More on the Haynes nomination

On Friday, the Paper Chase had this post about the nomination of William J. Haynes, II, to the Fourth Circuit, noting that he "has been criticized by Democrats for being partly responsible for several controversial Bush administration policies, including the indefinite detention of some US citizens as "enemy combatants" without trial, the refusal to designate prisoners held at Guantanamo Naval Base in Cuba as POWs under the Geneva Conventions, and the Pentagon's military tribunal plan."

Water discharge from new gas pipeline sinks farm land?

The Roanoke Times has this story on a farmer who claims that water discharging from a gas line created a sinkhole on his property in Wythe County.

More on coalbed methane in Virginia and West Virginia

Rory Perry has this post on WV law regarding who owns coalbed methane, and asking if I know the status of the Virginia Supreme Court case. His post links to the new West Virginia Supreme Court opinion, which declares that "[i]n the absence of specific language to the contrary or other indicia of the parties' intent, an oil and gas lease does not give the oil and gas lessee the right to drill into the lessor's coal seams to produce coalbed methane gas." In its discussion, the WV court observed: "There is a great temptation in this case, urged on us by both sides, to wave a wand and declare coalbed methane to be either “coal” or “gas.” The logic of either position is facially seductive; “coalbed methane” is indeed “methane” in that both have the same chemical composition; but “coalbed methane” is also intimately bound to the coal, which must be disturbed if coalbed methane is to be produced in paying quantities. . . . But the precise question we must answer in this opinion is not whether coalbed methane, for all purposes and in all cases, is “coal” or is “gas.” The specific question we must answer is whether a gas lease executed in 1986, before the widespread commercial production of coalbed methane in West Virginia, signed by a lessor who owned the land, coal, oil and gas, . . . conveyed to the oil and gas lessee the right to develop the coalbed methane, absent any specific language on the issue."

I don't know any more about the pending Virginia case than what's online. The case was fully briefed as of August, according to the Supreme Court's case information site, and it apparently was not among the September cases decided in October, or the cases argued in October, so I'm guessing it will be argued and decided next year, if there is (or has been) no settlement.

The assignments of error in the Virginia case are these:

1. The Trial Court erred in finding that, under Virginia law, the grant of coal rights does not include coalbed methane ("CBM") absent an express grant of CBM.
2. The Trial Court erred in failing to adopt the plain and common meaning of the term "coal" in the 19th century as presented in the defendant's uncontested evidence of such definitions that describe coal as a heterogeneous substance that includes gas, a meaning that was also supported by the defendant's uncontested evidence of the current meaning of the term "coal" as a generic term with constituent parts that vary greatly.
3. In the alternative, the Trial Court erred in failing to acknowledge the ambiguity in the term "coal" contained in the severance deeds at issue in this case, finding instead that the term unambiguously did not include CBM.
4. The Trial Court considered evidence outside the record on the issue of the meaning of the term "coal" as used in the 19th century.
5. Having failed to either find ambiguity in the severance deeds or to adopt the common meaning of the term "coal" as used in the 19th century and as supported by current expert testimony, the Trial Court erred in failing to apply the proper rules of construction that should be applied to the severance deeds, finding instead that the grantors retained an interest in CBM when they could not beneficially use or enjoy the estate without trespassing on the coal owner's estate; and the coal owner could not beneficially use or enjoy the coal estate without trespassing on the purportedly retained estate of the grantor in the CBM. To do so, the Trial Court erroneously relies on a "common law" right of the coal owner to release CBM in connection with its coal operations.
6. The Trial Court erred in adopting a simplistic construction of the severance deeds finding that the grantors on these severance deeds intended only to convey the solid core of the coal and none of its associated volatile components such as CBM. Specifically, the Trial Court held that "the only finding that would allow the Court to rule in favor of the coal owners is that the CBM is a constituent of the coal itself." In doing so, the Trial Court disregarded the law of Virginia on mineral rights, that mineral estates may include non-specified elements when those elements are substantially connected with or integrally a part of the granted estate. Here, CBM is substantially connected with coal and an integral part of the in situ coal.
7. The Trial Court erred in construing the severance deeds to find that the grantors retained an interest in CBM when the grantors could not beneficially use or enjoy the estate without trespassing on the coal owner's estate; and the coal owner could not beneficially use or enjoy the coal estate without trespassing on the purportedly retained estate of the grantor in the CBM.

Exclusion of expert testimony on child molesters affirmed

This post from Blog 702 discusses the unpublished opinion by the Fourth Circuit in U.S. v. Fitzgerald, a per curiam opinion for the panel of Judges Michael, Traxler, and King, which "upheld the exclusion of testimony from an FBI forensic psychologist, to the effect that child molesters commonly begin with innocuous behavior designed to gain the child's trust and later escalate to borderline behavior designed to test the child's receptivity," in a case "where a Junior ROTC instructor allegedly made sexual advances toward teenage girls in the JROTC program."

The opinion also deals with the admisssibility under Rule 413 of evidence about prior acts of sexual misconduct. "Evidence offered under Rule 413 must satisfy three elements: (1) the defendant must be accused of an offense of sexual assault as
defined by Rule 413(d); (2) the evidence must pertain to the defendant’s commission of another sexual assault offense; (3) and the evidence must be relevant," the Court explained, and "[i]n applying the second element of Rule 413, the court must determine whether a reasonable jury could conclude that the defendant committed a prior sexual assault offense."

Judge Traxler wrote a concurring opinion, saying basically that under the abuse of discretion standard, he was bound to agree with the exclusion of the government's expert, but "[i]f there had been a firmer foundation for this testimony, my vote would have been different."

Ex-supervisor wants 39 felony charges dismissed on improper venue

On Friday, the Roanoke Times reports here that the former member of the Board of Supervisors in Bedford County is seeking dismissal of 39 of the 82 felony charges dismissed because the alleged acts were committed in another county.

One day's take on gay marriage

Howard Bashman has a dozen or more newspaper articles in this one post on reaction and developments across the country following last week's decision by the Massachusetts Supreme Judicial Court in the gay marriage case.

Senate panel studies 4th Circuit nominee William Haynes

Via How Appealing, this article in the Richmond paper describes the Senate Judiciary committee hearing on the nomination of William J. "Jim" Haynes II to fill the position on the Fourth Circuit made vacant by the senior statute of Judge Emory Widener. The article says that both Virginia Senators Warner and Allen supported the nomination at the hearing.

Summary judgment for Wal-Mart on tort claims of accused shoplifter

In Hall v. Wal-Mart Stores East, Inc., Judge Jones granted the defendant's motion for summary judgment on the false imprisonment, malicious prosecution, and intentional infliction of emotional distress claims of the plaintiff, who swore that she had no intent to steal some azaleas that she failed to put back after discovering she did not have enough money to pay for them. The woman was at the store with her 4 children, and had won an acquital on the shoplifting charges. The Court concluded, among other things, that there was no dispute of fact as to the defendant's immunity defense under the statute, Va. Code Ann. § 18.2-105, which allows stores to detain suspected shoplifters when they have probable cause.

City councilman wins defamation case against private citizen

As reported here in the Richmond paper, a city councilman has won a jury award of compensatory and punitive damages against a private citizen who took out false newspaper ads against the councilman shortly before an election.

The article says in part:

"A Circuit Court jury yesterday ruled in favor of a Colonial Heights City Council member who sued a private citizen for libel in a case that may be a first for Virginia.

After about 4½ hours of deliberation in Chesterfield County Circuit Court, the seven-member jury awarded J. Chris Kollman III, a 26-year council member, $75,000 in compensatory damages and $125,000 in punitive damages. The suit was brought against Claude E. Jordan.

Kollman's lawyer, Thomas E. Albro, . . .said he thinks the libel suit filed by a public official against a private citizen is a first for Virginia."

On the connection between Hokie football and the economic health of Southwest Virginia

It says here in the Cavalier Daily that "[f]or Virginians, the Hokies' presence in a viable football conference was said to be crucial to maintaining the economic health of Southwest Virginia." This may be the lamest article I've read in the CD since I was a student.

Unrelated to this, the Cavalier Daily itself has been in the news this week with plagiarism problems, as reported here (in the Virginia Tech paper), and here by the AP. This could be further evidence of the nefarious influence of the New York Times.

