More electoral board members mad at Virginia Attorney General

The Washington Post has this article on the criticism of electoral board members of the Attorney General's opinion limiting their political activity.

As discussed here previously, by law, the majority of every electoral board in Virginia is of the same party as the Governor (who is not of the same party as the Attorney General).

Years ago, when the governor's office changed hands from the Republican John Dalton to the Democrat Charles Robb in 1982, the next year in accordance with Virginia, the partisan makeup of all the electoral boards changed, and a number of the boards more or less fired their registrars, and replaced them with Democrats. This had been done before, I'm told, in the time of the Republican governors as well. But, in the 1980s, a group of the ousted Republican registrars filed suit, claiming that they could not be denied reappointment on account of their political affiliation, and the Fourth Circuit agreed, in the case of McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), in which the Court also held that since this was new law, the electoral board members individually would be entitled to qualified immunity. One of those plaintiffs was Willie Mae Kilgore, the mother of Jerry Kilgore and Terry Kilgore, and following her reinstatement by the courts, she is still to this day (last I heard) the registrar of voters for Scott County. The lawyer who argued the case on appeal for the registrars against the electoral boards was William Hurd, who is now the Solicitor General for the Commonwealth.

Maybe Trible not running is no surprise?

This column by Jeff Schapiro makes former Senator Paul Trible look like he chose wisely in his decision on Friday to not run for lieutenant governor in 2005.

Who would go to an Appalachian League baseball game?

"Eight guys from Maine" came to Bluefield on their tour of minor league ballparks, and sang the national anthem, as reported here.

Government employers in Western Virginia monitoring employees computer use

The Roanoke Times has this article on the efforts of local government in Western Virginia to monitor the computer use of their employees.

In the Urofsky case, the en banc Fourth Circuit held in a 8-4 decision that "that the regulation of state employees' access to sexually explicit material, in their capacity as employees, on computers owned or leased by the state is consistent with the First
Amendment," a holding which would apply equally to local government employees.

Republican delegates challenge governor's authority to name interim judges

The Washington Post reports here and the AP reports here that Republicans in the House of Delegates are challenging the authority of Governor Mark Warner to appoint judges to fill vacancies until the next session of the General Assembly - including, particularly, a circuit court judgeship in Alexandria.

The Post article quotes Del. Terry Kilgore as saying, "If we don't step up and exercise our rights, we'll be sending the message across the state that if you were appointed by a Democrat, just wait until we are out of town and retire and we won't do anything."

The story seems a bit misleading - it is no news that judges appointed on an interim basis have to sweat out the decisions made in the next term of the General Assembly. It is my recollection that Justice Kinser, for example, was initially appointed by Governor Allen, and then she had to pass muster in the next legislative session. There is nothing controversial about legislators declaring that they will exercise their constitutional prerogatives.

It was pleasure to meet Judge Roger Gregory of the Fourth Circuit when he came to Abingdon and spoke sometime last year. Judge Gregory was nominated originally by President Clinton, and then renominated by President Bush, and so became one of the few trouble-free nominations to the federal court of appeals positions since President Bush took office. Judge Gregory is an outstanding individual, the kind of lawyer who sets an example for others (like myself) to admire and try to follow.

I don't know the man in Alexandria who is being considered for the judgeship there. There are many lawyers in Alexandria. I would hope that the Republicans in the General Assembly are as able to consider the possibility, as the White House apparently did, that the endorsement of the leader of the opposition does not disqualify an well-qualified candidate for a judgeship.

On the ceremonial swearing-in of Judge Greer of the E.D. Tenn.

The Kingsport Times has this story, the Greeneville Sun has this story, the Morristown paper has this story, and the AP has this story on the ceremonies for the investiture of Judge Ronnie Greer of the E.D. Tenn., who was administered his oath by U.S. Senator Lamar Alexander in Greeneville on Friday afternoon.

Virginia Supreme Court grants appeal in Gent murder case

As noted here, the Virginia Supreme Court has granted the petition for appeal in the Jody Gent murder case. Gent was sentenced in 2001 to 56 years in prison upon being convicted of robbing and murdering an elderly woman in Wise County, as reported here in the Coalfield Progress. Gent's conviction was affirmed by the Court of Appeals.

Former Sen. Trible will not run for lieutenant governor in 2005

The Daily Press reports here that former U.S. Senator Paul Trible has announced that he will not run for the Republican nomination for lieutenant governor in the 2005 election.

Why are municipal electrics (and not the ILECs) going forward with the "triple play"

This article describes (without mentioning anything about Bristol) why municipalities in other parts of the country are leading the way in fiber-to-the-home projects that carry highspeed data, voice, and video services.

Carrying guns in Virginia's government buildings

Most places in Virginia it is not necessary to sneak a gun into the public buildings of state and local government, according to this report in the Virginian-Pilot.

Richmond city council member arrested for bribery

A City of Richmond council member has been arrested by the FBI on charges that she took a bribe of "$2,000 to support a candidate vying to fill the vacant 6th District Council seat," according to this AP report. The Richmond Times-Dispatch has this report.

More on Fourth Circuit's opinion in the Appomattox County biosolid case

The AP has this report on yesterday's ruling by the Fourth Circuit affirming the preliminary injunction against enforcement of the Appomattox County ordinance limiting the use of biosolids.

FBI seizes court records in Unicoi County, TN

As reported here, the FBI took over a Tennessee county courthouse on Wednesday and seized a bunch of records, and no one is saying why.

The Lynchburg electoral board mess

It seems like the litigation and investigation never ends in connection with the registrar's position and the electoral board in Lynchburg - with the latest described here.

More on political activity by electoral board members

The Daily Progress has this report on the views of an 83 year-old electoral board member in Albemarle County who dislikes the Attorney General's conclusion that he can no longer volunteer to work on political campaigns.

