Vote on collective bargaining agreement will determine foundry's future

This article describes the setting for the union's second vote on the proposed contract with the Radford Foundry, which employs 300 and provides 30% of the City of Radford's revenue through electricity sales alone.

Historic figures in integration of Virginia Tech question BOV decisions on race

This Roanoke Times article relates the views of the first African-American to attend Virginia Tech, who also "the first black undergraduate ever enrolled at a white public university in the former Confederacy," and was honored in Blacksburg this Friday. Irving Peddrew was admitted by Tech (without litigation) in 1953, after the University of Virginia had lost its legal battle in 1950 to deny admission to a black law student. (The NAACP, led by Thurgood Marshall and others, targeted graduate schools and colleges before winning the desegregation of public schools.) Peddrew "blasted the board for acting before the Supreme Court ruling and called the new policy 'grossly ill-timed and grossly insensitive.' Peddrew also criticized the board for approving the resolution without public notice or discussion." The AP had this report on the protests of black Tech alumni, joined by Peddrew.

Also this week, Virginia Tech announced that Chief Justice Leroy Hassell of the Virginia Supreme Court will be this year's commencement speaker, as stated here. While the Chief Justice will surely not comment on the school's admissions policies, he is a powerful thinker and speaker whose presence might inspire some to wonder how it is that African-Americans are better represented on the Virginia Supreme Court than on the public college campuses of Virginia.

The New York Times has this report on the anti-affirmative action group that targeted Virginia Tech, U.Va., and others for programs that provided special assistance for racial minorities.

Johnson City lawsuit claims conspiracy to prevent auto imports from Canada

On the Tennessee side, a group of consumers have sued the Big Three automakers and others, claiming they are wrongfully preventing plaintiffs from buying cars cheaper in Canada and bringing them to Tennessee, according to this report. Thomas Jessee, representing the plaintiffs, claims that the carmakers will not be able to remove the case because the amount in controversy for each plaintiff is less than $75,000. The suit claims that cars are 10-30% cheaper in Canada.

Virginia tobacco commissioners worried over $10 billion Illinois judgment in smoker case

As reported here, Del. Terry Kilgore is suggesting that Philip Morris "might not be able to pay into the fund" of tobacco-settlement money, which is earmarked for a multitude of government projects in Virginia. The Virginia attorney general's office indicated that it may intervene in the Illinois case to seek the lowering of the bond for the cigarette maker's appeal. The Tobacco Commission website is located here.

The same story arose because Philip Morris (now Altria) reported on Friday it would be unable to make a tobacco settlement payment scheduled for April 15, because of the Illinois case, as reported here. The former governor of Illinois, now representing the company, was quoted here as saying that the appeal bond could bankrupt Philip Morris. The Illinois Attorney General said the bankruptcy talk is phony, as reported here.

Philip Morris could never be subjected to a multi-billion dollar punitive judgment in Virginia, where by this statute, punitives are limited to $350,000 for all the defendants in a case.

SWVA legislators predict a struggle

Bud Phillips, Phillip Puckett, and William Wampler offer their predictions for next week's veto session of the legislature, in this report. In the Richmond Times, Republican legislators vowed to make the estate tax a campaign issue if the governor's veto is sustained, according to this report. On Thursday, the Washington Post reported here that Governor Warner is using some "political muscle," including the threat of a special session in October to deal with budget cuts.

Murderer of Payless manager gets life, blames prosecutors and witnesses

The killer of a grocery store manager in Wise County received a life sentence yesterday, while still protesting his innocence, according to this report in the Bristol paper. The defendant denied that he needed money for drugs, saying that "I didn't have to rob or kill to get drugs." The Kingsport paper's report noted the defendant's claim that he was denied bond before trial because the Commonwealth's attorney "wanted me to be in jail so I could be around the other inmates and they could be witnesses,"

DOL seeks to amend "white collar" overtime exemption

From Findlaw, here is the Department of Labor's proposal for revision of the Fair Labor Standard Act to modernize the definitions of who is and is not exempt from the overtime laws.

"The Tooth Fairy" strikes in Lee County

From the Kingsport paper comes this account of a Lee County man charged with stealing his roommate's upper denture and holding it for ransom. After the victim moved out, the accused "told her he had the dentures but the only way she would get them back would be if she gave him $20, [the victim] testified. He further threatened to stomp on the teeth in front of her if she did not pay the ransom, she said. [The victim] further alleged that [the defendant] told her the dogs had been playing with the teeth, but she said the dogs had died by the time the teeth disappeared."

