 466-67 (E.D. Va. 2006); Hatfill v. New York Times Co., No. CIV.A. 1:04CV807 CMHL, 2006 WL 4500031, at **3-4 (E.D. Va. Nov. 3, 2006)."

On bowling

I think the last time Heath Miller's team played Larry Fitzgerald's team in a "bowl," Heath had a touchdown and his team won while Larry was shut down, and Judge Chad Dotson, Roy Jessee, Mitch Mobley, Will Kimbler, and I were there, for the 2003 Continental Tire Bowl between U.Va. and Pitt.

On the weekend

This weekend in Williamsburg had plenty of highs and lows, the lows relating mainly to the fact that my term on the board of governors of The Virginia Bar Association is ended and I am now official a has-been.

The most powerful part of the weekend by far was the presentation on understanding veterans, with the images and personal accounts from the people who have been over there, and those who have treated the ones who have been over there.

Also, the real estate litigation lecture by some guy from Newport News was fascinating - that outline will get saved to the archives and e-mailed to everyone in the firm (wait, can I do that?) - it was one of those presentations that was so full of useful information that it kind of wore me out.

And, there was the roast of Mike Pace on Saturday night, but they say what happens at Providence Hall, stays at Providence Hall.

Our Fair City listed in the World's Top Seven

This article lists Bristol, with this entry -

"Bristol, Virginia, USA. As a first time honoree, Bristol made an impact after taking on incumbent telcos in court and the state legislature to win the right to deploy a fiber network called OptiNet. Conceived as a backbone serving government and schools, OptiNet has grown into a fiber-to-the-premises network for business and residents in Bristol and four neighboring counties. It has also attracted more than $50 million in private investment, including the region's first technology employers, and improved rural education and healthcare by connecting local providers to leading institutions."

Judge Wilkinson asks President Obama to go easy on the Fourth Circuit

I read this commentary by Judge Wilkinson, which may be the least comprehensible thing I ever read that he wrote. Who can tell me what he is saying?

For qualified immunity fans

Today, the Supreme Court zigged in another direction on an issue where it has both zigged and zagged, and that is the order of answering the two questions that make up the question of qualified immunity. One question is, does the plaintiff have a claim under the Constitution? The other question is, did the defendant violate the clearly-established constitutional rights of the plaintiff, of which a reasonable government official in his or her position should have known?

If the courts have to answer the merits question first, then a bunch of advisory opinions about constitutional issues get generated. If the courts can answer the "clearly-established" question first, then the law never gets any clearer, and more defendants win.

The conclusion in Pearson v. Callahan is that the courts can go whichever way works best.

You can click here to see some of what I have written in the past on qualified immunity - one of my favorite topics, and the subject of an article I wrote for the VADA some years ago.

A rural Virginia lawyer joke

Here it is, from the Washington Law Examiner.

Harsh.

Well done, guys

Lucas Hobbs and Jim Elliott from our firm were counsel for the successful appellant in the case of Virginia Highlands Airport Authority v. Singleton Auto Parts, where Justice Millette described the issue as this:

"We are presented with the novel issue whether the easement constitutes a taking of airspace requiring compensation when the property was already subject to preexisting restrictions on development imposed by the ordinance."

Civil litigation in federal court increased in 2008

A report by Law360 cited here and elsewhere says that federal court litigation was on the rise in 2008, including more employment law and products liability cases, along with more antitrust claims, more corporate bankruptcies, and more class actions.

Worth reading

From December, the Lynchburg paper reports on the retirement of Circuit Court Judge Samuel Johnston.

In Buckingham County, someone has sued the Hook for defamation.

In Tazewell County, Judge Vanover upheld the immunity of the County and the School Board in a case over the death of a student.

The long-running Fairfax County case over Episcopal church property is described again here.

The Norfolk paper investigates here why it is that Amazon.com does not collect Virginia sales tax.

On Fourth Circuit vacancies

Jonathan Adler says here the Democrats should do like was done with Judge Gregory and renominate and confirm Peter Keisler to the D.C. Circuit, citing this article by Quin Hillyer, which is also cited in this post on the Committee for Justice Blog.

Here the NRO editors suggest the same idea as to any of Bush nominees to the Fourth Circuit, including Judge Robert Conrad, Rod Rosenstein, Steve Matthews, and Judge Glen Conrad of the W.D. Va.

Somewhat more traditionally, posts here and here speculate on North Carolina Democrats who might be appointed to the long-vacant N.C. seats on the Fourth Circuit.

What are the First Amendment rights of donors in support of referenda?

In California, they say that the opponents of the recently-passed referendum to re-outlaw same-sex marriage are tracking down those that gave money to advocacy groups in support of the measure and trying to make them regret their position.

So, this lawsuit has been filed, claiming that the California law requiring disclosure of such contributions is a violation of the First Amendment rights of the donors, particularly because none of the rationale for intruding on the speech rights of donors in the usual campaign setting applies when there are no candidates to be corrupted by the cash.

I can understand that aspect, although I think the outcome of the suit depends on whether the issue comes down to standard of review - is this an incursion on First Amendment rights which must be narrowly-tailored or merely something that requires a rational basis. This I wonder.

Supreme Court history

Via John Q. Barrett, here are the proceedings of a conference of former Supreme Court clerks, discussing the 1950-1951 term, and including therein some general background of the Justices and their work.

Among the tales told is this one, about Justice William O. Douglas:

"On the thirteenth anniversary of his joining the Court, he had a little cocktail party in chambers just for those of us who were on staff. He made martinis the way he used to make them for FDR and told us about how times were back in the ‘30s in Washington where he’d been working. He remembered I’d grown up in Kansas City, Missouri, and so he recalled that he had a speaking engagement there one time and took his dog Frosty with him and was going to stay at the best hotel in town. When he got there, the hotel refused to admit him because he had his dog. So the two of them ended up in a motel. When the Chamber of Commerce found out, they were so embarrassed they sent a case of dog food to Frosty. Douglas said that thereafter, Frosty would never eat any other kind of dog food."

Lynn Dougherty's son - from Gallaudet to David Letterman

This story about the deaf son of a Bristol lawyer from the Tennessee side is really cool.

On blogging in 2009

There will be some, sooner or later.

Last week, I took off for a federal court hearing in Beckley, turned around when I heard it was cancelled, then found out it was rescheduled for the next day, turned around again and headed back up there.

That's just one adventure of many, already in 2009, but not much of it fit for this blog.