VHDA "family" rule debated

The AP has this report and the Richmond Times-Dispatch has this report on the arguments for and against the Virginia Housing Development Authority's rule denying home mortgage loans to joint applicants unless they are "related by blood, marriage or adoption or by legal custodial relationship."

UPDATE - The Richmond paper reports here and the AP reports here that VHDA voted on Friday to eliminate the family rule.

Ferrum College admits some fault in student suicide case

Ferrum College, located in Franklin County, has taken the apparently unprecedented step of acknowledge some responsibility for the suicide of one of its students, according to this report in the Roanoke Times, which says that the college "has acknowledged that 'errors in judgment and communication by school personnel' were partly responsible for the suicide of one of its students more than three years ago, in what is believed to be the first time an American college or university has made such an acceptance of responsibility." The AP has this report.

Today's ABA Journal ereport on blogging

This article in the ABA Journal says blogging could be bad.

I'm not sure that analysis applies in the same way to a small-town lawyer like myself as it might to high-powered big-firm lawyers like Howard in Philadelphia and Denise in Los Angeles, and even so I suspect that their blogs are actually among the greatest legal marketing achievements of all time - as evidenced by yet another blogging article sent nationwide with their names in it.

Virginia county loses appeal of injunction against enforcement of local biosolids ordinance

In O'Brien v. Appomattox County, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael and King and District Judge Wooten affirmed the district court's decision to preliminarily enjoin the County from enforcing its ordinance prohibiting farmers from applying biosolids to their land in the County.

The opinion notes:

"In light of the widespread use of biosolids in Virginia and elsewhere in the United States, the regulations and examinations undertaken by the Virginia General Assembly and the United States Environmental Protection Agency ("U.S. EPA"), and the studies by the scientific community, the fear of possible, adverse health effects is too attenuated at this time to outweigh the likelihood of harm to the Farmers."

In addition, the District Court had the benefit of what both the Virginia Supreme Court and the Virginia General Assembly have to say on the authority of counties over the use of biosolids:

"the District Court reviewed the Virginia Supreme Court’s decision in Blanton v. Amelia County, the legislation enacted by the Virginia General Assembly limiting the role of counties in regulating biosolids, and the effect of these ordinances on landapplication of biosolids. In light of the recent decisions by the Virginia Supreme Court and the Virginia General Assembly, we cannot conclude that the District Court erred in determining that the claims and evidence provided by the Farmers raise such serious, substantial, and difficult issues that they warrant more deliberate investigation."

Whose DEQ is it anyway?

This Richmond Times-Dispatch article says that the offices of future gubernatorial candidates Tim Kaine and Jerry Kilgore are swapping accusations over whose fault it is that the Virginia Department of Environmental Quality has not done more to enforce the environmental laws with regard to a landfill in Page County.

Tax reform hits local government on telecommunications in Virginia

The Richmond Times-Dispatch has this article on the latest vote by the telecom tax reform committee of legislators, headed by Delegate Preston Bryant. The committeeis proposals include the following:

"The panel agreed to call for reduced consumer confusion, consolidated taxes, uniform taxes statewide, a reduced tax rate on most Virginians, competitively neutral taxes, preserved state and local revenue and establishing a single tax collection and distribution point.

The proposals call for repeal of local consumer utility taxes on telecommunications, local gross-receipts taxes paid by consumers, the Virginia relay fee for services to the deaf, the cable-franchise fee and the current E-911 tax structure. Some taxes vary from locality to locality.

In their place, the proposed plan would impose a 4.5 percent statewide sales tax on communications and video services and a E-911 fee on wireless and wireline phones not to exceed 75 cents per month compared with the current $3 monthly maximum."

The demise of cable franchise fees and other moneymakers for localities will draw heavy opposition from cities and counties.

Profile of Judge Lee of E.D. Va. who struck verdict in Lentz case

The Washington Post has this profile on Judge Gerald Bruce Lee of the E.D. Va., who recently overturned a jury verdict in a federal "kidnapping" case and told prosecutors the case should never have been brought in federal court.

Three railroad engines on the loose, derailed by Norfolk Southern

If you think you're having a bad day, consider the unidentified railroad engineer who let three diesel engines get away from him outside of Bluefield, as reported in this story.

FERC denies rehearing on SW VA natural gas pipeline

As reported here, the Federal Energy Regulatory Commission ("FERC") has denied the petition for rehearing of some Southwest Virginia landowners regarding Dominion Resources' Greenbriar pipeline project, which is being constructed between West Virginia and North Carolina and passes under the New River in Virginia.

Virginia Attorney General opines that registrars and electoral boards must avoid party jobs

The Roanoke Times reports here that election officials are critical of the Attorney General's recent opinion that state law prohibits registrars and members of electoral boards from holding any kind of political party office. In Virginia, the electoral board for each city and county is made up of a majority of members who are of the same party as the governor, a minority of its members are of the other party - and so, only party activists ever get appointed to electoral boards.

"Cuppa Joe" debunks characterizations of Roanoke in national media

In the latest Joe Kennedy column in the Roanoke paper, he exposes the bizarre characterizations of Roanoke by the national medial particularly in the wake of the recent visit by presidential candidate Bob Graham of Florida.

Denial of qualified immunity affirmed for police officer for arresting lawyer who tried to help neighbor pulled over for DUI

In Wilson v. Kittoe, the Fourth Circuit in an opinion by Judge King joined by Judges Michael and Traxler rejected the police officer defendant's qualified immunity appeal, in a case where the officer was trying to arrest a guy for drunk driving and the guy's neighbor, a lawyer, wakes up, comes out, starts trying to help out the guy getting arrested with some gratuitous legal advice, and winds up riling the officer enough to get arrested himself, under Virginia's "obstruction" statute, Va. Code 18.2-460.

I guess that between this Wilson case and the case of Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001), it is clearly established that law enforcement officials should not arrest Virginia lawyers at their homes for obstruction of justice unless the lawyers do something more than to exercise their constitutional right to refuse to shut up.