The NYT (registration required) also has some problems with Southwest Virginia. This Times story about old buildings says that one was found "in Mecklenburg County in southwest Virginia, about 150 miles from The Plains." (It's more like 200 miles from The Plains to Mecklenburg County, which is not in Southwest Virginia.)

Ron Meisburg nominated for NLRB seat

According to this announcement from the White House, "The President intends to nominate Ronald Edward Meisburg, of Virginia, to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2008. He currently serves as an Attorney with Ogletree, Deakins, Nash, Smoak & Stewart, a Washington, D.C. based law firm. Mr. Meisburg previously served as a Partner with Heenan, Althen & Roles, LLP. Prior to this position, he served at the Department of Labor in the Office of the Solicitor of Labor. While at the Department, Mr. Meisburg served in the Division of Employee Benefits and went on to serve in the Division of Mine Safety and Health. He earned his bachelor's degree from Carson-Newman College and his J.D. from the University of Louisville."

Geez, Ron Meisburg - what a great and friendly guy he is. He and his old partners have treated me like the Duke of Earl in our few dealings over the years, for no particular reason other than that's how they do things. Reading this announcement makes me want to jump up from my chair and hoot and holler.

Virginia Court of Appeals upholds sanctions in divorce case under 8.01-271.1

In Vinson v. Vinson, the Virginia Court of Appeals in an opinion by Judge Frank, joined by Judge McClanahan and Senior Judge Coleman, upheld the award of sanctions in the amount of more than $20,000 under Va. Code 8.01-271.1 in a divorce case against the wife's lawyer, who failed to withdraw as soon as he should have where he had a conflict of interest as to the validity of a property settlement agreement he had written as to both the husband and the wife.

This is a very interesting opinion. First of all, it recognizes that the lawyer could take an interlocutory appeal on the award of sanctions against him, that since he had withdrawn and was no longer in any way a part of the case, the order was final and he could bring the appeal now rather than at the end of the divorce case. (There was some ambiguous discussion about whether the sanctions motion was or was not part of the divorce case at all, and what was the proper style of the appeal.)

Second, the Court upheld the merits of the sanction ruling. This is probably correct, but I wish it had been made plainer exactly what the lawyer did and when that was wrong. It seems almost like a malpractice claim disguised as a motion for sanctions. Apparently, after the husband file a motion for the lawyer to withdraw, everything that the lawyer did or said other than withdrawing was construed to violate section 8.01-271.1. I don't think that's quite right, but one key difference between the Virginia statute and the federal Rule 11 is that the Virginia law extends to oral as well as written representations (and the federal Rule 11 does not).

Finally, and perhaps most extraordinary, is the Court's affirmance of the amount of sanctions. The lawyer argued that the Court should not award more than the amount of the other side's actual attorneys' fees as a sanction. The appeals court said there was no such limit. If that's true, then I suspect the statute is possibly unconstitutional - in the manner of the contempt fines against the UMWA by the Circuit Court of Russell County, Virginia, that were thrown out by the U.S. Supreme Court in the famous case of International Union, UMWA v. Bagwell, 512 U.S. 821 (1991). (Probably the lawyer has waived this constitutional issue, since it was not discussed in the Court of Appeals' opinion, but maybe not - maybe he ought to petition the Virginia Supreme Court.) Usually, in sanctions litigation, the attorneys' fees alone are so high that making someone pay them is punishment enough, I would think.

Virginia Supreme Court grants appeal in Charles Riner case

As described here, the Virginia Supreme Court has decided to take an appeal in the murder case of Charles Riner, who was represented by Tom Scott and Roger Groot. As described here and here, Riner was convicted in Wise County Circuit Court of murdering his wife, stealing her rings, and burning the house down. The Virginia Court of Appeals opinion affirming Riner's conviction is here.

From Harrisonburg, Virginia all the way to Tacoma

In Atlantic Construction Fabrics, Inv. v. Metrochem, Inc., Judge Wilson granted a motion to transfer the case from the Harrisonburg division of the W.D. Va. to a federal court in Washington State.

Wise police chief wants to be able to alert businesses about crime via fax

According to this story in the Coalfield Progress, the police chief in Wise wants local businesses to have fax machines so he can send them reports about crimes that might affect them.

The Chief "said the police department is preparing to implement a program through which the department will alert area businesses to activities, such as counterfeiting, bad checks, scams and shoplifting, while those crimes are in progress in the area." Of course, e-mail would be cheaper and better than fax, but what do I know?

The Crime Commission's proposals on reforming the 21-day rule

Via VLW, the Roanoke Times has this story on the Crime Commission's proposal for reforming the 21-day final judgment rule, which currently limits the ability of convicted criminal defendants to come forward with evidence of their innocence more than 21 days after the final order in their criminal cases - a rule that was cited as one of the most unfair aspects of Virginia criminal procedure in the recent ACLU report calling for a death penalty moratorium in Virginia.

"Under the proposed law, convicted felons who discover new evidence of innocence can petition the Court of Appeals. If the appellate court finds the case might have merit, it will order the judge in the jurisdiction where the defendant was convicted to hold an evidentiary hearing on certain factual matters. The appellate court will have the final call on whether the conviction should stand."

So, it's not just special ed kids, it's also immigrants

This article from the NY Times (registration required), mostly critical of Virginia's SOL program and the federal No Child Left Behind program, relates that a rich school in suburban Richmond (Henrico County) did not make its numbers because of its immigrant population, mostly students who don't speak English.

Virginia Democrats and Republicans react to Massachusetts gay marriage opinion

This article in the Virginia Tech paper quotes Governor Warner and Lt. Governor Kaine, among others, on the issue of Virginia law and same-sex marriage, in the wake of the Massachusetts appeals court decision.

In this story from the Kingsport paper (registration required), Delegate Terry Kilgore declared that gay marriage would never be legal in Virginia: "Delegate Kilgore said it's high time for the majority of Americans to stand up and be counted when it comes to rolling back the agenda of the far left tide."

First times before the U.S. Supreme Court

This law.com article is great, on the subject of lawyers describing their first arguments before the U.S. Supreme Court.

As I noted here six months ago, Florida lawyer Joe Klock is still my hero for his famous gaffes in the oral argument before the U.S. Supreme Court in the Bush v. Gore case, as recounted in this article ("Lawyer Klock 'not good with names'").

Which takes precedence, a city charter or general state law?

This article about the condemnation of the marina at Hopewell includes the following discussion about local vs. state law:

"According to Zevgolis, this is clearly spelled out in the Hopewell City Charter. Zevgolis described a city charter as a "mini constitution" which takes precedence over state law. Zevgolis said that the charter states that only the Port and Dock Commission can declare buildings over water as condemned and that the state law gives the building inspector the power to declare buildings condemned.
Carrie Cantrell, a spokeswoman for Attorney General Jerry Kilgore, said as far as she knew Virginia State Law always takes precedence over city charters or any other sort of local law."

Ms. Cantrell ought not be saying things like that. First of all, Va. Code § 15.2-100 says that the general provisions shall generally not be construed to alter charter rights, except when the legislature uses the magic words: "Except when otherwise expressly provided by the words, 'Notwithstanding any contrary provision of law, general or special,' or words of similar import, the provisions of this title shall not repeal, amend, impair or affect any power, right or privilege conferred on counties, cities and towns by charter." I think the AG opinions generally say the same thing. See, e.g., Hon. Edwin Wilmot, AG Opinion 99-080, 2000 WL 425333, *2 (March 8, 2000) ("A charter provision that establishes the powers of a local government is special legislation authorized by Article VII, § 2 of the Constitution of Virginia (1971), and will prevail over general law, absent an indication of legislative intent to the contrary, in the event of a conflict between the two."). "General laws are superseded by later charter provisions, which are themselves statutes, to the extent that there is a conflict." Com. v. Rose, 160 Va. 177, 180, 168 S.E. 356, 357 (1933).

Another horserace article on Gil Davis and other statewide contenders

The Richmond Times-Dispatch has this story on the roundup of canddates for statewide office in 2005, including Northern Virginia lawyer Gil Davis, who is or was at one time of counsel to the Copeland & Bieger firm in Abingdon, I guess for when he needed a place to hang his hat in Southwest Virginia.

