On the late Don Williams

From my clerkship with Judge Williams, I got to know his brothers, Lowell and Don. Later on Don was on the Board of Supervisors and the School Board when I did some work over there. He was a big character with a big smile and everyone in the County knew him, from his coaching days as well as his days as a politician. He spoke his mind and cared deeply about a lot of people. Thank you, my friend.

Microsoft to help expand rural broadband in 6 states. says Washington Post

The Washington Post has this account of a pilot program being launched by Microsoft in six states, including Virginia, which is "a multi-year, multi-million dollar investment to help teach computer science to students, expand rural broadband and help create and fill jobs, among other things."

On the Commonwealth's use of text messages and tweets

In Atkins v. Com., the Court of Appeals of Virginia in an opinion by Judge Decker joined by Judes Humphreys and O'Brien affirmed the defendant's convictions, where he objected that the Commonwealth had failed to lay a sufficient foundation to support the admission into evidence of text messages and a tweet from his phone. In a footnote, Judge Decker explained what is a "tweet." In the case, the appellant "admitted that the passcode-protected phone from which the tweet and text messages were sent was his phone." Unanswered by this opinion is what happens when the suspect denies that the phone is his, or refuses to give up the password.

On citation to unpublished orders of the Supreme Court of Virginia

Not too long ago, the Supreme Court of Virginia started putting its unpublished "orders" - i.e., unpublished opinions - on the courts website, and I look at those along with everything else that I can find on the website.

Back in April, the Court issued an unpublished order in the case of LongView International Technology Solutions Inc., et al. v. Terry Lin, et al., which has to do mainly with the standard for determining under Virginia law whether contract terms are sufficiently definite to be enforceable.

Today, I saw an opinion from Judge Jones of the W.D. Va., in which he referenced the LongView opinion at length.

In this information age, these unpublished orders should have been "published" long ago.

On admission to the W.D. Pa.

A little while ago, I added the Western District of Pennsylvania to the list of places where I am admitted to practice. One of the magistrate judges there clerked for Judge Williams, and so I got her to swear me in. I guess I know about 50 lawyers in Pennsylvania, most of them in Lancaster County, some in the Philadelphia area, including Howard Bashman, who just passed the 15 year mark of excellence in blogging.

The one that got away

Years ago, I followed a case involving the former director of the Grayson County Department of Social Services. In that case, one of the issues was whether the local department of social services was a state agency for purposes of the Eleventh Amendment, and Judge Wilson concluded that it was. A petition to the U.S. Supreme Court was filed in that case, but not on that issue.

Today, in Pittsylvania Department of Social Services v. Gosney, the Court of Appeals in an opinion by Judge Petty, joined by Judges Humphreys and Chafin (so three of my favorites) held that a local department of social services is not a state agency for purpose of the application of the Administrative Process Act. And so, social services wins coming and going.

The big CBM class action ruling

After many years of proceedings, Judge Jones has issued a lengthy opinion addressing the certification of classes for the coalbed methane royalty cases against CNX and EQT.

The opinion is interesting for many reasons - one is simply that the PDF file is bookmarked, to aid in navigating the document, which is more than 100 pages.

The Court concluded once more that the requirement of "ascertainability" is not reason enough to deny certification of some of the proposed classes. I think it is a much bigger problem than any legal issues. There are too many fractional interests split too many ways.

The Court refused to cite a class for the lessors of CNX. The vagaries of the family trees are a lot trickier than the differences between the leases that I've seen.

On standing to sue a Virginia school board for violation of state law

I listened with interest this morning on my walk with the dog to the oral arguments before the Supreme Court of Virginia in the case of Lafferty v. Fairfax School Board. The assignments of error are shown here.

It seems fair to say that the lawyers were challenged by the judges - the appellant's counsel faced hard questions about whether his side had abandoned its assignment of error related to denial of leave to amend to add additional facts to support standing, and counsel for the School Board was challenged to explain what does it take to have standing to assert a Dillon Rule challenge and what are the Dillon Rule limits on school board policies.

On the latter point, the breadth of the school board's express powers under the Virginia Constitution and the Code was the basis for AG Herring's opinion on this same sort of issue in 2015. The Supreme Court relied on the same in its decision in the Payne case. The plaintiff's claim on the merits is weak.

On standing, there is an old case from the Supreme Court of the United States which says that "[u]nlike federal or state taxpayers, municipal taxpayers may fulfill the injury requirement by pleading an alleged misuse of municipal funds." Smith v. Jefferson Cty. Bd. of Sch. Comm'rs, 641 F.3d 197, 210 (6th Cir. 2011) (citing Frothingham v. Mellon, 262 U.S. 447 (1923)). See Nichols v. City of Rehoboth, 836 F.3d 275 (3d Cir. 2016) (same). Virginia courts have acknowledged this rule. See, e.g., Goldman v. Landsidle, 262 Va. 364, 552 S.E.2d 67 (2001) ("The direct and immediate interest of the citizen in the operation of local government, whether based on issues arising from a local election or a local government's exercise of its fiscal authority, permits these citizen or taxpayer challenges.").

Even under the rule for standing in a claim against a municipality, "a plaintiff must not only show that he pays taxes to the relevant entity, he must also show that tax revenues are expended on the disputed practice." Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir. 1995). Nobody pays taxes to a Virginia school board.

I expect that if this case goes down on procedural grounds, there will be another one.