Refusing to sever conspiracy claims for trial

In this opinion, Judge Michael of the W.D. Va. rules that co-conspirators to wire fraud should be joined together for trial.

What's different about drug abuse in Appalachia?

This account of a regional conference on drug abuse suggests some ways in which the drug abuse problem in the Kentucky-Virginia-West Virginia-Tennessee region may be unique.

Not your average "New York" liberal with SWVA roots

This column reports the words and deeds of a Southwest Virginia native turned Vietnam veteran turned Gulf War protester in New York City.

Thumbs down on vetoes

On Thursday, Attorney General Kilgore criticized Governor Warner's vetoes of the estate tax repeal and the "Choose Life" license plate, as reported here.

Let's put a shale mine in your historic neighborhood

A circuit court judge in Orange County has ruled that a shale mine is a permissible use of property zoned as residential, where it is accessory to the primary use of property owned by a brick-making company, according to this report. The losing property owners vowed an appeal.

On Mr. Jefferson's skills as budget lobbyist

The new president of the University of Michigan cited Thomas Jefferson's lobbying to have the Virginia General Assembly divert money from secondary schools to pay for the University of Virginia, according to this report of her installation. In the Garry Wills book on Mr. Jefferson's University, he writes that Jefferson also lobbied at other times in favor of diverting money away from a proposed expansion of the College of William & Mary to secondary schools.

Constitutional retro

This Washington Times article describes efforts to secure passage of the Equal Rights Amendment in Virginia, and other states.

Some states are still catching up on the Civil Rights Amendments from the Reconstruction. It is not clear to me when if ever Mississippi ratified the Thirteenth Amendment, although there are those who say there was another Thirteenth Amendment from before the Civil War which was aimed at "titles of nobility."

Consumer protection or power grab?

The SCC has struck out again in its effort to re-regulate electricity in Virginia, as this Richmond Times story recounts that Governor Warner joined the legislature in refusing to rebundle rates as proposed by the SCC.

The governor did sign the legislature's new law keeping subsidiaries of American Electric Power and Dominion Power out of a regional power grid. According to the Electricity Consumer Resources Council, the Federal Energy Regulatory Commission must overturn the new Virginia law "to avoid disintegration of the commission's regional transmission organization initiative," as reported here in Forbes.

Sounding the alarm for children

This article describes the implementation of Virginia's new 'Amber Alert" law. The federal "Amber Alert" legislation passed the House of Representatives yesterday, according to this Washington Times story.

Gun control lessons from Grundy

The killings at the Appalachian School of Law are at the center of a new book on how the issue of gun control is reported, according to this review. The author is quoted as observing this: "seventy-two stories described how the attacker was stopped, without mentioning the student heroes had guns. But almost the same number of stories (sixty-eight) provided precise details on the gun used in the attack."

Future escheat item

According to this AP story, the clock is ticking on an $11.6 M Virginia lottery jackpot.

April 14-18 before the Virginia Supreme Court:

Interesting cases being argued before the Virginia Supreme Court the week of April 14:

COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, EX REL. SPOTSYLVANIA COUNTY DEPARTMENT OF SOCIAL SERVICES v. KATHERYN R. FLETCHER (Record Number 021186), dealing with the jurisdiction of the juvenile and domestic relations district courts to terminate parental responsibilities. Apparently, Hunton & Williams lawyers including Ed Fuhr, not the usual suspects in a juvenile court case, are representing the appellee against the Commonwealth's lawyers.

YELLOW FREIGHT SYSTEMS, INC. v. COURTAULDS PERFORMANCE FILMS, INC., ET AL. (Record Number 022244), dealing with the timeliness of the worker's compensation lien in a case where personal injury claims were settled. A dry issue that affects what lawyers do every day. The lawyers include appeals specialist S. Vernon Priddy for the appellant and James K. Cowan, Jr. and Joseph M. Rainsbury (Flippin, Densmore, Morse & Jessee, P.C.) and Richard Cranwell and H. Keith Moore (Cranwell, Moore & Bullington, P.L.C.) for the appellees.

FRANK X. LACKMAN v. LONG & FOSTER REAL ESTATE, INC., ET AL. (Record Number 021985), dealing with the appellant trying to escape an arbitrator's award, and AFFINITY LOGIC CORPORATION v. DIGEX, INC. (Record Number 022044), also dealing with arbitration, including the assignment of error that the circuit court erroneously denied the appellant's motion to crave oyer as to the arbitration agreement, when the appellant claimed there was none.