Name change here at the firm

As of November 13, this firm was renamed "Elliott Lawson & Minor."

My long-time boss and partner and friend Kurt Pomrenke got an offer he couldn't refuse from King Pharmaceuticals.

So, my name moved up into the firm name, an event which I would not have thought likely when I was working for White Elliott & Bundy and there were 6 partners and 5 associates before my name on the letterhead.

Goofy article about the Fourth Circuit

This Baltimore Sun article seems to contain every stereotype (good or bad) ever made about the Fourth Circuit.

Here's an example of how this article strikes me as flawed. The article offers this summary of Fourth Circuit decisions:

"Many liberals, though, see the Fourth Circuit as akin to the administration's rubber stamp. It is, they assert, a court that tends to side with government against the individual and business against the employee and to embrace a hard line on terror suspects and civil rights.

The Fourth Circuit began attracting attention in the 1990s when it tried to overturn Miranda, the landmark 1966 Supreme Court ruling that requires the police to inform criminal suspects of their right to remain silent and to consult a lawyer.

In recent years it ruled that the Virginia Military Institute could remain all-male, struck down the Violence Against Women Act, said the Food and Drug Administration could not regulate nicotine as a drug, upheld the presence of the Confederate flag on some Virginia license plates and has agreed to hear fewer death penalty appeals than most other circuits."

Now, I know the Fourth Circuit often sides with "the government," but I'm pretty sure that the Fourth Circuit rejected the arguments offered by "the government" in the VMI, VAWA, and FDA cases, all three.

Regarding Clinton nominees, the article says:

"President Bill Clinton was hesitant, historians say, to nominate liberals for fear of looking weak on crime. Four of his nominees for the Fourth Circuit, all moderates, managed to win confirmation after contentious battles. Clinton slipped in a fifth, Roger L. Gregory, as the court's first black judge, through a "recess appointment" while Congress was out of session.

The current President Bush renominated Gregory for the Fourth Circuit - the last federal appeals court to integrate racially - and the Senate confirmed the nomination.

Three of Clinton's nominees on the court - Diana G. Motz, Robert B. King and M. Blane Michael - are the usual dissenters from conservative opinions."

Did Judges Motz, King, Traxler and Michael "win confirmation after contentious battles"? I never heard that there were contentious battles over any of these nominees. In fact, Judges Motz and Michael went through the process during a time when Democrats held the majority in the Senate, and there were no minority-party filibusters in those days.

Turmoil over proposed new law school in Nashville

The Tennessean has this report on one legislator's determined efforts to bring a law school to Tennessee State University in Nashville. She says it "having a law school would put TSU in the ranks of Vanderbilt and the University of Tennessee."

Budget-cutting through negative performance evaluations?

According to this story in the Roanoke paper, Roanoke police officers are claiming that the City is trying to save on performance pay by implementing a plan of giving bad evaluations.

On constitutional protection for personal lifestyles

This week, one of the books I was reading was an old volume from college called Patterns of American Legal Thought, a collection of essays by U.Va. law professor G. Edward White, published in 1978. Included among them is a law review article written by Professor White and then-Professor J. Harvie Wilkinson, III, reprinted from the Cornell Law Review, titled "Constitutional Protection for Personal Lifestyles."

It turned out to be timely, in light of this week's decision by the Supreme Judicial Court of Massachusetts in the gay marriage case.

The circumstances are much the same as in the Lawrence v. Texas case - if the standard of review is rational basis, can the judges say that continuing the law as it has been for centuries is not merely wrong but so wrong as to be irrational? I doubt it - outside of race discrimination, where the Constitution was specifically amended after a civil war to change the law of hundreds of years.

Roanoke woman sues Carilion hospital and two doctors for revealing she has HIV

The Roanoke Times reports here that a woman is suing a hospital and two doctors for wrongfully revealing that she has HIV.

Richmond reimplements no-trespass policy from Hicks case

According to this story in the Richmond paper, the no-trespass policy for housing authority properties is back in effect in Richmond, after the Supreme Court opinion from last term in the Hicks case did not conclude that the policy was unconstitutional, although constitutional issues remain.

10,000 hits

The visitors to this blog (since the Sitemeter was installed) are (as of this afternoon) more than 10,000. That seems like a lot, or a little, I'm not sure which - and only 2,948,000 less than How Appealing.

The tax protests of the satellite TV providers

I read today that DirecTV has sued Tennessee over the denial to satellite television of the same tax benefits bestowed on cable television, and the story included a link to this industry website, which includes a page protesting unfair taxation of satellite service in Virginia. Since the satellite providers don't pay franchise fees or pole attachment fees or right-of-way fees, I wonder whether this is all a bunch of hooey.

Federal judge to rule whether John Hinckley can visit parents at Kingsmill

According to this report in the Daily Press, a federal judge will decide whether would-be assassin John Hinckley can have an unsupervised visit with his parents at Kingsmill in Williamsburg.

The Dillon Rule and a new mayor for Richmond

This article in the Richmond paper describes the Dillon Rule of strict construction on the powers of local governments, against the background of the necessity for the City of Richmond to obtain approval from the General Assembly for the election of its mayor on an at-large basis.

If a tree falls in the woods and no one hears it, what's the case worth anyway?

One of the things I've been reading about today is that some lawyer out in California sent a letter to a woman (who also happens to be a lawyer) threatening to sue over the comments written by others to one of the posts on her weblog. See, for example, these posts at CalBlog (the threatened blogger), Citizen Smash, Instapundit, and SoCalLawBlog, all of which have links and details.

Also, today I read this post by Curmudgeonly Clerk about what good are blogs anyhow, since many are soon abandoned and none are as widely read as the number of views for the worst show on television.

Putting these two together, I'm wondering what are the damages for defamation on a web log if no one in particular reads it (and everyone knows that). I had to wrestle with something similar in connection with a possible claim for defamation where the entire universe of publication was one guy, on whom the allegedly defamatory information had no effect whatsoever, other than to call back to my client and let them know what had happened. Fortunately, I won't be writing any briefs on the issue.

I also wonder, who thinks that they can threaten to sue a blogger for blogging without all the other bloggers finding out about it? Now I expect there's a few hundred or a few thousand bloggers who think that this lawyer who wrote the letter is, um, doing something they with which they disagree.

Maybe William Haynes should just move to Maryland?

This post from the presumably tanned, rested, and ready maestro of How Appealing details the latest on the two pending nominations to the U.S. Court of Appeals for the Fourth Circuit, Claude Allen and William Haynes, both of which have generated some heat because of whether the nominees reside (or don't reside).

(When was it first said of Richard Nixon that he was "tanned, rested, and ready"? 1968? 1988? 1992?)

Meth as part of the outlaw tradition of East Tennessee

The Knoxville paper has this article on the plague of methamphetamine trafficking in Eastern Tennessee, which it ties to the area's "outlaw tradition."

The nuts and bolts of the two simultaneous sniper trials at changed venues

This interesting article in the Washington Post describes the logistics of having the two sniper trials in Virginia Beach and Chesapeake.

One interesting fact of which I had no idea was that once there was a criminal trial moved from Fairfax County to Dickenson County, involving the collapse of a building at Bailey's Crossroads that killed 14 people.

For the sniper trials, the witnesses and evidence must be coordinated, and some of the material is being stored halfway in between Chesapeake and Virginia Beach.

In the courthouse, a "safe haven" has been established to allow the victim's families to view the proceedings with some level of privacy.

Chief Justice Rehnquist says it's easier to become president than to become Chief Justice

According to this AP report, in his speech at Williamsburg on Friday, Chief Justice Rehnquist discussed why fewer state court judges become Supreme Court justices these days, and how the U.S. Supreme Court differs from the high court in France (which has 110 members).

Sales tax avoidance as boon to Southwest Virginia

Oft-quoted ETSU economist Steb Hipple declares in this article in the Johnson City Press (registration required) that Northeast Tennessee loses $354 million per year in retail sales per year to Southwest Virginia because of the difference in the sales tax rates of Tennessee and Virginia.

