On the investiture of Justice Chafin

I missed the ceremony but got to the after-party for the swearing-in of Justice Teresa Chafin of the Supreme Court of Virginia, in time to say hello to the new justice and her husband and her brother. I'm sure that Justice Chafin will do well on the Court.

The first time I appeared before Circuit Judge Chafin was in a Dickenson County case, where Judge Vanover had a conflict. She told a story about trying to get started one day in Tazewell only when she got on the bench there was a courtroom full of clients but no lawyers. She told the masses that when their lawyers appeared they would know where to find her and turned to leave. Two old-timers were sitting in the front room, and she heard one ask before she got out of the room, "What did she say?" The one with the better hearing replied, "She said she's pissed!"

On the W.D. Va. vacancy

The White House is considering the nomination of U.S. Attorney Tom Cullen for the judicial vacancy in the W.D. Va., bypassing the two candidates Circuit Judge Kilgore and Magistrate Judge Ballou proposed by Senators Kaine and Warner. The senators get to decide whether to go along with any nomination. In 1938 and again in 1976, Virginia's senators derailed nominations by presidents (of their own party) to the W.D. Va. The vacancy was created when Judge Conrad took senior status in 2017.

Locally, Judge Corker was nominated by President Trump and confirmed by the Senate for the seat on the E.D. Tenn. in Greeneville that became vacant in 2018.  Senators Warner and Kaine both voted against Judge Corker, who was confirmed by a vote of 55-39.

Both Cullen and Corker are Richmond natives who went to law school at William & Mary and clerked for federal judges in Virginia.

The Roanoke paper had this story.

On Wyatt Moseley Elliott

This week I learned about Wyatt Moseley Elliott, who was the first president of the VMI Alumni Association, and the leader of the City of Richmond's home guard unit during the Civil War that became known as "Elliott's Grays" for which there is somewhere a roadside historic marker, that he was captured as a prisoner-of-war and locked in D.C. on the night of the Lincoln assassination, that he served later in life as the clerk of the U.S. District Court for the Western District of Virginia at Lynchburg, and his descendants include Jim Elliott of our firm and Jim's grandson Wyatt Elliott who did robotics with my step-son here in Bristol.

Temporary injunction entered against Title IX proceeding against U.Va. student for off-campus incident involving non-student

In Doe v. Rector and Visitors of the University of Virginia, Senior Judge Conrad entered a temporary injunction brought against a student of the University of Virginia based on an off-campus incident with a non-student.

When the Virginia sheriff detains people for the ICE

In Rios v. Jenkins, Senior Judge Conrad dismissed for failure to state a claim a section 1983 action challenging the policy of the sheriff of Culpepper County to detain persons arrested for misdemeanors for up to 48 hours at the request of the ICE.

On the constitutionality of the Virginia statute prohibiting the sale of alcohol to habitual drunkards

In Manning v. Caldwell, the Fourth Circuit in an opinion by Judges Motz and Keenan, joined by Chief Judge Gregory and Judges King, Wynn, Floyd, Thacker, and Harris, reversed the dismissal for failure to state a claim in a constitutional challenge based on vagueness to the provisions of  Va. Code 4.1-333, which allows a Virginia court to enter an order prohibiting the sale of alcoholic beverages to a person who has been adjudged to be a habitual drunkard.

Judge Keenan also wrote a separate opinion, joined by Judge Motz and Judge Thacker, responding to the dissent.

Judge Wilkinson wrote a dissenting opinion, joined by Judges Niemeyer, Agee, Richardson, Quattlebaum, and Senior Judge Duncan.

Judge Wilkinson wrote a separate little opinion responding to Judge Keenan, his fellow Virginian.

Judge Diaz wrote a separate dissenting opinion, saying that the vagueness claim on the merits was no good.

The whole thing is 83 pages, some of it more accessible and some of it less accessible.

Fourth Circuit affirms dismissal of claim based on unreliability of untrue statements made by former Governor McAuliffe and President Clinton's late brother-in-law

In Bi v. McAuliffe, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Niemeyer and Duncan, affirmed the dismissal by Judge Hilton of the fraud claims of a group of Chinese investors against Terry McAuliffy and Tony Rodham.