GOVERNMENT EMPLOYEES INSURANCE COMPANY v. HOLMES S. MOORE, ET AL. (Record Number 022242) deals with insurance coverage issues, including the circuit court's determination (by Judge Keith of Fairfax County) to find coverage based on a scrivener's error in the policy.

Also, there is a certified question, from the Fourth Circuit, in the case of C.F. Trust, Incorporated, et al. v. First Flight Limited Partnership, Record No. 022212. The issue has to do with "reverse veil-piercing," specifically, as stated in this opinion, these questions:

(1)"Would Virginia recognize a claim for outsider reverse veil-piercing under the facts of this case?

(2) If the answer to (1) is yes, what standards must be met before Virginia would allow reverse veil-piercing of the limited partnership?

The new ethics

Rule 8.4 of Virginia's Rules for Professional Conduct defining professional misconduct has been amended, as shown here.

The old rule said:

It is professional misconduct for a lawyer to:
. . .
(c) engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation . . . .

as shown here.

The new rule says:

It is professional misconduct for a lawyer to:
. . .
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer's fitness to practice law. . . .

So, I guess this implies that there are some kinds of "dishonesty, fraud, deceit or misrepresentation" which do NOT reflect adversely on the lawyer's fitness to practice law?

Who'd believe a story like that?

This account describes the rise of a poor Southwest Virginia lawyer to become governor of Virginia and presidential cabinet member. (He was not a Republican - nor a Whig or a Know-Nothing.)

Before O.J, there was Edith

In 1935, the prosecution in Wise County of Edith Maxwell for murdering her father made headlines, according to this account, which describes the local reaction to the distortions in the national media of the facts of the case. This new book about some famous Virginia murders includes the Maxwell case.

Three from the 4th Circuit

Today the Fourth Circuit in this opinion by Judge Wilkinson reversed Judge Payne's decision that Hanover County, Va., and the U.S. Army Corps of Engineers could not legally proceed with a wastewater treatment plant discharging into the Pamunkey River.

In this unpublished opinion, the Court held that the alleged ineffectiveness of petitioner's counsel was not prejudicial enough to warrant relief, reversing the D.S.C.

In this unpublished opinion, cross-appeals contesting the award of court costs were both dismissed for failure to comply with the procedural requirements of Rule 54. The plaintiffs were pro se on the appeal, the defendant was not. (It must have been one vicious and hateful case for the company to appeal on the issue of costs.)

Two Virginia lawyers suspended

A Norfolk attorney pled guilty today to a misdemeanor charge of attempting to illegally obtain a controlled substance, Vicodin, according to this report. He has agreed to an indefinite suspension of his law license. A Herndon lawyer suspended this week by the Virginia State Bar for two and one-half years "attributed his difficulties to 'office management problems,' adding: 'It's an embarrassing thing. But it's good for everyone involved, and I think I need to take a break from the practice of law. I'm a little burned out,'" as quoted in this Washington Post story.

Out of 955 new laws, which ones affect SWVA

In this article the Coalfield Progress lists "bills of local interest" signed by Governor Warner. The final tally on the governor's response to the legislative session was 955 bills signed, 87 amended, 4 vetoed, according to this summary in the Kingsport paper.

Economic impact of war and constitutionality of the "Choose Life" plate

Governor Warner said today the war's economic impact on Virginia is unknown, according to this report. This commentary in the New York Times (registration required) says war does not bring prosperity, noting that "Economic evaluations [of the war's impact] emphasize the negative effects of uncertainty and possible oil shocks, rather than any positive effects of military spending."

In the same story, Governor Warner cited Judge Bertelsman's ruling in a South Carolina case as one basis for his veto of the "Choose Life" license plate. Judge Bertelsman, a senior status judge from the E.D. Ky., ruled that the plaintiffs including Planned Parenthood of South Carolina had standing and that the license plate was a form of viewpoint discrimination, applying the Fourth Circuit's Sons of Confederate Veterans license plate opinion, which affirmed Judge Kiser's ruling against a Virginia license plate statute as applied to the use of the Confederate flag and generated these widely divergent opinions from Judges Wilkinson, Williams, Luttig, Niemeyer, and Gregory on the denial of rehearing.

Who will play Jerry Kilgore in the movie?

The Richmond Times reports here that Attorney General Kilgore will not take a further appeal in the Beverly Monroe murder case following yesterday's decision in the Fourth Circuit, leaving the local Commonwealth's Attorney to decide whether to retry the case.

Who wouldn't want to be sued in Virginia?