(I've always wondered, if the sales tax makes such a difference, why aren't there better shopping opportunities on the Virginia side? Maybe there will be, with the continued development of Bristol's Exit 7 area.)

Sullivan County educators denounce No Child Left Behind

On the Tennessee side, this article ("Officials say No Child Left Behind sets schools up for failure") from the Kingsport paper (registration required) says that Sullivan County is sponsoring a resolution in favor of altering the federal No Child Left Behind standards, because county officials have concluded that those standards cannot possibly be met, particularly with respect to special education students.

Schapiro says Warner could stick it to Republicans with flat tax proposal

This week's Jeff Schapiro column says one way for Governor Warner to make history and put Virginia Republican legislators on the spot would be to propose a flat tax, in the manner favored by people like Steve Forbes.

Gil Davis contemplating run for lieutenant governor in 2004

Northern Virginia lawyer Gil Davis, best-known for representing Paula Jones (for a while) in her lawsuit against Bill Clinton - including arguing her case before the U.S. Supreme Court - is thinking about running again for statewide office, having unsuccessfully sought the Republican nomination for attorney general in the past, all according to this report, which recalls the following ad:

"The ad showed part of a black-and-white home video. Davis, the Fairfax attorney who represented Paula Jones in her suit against then-President Bill Clinton, was kicked back in a chair with a drink in hand, laughing and encouraging another of his female clients to pose for Playboy magazine."

VaCo joins ad campaign on tax reform

The Virginia Association of Counties and others will pay for advertisements to promote its views on tax reform in time for the upcoming General Assembly session, according to this story in the Daily Press.

Maine man told to sue AOL in Virginia

This article describes the dismissal in Maine of a lawsuit against AOL under Maine's anti-spam laws - the plaintiff intends to refile his suit in Virginia, seeking "$1,680 he says he is owed for the time he has spent dealing with unsolicited e-mails."

Bath County woman seeks new law after son killed at roadside car wash and bake sale

This article in the Richmond paper describes the efforts of a woman to obtain a new road safety law dealing with areas around temporary roadside events after her young son was killed on the road near a car wash and bake sale event.

More on the suit against Reciprocal of America

The Richmond Times-Dispatch has this story on the litigation surrounding the downfall of the Reciprocal of America and its related companies.

The article notes that "The collapse this year of insurance operations Crews organized and helped manage left thousands of policyholders - doctors, lawyers, hospitals and medical associations - without coverage."

Regarding the lawsuit, the article notes that "Virginia Insurance Commissioner Alfred W. Gross alleged a long history of concealed payments, fraudulent transactions, secret agreements designed to buffalo regulators, conspiracy, and breach of fiduciary duties."

More on the Orange County shale mine

The Washington Post has this story on the dismissal of a lawsuit in state court opposing a shale mine in Orange County, Virginia.

The article describes the background of the suit: "A diverse group of residents from the hamlet of Barboursville has been fighting Tennessee-based General Shale Brick since December 2001, saying the company's plan to mine shale on a 139-acre tract would harm the environment, violate black residents' civil rights and wreck Barboursville's tranquil lifestyle with trucks rumbling through. The group said county supervisors violated zoning law when they approved a permit for the mine in April 2002. . . . The initial lawsuit by 38 plaintiffs leveled 10 charges, including that black residents would be disproportionately affected by the new mine. The digging site is about 25 feet from the edge of Careytown, a black community founded by former slaves after the Civil War."

The issues decided by the Court included whether the trucking of the shale was an accessory use to the use of the property for mining shale:

"Orange County Circuit Court Chief Judge Daniel R. Bouton dismissed eight of the charges last year. He allowed two to go to trial: that the supervisors were arbitrary when they approved the plan and that the plan violates zoning law because it allows trucks going to and from the mine to drive through a portion of a tract zoned for homes. Mining is not allowed on residentially zoned land in Orange.

In his ruling Nov. 7, Bouton wrote that there was "no evidence that the board's action was unreasonable" or that it acted arbitrarily. He ruled that trucks carrying the shale do not violate zoning laws because they are "accessory" activities to the main work, which is done on the portion of the land zoned for agricultural use that allows mining.

The notion that thousands of dump truck trips per year were only an "accessory" to the real mining work seemed outrageous to opponents of the new mine."

Another run-of-the mine fee case for Judge Jones in rejecting rate of $550 per hour

In Double K Properties, LLC v. Aaron Rents, Inc., Judge Jones refused to award contractual attorneys' fees at the claimed rate of $550 per hour for counsel from Atlanta, choosing instead to limit the hourly rate to $210 per hour, the amount charged by local counsel from Roanoke. Judge Jones cited his own opinion in the Wynn case, in which he had concluded that a rate of $200 per hour was sufficient for "run-of-the-mine" litigation in Big Stone Gap.

Receiver for ROA sues gang of insiders

Via VLW, this article in the Richmond Times-Dispatch described the lawsuit filed in the E.D. Va. by the receiver of the Reciprocal of America against twenty-some insiders for allowing the company to go down. The case styled Gross v. General Reinsurance, Docket No. 03cv955, is assigned to Judge Spencer. John A. Conrad and JoAnn Nolte of the Conrad firm are the Virginia counsel for the plaintiff Gross.

The defendants include General Reinsurance; John William "Bill" Crews; Milliman USA, Inc.; PriceWaterhouseCoopers, LLP; Wachovia Bank; Crews & Hancock; Atlantic Security, Ltd.; Kenneth R. Patterson; Carolyn B. Hudgins; Judith A. Kelley; Thomas M. Reindel; Victoria J. Seeger; Thomas N. Kellogg; Robert L. Sanders; Gary Stephani; Richard W.E. "Dicky" Bland; Ronald K. Davis; Gordon D. McLean; and Richard Witkowski.

Why not antagonize a member of the legislature so 60 to 80 people can talk about sex?

The Roanoke Times reports here that attendance was slight at a sex talk given by the college TV station at Virginia Tech, while Delegate Robert Marshall is hinting at "a possible budget amendment restricting how student fees can be spent."

Active member of LLC can't claim securities fraud

In Robinson v. Glynn, the Fourth Circuit in a published opinion by Judge Wilkinson joined by Judge Gregory and Chief Judge Hamilton affirmed the district court's conclusion that the plaintiff's membership interest in a limited liability company was not a security on which a securities fraud claim could be based, where the plaintiff was an active participant in the company. "To do otherwise," Judge Wilkinson explained in the opening paragraph, "would unjustifiably expand the scope of the federal securities laws by treating an ordinary commercial venture as an investment contract."

Indeed, there is some authority that the fiduciary duties of LLC members to each other are quite limited. It would be quite something if they could bring securities fraud claims when things go awry.

Fourth Circuit sides mostly against NLRB in solicitation, recognition case

In NLRB v. Transpersonnel, Inc., a split panel of the Fourth Circuit upheld in part and rejected in part the National Labor Relations Board's disposition of unfair labor practice charges against a trucking company, where the issues were whether the company had unlawfully solicited employees to sign anti-union statements and whether the company had unlawfully withdrawn recognition of a Teamsters local as the collective bargaining representative of its employees, after the expiration of the collective bargaining agreement. Judge Shedd wrote the opinion for the Court, with Judge Luttig concurring in part and dissenting as to one of the solicitation claims resolved against the company, and Judge Wilkinson dissenting as to everything decided against the NLRB. What is interesting about the case is that for a published opinion it is mostly about the facts, with Judge Wilkinson's dissent consisting mostly of the complaint that the majority was inadequately deferential to the NLRB's findings of fact.

I was reading that death penalty report the other day and one of the issue raised in it was the page limitation for briefing appeals in the Virginia Supreme Court, the issue being that counsel did not have enough space to argue all the issues and had to pick and choose what to include in the brief. Although the stakes are not comparable, of course, the same is often true in NLRA cases, as I have argued here in the part. The big outcome depends on the smaller disputes about what happened to many different employees. In this case, what if there had been 25 solicitation charges instead of just 9, I wonder. Would the Court have been in the same position to unravel the facts?