The opinion concluded that the allegations of misrepresentations were sufficient, but the plaintiffs failed to allege sufficient facts to show reasonable reliance, since many of them didn't speak English and also there were writings distributed to the investors that disclaimed what McAuliffe and Rodham were saying in their sales talks.

On Judge Fred Rowlett

Before my big trip to Orlando and my little trip to Pittsburgh, I got to see the swearing-in of Judge Fred Rowlett.

Judge Rowlett was a law clerk for Judge Williams in the Abingdon federal courthouse the first time I went there in the summer of 1986, before I started law school, and I think Julie Campbell Dudley was there with him. He was the one who first explained to me that a clerkship was really worthwhile, that a lot of what he learned in law school didn't really come together until his clerkship.

We had some cases while he was practicing in Abingdon. He was always very friendly and very generous as opposing counsel. Once or twice a year I would see him out on the mean streets of Abingdon, at some event or another, and he always joined us at the law clerk parties.

When he was working for then-Judge McClanahan on the Court of Appeals, I asked him what that was like, and he explained to me that all of life passed through the Court of Appeals. After Judge McClanahan became Justice McClanahan, and I went up to the Supreme Court on a few odd family matters, she never sat on my cases, but usually I would catch his eye somewhere in the room before I went out the door, and he would be smiling, probably because I'd said something goofy.

For more than thirty years, I have known Fred Rowlett as a good-humored legal scholar, the sort of fellow I aspire to be on a good day, and so I am well-pleased to see him in a black robe.

On the appeal to the U.S. Supreme Court in the Mountain Valley Pipeline cases

The Roanoke paper had this article about the appeal to the U.S. Supreme Court by the landowners who lost a decision before Judge Dillon of the W.D. Va. that was affirmed by the Fourth Circuit about the taking of their property for the Mountain Valley Pipeline before the valuation of the take was completed.

On the Class Action Fairness Act

Today in Dominion Energy, Inc. v. City of Warren Police and Fire Retirement System, the Fourth Circuit in a decision by Judge King, joined by Judge Thacker, and with Judge Motz dissenting, reversed the decision of the District Court in South Carolina regarding the removability under the Class Action Fairness Act of two class action cases filed in state court in South Carolina. The plaintiffs were shareholders of a company that was merged into the defendants, and brought suit claiming breach of fiduciary duty in connection with the merger.

The decision first addresses the standard for allowing an appeal from a remand order under the Act, on which the Fourth Circuit had not previously ruled.

The decision goes on to address whether the fiduciary claims fell within one of the exceptions to removability under the Act, including the exception for claims about the internal affairs of a corporation and the exception for claims about securities.

Judge Motz in her dissent agreed with granting the petition for appeal but disagreed on the application of the securities-related exception.

This opinion made a bunch of law for the Fourth Circuit, picking and choosing between the law of the other circuits, and it pertains to the proper role of the federal courts, and so it might be the kind of case that will be reheard en banc and make it all the way to the Supreme Court of the United States.

One part of the opinion was the discussion of the words, "relates to," with this interesting paragraph:

"Importantly, the Supreme Court has explained that a statutory phrase such as 'relates to' — which is contained in the internal affairs exception — is generally 'unhelpful' to a reviewing court because a clever person can conjure up 'infinite relations' among things. See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995); see also Metro. Life Ins. Co. v. Pettit, 164 F.3d 857, 861 (4th Cir. 1998) ('Taken at its face value, the term ‘relates to’ has no logical boundary. In one way or another, everything relates to everything else.' (citation omitted)). Accordingly, when presented with such a phrase, the Court has directed the inferior federal courts to assess and implement the purpose and objective of a statute containing that phrase. See Maracich v. Spears, 570 U.S. 48, 59-60 (2013) ('Unless commanded by the text . . . [statutory] exceptions ought not operate to the farthest reach of their linguistic possibilities if that result would contravene the statutory design.'); N.Y. State Conference, 514 U.S. at 656 ('We simply must go beyond the unhelpful text and the frustrating difficulty of defining [‘relates to’], and look instead to the objectives of the . .. statute.')."