Wiccan files federal suit to pray at Chesterfield County supervisors' meetings

The Petersburg paper has this report and the Richmond Times-Dispatch has this report on a civil rights lawsuit brought by a Wiccan seek a court order allowing her to open the meetings of the Chesterfield County board of supervisors with Wiccan prayers.

New software feature - copyright indemnification?

I thought this article and the comments attached to it were hilarious - as I understand it, if Microsoft steals someone else's technology, puts it in their software, and sells you a license, it is now agreeing to indemnify the software purchaser for attorneys' to defend the suit.

What's this feature worth? I doubt that it gets a big footnote in the MS financial statements.

On last night's execution of Bobby Wayne Swisher

The Washington Post has this story and the AP had this story on the execution last night of Virginia inmate Bobby Wayne Swisher, "six years after he kidnapped and raped a young mother before slashing her throat and tossing her, still alive, into the frigid waters of the South River."

Summary judgment for employer based on "bona fide executive" exemption upheld in overtime case

In Jones v. Virginia Oil Co., Inc., the Fourth Circuit in a per curiam decision for the panel of Judges Michael and Motz and Senior Judge Beezer from the Ninth Circuit affirmed the decision by Judge Moon of the W.D. Va. to grant summary judgment for the employer in an overtime case, concluding that the facts showed that the plaintiff's employment was within the "bona fide executive" exemption under the "short test," where the plaintiff was an assistant manager at a combination Dairy Queen and convenience store.

Law review article about blawgs

As Brian Peterson explains here, his blog and mine and those of Marcia Oddi, Rory Perry, and others are footnoted in this law review article to be published in the Journal of Appellate Practice and Process by the master and mistress, respectively, of the Statutory Construction Zone and blueblanketblog.

I must say, though, that I read these other "state" blogs not because but in spite of their "geographic" themes - Marcia Oddi's Indiana blog, for example, is chock full of interesting stuff, separate and apart from the Indiana law.

Judge Lee of the E.D. Va. throws out kidnapping verdict in Lentz case

The Washington Post reports here that Judge Gerald Bruce Lee of the E.D. Va. has granted a defense motion to dismiss the federal kidnapping charges against Jay Lentz, after a jury found him guilty (despite no body ever being found). The judge criticized the U.S. for making a federal case of an ordinary murder prosecution.

Full Virginia Court of Appeals will reconsider nude dancing case

As reported here, the Virginia Court of Appeals will rehear this split panel decision that overturned, based on the First Amendment, a stripper's conviction for violating public nudity laws in Henrico County. Here is my earlier post on the case.

The case makes me recollect Judge Bork's comments at last year's Fourth Circuit judicial conference, where he said something like nude dancing at a high school graduation might be protected by the First Amendment, unless it was the Dance of the Seven Veils, which would have an impermissible religious connotation - I guess making fun of the fact that nude dancing gets much more constitutional protection than does prayer in schools.

More on domestic partner health insurance in Virginia

Tax & Biz has this post responding to my ruminations over the Sunday feature articles in the Virginian-Pilot about the non-availability of group health insurance for "domestic partners" in Virginia.

ABA gives Claude Allen only a "qualified" rating

Just when Senator Hatch was starting to come around on ABA ratings (since they liked Miguel Estrada), the Richmond Times-Dispatch reports here that the American Bar Association gave Fourth Circuit nominee Claude Allen only a "qualified" rating, in a split decision, with some voting that he was "not qualified." By contrast, the ABA committee

The members of the ABA's Standing Committee on the Federal Judiciary are listed here. In this term of Congress, as shown here, other findings of the Committee included: that Allyson Duncan, nominated for the Fourth Circuit, and Glen Conrad, nominated for the W.D. Va., were "well qualified," and that Judge Terence Boyle nominated for the Fourth Circuit and Judges Thomas Varlan and Ronnie Greer of the E.D. Tenn. were "qualified," with some members contending that Varlan was "not qualified." I believe all but Judge Boyle and Mr. Allen have been confirmed by the Senate.

Besides Allen and Boyle, the committee also gave only "qualified" ratings in this Congress to appeals court nominees Deborah Cook, Jeffrey Sutton, Timothy Tymkovich, and William Pryor, all of which suggests that politics (rightly or wrongly) is still part of the measuring stick applied by the committee.

Federal jury faults IRS stupidity in tax fraud case

In convicting defendants accused of defrauding the IRS by seeking and obtaining bogus refunds of $500,000 for slavery reparations, a federal jury declared that the IRS is incompetent and should never have allowed taxpayer money to be paid out by mistake to these kinds of characters, as reported here in the Richmond Times-Dispatch (via VLW).

Classifying the broadband universe

There's cable, DSL, satellite, fixed wireless, and fiber optic - all ways of getting "broadband" to your home or office, and so why does the FCC treat them so differently? That's the question before a House committee today dealing with telecommunications, as described in this article from the Mercury News. (Of course, not everyone agrees that cable modems and DSL provide true "broadband.")

More on the increasing financial self-sufficiency of U.Va.

InsideUVa has this article on "decentralization" in funding for the University (written by my old University Journal comrade Dan Heuchert) and this account of the efforts of the law school and graduate business school at the University of Virginia to operate without any money from the Commonwealth.

The legislators ought to feel embarrassed every time they think about this, that two of the best graduate programs in the country decided that they would sooner be essentially private than subject themselves to the non-support of the General Assembly. Instead of operating to showcase what Virginia can do in public education, these programs show instead that the best plan for success is to have as little as possible to do with Virginia's politicians.

Is "failure to stop for a blue light" a violent felony for federal sentencing purposes

In U.S. v. James, the Fourth Circuit in an opinion by Judge Gregory joined by Judges Neimeyer and Shedd concluded that the defendant's conviction under South Carolina state law for "failure to stop for a blue light, S.C. Code Ann. § 56-5-750" was properly considered a "violent felony" for purposes of the armed career criminal enhancement under federal sentencing law.

