Timing is everything, Virginia tobacco commission learns

The bond deal by which Virginia sold its revenue stream from the tobacco settlement has been declared off because Philip Morris/Altria says it cannot make its next payment as a consequence of the $12 billion judgment against it in Illinois, according to this report. The closing was scheduled for Thursday of this week. In a Richmond Times article, the state agency involved with the sale said hopefully that the closing is "on hold." This Reuters article quotes one financial expert as stating the opinion that there would be no more tobacco bond sales until the Illinois appeal bond issue is resolved. Meanwhile, the Illinois attorney general vowed to sue if the tobacco payment is not made on time, as reported here.

Michael Jordan, Mario Lemieux, now Dennis Godfrey

The former Washington County Commonwealth's attorney, having come back to the area from his retirement to Florida, declares in this story that he is making a comeback run for his old office by popular demand.

Virginia Court of Appeals decisions from April 1

The Court issued these opinions: this one holding in a case from Loudon County that a tax return was not joint marital property, this one overturning the Worker's Compensation Commission on the issue of a comp recipient's unreasonable refusal to return to work, this one affirming a murder conviction from Westmoreland County, and this one overturning a conviction (in the City of Newport News Circuit Court, presided over by Judge Verbena Askew) for defrauding an innkeeper.

W.D. Va. bankruptcies on the rise

The Roanoke Times has this report on the increased filings this year in the U.S. Bankruptcy Court for the Western District of Virginia, setting a new record at 12,744 filings in 2002.

Haven't come closer to agreement with opinions in Roanoke paper since Ed Shamy, Beth Macy, and Bill Brill were there every day

The Roanoke paper had two-law related editorials today - this one says drop the Richard Burrow fundraising prosecution, and this one says race in college admissions should be allowed.

(I never agreed totally with Brill, particularly since he wrote those Duke basketball books.)

Virginia city's public information policy criticized

The Society of Professional Journalists is protesting the press information policy of the City of Chesapeake, which limits media contracts with approval of the public communications department, according to this account.

There was no word on whether anyone proposed "imbedding" journalists into Chesapeake city offices as an alternative program for dealing with the media.

Tennessee also squeals at tobacco money pinch

This article notes that Tennessee will suffer without the tobacco money which Philip Morris now Altria claims it cannot pay because of the $12 billion bond required to appeal the judgment in that amount entered by an Illinois Court.

So, the state governments used trial lawyers to generate tobacco money (instead of higher taxes), but now face losing the tobacco money to other trial lawyers and start to worry about the budget. Maybe the tobacco money never should have been part of their budget-balancing acts in the first place.

Wise County discovers new form of underground property to tax

The Wise County Commissioner of Revenue is notifying the owners of Wise County's 516 natural gas wells that the underground cement and steel will count as real property for county tax purposes, according to this report in the Kingsport Times-News.

This ruling will surely result in litigation, and will be closely watched by the other coalfield counties.

Eastman cuts laborers 3%, executives 6%

This article describes the temporary wages cuts at Eastman, which suggests to me that no one there has a fixed wage in a written employment contract.

Law enforcement at Klan rally

The Ku Klux Klan rally in Greeneville on Saturday, noted earlier on this site, was monitored by 200 federal, state, and local law enforcement officials, including some of the highest-ranking officers in Tennessee, according to this report.

Elizabethton school system going through lawyers

At least 4 lawyers have been used to represent Elizabethton, TN schools in this saga of charges, counter-charges, and investigations (also described here), with the latest stage being the indefinite suspension of the high school principal. The lawyers include Tom Garland of Milligan and Coleman in Greeneville; Scott Bennett, a government and employment law specialist from Chattanooga; David Duggan of Maryville; and Patrick Hull of Kingsport.

Water fight

This article describes a suit brought by residents of a Louisa County historic district against a developer and state officials to prevent the sale of state land for a subdivision which would result in the diversion of their water. Rae Ely of Louisa represents the plaintiffs, Ed Lowry is one of the lawyers trying the case for the defense.

Governor Warner says there's no tolerance today

The governor noted the lack of tolerance for opposing views in today's politics in his remarks to Professor Larry Sabato's government class at the University of Virginia as reported here. Larry Sabato is beyond compare, but I will never forget that in the summer of 1985 when I took his class he was quoted in the press as saying that Doug Wilder was a 1,000-to-1 shot to become lieutenant governor. (Also, when defending political firing cases, I want to quote Sabato's slogan - "politics is a good thing"!)