On waiver of the Eleventh Amendment

In Pense v. Maryland Department of Public Safety, the Fourth Circuit in an opinion by Judge King joined by Judges Motz and Wynn held that the District Court's ruling that the State of Maryland had waived its Eleventh Amendment protection from being subject to suit in federal court under Maryland's Fair Employment Practice Act was immediately appealable and also wrong.

I was thinking about this kind of issue recently in connection with "local" school boards in Virginia, and why are they not protected by the Eleventh Amendment as in some other states.

What's wrong with juvenile court, anyway

I've written a few posts about withdrawal of appeals from the Juvenile Courts, and also the amendments to Va. Code 20-79(c), and I think that there is an increasing bias in some circles that I wouldn't have known about if I hadn't taken an interest against the Juvenile Courts.

The reason for this bias among the family law practitioners is because when both parties have retained counsel a dispute over custody or child support is better addressed in the Circuit Court.

I'm on the board of Southwest Virginia Legal Aid. At our last retreat back whenever it was last fall in Blacksburg, John Litchfield from Blue Ridge Legal Aid gave a powerful presentation about how the paradigm of litigants with retained counsel is the reality in less than one out of ten civil cases.

The slides from his presentation about the Justice Gap can be seen here.

When the odds are that one side or both sides have no lawyer, they need to be in Juvenile Court, not Circuit Court.

Another view of the old Abingdon courthouse

The Library of Congress has this famous photo of Abingdon, including this view of the old courthouse and the Cummings farm behind it.

What to my wandering eye should appear

In a recent opinion by Justice Kelsey I saw the word "discernable."

Is that even a word?

This post says yeah but no.

I looked around some more. In recent years, the appeals courts in Virginia use "discernable" over "discernible" about half the time.

In another opinion by Justice Kelsey when he was on the Court of Appeals appears the phrase "indiscernible and not discernable."

There is a reason for this usage, I just don't know what it is.

Withdrawal of appeals, revisited

I listened with interest to the oral argument in the case of Spear v. Omary.

The statutes authorizing the withdrawal of appeals from the juvenile court are new and untried, and they are the work product of the Boyd-Graves conference.

Section 16.1-106.1(F) lists some things that might or might not happen "[u]pon the withdrawal of an appeal from a juvenile and domestic relations district court."

One is this: "the circuit court shall, upon request of a party who did not appeal the judgment or order, determine whether, as a result of the appeal, a party has a right to additional relief in the circuit court which has accrued since the appeal was noted."

A second one is this: "the circuit court shall also order its clerk to disburse any cash bond ...."

A third one is this: "the circuit court shall enter such order as may be appropriate to conclude all matters arising out of the petition or motion filed in the juvenile and domestic relations district court and the appeal in circuit court."

Finally is this: "Unless the circuit court orders that the case remain in the circuit court, the case shall be remanded to the juvenile and domestic relations district court for purposes of enforcement and future modification and shall be subject to all the requirements of § 16.1-297."

The Court is wrestling with the fourth thing, what happens if the circuit court's order on the withdrawal of the appeal says nothing about a remand. Item No. 4 seems to be materially different from Nos. 1 ("the circuit court shall, upon request"), 2 ("the circuit court shall"), and 3 ("the circuit court shall"), as opposed to No. 4.

Justice Kelsey seems to think the drafters left some words out if their intent was to create a remand by operation of law in the absence of express language in the circuit court's order. Justice McCullough might have been leaning the other way, that a construction that requires an express remand makes much of No. 4 meaningless.

The justices asked some questions about what happens in real life. I hope that whichever side loses the case will file for rehearing and get amicus briefs from the specialty bar groups to address the Supreme Court's questions at the argument.

The legislation that re-created the post-Civil War Western District of Virginia

In 1871, Congress split the U.S. District Court for Virginia back into two districts, Eastern and Western, with court sessions to be held in the Western District at Lynchburg, Abingdon, Harrisonburg, and Danville. (Charlottesville, Roanoke, and Big Stone Gap were added later.) The original act did not mention Dickenson County, which was not formed until 1880.