Two Virginia doctors in litigation over investments in Montana will challenge the constitutionality of Montana statute against choice-of-venue provisions in contracts, as reported here.

FOIA win in Winchester

The police chief in Winchester has been fined $100 for violating FOIA in connection with the information requests of the father of a man convicted of murder, according to this report.

From us to Saddam

On the Tennessee side, this article cites the Tri-Cities' own Holston Army Ammunition Plant in explaining how Tennessee products supply the military.

Twice chastized Virginia police

The Washington Post had this article on a Fairfax police unit that has twice recently drawn judicial criticism of their search and seizure tactics.

FERC to decide validity of new VA power grid law

State utility commissions from other states complained to the Federal Energy Regulatory Commission earlier this month that a new Virginia law prohibiting subsidiaries of American Electric Power and Dominion Resources from joining a regional power grid group is unconstitutional, according to this report.

Why pick on the courthouse for picketing

Last week, this story appeared locally and elsewhere about the war protesters who situated themselves at the W.D. Va. federal courthouse in Abingdon. Evidently, they stopped protesting on Thursday while the NASCAR race fans were coming in and started up again on Saturday when presumably the race people were at the track. There is no comment from anyone who works in the building, which includes the chambers of Judge Widener, Judge Jones, Judge Williams, and Magistrate Judge Sargent.

Of numerosity and commonality

This article says "Urban Appalachians struggle in hopes of finding a better life," describing urban Appalachians as an oppressed minority group, which makes me wonder whether here in Appalachia we are somehow an oppressed majority.

Larry Harley at SWVA Legal Aid can stop holding his breath

Today in this opinion the U.S. Supreme Court upheld IOLTA accounts against a takings challenge, concluding that no "just compensation" was due because there was no loss to the plaintiff. Virginia's IOLTA rules appear in the last two pages of these guidelines.

Murder defendant gets a new trial, Rule 11 sanctions reversed

Today in this opinion the Fourth Circuit affirmed the rulings of W.D. Va.'s Judge Kiser that the defendant in an employment discrimination case was entitled to summary judgment on the merits as well as an award of attorneys' fees and costs, but reversed Judge Kiser's sua sponte sanctions under Rule 11 for failure to adhere to the safe harbor procedures.

Another panel in this opinion affirmed the E.D. Va.'s Judge Williams' decision to grant habeas corpus relief on account of the Commonwealth's failure to disclose exculpatory material in a notorious murder case.

Looking to April 2

This article describes the head-counting that has begun before the veto session of the legislature, as the governor's friends and enemies try to figure out whether his vetoes of the estate tax and the "Choose Life" license plate, among others, will be upheld or outvoted on April 2.

Whoops, I was just kidding

A Hampton lawyer circulated a memo soliciting funds to fight against a local politician who would, with regard to fees for representing indigent defendants in criminal cases, "take our meal ticket and make us look like fools in the process." As written here, the memo has backfired somewhat, and is being cited in letters to judges asking them to stop giving appointments to the lawyer, who reportedly earned $50,000 in fees for court-appointed cases in a recent 12-month span.

Next, someone will intervene with an establishment clause claim

Loudon County schools have been sued for removing bricks with crosses on them from a walkway the plaintiffs claim is now a "public forum," according to this report and this report.

How to be an Appellate Advocate in Virginia

Among the Virginia law freebies that I never knew about: this paper from the Virginia State Bar on Appellate Advocacy in Virginia's appeals courts.

Bunch of copy-cats

The Kingsport Times reports here that the number of securities lawsuits against King Pharmaceuticals is at ten.

More bad publicity for VDOT

A VDOT administrator in Suffolk has been charged with soliciting kickbacks, as reported here and here.

If 90 days is too short, why go back to 21?

Governor Warner has postponed implementation of the change in the 21-day rule, according to this report. The General Assembly had passed a law allowing 90 days post-judgment for the introduction of new evidence of innocence, but the governor does not think that is enough.

Another SWVA doctor loses license

The Richmond Times has this report on a Southwest Virginia physician who surrendered her license.

Where to get a tattoo in Hopewell

Hopewell joins the list of cities with ordinances limiting who can get a tattoo (and where one can be obtained), as reported here.

It's best to fly your flag indoors in Richmond area

Here's the latest in the Henrico County neighborhood flag case - not to be confused with the Richmond city office flag flap.

Documenting the search for the Commonwealth's Attorney

In this article, the Bristol paper describes the efforts of General District Court Judge Joe Tate to obtain compliance with his order under FOIA that Sheriff Newman of Washington County must produce tape recordings of the night that the Commonwealth's Attorney was reported as a "missing person."