That courthouse in Knoxville

Today was spent in Knoxville, and included a trip to see the still new (to me) federal courthouse there - it is awesome. The building was bought by the government after the original owner went under, and its transformation into a courthouse earned design awards when it was new. The pictures on this web page of one of the developers give a sense of what it looks like.

Junk tobacco

Not sticks and stems, but the bonds which Virginia and other states sold to cash in on their shares of the tobacco settlements may be classified as junk if Philip Morris/Altria misses a scheduled payment because of the multi-billion dollar judgment entered in Illinois, according to this story in Forbes, which reports that the Virginia bond sale has not yet "settled."

Diversity at the University

The Christian Science Monitor has this commentary on the effects of diversity on the University of Virginia, noting that "many say the rise of Virginia's flagship institution to academic stardom is intimately intertwined with admissions policies that actively recruited women and today still give a 'plus factor' to minorities." The second part of the article cites President Casteen as saying that "the university is sticking by its policy of 'race sensitive' admissions. It is not, he says, backing off its commitment to minority students - a commitment he believes makes UVA academically stronger, not weaker."

Fourth Circuit upholds fingerprint and handwriting evidence under Daubert

Today the Fourth Circuit in this opinion by Judge King joined by Chief Judge Wilkins with Judge Michael dissenting upheld the admissibility in a criminal case of expert analysis of fingerprints and handwriting under the Daubert standard. Judge Michael wrote in dissent that the government did not make the necessary showing to meet the requirements of Daubert, while acknowledging that he was not saying that such a showing could not be made.

Also today: Judge Michael wrote this opinion for another panel which reversed Judge Jackson of the E.D. Va. on the issue of whether lying about gun offenses is a punishable offense under the new statutes governing the penalties for lying to get a job as an airport employee.

Supreme Court rules debt on contract settling fraud claim non-dischargeable

The Supreme Court held today in this split decision that the debts arising out of the breach of a settlement agreement covering claims of fraud were non-dischargeable in bankruptcy. The vote was 7-2, with the rare alignment of Justice Stevens joining in Justice Thomas's dissenting opinion.

The case calls to mind some recent research I did in a case on the Tennessee side, and that is - what do you get when a settlement agreement is breached? Apparently, the intention of the parties controls how the settlement is supposed to work; i.e., whether the parties intended for the new promise to replace the old one, or whether their intent was that the new promise must be performed for the old one to be discharged. See Rhea v. Marko Construction Company, 652 S.W.2d 332, 334 (Tenn. 1983); Douglas v. General Motors Acceptance Corp., 326 S.W.2d 846, 850 (Tenn. 1959); Poster v. Andrews, 167 S.W.2d 1001, 1003 (Tenn. App. 1942), rev’d on other grounds, 189 S.W.2d 580 (Tenn. 1943).

Some of these accord and satisfaction principles were involved in today's decision. Justice Thomas in his dissent pointed out that "[i]n this case, the parties have made clear their intent to replace the old 'fraud' debt with a new 'contract' debt. Accordingly, the only debt that remains intact for bankruptcy purposes is the one 'obtained by' voluntary agreement of the parties, not by fraud." Moreover, Justice Thomas noted that "Petitioners’ own actions in the course of this litigation support this conclusion. Throughout the proceedings below and continuing in this Court, petitioners have sought to recover only the amount of the debt set forth in the settlement agreement, which is lower than the total damages they allegedly suffered as a result of respondent’s alleged fraud." Maybe I'm wrong, but Justice Thomas (and the Fourth Circuit) seem to have the better position to me, that under normal accord and satisfaction principles, in the particular case before the court, the facts about the intentions of the parties show that the fraud claim was wiped out leaving on the contract claim, which would not be dischargeable. (I can't pick winners in the NCAA tournament, either.)

Calls for a 25% cap on out-of-staters at Virginia schools

This article describes calls for a 25% cap on out-of-state students at Virginia's public colleges and universities, and quotes a Republican legislator as saying (despite years of funding freezes and cuts), "Virginians pay for Virginia's colleges and universities and we need to make them available to Virginians." The article notes that one-third of first-year undergraduate students at the University of Virginia are from outside Virginia.

Civil commitment for sex offenders in Virginia

This detailed article in the Richmond Times-Dispatch describes the controversial aspects of a program for civil commitment of sex offenders upon their release from prison. The author cites one expert who explains that "defense attorneys claim they treat these cases like death-penalty cases because their clients assume they will not be released if they are committed as sexually violent predators."