Apparently, failure to stop for a blue light does not involve an inadequate response to an in-store sales promotion at K-Mart.

Dismissal of investor suit on statute of limitations affirmed

In Cohen v. USEC, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer and Shedd and District Judge Spencer of the E.D. Va. affirmed the dismissal of plaintiffs' securities claims as barred by the one-year statute of limitations, and remanded the case for further consideration of the issue of sanctions under Rule 11.

Fourth Circuit upholds federal law conviction for sexual contact with children

In U.S. v. Geraci, the Fourth Circuit in a per curiam decision for the panel of Judges Luttig, Niemeyer, and Michael upheld the constitutionality of the 18 U.S.C. 2244(a)(1) as applied to the defendant, rejected her claim that she was entitled to a pre-trial evidentiary hearing on the admissibility of a child's testimony, and rejected the defendant's arguments about the admissibility of hearsay testimony used against her at trial.

Proposed rule change from E.D. Tenn. for redaction of personal information from court documents

The U.S. District Court for the E.D. Tennessee earlier this month gave this notice of a proposed rule change, that would require the redaction of certain personal information from documents that are filed and subject to public access.

This rule seems to anticipate the increased ease of access court documents that will result from electronic filing, which I understand will soon be a reality in our federal courts on both sides of the line.

Is it a denial of equal protection to house state inmates in a local regional jail?

In Khaliq v. Angelone, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Gregory and Traxler rejected the equal protection claims of state inmates housed in the Albemarle Charlottesville Regional Jail.

The Court noted that "Appellants had no federal right to be housed in any particular state facility, or in a state corrections facility as opposed to a local jail compensated by the state for the cost of incarcerating state inmates pending their transfer to an available and appropriate space within a state facility."

In addition, the Court agreed the justifications for the differing treatment could withstand the minimal constitutional scrutiny required, as "Appellants’ allegations, if proven, fail to establish that their imprisonment in the ACRJ was irrational, arbitrary, or otherwise not in furtherance of a legitimate penological interest."

The opinion in the E.D. Tenn.'s "service horse" case

I have heard about but never saw until now this opinion by Magistrate Judge Edgar in the case of the Americans with Disabilities Act lawsuit brought on behalf of a little girl with disabilities who wanted to keep her miniature horse in town, over the town's refusal to permit the horse where the little girl lives. (The Court granted the town's summary judgment motion.)

Pro se defendant declares Judge Richard Williams is the devil

Via Virginia Lawyers Weekly, this story in the Richmond Times-Dispatch describes a hearing before Judge Richard Williams of the E.D. Va., involving the representation of a defendant in a criminal tax case, and his decision to represent himself. Among the highlights:

"Foster, who was wearing a T-shirt bearing the inscription, "40 Acres and a Bentley," gave the judge some unorthodox and unresponsive answers, most of which Williams listened to with uncharacteristic patience.

"I'm telling you that you are committing a criminal offense. . . . I understand that God is my witness and he will judge you and anybody else that is committing these offenses," Foster said.

"God is my representative, let's make that clear, OK?" he said at another point. A moment later, he said "indigenous lawyer Drew Sharref El" is his attorney.

"It's a disgrace for me to even be standing here in this courtroom," he said still later. "I have no respect for you or this so-called . . . ." When Foster paused, Williams simply asked another question.

After Williams had ruled that he could represent himself, Foster had still another comment.

"Let me tell you something," Foster told the judge. "You are the devil. You are the devil."

Williams recessed court. Marshals put the handcuffs back on Foster."

Does U.Va. discriminate in admissions based on in-state geography?

According to this article in the Washington Post, people of all parts of the Commonwealth think that U.Va. discriminates against them an in favor of the people from the other parts of the state. The University admissions people denied that it considers diversity of geography from within Virginia in making admissions decisions.

D.C. Circuit affirms FCC interpretation of Virginia contract law

In Starpower Communications, LLC v. FCC, the D.C. Circuit affirmed the FCC's application of Virginia contract law to the agreement between Verizon and the CLEC Starpower regarding interconnection fees for telephone calls made to dial-up Internet service providers.

In terms of procedural history and choice of law rules, the Court explained the complications of litigating an interconnection agreement:

"In 1999 Starpower filed petitions with the [Virginia State Corporation Commission] seeking declarations requiring Verizon to pay for ISP-bound traffic under the two agreements. The VSCC declined jurisdiction in favor of the Commission. See 47 U.S.C. § 252(e)(5). Starpower then petitioned the Commission to preempt the jurisdiction of the VSCC and, when the Commission did so, Starpower filed a complaint with the Commission charging that Verizon had violated the agreements by failing to pay reciprocal compensation for ISP-bound traffic.

Because it stood in the shoes of the VSCC, the Commission was obliged to apply the contract law of Virginia, including the rule that "where the terms of the contract are clear and unambiguous, we will construe those terms according to their plain meaning." Starpower Communications, LLC v. Verizon Virginia, Inc., 17 FCC Rcd. 6873 ¶ 24 (2002) ("Order") (citing American Spirit Ins. Co. v. Owens, 261 Va. 270, 275, 541 S.E.2d 553, 555 (2001))."

Nothing is ever easy for CLECs looking to enforce their rights against the ILECs.

31 candidates out of 3,429 registered voters in Craig County

The Roanoke Times has this great article about how 1 out of every 100 voters in Craig County, Virginia, are now running for some kind of county office, which means that either they are a truly public-spirited bunch or maybe they just want better parking places at the county office building.

Parsing the evidence in the Shenandoah National Park murders

Laurence Hammack picks apart the prosecution's evidence in this article in the Roanoke Times about the upcoming federal murder trial of David Rice, who is accused of murdering two women in the Shenandoah National Park.

