Tuesday, June 11, 2019

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.

Saturday, March 23, 2019

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.

Friday, March 01, 2019

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.

Sunday, February 24, 2019

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.

Thursday, February 21, 2019

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.

Wednesday, February 20, 2019

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.