Multi-million dollar claim against SWVA school board for abuse by teacher

Parents of three girls in Dickenson County have sued the school system in federal court for $15 million, claiming sexual harassment and abuse by a former teacher, according to this report. The parents are represented by Roberts Moore of the Gentry Locke firm in Roanoke.

Judges are debtors, too

Last week, the Coalfield Progress printed this article on District Court Judge John Farmer's debt to the Internal Revenue Service.

Whose rates are the lowest?

The Coalfield paper has this summary of property tax rates in Southwest Virginia.

Judge Shull takes the oath

The Kingsport Times has this report on the investiture of Juvenile and Domestic Relations District Judge Mickey Shull.

Future of detention in SWVA counties

This article describes the bond issue for the Southwest Virginia Regional Jail system, which will include jails at Abingdon, Haysi, and Duffield.

Governor finishes his work

This article describes Governor Warner's changes to the budget (67 amendments) and other legislation. The "veto session" of the General Assembly is scheduled for April 2. As reported here, the governor vetoed the "Choose Life" license plate and amended the abortion statutes passed this session.

Bruce Smith's hometown paper says Tech BOV need to backtrack

The Norfolk paper opines here that the Virginia Tech Board of Visitors "would be right to rescind its action earlier this month abandoning preferences in admissions, hiring and scholarships based on race or gender."

New fire insurance exclusion in Virginia

The Alliance of American Insurers had this comment on Governor Warner's signing of a new law designed to allow insurers to exclude coverage for some kinds of terrorist-related fires.

SWVA doctor faces consequences of erratic behavior

Norton Community Hospital has obtained a stronger injunction against Dr. Pagano, according to this report. Dr. Pagano's erratic behavior has also earned him a suspension by the State Board of Medicine, as reported here.

Al Groh is no Professor Kingsfield

As reported here, U.Va. football coach Al Groh has organized a legal seminar for his players.

Who wants that old park anyway

According to this Roanoke Times story, Roanoke County could become the owner of the Explore Park.

So much to do, so little time

Today is the final day for Governor Warner to act on the legislation passed this year by the General Assembly, according to this report. Today, the governor vetoed the repeal of the estate tax, as reported here. Earlier, the governor signed the bill barring illegal immigrants from obtaining driver's licenses, as reported here and here.

Next they'll have warm feelings about John Ashcroft

U.Va's Cavalier Daily has this editorial on the Attorney General's rejection of the Virginia Tech speaker policy, which begins with these words: "Here are five words we never thought we'd hear ourselves saying: Thank goodness for Jerry Kilgore."

One lousy farmer

The general district court in Bland County has ordered the sheriff to take over the remaining cattle of a farmer after 54 dead animals were found on his farm, according to this report.

Rehnquist in Richmond

Chief Justice Rehnquist gave a speech in Richmond this week on the importance of an independent judiciary, at an event honoring the judicial career of former Virginia Supreme Court Chief Justice Harry Carrico, as reported here.

How secret can a transformer be?

Two Southwest Virginia companies are in litigation in Roanoke over trade secrets regarding the manufacture of transformers, according to this report.

They weren't that hungry

In Virginia Beach, a pizza delivery driver was convicted of reckless driving for an accident which killed two children, according to this report, which also notes that a $15 million civil suit has been filed.

Do terrorists file FOIA requests?

In one Virginia county, parents are pressing to see the school system's emergency response plans, according to this report. The school board claims that the plans are exempt from disclosure under FOIA.

No jail time for strangling a guy?

A Virginia Beach man was sentenced to 15 years' diversion for voluntary manslaughter in the strangling death of a Knoxville gay rights activitist, according to this report.

Old Glory

The Washington Times reports here on the "flag flap" in Richmond concerning the City's directive that a city employee should remove a large American flag from his work space. The private flag was replaced with a city-owned flag, following the intervention of Attorney General Kilgore and Republican Congressman Eric Cantor.

Once was enough

W.D. Va. prosecutors have decided to reindict and retry Richard Burrow, the D-Day fundraiser, using the testimony of the lawyer who represented the D-Day Foundation, as reported here and here. The lawyer did not testify in the first trial and has entered into an agreement to waive his Fifth Amendment privilege in exchange for not being prosecuted. Earlier in the week, Judge Turk ruled that Burrow must be tried within 10 days or he would dismiss the case without prejudice.