Are insurers prohibited from including domestic partners in group health plans in Virginia

This article and this article in the Virginian-Pilot say that "[i]nsurance companies licensed to do business in Virginia can only underwrite group policies to cover family members defined as spouses or dependent children," and implying perhaps that this law is some kind of equal protection or due process violation.

This struck me as a very strange conclusion - if this is a legal problem, is state law to blame? My first guess about where to look for the answer to just about any employee benefits question would be to go to the federal tax law - to state the matter in terms as crude as my understanding of it, isn't the whole deal with group health insurance about taxes? And taxes might be the real issue here, as suggested in this FAQ item from the IRS website, which says, among other things:

"Cafeteria plans can offer health insurance to employees, their spouses and their dependents. However, a same-sex domestic partner can never be deemed to be a spouse. See Defense of Marriage Act, Public Law 104-199. . . . The domestic partner and dependents in this case may not be participants in a cafeteria plan because they are not employees, but the plan may provide benefits to them. . . . If the domestic partner and his or her child do not qualify as the employee's dependents, those individuals may receive coverage under the cafeteria plan on a taxable basis. This means that the fair market value of the coverage for the domestic partners and his or her child must be included in the employee's wages for purposes of income tax withholding, FICA and FUTA taxes. See question and answer 65 from Chief Counsel Advice 200117038."

This snippet of knowledge (regarding a local government plan, which might make a difference, I don't know) makes me wonder if the reporting of this story is a bit off the mark. Maybe the gurus at BenefitsBlog, Tax & Biz, or A Taxing Blog know more. The article says this issue is made timely by the Supreme Court ruling on sodomy, which might be true, as evidenced perhaps by discussion such as this and this and this (and all those that preceded them) from Eugene Volokh, not to mention the recent call for divine reform of the Supreme Court from the Tidewater's own Dr. Pat Robertson.

On Virginia's DUI laws

The Virginian-Pilot offers this opinion that it is too easy for dangerous drunk drivers who violate the implied consent laws to get back out onto the streets, where they are a menace to society.

The Horse Race - Baril catches McDonnell in dollars raised

Lessig & Scanlon of the Daily Press report here, among other things, that in the race for the Republican nomination for Attorney General of Virginia, to be decided in the year 2005, Steve Baril from Richmond has drawn abreast of Del. Robert McDonnell of Virginia Beach in terms of fundraising.

The article notes that Baril is "trying to tap into a segment of the party which is perhaps best described as Mark Warner Republicans - the so-called Main Street business leaders who fled the GOP in 2001 to help Warner win the governor's mansion."

On reforming child custody laws and the "best interests of the child" test

This interesting article from the Sacramento Bee notes that anti-Pledge of Allegiance litigant Michael Newdow and the American Law Institute both are arguing against the continued application of the "best interests of the child" test.

The article says that ALI "recommends substituting an 'approximation' test. Custody would reflect the approximate actual division of parental responsibility before a family splits apart." One expert cited in the article "suggests custody be awarded by a coin toss because 'there usually is no rational basis for preferring one parent over another.' He argues flipping a coin would be preferable to having judges evaluate parents' intrinsic worth, as under the current system. He says it also would give both parents an equal chance and reduce the harm that constant litigation does to children."

I myself have litigated exactly one (temporary) custody matter, and lost, and what a terrible day that was. The dispute involved what might be a common scenario - one side had money, the other side had a lifelong bond with the child. The judge, a good and fair man, sided with the money. His ruling did not make much difference in the end, the parties "worked things out" after the hearing, as there was no animosity between them, only a very genuine disagreement about what was in "the best interests of the child."

Taking on the Fourth Circuit over the Hamdi case

Another commentary in the Washington Post criticizes the Fourth Circuit's conclusion in the case involving Yaser Esam Hamdi, an "enemy combatant" held in Virginia. On July 9, the Court voted 8-4 to deny rehearing in the case, but the commentary notes "the vigor of the dissents, which came from an ideologically eclectic group of the court's judges, unified less by their sense of how the case should be resolved than by a laudable insistence on acknowledging the true stakes for liberty that it presents." The dissenters included Judges Motz and Luttig.

Deaths at regional jail generate litigation, controversy

This article relates that one regional jail in Virginia has had four recent inmate deaths, including three by suicide.

Reasons not to go skydiving in Sri Lanka

The legal problems suggested by this article, about a woman whose parachute didn't open but she survived the fall, boggle the mind, but that's not what makes it worth reading.

Governor Warner and Bobby Wayne Swisher

This commentary in the Washington Post says that following the Virginia Supreme Court's recent ruling, Governor Warner can no longer avoid making a real decision about whether to stop the execution of Bobby Wayne Swisher, scheduled for Tuesday.

Cases solved by Virginia's DNA law

According to this report in Sunday's Washington Post, law enforcement officials are claiming that "Virginia's new law requiring people accused of violent crimes to submit DNA samples has generated clues to 21 unsolved criminal cases."

Profile of Circuit Court Judge LeRoy Millette, Jr., who has the Muhammad case

Sunday's Washington Post has this interesting article on Judge Millette, who will preside over the trial of the accused sniper John Muhammad.

Pro bono as condition precedent to legal work for the state?

My Shingle has this post about the idea in Massachusetts of requiring lawyers seeking to do legal work for the Commonwealth to show that they do some amount of pro bono work.

(And, how did Virginia, Pennsylvania, Kentucky, and Massachusetts get to be the only four Commonwealths in these United States?)

Litigating who must defend against claims of Fallen man (who fell down)

In Travelers Indemnity Co. of Illinois v. Liberty Mut. Ins. Co., the Fourth Circuit resolved a dispute over which of two insurers had to defend a lawsuit brought by a guy who fell down, where the fallen man's name was Fallen.