D-Day lawyer turned witness riles memorial supporters

This Roanoke Times article details the reaction of Bedford D-Day monument supporters to the news of the plea agreement made by the memorial's former lawyer to testify against fundraiser Richard Burrow. The lawyer's "recent admission of guilt in the fund-raising transactions and his agreement to testify against Burrow in a retrial have surprised the foundation's former board members, angered others associated with the project and shocked Bedford's small legal community."

The hypocrisy of preferences for legacies or athletes

This column says Virginia Tech should eliminate all kinds of preferences in admissions, if race is going to be eliminated. It includes this suggestion to Board member Bruce Smith: "The AG and rector probably wish that the Fifth Circuit ruling applied to Virginia schools but alas, it doesn't. Show them on a map, Bruce, exactly where Virginia is located and remind them that Bakke is still the controlling legal opinion concerning admissions and diversity in this state. Because you are a team player, you should probably give them this primer on case law and geography in private."

Why can't Virginia Democrats make higher taxes popular

Former Delegate Barnie Day says here that Virginia Republicans are winning the "word game" on taxes.

Commentary on the Attorney General

This Roanoke commentatory says Jerry Kilgore is "a man for our times."

Turbulence in natural gas industry may lead to less demand for proposed pipeline through SWVA

According to this report, the cancellation of three gas-powered electricity generation plants has called into question the need for Dominion Power's proposed Greenbrier Pipeline Project, which would run 275 miles from West Virginia through Southwest Virginia, crossing the New River and the Appalachian Trail, to North Carolina. As noted here, regulatory approval for the pipeline is nearly complete, with the next step being property appraisals.

Citing natural gas prices, SWVA's Congressman Boucher earlier this month introduced federal legislation to encourage the use of more coal and less gas in the development of new power-generation plants, as described in this press release from the Congressman's website.

Lynchburg parents don't want middle schoolers to read death camp memoir

As reported here, parents in a Lynchburg school are challenging whether 12 year-old students should be assigned Nobel laureate Elie Wiesel's account of his survival of the concentration camps.

In the book, called Night, Wiesel wrote the following:

Never shall I forget that night, the first night in camp, which has turned my life into one long night, seven times cursed and seven times sealed. Never shall I forget that smoke. Never shall I forget the little faces of the children, whose bodies I saw turned into wreaths of smoke beneath a silent blue sky.
Never shall I forget those flames which consumed my faith forever.
Never shall I forget that nocturnal silence which deprived me, for all eternity, of the desire to live. Never shall I forget those moments which murdered my God and my soul and turned my dreams to dust. Never shall I forget these things, even if I am condemned to live as long as God Himself. Never.

The American Library Association's list of the 100 most-often challenged books for 1990-2000 appears here. (I can't say that I've read more than 20 of them.) Night is not on the list.

Commonwealth's attorney candidate claims court has become a "pawn and a tool in a political campaign"

Jonathon Mosely, Republican candidate for Commonwealth's Attorney in Loudon County, has filed a motion to quash the appointment of a special prosecutor to investigate whether he lied about his residence on the forms by which he registered to vote and as a candidate for office, according to this report in the Washington Post. Mosely assured the Post that he "has been sleeping and living in Loudoun County since March 6."

Northern Virginia woman's perspective on sodomy laws

In this commentary, an Arlington woman explains her interest in the Texas case argued before the Supreme Court this past week after Virginia authorities refused to permit her and her partner to adopt a foster child from D.C. because they are lesbians, citing the Commonwealth's sodomy laws.

More on the veto session, including how to define mental retardation in death cases

Here the Washington Post lists the key items on the agenda for the veto session of the General Assembly, including one I'd not noticed previously - a new statute defining procedures for determining who is mentally retarded in capital murder cases. The new bill SB 1239 was passed in response to the Supreme Court's ruling in Atkins v. Virginia. The governor's recommendation appears here. According to the Post, Governor Warner amended the bill because "the bill's definition of mental retardation 'could permit the execution of some people with lifelong, bona fide status as persons with mental retardation,' so he proposed amendments to conform with language proposed by the state Crime Commission." The new bill's definition of mental retardation is this: "Mentally retarded" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in all of the following: conceptual adaptive skills, social adaptive skills and practical adaptive skills.

Exercising their First Amendment rights to be offensive

Greeneville, TN, the birthplace of Davy Crockett, long-time home of President Andrew Johnson, and home of a brand new courthouse for the E.D. Tenn., was the site of a Ku Klux Klan rally on Saturday, as described here and here.