Kilgore clears the way for anti-Kilgore protests at Tech

This week, the Attorney General's office notified the Virginia Tech Board that its resolution on campus speech is unconstitutional, as reported here and here. The Tech newspaper had this article with the headline "Kilgore overturns extremist speaker ban."

Also, the Board decided to reconvene to reconsider its earlier resolution to eliminate race as a consideration in admissions, as reported here and here

More bill signings - wine, driving, aliens

Governor Warner eliminated the statement of purpose requirement for requesting public records contained in a new privacy law passed this year, according to this report. The governor also signed measures reforming the State Board of Medicine, as reported here, adding benefits for National Guard members (as reported here and here), and proposed more money in the budget for wrongfully convicted Marvin Anderson, as reported here. The Governor also pardoned a Suffolk man wrongfully imprisoned for 20 years but exonerated by DNA evidence, as reported here and here.

Earlier in the week, the governor signed the wine bill, as described here, and the new drunk driving law, as reported here. The governor also signed a new law to make VDOT more accountable, as reported here and here.

On Saturday, the governor revised legislation dealing with illegal aliens, as reported here.

Friendship is color-blind in Roanoke

In this opinion issued on Friday, Judge Wilson of the W.D. Va. granted summary judgment against the "reverse discrimination" claims of three white Roanoke police officers, who claimed that they were denied promotion because of race in favor of a less qualified African-American woman, who is a personal friend of the African-American police chief. The court observed that white males often as not had been the beneficiaries rather than the victims of the kinds of irregularities in the promotion process cited by the plaintiffs.

Also posted on the W.D. Va. website this week was this opinion by Judge Michael denying a defendant's motion to withdraw his guilty plea.

A real two-time loser, plus Judge Widener's "Alice" reference

On Tuesday, in a lengthy and complex opinion, a panel including Judges Niemeyer, Motz, and King affirmed a federal death penalty conviction, relating to a murder in the national forest near Asheville, NC. Among other issues was the defendant's claims of double jeopardy and vindictive prosecution, as he had entered a guilty plea in state court and been sentenced to 31 years for the same offenses, unaware of the possibility of a federal prosecution some years later. Another issue was the admission into evidence of a rambling television interview given by the defendant, as rebuttal evidence in the sentencing phase of the case to his mother's testimony about his life and character. Also on Tuesday another panel affirmed in this opinion the conviction of a defendant also known as "cock-eyed Carl."

On Wednesday, in this published opinion, a Fourth Circuit panel considered the question of "whether a person convicted of a [crime of domestic violence] but never stripped of his civil rights under state law is thereafter subject to prosecution under 18 U.S.C. § 922(g)(9)." Judge Wilkinson and Senior Judge Hamilton said yes, Judge Widener said no, with a fairly scathing dissent. Judge Widener's opinion contains this Alice in Wonderland reference: "Upon first glance, it might seem that the majority’s reading is correct: construing the word "restored" over-literally, the defendant’s civil rights were never revoked, therefore, there was nothing to restore and the restoration exception is inapplicable as it pertains to him. But this is like the offer of 'more' tea to Alice who yet had had none. See Alice in Wonderland, Carroll, Grossett & Dunlop, 1980, p. 79." Also on Wednesday by this per curiam opinion, the Court affirmed summary judgment against the plaintiff who had sued the Roanoke Airport for sex discrimination.

On Thursday, in this unpublished opinion, the Fourth Circuit affirmed a Maryland district court's dismissal of a declaratory judgement action over insurance coverage for a dog-bite claim in favor of proceedings before the state insurance administrative agency. In another opinion, the Court sanctioned someone named Barbara Bush $500 for bringing a frivolous pro se appeal.

On Friday, the Fourth Circuit affirmed in this opinion the ruling of E.D. Va.'s Judge Spencer granting summary judgment in a copyright and Lanham Act case where the plaintiff could not prove damages. In this unpublished opinion, the Fourth Circuit affirmed judgment as a matter of law for Wal-mart in an E.D. Va. case about plaintiff's altercation with a store employee.

Get your GALs here

The Virginia judicial page now has this listing of guardians ad litem for children, broken down by circuit.

I know what they're going to do with that Michigan case

Attorney General Kilgore defends his views on college admission in this article.

The privacy rights of sodomites

The NY Times has this report on a challenge in the U.S. Supreme Court to state laws prohibiting sodomy. Virginia likewise has criminalized sodomy, fornication, and lewd cohabitation. The most recent signs from the Virginia Supreme Court, oddly enough, are that some or all would uphold the constitutionality of these statutes. Justice Kinser cited them in her concurring opinion in the Arlington County "domestic partner" benefits case (in MS Word) from 2000. The majority cited the fornication and cohabitation statutes as the basis for the wrongful discharge claim in Mitchem v. Counts (in MS Word), also decided in 2000.