Fourth Circuit en banc reverses Ocheltree panel decision by vote of 10-2

In Ocheltree v. Scollon Productions, Inc., the Fourth Circuit sitting en banc upheld the liability for the plaintiff in a Title VII sexual harassment case but reversed the award of punitive damages. Judge Michael wrote the opinion for the majority, with Judge Niemeyer concurring in the result. Judge Williams dissented, joined by Judge Widener.

This is certainly a nasty enough case for me to say it is not obvious that there was not a jury question on the disputed elements. If I understand the history, without the punitive damages, the plaintiff was awarded compensatory damages of $7,280.

$7,280! Plus, I'm guessing, $400,000 to cover both sides attorneys' fees and litigation costs?

UPDATE - How Appealing has this post with many links about the decision in this case.

The judge was a history major

In this story from the Washington Post, the circuit court judge explained his decision to enjoin the demolition of a 200 year-old house, notwithstanding the express language of the promises of its owner, by saying, "Maybe it's because I'm a history major."

ACLU joins the fray over handling of report on mistreatment of mental patient

The American Civil Liberties Union is now looking to intervene on behalf of the patient in the federal court case between the Danville-Pittsylvania Community Services Agency and the Virginia Office for Protection and Advocacy - and as reported here, the ACLU is on the side favoring public disclosure of whatever there is to be disclosed publicly, other than the actual name of the ACLU's client.

Those rotten patches

This week came more news of newly-discovered security flaws in MS Windows and newly-offered patches available for download from MS. Whenever a new patch comes out, there is sort of an incubation period while the marketplace decides whether the cure is worse than the disease. In my little office, I can't begin to keep track of all that stuff, but this article from ZDNet says maybe I should not even try. The bottom line on the advice offered is - "Instead of spending time and money implementing every patch that Microsoft releases, stick to the service packs and bolster your security policy."

Well, I can do that.

New agenda for CIT - maximizing federal funds in Virginia

The Washington Post reports here that the priority for Virginia's Center for Innovative Technology is figuring out how to maximize federal grant money for projects in Virginia.

How Doug Wilder got elected by keeping Jesse Jackson out of Virginia

The Daily Progress has this great article about the campaign strategies of the Doug Wilder statewide campaign in 1989, which included rejecting every effort by Jesse Jackson to come to Virginia.

Va. Supreme Court denies last Swisher appeal, execution set for next week, Swisher appeals to Warner

The AP has this report and the Richmond paper has this report on the latest ruling from the Virginia Supreme Court denying the appeal of death-row inmate Bobby Wayne Swisher, who is scheduled to die on Tuesday.

This afternoon, Swisher filed for clemency again, as reported here.

Liberals and Maryland senators oppose Claude Allen nomination

More was heard earlier this week from the opponents of President Bush's nomination of Claude Allen to fill the vacancy on the U.S. Court of Appeals for the Fourth Circuit left by the death of Judge Francis Murnaghan from Baltimore, as reported by the Richmond Times-Dispatch in this article, which quotes a letter from Senators Sarbanes and Mikulski as saying "We cannot accept the shifting of a seat away from Maryland, which has twenty percent of the Circuit's population and should be allocated three of its fifteen judges."

The articles below on Judge Duncan note that there has not been a single North Carolina judge on the Court in years.

Bath County judge dies in auto accident

Circuit Court Judge Duncan Byrd, Jr., of Bath County died on Wednesday night.

The AP report included this information about him:

"A seventh-generation native of Bath County, Byrd, 60, was a 1965 graduate of Virginia Military Institute. He earned his law degree in 1968 from the T.C. Williams School of Law at the University of Richmond.

After graduation from law school, Byrd served two years in the Army, including a year in Vietnam.

He returned to Bath County and operated a private law practice. In May 1971, he was appointed a judge of Bath County's Juvenile and Domestic Relations Court.

Byrd was the fourth member of his family to serve as a judge in Bath County, following his father, grandfather and great-great grandfather.

He was named a General District Court judge in 1973. In 1981 he was named judge of the 25th Judicial Circuit Court, which serves Bath, Highland, Alleghany, Craig, Augusta, Rockbridge and Botetourt counties. He was named chief judge in 1998."

U.S. Senate confirms Allyson Duncan to the Fourth Circuit

As reported here by the AP, the United States Senate voted 93-0 to confirm Allyson Duncan to the U.S. Court of Appeals for the Fourth Circuit.

Introducing her to the Senate Judiciary Committee back in June, Senator John Edwards of North Carolina gave this speech. The Independent Judiciary website had this page on Judge Duncan.

Roanoke kid with Crohn's goes for blood stem cell transplant

Today's Roanoke Times has this story about Jordan Fifer, age 13, who is about to travel to Chicago for an experimental Crohn's disease treatment involving a stem-cell transplant (using his own stem cells, not the controversial kind). The young man has a website, and a fund for his medical bills (and other necessaries), jordanfiferfund.org. Good luck to you, Jordan.

There are almost a million people with Crohn's disease in the United States and I am one of them. Occasionally, I come across reported cases involving persons with Crohn's who are either claiming disability or discrimination. In one such case, the Sixth Circuit noted:

"Even if Kerwin were, as Ada Kerwin suggests, a lazy, financially unsuccessful trial attorney before his diagnosis, he nevertheless would be entitled to recovery under the Policy if Crohn's disease left him unable to perform the functions of a trial attorney."

Kerwin v. Paul Revere Life Ins. Co., 6 Fed. Appx. 233, 239 n.3, 2001 WL 223856, 4 n.3 (6th Cir. 2001). (And no, I did not file an amicus brief in the case.)

Judge Wilson says being in jail for 30 years is no excuse

Today's Roanoke Times reports here on the following exchange between Chief Judge Samuel Wilson of the W.D. Va. and counsel for a convicted murderer facing federal charges for sending threatening letters from prison:

"Defense attorney Christopher Tuck said his client was a model inmate at Bland before his current situation sent him to Red Onion State Prison. After nearly 30 years in prison, during which a co-defendant in his crime was released, Easter became frustrated and wrote things he didn't mean, Tuck told the judge.