The old Abingdon federal courthouse

Here is an old postcard with the image of the Abingdon federal courthouse as it was before 1945.

Here is a photograph of the same building taken in 1901.

Here is another postcard view, with awnings and the flagpole.

On Isaac Chapman Fowler

Isaac Chapman Fowler (1831-1905) was a Bristol newspaperman, a promoter of the Natural Tunnel at Duffield, the mayor of Goodsonville before it became Bristol, and a member of the Virginia House of Delegates where he was made Speaker of the House (one of only two from the far Southwest in the history of the Commonwealth). In 1884 he moved to Abingdon when he was appointed to be the Clerk of the U.S. District Court for the Western District of Virginia at Abingdon. He was a "dyed-in-the-wool" Republican. When he died, the Republican paper in his hometown of Tazewell reported that he had lived "a long life of usefulness." He is buried in East Hill cemetery. His house in Bristol built in 1867 is still standing as is the house he bought in Abingdon across from the Martha Washington Inn.

While he was in the House, Fowler's main critic was Leonidas Baugh whose newspaper was the Abingdon Democrat. Fowler outlived Baugh by many years and so there was no comparable headline in the Abingdon Democrat declaring Fowler had lived a long life of not being useful.

Two of these things are not like the others

From today's opinions of the Supreme Court of Virginia:

In Brush Arbor Home Construction v. Alexander, the Supreme Court held that an arbitration clause which was otherwise gibberish had to be interpreted at least initially by an arbitrator, rather than by a Court, refusing to add a judicial limitation based on "impossibility" onto the language of the arbitration statutes.

In Com. v. Hall, the Supreme Court reversed the trial court's application of a forfeiture statute, Code § 19.2-386.22(A), refusing to add a judicial limitation onto the language of the statute based on the "substantiality" of the nexus between the property and the criminal activity.

In Mercer v. MacKinnon, the Supreme Court affirmed a dismissal based on lack of personal jurisdiction, refusing to add a judicial limitation on the meaning of the word "persistent" in Code § 8.01-328.1(A)(4).

In Reyes v. Com., the Supreme Court affirmed denial of a continuance under  Code § 19.2-159.1(B), adding a judicial limitation onto the language of the statute requiring a continuance for defendants who no longer need court-appointed counsel.

In Dennis v. Com., the Supreme Court reversed the denial of a petition for writ of actual innocence, adding a judicial limitation onto the language of the statutes, Code §§ 19.2-327.12 and 19.2-327.13, regarding the ability of the Court of Appeals to evaluate disputed facts.

On the Danville library desegregation case

An interesting account of the litigation in the W.D. Va. over the desegregation of the Danville public library system can be found in this 2018 book by Shirley Wiegand.

On the Charlottesville school desegregation case

Here is a remarkable photo from August 1956, with Oliver Hill and Spottswood Robinson looking irate, Judge John Paul, Jr., looking like Daddy Warbucks, and John S. Battle and J. Lindsay Almond looking sheepish.

An account of the case from the perspective of Hill and Robinson can be found in this 2018 book by Margaret Edds.

On Daniel Trigg, Southwest Virginia lawyer

Here is a lengthy account written by his great grand-daughter of the life and times of Daniel Trigg, who grew up in Abingdon and was the leading lawyer in Southwest Virginia in the early 1900s.

Here is a story about the author, Angela Trigg.

Another federal judge buried in Abingdon

Here is the monument for Judge Connally Findlay Trigg, a judge of the Eastern District of Tennessee nominated by Abraham Lincoln, who is buried in the Sinking Spring cemetery in Abingdon, about 100 yards from Judge Robert W. Hughes, whose monument is next to the holly tree in the background. Neither was a judge of the Western District of Virginia.

Old map of Washington County

If you like old maps, here is one of Washington County, Virginia, in 1890, from the Library of Congress website. It shows among other things the location of the "new" U.S. courthouse and also the property owned by Judge Robert W. Hughes, the Eastern District judge who lived in Abingdon during the summers back then.