The viability of these criminal statutes is an element in a recurring issue in domestic relations cases, where one party may assert the constitutional privilege against self-incrimination to questions about sex acts other than with his or her spouse. The Virginia Court of Appeals' unpublished Goldmann case is one example of the self-incrimination issue.

Judge Merhige held that the fornication and cohabitation statutes were unconstitutional in Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985), but this opinion was vacated on appeal for lack of standing, 782 F.2d 1202 (4th Cir. 1986), in an opinion by Judge Wilkinson. Roanoke gay rights lawyers also lost a constitutional challenge for lack of standing in the Virginia Court of Appeals, as reported in this 2000 opinion.

But was the vehicle overweight?

State police stopped a truck on Interstate 81 carrying almost 500 pounds of marijuana from Mexico, as reported here and here.

According to this article, NASCAR official Kevin Triplett is quitting his job, moving to the Abingdon-Bristol area, and considering a run for public office.

The Roanoke Times reports here that Judge Turk of the W.D. Va. will rule on Thursday whether to allow the retrial of Richard Burrow on charges concerning his fundraising for the Bedford D-Day memorial.

The A.P. has put out this story on the arrest of Charles Gilmore in the Pocahontas murders that were the subject of previous federal prosecutions before Judge Jones in the W.D. Va.

This article describes the drug court program in Henrico County.

This article describes the county-wide wireless telecommunications project in Dickenson County. Here is the text of the Wireless Service Authority legislation sponsored by Delegate Bud Phillips and referenced in the article.

The Coalfield Progress reports here on the panel of circuit court judges selected to decide the Big Stone Gap annexation case.

The Kingsport Times reports here (registration required) on two more securities fraud suits brought against King Pharmaceuticals.

The United States Supreme Court granted on March 10 the petition for certiorari in the W.D. Va. chapter 7 attorneys' fee case, as shown here and here, under the name of John M. Lamie v. U.S. Trustee. Mr. Lamie, the Abingdon bankruptcy attorney, is represented by Thomas C. Goldstein, whose claims to fame include this Supreme Court blog. Mr. Goldstein has argued a number of cases before the Supreme Court and was the winning counsel in this case (involving criminal procedure) the Supreme Court decided on March 4. decided on March 4.

The background of Mr. Lamie's case involves a number of interesting issues. The bankruptcy case was filed under Chapter 11 and the client gave Mr. Lamie a $5,000 "retainer," an amount deposited as pre-paid fees. On the motion of the U.S. trustee, the Bankruptcy Court converted the case to Chapter 7. When Mr. Lamie made an application to be paid, the U.S. Trustee Ms. Garber objected to his being paid with the money on deposit.

The Bankruptcy Court by Judge Stone ruled partially Mr. Lamie's favor, rejecting the idea that pre-petition retainers were assets of the estate, but held that he could not collect post-conversion fees. The District Court by Judge Jones affirmed, in a published opinion. Eventually, the parties reached a settlement and as a condition of that agreement, they tried to get the District Court to withdraw its opinion, but Judge Jones refused (in this opinion), so both parties appealed. Judge Jones' refusal to withdraw his opinion is interesting in itself, and not the only time he has made such a decision, the other being this case. The judge's concerns seem particularly appropriate in litigation where the parties include a public official such as the U.S. Trustee, who (at least in theory) is in a position to litigate the same issue over and over, settling cases and having bad precedents withdrawn, until she (or he) gets the ruling she wants.

The Fourth Circuit affirmed in part and reversed in part in a split decision, rejecting Mr. Lamie's arguments on the issue of whether Congress changed the language of the Code in 11 U.S.C. 330(a) by mistake in eliminating a provision for attorneys' fees to counsel for Chapter 7 debtors. The idea of what amounts to a typographical omission in the U.S. Code raises all kinds of issues - like when should a court even begin to look for missing language if the meaning of what remains is plain on its face. Judge Niemeyer and Judge Karen Williams went with the "plain language" of the statute, while acknowledging that there are some good reasons to believe that Congress made the mistake Mr. Lamie is claiming. Judge Blaine Michael dissented on the statutory construction issue, siding with the "scrivener's error" theory. In deciding the case, the panel acknowledged that any decision it made would widen the split in the circuits on this point. Now, the Supreme Court will resolve the conflict.