Judge Jones denies summary judgment in withholding tax case

There's nothing short of a criminal conviction that messes up your life like the 100% penalty imposed on a person held responsible for failure to pay over the government the money that is withheld from employee wages. The debt can't be discharged, and the debtor does not have much leverage in bargaining for a compromise with the IRS. That's what made me think Judge Jones' short opinion this week in Layne v. U.S. significant, where he denied the government's summary judgment motion in a case where the government sought to impose the penalty on the wife of a former coal operator who worked for a time as the company's treasurer. The Court concluded that "[w]hether a responsible person has the necessary state of mind to act willfully under § 6672(a) is a 'quintessential jury issue.'"

Buchanan County school board sues 56 gasoline firms over MTBE in water supply

According to a front-page story in this week's Virginia Mountaineer, the Buchanan County School Board has filed a suit in the Circuit Court for Buchanan County against 56 gasoline manufacturers, designers, refiners, formulators, and distributors for in excess of $180 million, claiming that the water in the wells owned by the school system have been contaminated by the gasoline additive MTBE. The lawyers representing the School Board are identified as Tom Scott of the Street firm in Grundy, Jeffrey A. Breit from Norfolk, Scott Summy from Texas, among others.

MTBE is part of the plot in Nothing But the Truth, one of the John Lescroart novels in the series with the Dismas Hardy/Abe Glitzky characters - lively and entertaining books, all of them, and colored by great descriptive snippets about San Francisco (where I have never been).

Bush administration considers changes to Clean Water Act in favor of mountaintop mining

According to this AP report, the Bush administration may push for changes in the Clean Water Act that will cure the legal attack on mountaintop mining, where coal companies fill in creek beds that lie between the hills where the overburden is stripped away to expose the coal seams.

Rehnquist to speak at William & Mary on Friday

As reported here in the Daily Press, Chief Justice William Rehnquist will speak in Williamsburg on Friday at a conference put on by the William & Mary School of Law about "how state and federal courts work in concert."

Committee vote on Claude Allen scheduled for this morning

This article in the Times-Dispatch says, among other things, that the Senate Judiciary Committee is supposed to take a vote this morning on the nomination of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit, but notes that Senator Sarbanes of Maryland "has vowed to do all he can to block confirmation, including a filibuster if Allen's nomination reaches the full Senate." The article also talks about the roles of Virginia's Senators Allen and Warner in the late-night judge talkfest in the U.S. Senate, trying to break the filibusters on other court of appeals nominees. This article in the Virginian-Pilot also details the speaking assignments of Senators Allen and Warner in the talk marathon on the Senate floor.

More on the death penalty in Virginia

According to this report in the Richmond Times-Dispatch, the Attorney General's office has declared in response to the ACLU anti-death penalty study that Virginia's death penalty statute is the best in the nation.

Rehearing denied in Wise County landfill case

As reported here in the Coalfield Progress, the Virginia Supreme Court denied Wise County's petition for rehearing in the landfill fee case.

On whether there should be a moratorium on the death penalty in Virginia

Via Jurist's Paper Chase, the AP has this article on this study calling for a moratorium on the death penalty in Virginia.

The study is called "Broken Justice: The Death Penalty of Virginia" and is the result of collaboration between the ACLU of Virginia, the Rutherford Institute, the Virgina State Conference NAACP, the Virginia Interfaith Center for Public Policy, the Virginia Association of Criminal Defense Lawyers, the Office of Justice and Peace of the Archdiocese of Richmond, Virginians for Alternatives to the Death Penalty, Virginia Coalition for Juvenile Justice, Amnesty International USA, Legal Aid Justice Center, and Virginai CURE.

In a nutshell, the report says "that Virginia’s criminal justice system is crippled by procedures that fail to ensure a reliable determination of guilt or innocence." It says that wrongful convictions are "the foreseeable product of two factors presented here: prosecutorial misconduct and incompetent counsel" and that "these factors are aggravated by insensible restrictions on discovery that permit trial by ambush." The report urges that more attention should be paid to the Roger Keith Coleman case.

On Tennessee's CHOOSE LIFE license plate

Both Virginia and Tennessee have dealt with the issues of the "Choose Life" license plate. This Findlaw article by law professor Michael Dorf explains his views as to why the ACLU's challenge to the "Choose Life" license plate should fail.

On perjury convictions in Virginia

The Norfolk paper had this interesting article on perjury convictions in Virginia (and elsewhere). The article says that "Between 1997 and 2002, 56 people in South Hampton Roads were charged with the crime, according to statistics from the Virginia Supreme Court," and that "In the nation’s federal courts, only 0.4 percent of 76,952 defendants had perjury, contempt or intimidation listed as their most serious offense in 2000, according to the U.S. Department of Justice."

John Lamie's case argued before U.S. Supreme Court on Monday

Earlier this week, the U.S. Supreme Court heard oral argument in the appeal brought on behalf of Abingdon bankruptcy attorney John Lamie. The lawyers representing him had this summary of the case on their excellent blog. The case has to do with attorneys' fees for lawyers representing debtors in Chapter 7, and the failure of Congress to fix a "scrivener's error" in the Bankruptcy Code. The Fourth Circuit's opinion can be found here.

JLARC must not listen to Michael Savage or read Pat Buchanan

According to this AP story, the Joint Legislative Audit and Review Commission says that immigrants add wealth to Virginia's economy, don't get much in return, and the Commonwealth ought to spend more on services for them.

Now that the Braves' season is over, the only thing on the radio other than music when I drive home is the Michael Savage show.

Court strikes $10 million verdict in Charlottesville defamation case

Via VLW, the Daily Progress reported here that the Circuit Court Judge Edward L. Hogshire has decided to overturn the $10 million defamation verdict against a Charlottesville television station, and has ordered a remittitur, giving the plaintiff the option of accepting of a $1 million judgment or a new trial on damages.

Worth a visit, just for the cartoon

Via Jurist's Paper Chase, here is the anti-filibuster website with lots of information about why the alleged obstructions of the nominees of President Bush to the various courts of appeals is a bad thing.

D. Conn. judge awards enhanced fees of $325 per hour under EAJA

Law.com has this article about a case in Connecticut where a federal judge ordered enhanced fees of $325 per hour for class counsel in a Medicare case, noting among other things that some lawyers in the area charge $500 per hour, the judge himself used to charge $340 per hour, and the case involved considerable expertise.

More on Virginia politics and taxes

Ben Domenech says here that if Governor Warner convinces the General Assembly to raise taxes, Warner will never again be elected to statewide office in Virginia (i.e., would lose in a campaign against Sen. Allen in 2006). Someone commenting on Domenech's post wonders: if this is true for Governor Warner, would it also be true for the Republicans in the General Assembly?

On the 40-hour work week for general district court judges

This wild story in the Daily Press says that the administrative powers that be have declared that general district court judges will be docked leave time when they work less than 40-hour weeks, and that one of them is so mad about this apparently absurd policy that he sought a temporary injunction against it.

Heck, I'd think that general district court judges ought to get a bonus for working LESS than 40 hour weeks - the dockets generally won't allow it, at least not in the local courts here in Southwest Virginia. Chief Justice Hassell isn't too likely to be thinking about Southwest Virginia if this new policy is his idea, but I'd like to know just where there is a problem with district court judges not working hard.

Why not cite international law on constitutional questions

This law.com article describes a speech in October Justice O'Connor gave, in which one of her topics was the Supreme Court's citation of international law. This David Limbaugh article said the Supreme Court should not be trying to internationalize American constitutional law.

I mention this because someone else sent me this George Will column today which talks about "fundamental differences between American and European understandings of constitutional democracy."

It seems more than odd to look to international (i.e., European) law for understanding of the U.S. Constitution when the Europeans have no constitution like ours.

Video game maker seeks dismissal of E.D. Tenn. suit blaming game for causing shootings

In federal court in Greeneville, the makers of the Grand Theft Auto III video game have filed a motion to dismiss claims that it is responsible for the actions of two young men who went out and started shooting cars in Interstate 40, according to this report in the Kingsport paper (registration required). The article explains:

"According to court records, on June 25 two stepbrothers - William Buckner, 16, and Joshua Buckner, 14 - took two .22-caliber rifles from their parents' home in Newport and started shooting at automobiles on Interstate 40.

Court records state that Aaron Hamel, 45, the son of John and Rosemary Hamel, was shot in the head and killed. His passenger, Denise Deneau, suffered injuries. Kimberly Bede, who was traveling in another vehicle, was struck by a bullet and wounded.