Virginia schools eying Michigan cases

U.Va. law professor and former president Robert O'Neil joins the list of people scratching their heads over the quick decision by the Tech BOV to eliminate race as a factor in admissions, according to this Roanoke Times article, which reviews the relevance of the pending University of Michigan cases to Virginia's colleges and universities.

In this one of the many, many articles on the Michigan cases, one of my undergraduate professors Barbara Perry, now professor of government at Sweet Briar College and sometime constitutional law pundit, predicts that ""This could sound the death knell for affirmative action as we know it."

Dodging tax cuts by waving the flag

Richmond Times columnist Jeff Schapiro suggests here that Governor Warner should package his veto of the repeal of the estate tax as the patriotic thing to do in time of war.

Trial of Richmond police officer draws to a close

The 6-day trial of a Richmond police officer for the death of an unarmed suspect is near its end, according to this column, which concludes that the trial "has pulled back the veil from Richmond's thin blue line, offering a fascinating, detailed and highly unusual glimpse into the guts of a police shooting."

Lotto winner goes deep for WV Little League

In Southern West Virginia, as reported here, a winner of the Powerball lottery jackpot has donated $70,000 to a local Little League. The league has a group of four trustees for its new bank account. The report describes the various appeals the winner receives for financial aid.

UPDATE: Other Southern West Virginians might hope to share the wealth, as this report says a $60 M winning ticket was bought in Bluefield last week.

No diploma without passing the SOLs, will political pressure and litigation result?

According to this report, this year's high school juniors have until the end of their senior year to pass the Virginia Standards of Learning test or fail to earn a diploma. As Professor Leslie Bolt of JMU observes, "The real test will be when the state begins to deny graduation to students," noting that some states have backed off when that happened while others have seen dropout rates rise. He wondered, "Will Virginia voters be willing to accept the fact that at least one out of five high-school seniors will not graduate, or that the dropout rates will increase?" He expects graduation and school accreditation based on passing tests to disappear in a few years under pressure from parents. "The political life of the SOL movement is already on life support," he said.

On the other hand, emeritus professor Dan Fleming of Virginia Tech points to the federal No Child Left Behind law, which mandates testing and other requirements through 2014, when today's first-graders are scheduled to graduate. "Still, a new president or Congress could gut the law. On the state level, passing scores were lowered for Virginia's SOL history tests when so few students passed them, although they were reset to where teachers -- including Fleming at the time -- originally recommended."

Could the SOLs ever be the subject of litigation? Just this past week, I filed an answer in a case where the parents of a young man are claiming his constitutional rights have been violated by the school's decision to suspend him for one day.

State Board of Medicine disciplines doctors for failure to update info for DHP website

As reported here, two Virginia doctors were disciplined for failing to provide information on claims and license suspensions for publication on the website of the Department of Health Professions. Board officials explained regarding the information on the DHP website that "they rely on physicians to 'self report' most information to the site, and that they lack the staff to verify much of the data." The Board does verify information on the website "relating to its own disciplinary actions." The Practitioner Information website can be found here.

Second suit claiming beach property fails, sanctions claim imminent

This account describes the dismissal of a second suit by a Virginia Beach land speculator who claimed to own part of the beach in Virginia Beach. In 2000, the circuit court judge dismissed the prior claim, concluding the plaintiff "had perpetrated 'a fraud of grand design' in making his claim." Donald Clark, representing the City, indicated the City would seek to recover $55,000 for its attorneys' fees and costs in defending the second action.

Under Va. Code § 8.01-271.1, every paper filed and every oral motion made in court could be the basis for sanctions if the Court concludes it was not "well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law."

Roanoke County traffic death results in $250 fine

The Associated Press reports here that the victim's family was appalled at the light sentence given to a woman who ran a red light and collided with another vehicle, resulting in the death of the other driver. The court found the defendant guilty of reckless driving and imposed a $250 fine with no license suspension and no jail time. Daniel Frankl represented the defendant.

Former Pocahontas mayor bonds out on federal murder charges

This article from the Bluefield paper confirms that Charles Gilmore has posted bond set at $500,000 and obtained his release, pending trial on federal charges relating to the triple murder in 1989 which has been the subject of multiple trials in state and federal court. Last year, Sam Ealy was sentenced to life in prison for his role in the crimes, after being acquitted in state court in 1991. Walter Church was also tried last year in federal court, but the jury could not reach a verdict, and he awaits another trial. In connection with the Church case, Judge Jones of the W.D. Va. joined the courts which have upheld the constitutionality of the federal death penalty, in a series of opinions culminating with this one.

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."