That argument provoked the following exchange:

Tuck: "You can't imagine what it's like to be incarcerated for that kind of time. There are times of frustration and you lash out and you write letters."

Wilson: "Well, when you commit murder, you don't have any reason to lash out."

In the print edition (which I just read at my house), the story continued:

Tuck: "None of us has been in prison for 30 years."

Wilson: "None of us has committed murder, either."

Experts now saying Grundy law school killer fit for trial

The man accused of murdering Dean Anthony Sutin and two others at the Appalachian School of Law last January may now be fit to stand trial, according to this report in the Roanoke paper.

I'm not a judge but I played one on TV?

In Ohio, a whole new Supreme Court has been convened to decide one case, whether a sitting justice violated the rules by appearing in campaign advertisements wearing a judicial robe, even though she was not and had not been a judge since 1995, as reported here in the Toledo paper, via Jurist's Paper Chase.

Can a lawyer's knowledge of his own malpractice be imputed to the firm?

Law.com has this article on a case in New York where the court held that an individual lawyer's knowledge of his own malpractice was not imputable to his law firm for purpose of whether the firm itself gave timely notice of the claim to its malpractice carrier.

Somewhat to the contrary, however, the lawyer's knowledge of his own malpractice likewise voided the firm's coverage when he was the person authorized to reapply for coverage and in filling out the application he concealed what he knew about how he had been stealing from clients, or so Judge Jones of the W.D. Va. concluded in the Ron King case.

Blasting temporarily enjoined in Montgomery County neighborhood

Homeowners in a Blacksburg neighborhood were able to convince Judge Bobby Turk of the Montgomery County circuit court to enjoin temporarily blasting in the neighborhood while its potential effects are sorted out, as reported here in the Roanoke paper.

What is the hunting season for altria in Tennessee?

According this post on the Trademark Blog, an "Altria" is not at all like a some kind of South American rodent.

On the other hand, I learned just yesterday that in Tennessee (or some parts of it) it is open season all year long (with no limit) for the hunting of "Armadillo, Coyote, Groundhog, House Sparrow, Nutria, Starling, Striped Skunk," as stated here. (I guess this rule covers those who get a hankering to go out and shoot something, anything.)

New River segment of gas pipeline complete

The Roanoke paper has this report on the completion of the segment of the new Duke Energy pipeline that passes under the New River in Wythe County.

$50,000 settlement for teen's violent death at state mental hospital

The Roanoke Times has obtained and is reporting here the details of the settlement regarding the death of an 18 year old man from terrible injuries he sustained while he was an inmate receiving mental health services at the Western State Hospital in Staunton.

Hmm, is the RSS turned back on?

Thanks to Brian Peterson who points out that the RSS feed was turned off for this blog, but hopefully it is back on now.

How many cases does the Virginia Supreme Court take on per year?

It says here that the Virginia Supreme Court has been granting petitions or awarding appeals in about 300 cases per year from 1998 to 2002 - and the disposition of about half of those involved opinions.

Judge Millette's order in the Muhammad case

Here from Findlaw is Judge Millette's order transferring the Muhammad sniper case from Prince William County to Virginia Beach for trial.

The Muhammad case was a topic among the assembled lawyers at last night's reception in Abingdon for three justices of the Virginia Supreme Court. Justices Koontz, Lemons, and Agee were in town to hear a round of petitions for appeal. Somebody told me that Judge Millette's first case as a trial court judge was the Lorena Bobbitt case, which makes for a good story if true, but it may not be if this CNN story is correct. (CNN?)

Oops, we put our fiber in your yard by mistake

Level3 Communications is facing a dispute before the SCC over whether it should be allowed to use eminent domain to fix its mistakes in laying fiber optic cable on property in Eastern Virginia where it had no right to do so, as reported here and here.

State-wide class actions - the coming thing (but not in Virginia)?

In June, I read the Seventh Circuit's Bridgestone/Firestone decision, upholding the idea that a federal district court can issue an injunction to prevent the issue of nationwide class certification from being relitigated in state court, while leaving the door open for state-wide class certification in state court. This week, I read that in West Virginia, in this opinion, the state Supreme Court reversed the denial of class certification in state-wide Rezulin litigation. In Ohio, the 12th District Court of Appeals affirmed state-wide class certification regarding OxyContin, in this opinion. The latter two decisions seem to fly in the face of the bulk of the federal case which rejects class certification in personal injury cases.