The Buckners were arrested and pleaded guilty to reckless homicide and aggravated assault and are serving an indefinite term in state custody.

In statements to police, the Buckners allegedly told officers they had gotten the rifles from a locked room in their home and then started shooting at vehicles. The boys allegedly told police they were inspired by Grand Theft Auto III.

On Oct. 20, the Hamels, Bede and Deneau filed suit against Rockstar Games, Take-Two Interactive, Sony Computer Entertainment America and Wal-Mart.

In that lawsuit, the plaintiffs claim that Grand Theft Auto III 'makes extreme violence pleasurable and attractive' and trains players 'to point and shoot firearms and inspires them to do so in an effective manner.'"

No power, no cable, nothing to do but hit the road

As noted in this squib from the Channel 5 news, the night before last and off and on during the day yesterday we had no power and then no cable - so during the day we went to Johnson City.

The news item says there were 14,000 AEP customers in Southwest Virginia affected.

Lawyer fees for Big East suit averaging $157,000 per week

This article says the lawyer bill for the lawsuit brought by the remaining schools in the Big East was more than $2 million for the period from May 26 to August 31 of 2003. The Atlantic Coast Conference was dropped from the lawsuit filed in Connecticut state court, for lack of personal jurisdiction. Virginia Tech was originally one of the plaintiffs in the case, before the ACC changes its mind and voted to add Tech as a new member.

Whistle-blower for mine safety to be fired by Bush administration?

The NY Times (registration required) has this story on Jack Spadaro, the superintendent of the National Mine Health and Safety Academy in Beckley, WV, who "has been an outspoken critic of a federal investigation into a huge spill of coal sludge in eastern Kentucky three years ago. The accident, at the Martin County Coal Company, is considered one of the biggest environmental disasters in the Appalachian region."

The article goes on to say the Martin County spill was larger even that the Buffalo Creek disaster, the subject of this interesting lawyer book.

No basis in law for geographic claims to Fourth Circuit seats

Regarding the opposition of Maryland's U.S. Senators to the nomination of Claude Allen, who is not from Maryland, to the U.S. Court of Appeals for the Fourth Circuit, this article in the Baltimore Sun explains that there is no basis in law for their arguments that the seat belongs to Maryland.

The article describes the history of the Fourth Circuit, and says in part:

"The idea of states having any sort of proportional representation on federal appellate courts did not come about until the past few decades. Before then, these courts were so small that there were not enough judgeships to go around. . . .

The 4th Circuit had three judges until 1961, when two more were added. Another two joined in 1966, three more in 1978, one in 1984 and four in 1990 to bring it to its current level of 15. . . .

The original three seats on the court were given to judges from various states. It was not until the 4th Circuit grew to five judges in 1961 that it had one from each of its states. As additional seats were added, they were dealt out to the states like a deck of cards.

After a 1966 expansion and a 1967 retirement, Maryland, Virginia and South Carolina each had two judges. North Carolina and West Virginia had one. Maryland got a third seat in 1978 when North Carolina and West Virginia got their second seats. In 1984, North Carolina got a third seat, but two years later it went to a South Carolinian.

The addition of four seats in 1990 brought the court to its current composition -- Virginia and South Carolina each have four seats, West Virginia and North Carolina each have two. Maryland has two sitting judges, with a third seat in the current dispute. . . .

In testifying against Allen's nomination. Sarbanes correctly said that Maryland, with a population of more than 5.3 million, has 20 percent of the circuit's total population of 26.6 million, concluding that it should have 20 percent of the seats on the court -- three of the 15.

But by that calculation, North Carolina with 8.2 million people should have four seats and South Carolina, at 4 million, should have two. The opposite is true.

Sherilynn Ifill of the University of Maryland School of Law says there is a simple reason for that -- North Carolina Sen. Jesse Helms opposed every nomination that the Clinton administration put forward from North Carolina because the nominees were black. . . .

Virginia, with 7.2 million people, fits the population formula with its four seats, though West Virginia would seem entitled to only one of its two seats with 1.8 million people. . . .

Some contend that this all could have been avoided -- and the 4th Circuit well-served -- if Maryland's senators had accepted Keisler's nomination. After all, one of Virginia's 4th Circuit judges, J. Michael Luttig, spent most of his legal career in Washington before joining the court in 1991.

But Entin of Case Western Reserve says that Virginia's senators did object when President Reagan tried to give a Virginia seat to Kenneth W. Starr, who moved to the Virginia suburbs to work in Washington.

Reagan backed down and put Starr on the District of Columbia circuit.

Still, if there is a judicial population that can claim underrepresentation on the 4th Circuit, it is lawyers from Maryland's Washington suburbs -- whether they practice in this state or in the District.

In the 4th Circuit's 112-year history, there have been eight judges from Maryland. All have been from Baltimore."

Malvo and the Matrix defense

This Boston Globe article says that the sniper Malvo will be just the latest to claim that the Matrix movies made them do it.

Plain clothes cops in Roanoke

This AP article on a new street crimes unit of the Roanoke police begins with this scenario:

"Five people who stood before a Roanoke judge _ then lost the privilege to drive--walked out of the courthouse and got behind the wheel of a vehicle.

None thought twice about the men in plain clothes who followed them outside until they were stopped and arrested."

Having it both ways on tax increases

This editorial from the Norfolk paper accuses the Speaker of the House of Delegates of trying to have it both ways on government revenues:

"No new taxes, he says out of one side of his mouth. Local governments deserve more help from the state than they’re getting, he says out the other. These are incompatible wishes, unless Howell intends to eliminate major state programs and turn the revenue that funds them over to cities and counties. . . .

If he remains true to his unwillingness to increase anyone’s tax burden while cutting taxes, then we can only assume he intends to cut the heck out of a state budget that has already been shrunk by $6 billion in the past two years. We look forward to the details of the speaker’s plan for doing that. Howell implies that the task won’t be so difficult by pointing out that Virginia’s state budget nearly doubled in the last decade.

We pose a challenge: knock off inflation, a huge buildup in the state prison system, spiraling growth in mandated spending for Medicare-Medicaid health care coverage, costs related to enrollment growth in public schools and almost $1 billion annually in car-tax reimbursement to localities (which, unfairly, counts as growth in the state budget), and tell Virginians then how much their budget has increased.

The result will reveal what Howell ought to know, that Virginia has one of the leanest state budgets in the nation. Howell is honest enough to acknowledge that “localities have too many responsibilities and too few resources.” That’s why property taxes — one of the few sources of revenue available to local governments — have gone up in dozens of localities in the last few years.

But the speaker is on slippery ground when he offers to share state income tax revenue with localities or fund school construction and renovation with state dollars. Virginia can do either of these, but only at the expense of some current state programs. Howell needs to say which ones. . . .

Hopefully, a majority of Republicans in the Virginia House of Delegates will put reality ahead of fantasy when they convene in Richmond in January. Otherwise, we’re headed for a crash."

More on Judge Jane Marum Roush

Judge Jane Marum Roush of the Circuit Court for Fairfax County will preside over the trial in Chesapeake of accused sniper Lee Boyd Malvo, but this past week she was in Wise for the trial of the annexation sought by the Town of Big Stone Gap, and she is the subject of this profile in the Virginian-Pilot.

Roanoke paper against internet access tax moratorium

This editorial in the Roanoke paper says, among other things:

"The intellectual and moral bankruptcy of the prevailing anti-tax atmosphere was on display Thursday in the U.S. Senate.

That's because the Senate was debating a piece of bipartisan dreck - it's co-sponsored by Republican George Allen of this state and Democrat Ron Wyden of Oregon - to make permanent a moratorium on state or local taxation of Internet service provision."

Another quarter heard from on the Claude Allen nomination

Via How Appealing, the Baltimore paper had this commentary from a law professor at the University of Maryland Law School on the Maryland senators' appearance at the Senate judiciary committee hearing on the nomination of Claude Allen to sit on the U.S. Court of Appeals for the Fourth Circuit. The professor wrote, among other things:

"IN AN electrifying hearing before the Senate Judiciary Committee last week, Maryland Sens. Barbara A. Mikulski and Paul S. Sarbanes exposed the ugly side of a long-standing and important battle over judicial nominations to the 4th U.S. Circuit Court of Appeals.