News accounts of the Lamie case include this one from a newspaper in Utah.

Judge Michael of the W.D. Va. ruled against the Social Security Administration in this disability opinion.

In this opinion Judge Michael of the W.D. Va. refused a criminal defendant's motion to withdraw his guilty plea.

Closing argument are underway in a N.C. trial court in the case of a Virginia couple seeking to recover for injuries sustained as the result of the collapse of the pedestrian bridge over U.S. Route 29 at the Lowe's Motor Speedway outside Charlotte, according to this report. Lowe's Motor Speedway is owned by Speedway Motor Sports, the parent company of the Bristol Motor Speedway, where this week's NASCAR events will occur. 160,000 fans will attend this weekend's Winston Cup race, and the traffic controllers hope to clear the roads within 3 hours after the event, as stated here.

The eyewitness who claims to have reported the D.C. area snipers at the rest stop where they were arrested may never get any of the published reward for their arrest and capture, according to this report.

The Kingsport Times reports here (registration required) that environmental critics of the U.S. Forest Service's management plan for the Jefferson National Forest are making noise even before actually reading the draft plan, which is available here. The merits of the plan may be a matter of perspective - thus, the headline of this article was "Plan calls for more logging . . . " while the headline for an earlier article in the Richmond paper was "Forest plan cuts logging."

This editorial concludes that Virginia ought to allow further testing of the DNA evidence in the Roger Coleman murder case. Coleman was convicted in Buchanan County, sentenced to death, and executed after his habeas corpus efforts were denied. Judge Nicholoas Persin presided over the trial, Judge Glen Williams heard the federal habeas petition. The case is the subject of this book by John Tucker, spouse of William & Mary law professor Jayne Barnard. As reported here, a New Jersey group has petitioned Governor Warner to allow further DNA testing.

Mr. Coleman was convicted in 1982 and executed in 1992. In denying habeas relief, Judge Williams observed that post-conviction DNA analysis by noted expert Edward Blake (best known for his role in the O.J. case) in 1990 added to, rather than contradicted, the evidence of Coleman's guilt. Dr. Blake and others now contend that further testing of samples retained by Blake using more modern techniques would prove that Coleman was innocent, as reported here.

Lawyers from the University of Michigan admissions case previewed their arguments before law students in Charlottesville on Saturday, as reported here.

Critics of this month's decision by the Virginia Tech Board of Visitors to eliminate race as a consideration in student admissions have claimed that they should have deferred acting until the Supreme Court decides the Michigan case. At the heart of the Michigan case is language from the opinion by Justice Powell in the Bakke case decided in 1978. Justice Powell opined that race could be considered in pursuit of the constitutionally-permissible objective of the pursuit of diversity, but the question (as described here and here and here) is whether and to what extent his views on the point are the holding of the Court, since there were many different opinions and the votes were all over the map. Nevertheless, lawyers and courts have acted on Justice Powell's opinion as if it was the law.

That the law is not clearly established was indicated in part by an exchange in oral argument before the Supreme Court last November, with Professor Chemerinsky arguing what was "clearly established" law in another context, as recorded here.

Stepping back a bit, there are still teachers living who remember the first day of integrated schools in this area, as demonstrated in this interview with Harriet Debose of Abingdon.

Lawyers for the former Republican Party executive director facing a criminal trial in the cellphone eavesdropping case have subpoenaed a number of Democratic Party officials, according to this report.

Washington County, TN, faces 40 pending civil cases all the time, most involving zoning or prisoners, according to this report.

The Tri-Cities airport is suing its insurers in the E.D. Tenn. federal court for losses related to the lost income following the 9/11 attack, according to this report.

The Hampton Roads paper reports here on the state's failure to collect late fees and penalties from a highway contractor.

A Richmond law firm noted for representing employees has joined with the AARP and filed suit against the Capital One credit card company on behalf of dozens of plaintiffs claiming age discrimination, according to this report.

The Richmond Times-Dispatch recounts the story of Marvin Lamont Anderson as proof of the fallibility of eyewitness identification, in this report. The General Assembly voted $1.2 million in compensation for Anderson after DNA evidence exonerated him.

Critics of the recent decisions by the Virginia Tech board of Visitors are wondering whether board members are using their position for somebody's political gain, rather than pursuing the best interestings of the school, according to this report.

A Newport News Republican is claiming that funding for a public defender's office in his area was denied because a law firm that gets state money for court-appointed work includes two senators, according to this report.