These cases make me think that plaintiffs' counsel will continue to avoid federal court while seeking state-wide classes in state court - except, that is, for in states like Virginia, which has no state law procedure for class actions (and until recently would not even let a group of mass tort victims join together in one case). See Heirs of Roberts v. Coal Processing Corporation, 235 Va. 556, 559, 369 S.E.2d 188, 189 (1988) (trial court concluded “class actions are impermissible in actions at law in Virginia”); Almeter v. Virginia Dept. of Taxation, 53 Va. Cir. 429, 2000 WL 1687589 at *1 n.1 (City of Richmond Cir. Ct.) (“Class actions are not generally allowed”); In re American Dollar Exchange, Inc., 27 Va. Cir. 428, 430, 1992 WL 197040 at *3 (Campbell County Cir. Ct.) (“no class action procedure”); Skeen v. Indian Acres Club of Thornburgh, Inc., 27 Va. Cir. 167, 172-73, 1992 Va. Cir. LEXIS 166 at *12 (Spotsylvania County Cir. Ct.) (law against class actions is “unmistakably clear”); Pendergraph v. Woodlawn County Club, Inc., 22 Va. Cir. 203, 204, 1990 Va. Cir. LEXIS 338 at *2 (Fairfax County Cir. Ct.) (“plaintiff may not proceed ‘on behalf of others similarly situated’”); King v. Virginia Birth-Related Neurological Injury Compensation Program, 22 Va. Cir. 156, 159, 1990 WL 751353 at *3 (City of Richmond Cir. Ct.), aff’d, 242 Va. 404, 410 S.E.2d 656 (1991) (“no provision in Virginia law which allows class actions”); Evitt v. Lake Holiday Country Club, Inc., 13 Va. Cir. 360, 362, 1988 WL 619347 at *2 (Frederick County Cir. Ct.) (“no class action procedure”); Miller v. Nat’l Wildlife Federation, 1987 WL 488717 at *1 (Loudon County Cir. Ct.) (“no class action statute or rule similar to Rule 23”); Bracey v. City of Richmond, 1985 WL 306797 at *2 (City of Richmond Cir. Ct.) (“we do not have class action suits”); Kuhn v. West Alexandria Properties, Inc., 22 Va. Cir. 439, 444, 1980 Va. Cir. LEXIS 63 at *10-11 (City of Alexandria Cir. Ct.) (no “Virginia case law, rule of court or provision in title 8.01 of the Virginia Code which would authorize the maintenance of a class action at law”); compare SINCLAIR & MIDDLEDITCH, VIRGINIA CIVIL PROCEDURE 178, 304 (3d ed. 1998) (no class actions comparable to Rule 23); BRYSON, BRYSON ON VIRGINIA CIVIL PROCEDURE 193 (3d ed. 1997) (same); Revisers’ Note to Code § 8.01-281 (“This section does not provide for class actions”); Revisers’ Note to Code § 8.01-364 (“the section . . . is not intended to authorize the bringing of ‘class actions’”).

Tennessee lawyer gets judge recused with claim to have ex parte contact on tape

A Tennessee lawyer who has filed 200 motions on behalf of his client in a capital murder case in Tennessee got the judge to recuse himself when he claimed that a message left on his answering machine was evidence of ex parte communication between the judge and the prosecutor, as reported here in the Knoxville paper.

Testimony in the Richmond tax assessor criminal case

The Richmond paper has this report on the arguments and testimony in the criminal trial of Richmond's tax assessor, for ordering the reduction of the tax value of his own property.

TN inmate released by mistake calls in from California

The once and future Tennessee inmate from Greeneville who was released by mistake got the word in California that Tennessee authorities were looking for him and gave them a call about what to do, as reported here.

Plaintiff states a retaliation claim based on his successful defense of harassment charges

In Deravin v. Kerik, the Second Circuit held that the plaintiff had stated a cause of action for retaliation, where the "protected activity" on which his claim was based was his testimony defending himself against the sexual harassment charge brought under Title VII by a female co-worker.

Virginia's own Dr. Pat Robertson prays for liberals on Supreme Court to hang it up

As reported here and here, Pat Robertson is hoping to change the Supreme Court through prayer. I wonder that the author of Ninomania and his colleagues think of that plan.

Virginia tax debate pits Republican vs Republican before the job begins

As reported here, here, here, and here, some Republican legislators in Virginia are criticizing their peers who have already panned the tax reform effort as a scam to raise taxes in Virginia.

The members of the legislative committee and its staff, along with their schedule, are posted on this website.

Muhammad case moved not to Abingdon but to Virginia Beach

As reported here, here, and here, the trial of the accused sniper John Muhammad will be moved to Virginia Beach, and not Southwest Virginia, as was strangely suggested by the prosecutor in a way that excited the local press.

Attorney Zane Dale Christian leads citizens' group in Bluefield

Bluefield, Va., attorney Zane Dale Christian is leading a group of citizens protesting the ways of the town government in Bluefield, according to this report.

Unrelated to any of this, Mr. Christian used to be a U.Va. football sponsor - when the Cavaliers scored a field goal, the public address announcer would declare, "for that Cavalier field goal, attorney Zane Dale Christian will donate $500 to the Virginia Student Aid Foundation." He is surely the biggest Wahoo fan alive, and has a trophy case full of Wahoo stuff in his very interesting house in Bluefield.

Fourth Circuit still holds that Child Support Recovery Act is valid against commerce clause challenge

In U.S. v. Rich, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins, Judge Widener, and Senior Judge Beezer from the Ninth Circuit upheld the constitutionality of the federal Child Support Recovery Act, notwithstanding defendant's claims that it was beyond the power of Congress to regulate interstate commerce.

Oops, your house is in a special flood zone

In Lukosus v. First Tennessee Bank, N.A., Judge Jones dismissed for failure to state a claim the landowner's claim against her lender, claiming that she would not have bought the property if the Bank had told her that it was in a special flood zone.

Judge Jones rules assignee of debtor gets right to extension

In Double K Properties, LLC, v. Aaron Rents, Inc., Judge Jones of the W.D. Va. ruled that under bankruptcy law, the assignee of a debtor was entitled to the benefit of an extension option, notwithstanding language in the lease agreement that the option was personal to the original debtor.

Rape shield law upheld by Virginia Court of Appeals

In Pilcher v. Com., the Court of Appeals in an opinion by Judge Bumgardner and retired Circuit Court Judge Charles H. Smith, Jr., held that the rape shield law, Va. Code § 18.2-67.7, is not void as an "ex post facto" law under the Constitutions of the United States and Virginia, even when applied in cases where the crime was committed a long, long time ago.

Fighting the death penalty in Charlottesville

The Daily Progress has this report on defense lawyers trying to avoid the death penalty in a case involving the murder of a drug dealer.

Put up a parking lot

The egg people in Abingdon have got the Town suing itself over the Board of Zoning Appeals' decision to allow Dutt & Wagner to use its non-conforming parking lot, as reported here.

The article makes it appear that the landowner, the town planner, and the board of zoning of appeals are all in the wrong.