. . .

Mr. Bush's failure to nominate a Marylander to the open seat is emblematic of the way the Republicans have played fast and loose with geographic, racial and political diversity on the 4th Circuit for 10 years. Maryland has two judges on the court. Mr. Sarbanes says it should have three because of Maryland's population.

. . .

Without question, Ms. Mikulski and Mr. Sarbanes are fighting for geographic as well as ideological diversity on the 4th Circuit. Maryland's most prominent lawyers and jurists tend not to be conservative, at least not conservative enough for the Federalist Society lawyers that some say vet all of President Bush's potential nominees behind the scenes.

. . .

That the 4th Circuit is widely considered the most conservative in the nation makes the issue of what kind of judge will replace Mr. Murnaghan even more significant. We should be seeking ideological balance, not ideological domination on our circuit courts.

That Mr. Allen is black does not allay the concerns raised by Maryland's senators. In fact, the president's cynical use of race to undercut opposition to his conservative nominees even further debases the judicial nomination process.

Racial diversity is important -- indeed, essential -- to the legitimacy of our judiciary. But racial diversity used as a political wedge, as in the first President Bush's nomination of Clarence Thomas to the Supreme Court, creates long-lasting bitterness from which neither the public nor the nominee is likely to recover soon.

The lesson from Mr. Bush's successful nomination of Allyson K. Duncan as the first black woman to the 4th Circuit earlier this year is that when his nominees are distinguished, aren't extremists and are forthcoming with the Judiciary Committee about their records, the president receives remarkably little opposition from the Democrats.

. . . The administration would do well to withdraw Mr. Allen's nomination and return the Maryland seat to Marylanders."

Smyth County considers removing the word SHALL from its zoning ordinance

According to this report in the Smyth County paper, the county was considering removing the word "shall" from its zoning ordinance. The article says in part:

"The primary change, other than some new definitions for land use terms, appears to be the removal of the word "shall" from the entire approximately 50-page document. Although she was forbidden to speak, Smyth County Economic Development Director Sally Morgan quietly asked the commission why they would delete "shall" throughout the document. The planning commission did not clearly specify its reasoning. Morgan suggested the commission might want to develop a rationale for their choices before presenting the revisions to the supervisors.

"Oh, we’ll have a rationale," McClure assured Morgan, but he did not present it.

McClure and DeBord, the chairman and vice chairman of the planning commission, aggressively fought adoption of the county’s Zoning Ordinance. The two men were the self-appointed leaders of the anti-zoning citizens’ group. Now as leaders of the planning commission, they head the advisory body that recommends zoning decisions and ordinance revisions. Part of their job is to recommend actions to use and enforce the Zoning Ordinance they originally opposed.

County Attorney Tate said "shall" is a specific term used in legal language.

"In the law, there are two [language] terms you use. One is ‘shall’ and one is ‘may,’" he said "‘Shall’ is mandatory and ‘may’ is permissive. … If it says ‘shall,’ it is a requirement."

He used two items of law to illustrate his point. In the Code of Virginia 15.2-953, the law allows local governments to give money to fire departments, saying "localities … may" make gifts and donations to support charitable causes, fire departments and rescue squads. Financial support for emergency service organizations is not a requirement under the law. But in Article 10, Section 1 of the constitution, Tate said, the taxation and finance law says all property "shall" be taxed, and all taxes "shall" be uniform. The "shall" makes the tax law a requirement.

The difference, he said, is what makes an ordinance a requirement rather than an option. Removing the word "shall" from the entire Smyth County Zoning Ordinance effectively eliminates its enforceability."

I bet they never heard of Elizabeth Taylor or the old Redskins' coach, either

As reported here in the Daily Progress, "Virginia’s lack of civics education at school and at home has left 56 percent of the state’s high school students unable to name even one of the state’s two U.S. senators."

Charlottesville lawyer gives up license over settlement check

According to this story in the Daily Progress, a lawyer in Charlottesville who had been practicing since 1986 and was once listed in a survey among a group of people identified as "assets to the community" has given up her law license "after admitting she concocted an elaborate charade to pocket a client’s $13,500 settlement check."

Republicans offer course in lip-reading on taxes

This article in the Richmond paper ("GOP warns governor on taxes") and this article in the Washington Post ("Next Va. Campaign Is for New Tax Code") and this article in the Daily Press ("'Shortfalls as far as the eye can see") all say the Republican majority in the Virginia General Assembly will tolerate no tax increases, notwithstanding the slight gains by the Democrats in this week's elections.

Annexation case bares the financial prospects of Town of Big Stone Gap

The Coalfield Progress has reports here and here, and the Kingsport paper (registration required) has an article here, and the Bristol paper has articles here, here, and here on the trial of the Big Stone Gap annexation case.

The hearing got started late on Monday because two members of the three judge panel got lost on the way to the courthouse. As the Bristol paper explained: "What could be a three-day trial got off to a late start Monday morning when [Judges] Horne and Alexander got lost. The judges arrived two hours late and got some good-natured ribbing from [Judge] Roush before boarding a bus to tour the annexation area."

Professor Sabato says most boring election in 25 years

As retold here in the Cavalier Daily, a student who got to hang with Professor Larry Sabato as he provided election night commentary for a Richmond television station notes that Sabato said up front that "This is by far the most boring election I've ever covered in over 25 years."

Judge Lee blames prosecutors for bad evidence in jury room

This AP report says that Judge Gerald Bruce Lee of the E.D. Va. blames prosecutors for allowing two day planners into the jury room that were not introduced as evidence in the case.

Reaching the limits on the Republican majority?

According to this AP report, the number of Democrats elected to the House of Delegates in Virginia went up instead of down for the first time in 28 years.

Judge Wilson wants Knox retrial two weeks from now in Lynchburg

According to this report in the Roanoke paper, Chief Judge Wilson is moving the next trial of the Dr. Knox case to Lynchburg because of the publicity over the first trial in Roanoke, and he wants to seat the jury in two weeks.

What does it mean when your sister discovers your web log?

I was over at Duffield today and had lunch with my sister Joan, who says she has now seen my Blogger site. You can discover her firm's website at this link - she is in the business of helping people and firms apply for grants, among other things. She was telling me also about some concert in Clintwood where there was no dancing, maybe the rule there is like the ordinance in nearby Pound, about which Judge Williams wrote: "It has been said that life imitates art. In a scene more than slightly reminiscent of the 1984 Academy Award-nominated movie Footloose, in which a small town outlaws dancing, the Town of Pound, Virginia, enacted Chapter 22 of the Town of Pound Ordinance, §§ 127-138, . . . prohibiting the allowance of dancing in any place open to the general public without first obtaining a permit for the operation of such a place." Elam v. Bolling, 53 F. Supp. 2d 854, 855-56 (W.D. Va. 1999).

Who's Claude Allen?

Law.com has this profile on Claude Allen, who has been nominated by President Bush for appointment to sit on the U.S. Court of Appeals for the Fourth Circuit.

This month's Bashman interview

In this month's Twenty Questions, How Appealing interviews Judge Richard Arnold of the Eighth Circuit, the hero of unpublished opinion fans everywhere for his opinion in the Anastasoff case, to the effect that it was unconstitutional to prevent lawyers from citing unpublished opinions.

More on the politics of the Claude Allen nomination

Via How Appealing, this piece from the Baltimore Sun describes the politics of replacing a judge from Maryland with a lawyer from Virginia.

Judge Turk of W.D. Va. dismisses suit challenging one-year suspension from school

The AP has this article on the decision by Judge Turk of the W.D. Va. to dismiss a lawsuit challenging the decision by the Pulaski County School Board to suspend one of its students for one year "after school officials found her possessing medicine for insomnia." The article says that the student was accused "giving the medication or aspirin to another student."

On the eve of Election Day in Virginia

The Bluefield paper has this article on the race for sheriff in Tazewell County. On Sunday, the Bristol paper reported here all the dirt the Washington County Democrats have accumulated against the Republican candidate for Commonwealth's attorney, including reports that the fellow had some unpaid debts. (The part of the article I liked were the pictures - Congressman Boucher laughing with Fred Parker and Jack White, and in the print edition, Hope Reynolds with her son and nephew.) The Bristol paper endorsed the Democrat, saying that it is wrong for the Republican to promise no plea bargains if elected. The Coalfield Progress reported here on the expenditures of the candidates for Commonwealth's attorney. The Republican nominee, Chad Dotson, still gets the prize for the best (and only) constitutional officer candidate website I've ever seen. This article from the Kingsport paper (registration required) on the race for Commonwealth's attorney in Scott County notes that both candidates were standout football players (which maybe counts for a lot in Scott County).

More on the Merry Pease case

The Media General papers had this article on the case of Merry Pease, whose murder conviction from Wise County Circuit Court was affirmed by the Virginia Supreme Court on Friday.

Death penalty affirmed in Jackson case

On Friday, in the case of Kent Jermaine Jackson v. Commonwealth, the Virginia Supreme Court affirmed the death sentence imposed on the defendant, despite constitutional and other challenges, noting, among other things, that "Beulah Mae Kaiser suffered a brutal, vicious, and painful death at Kent Jermaine Jackson's hands. The record indicates that Jackson agreed to the plan to enter Mrs. Kaiser's apartment and rob her and that he kicked her and held her down while Dorsett punched, kicked, and stabbed her. Jackson stabbed Mrs. Kaiser and he handed Dorsett the cane that ultimately was shoved through her face." The AP had this report and the Richmond paper had this article on the Court's ruling.

The end of the trial of Dr. Knox, Round I

As reported here, here, here, and here, the long-running federal court trial of Dr. Cecil Knox ended with an acquittal on some counts and a mistrial on the others, where the jury was unable to reach a verdict. The U.S. Attorney for the W.D. Va. has indicated that his office will retry Dr. Knox on the remaining charges.

$647,000 verdict affirmed in slip-and-fall case from W.D. Va.

Last week, in the case of Richardson v. Boddie-Noell Enterprises, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Shedd and Senior Judge Hamilton affirmed the judgment where the plaintiff won a $647,000 verdict for a slip-and-fall case at a Hardee's restaurant in Louisa, Virginia. The case was tried before Judge Moon in the Charlottesville jury division of the W.D. Va. One of the issues on appeal was a constitutional challenge to the plaintiff's use of peremptory strikes, which were all used to strike men from the jury, and on this issue the appeals court noted that the only evidence was statistical, that only men were struck, and that the plaintiff was able to articulate at trial non-discriminatory reasons for the strikes.

Friday's Virginia Supreme Court cases

In Ryland v. Manor Care, Inc., the Court in an opinion by Justice Kinser affirmed a circuit court granting relief in equity from an earlier default judgment in a medical malpractice case. The court explained that the elements necessary for the equitable remedy from a default are these: "(1) a judgment which ought not, in equity and good
conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law." The Supreme Court noted that the trial court did not really explain its findings on these five elements, and for future reference, the Supreme Court wants "to stress that a trial court must articulate its findings with particularity regarding each of the five elements." The gist of the facts is that the insurance defense counsel was hired but failed to notify anyone in time for other counsel to be retained in time to avoid default. The Court makes a strangely fine point in its opinion, trying to distinguish the lawyer's conflict problems as something of different character as a lawyer simply missing a deadline.

In Montgomery Mut. Ins. Co. v. Riddle, the Court in an opinion by Justice Lemon held that Va. Code § 38.2-309 "requires proof of actual reliance by an insurance company on material misrepresentations made in an application for insurance before a policy of insurance can be declared void."

In Blake Construction Co., Inc. v. Upper Occoquan Sewage Authority, the Court applied for the first time the statutory prohibition against "no damages for delay" clauses in public construction contracts, now codified at subsection (A) of Va. Code § 2.2-4335, concluding, among other things, that the contract provisions at issue were prohibited under the statute.

In Williams v. Gloucester County Sheriff's Department, the Court held that the "contemporaneous objection" rule applies to proceedings to obtain worker's compensation benefits, barring the claimant from raising new issues on appeal.

In Kappa Sigma Fraternity, Inc. v. Kappa Sigma Fraternity, the Court held that a challenge in equity to the validity of amendments to the articles of incorporation of non-stock corporation was subject to a defense of statute of limitations - either the statute applicable to claims for breach of written contracts, breach of fiduciary duty, or injury to property, citing, among other things, the "well-established principle uniformly acted upon by courts of equity, that in respect to the statute of limitations equity follows the law; and if a legal demand be asserted in equity which at law is barred by statute, it is equally barred in equity."

In Lewis, Adm'r v. C.J. Langenfelder & Son, Jr., Inc., the Court held in an opinion by Justice Kinser that the removal of the case to federal court left nothing in state court over which the Supreme Court could have jurisdiction on appeal, and therefore the appellant could not obtain review of rulings that were made in state court prior to removal.

In Chase v. DaimlerChrysler Corp., the Court in an opinion by Justice Lemons held that the plaintiff was not entitled to statutory attorneys' fees under the Virginia Motor Vehicle Warranty Enforcement Act, Va. Code 59.1-207.9 to -207.16:1, where the case settled out of court and there was no order or judgment in favor of the plaintiff. The Court concluded that "being 'successful'" within the meaning of the statute "by definition, means that the action terminates in favor of the claimant." This opinion will be likely to have some effect on how these cases get settled in the future, as the wary plaintiffs' counsel will want to do something to get a court order reflecting the "successful" outcome. Attorneys' fees are a big deal in these consumer protection cases.

In Klaber v. Freemason Associates, the Court in an opinion by Justice Koontz concluded among other things that the shareholders lacked standing to appeal the judgment against their corporation, and could only appeal the issue of whether or not the corporate veil was properly pierced by the trial court.

In Glazebrook v. Board of Supervisors of Spotsylvania County, the Court in an opinion by Justice Lemons held that the County failed to give the notice required by Va. Code § 15.2-2204 for certain amendments to its zoning ordinance.

In Wilkins v. Peninsula Motor Cars, Inc., the Court in an opinion by Justice Lemons held that the plaintiff having prevailed on both his fraud and Virginia Consumer Protection Act claims was not required to elect between the two remedies, but instead was entitled to: (1) his compensatory damages, (2) the $100,000 punitive damages on the fraud claim (but not the liquidated damages on the VCPA claim), and (3) his attorneys' fees under the VCPA. The misrepresentation at issue in the case was whether the car sold with 900+ miles on it was a "new" car, when in fact it had been previously owned. (Yes, it was a BMW, as in the famous punitive damages case decided by the U.S. Supreme Court out of Alabama, where the jury awarded $4 million to the fellow who found his car had been repaintedon account of predelivery damage.)

In Ford Motor Co. v. Jones, the Supreme Court in an opinion by Chief Justice Hassell held that the plaintiff was entitled to take a nonsuit following the remand of the case after an appeal. (In state court in Virginia, when things start to go bad for a plaintiff, the lawyers take their nonsuit, and there is nothing the defense lawyers can do about it, but often those same things stay bad and the case is never refiled. On the other hand, there are times when a nonsuit seems kind of like an abusive thing, like the story of the Southwest Virginia lawyer who took a nonsuit when a trial dragged on so he could attend the ACC basketball tournament.)

In Board of Supervisors of Fairfax County v. Robertson, the Court in an opinion by Justice Kinser affirmed the County's denial of a special exception from the setback requirements in the zoning ordinance, reversing the trial court on the issue of whether the county's decision was "fairly debatable."

In Herndon v. St. Mary's Hospital, a Wise County, the Court in an opinion by Justice Keenan held that the law as to how "infants" can file suit in Virginia is unchanged from the common law and that Circuit Court Judge Robert Stump held correctly that this case was not brought correctly. The suit was styled "Debbie Thompson Herndon, as mother and next friend of Matthew McNeil Herndon," and it was supposed to be styled, "Matthew McNeil Herndon, an infant, by Debbie Thompson Herndon, his next friend," if my form books have it right. (You can bet I'll be double-checking that point the next time I defend an infant case.)

In Pease v. Com., the Supreme Court summarily affirmed the murder conviction in Wise County of Merry Pease, after multiple trials and appeals.