Reporter for The Nation comments on Claude Allen nomination

According to this commentary from the website of The Nation, one of several "horrors in the pipeline" among the federal judicial nominees is Claude Allen, whom President Bush has nominated to sit on the U.S. Court of Appeals for the Fourth Circuit. The author explains that "Allen has supported antichoice statutes and regulations; urged sexual abstinence as the solution to AIDS and teen pregnancy; and opposed expanded health insurance for poor children."

Somehow, that reminds me of the conservative critics of the Lawrence decision, who argued that the spread of disease was one good reason why sodomy should be illegal.

Sen. Deeds weighs run for Virginia AG

This article ("Bath County's Deeds eyes run at attorney general," 1/8/2004) from the Kingsport paper (registration required) says that Senator R. Creigh Deeds from Bath County might seek win nomination as the Democratic candidate for Virginia Attorney General in 2005. Former U.S. Attorney John Edwards from Roanoke is among the oft-mentioned candidates for the Democrats.

National Review on the Fourth Circuit's NRA camp t-shirt opinion

NRO columnist Dave Kopel has this favorable commentary on the Fourth Circuit's opinion in the Newsom v. Albemarle County School Board case, and the article says one thing I didn't know, which was that both the ACLU and the Virginia Attorney General's office filed briefs against the School Board's position in the case, which I guess leaves nothing but aspiring school board lawyers to sympathize with the losing side of the appeal.

Ben takes on W&M President Tim Sullivan again

In this post, Ben Domenech says that the president of the College of William & Mary has sent some strange e-mails to critics of limitations on campus speech at the College. Not just Ben, but the Volokh Conspiracy has a link to this post with the same subject matter, and the Conspiracy's own post makes it sound like this is reason enough to NOT GO to the law school at William & Mary (where Sullivan is on the faculty and used to be dean). There is also this post from Discrimination on the same subject.

The comments attributed to President Sullivan are very troubling, but what I always wanted to have investigated is whether President Sullivan (seen here) was actually Captain Kangaroo (shown here) back when I was a kid. (As to Captain Kangaroo, it says here that he did not really fight the Japanese on Iwo Jima as Lee Marvin's sergeant in the Marines.)

Should law clerks talk to lawyers

Ernie the Attorney, in his ongoing law clerk chronicles, concludes here that it was a good thing that he was not allowed to talk to the lawyers when he was a law clerk.

Well, I was allowed to talk to the lawyers when I was a law clerk in the W.D. Va., but the lawyers didn't really want to talk to me, because they knew and I knew that I didn't know anything and couldn't do anything. Now, down in the Eastern District of Tennessee, they've got these permanent law clerks, and it is imperative that lawyers get to know them and pick their brains at every opportunity.

No qualified immunity for state bar official picketed at his house by plaintiff

Via this How Appealing post, in the case of Dean v. Byerly, the Sixth Circuit in an opinion by Judge Moore, with Judge Daughtrey concurring, held that the defendant, a lawyer for the State Bar of Michigan, was not even entitled to qualified immunity on claims that he violated the constitutional rights of the plaintiff, a frustrated applicant for admission to the bar, who had engaged in picketing outside the front lawn of the defendant's house. Judge Sutton dissented, and I think he has the right of the thing, when he wrote that "it becomes difficult to understand why Mr. Dean ought to be allowed to make a $2 million federal case out of this incident."

Now if I can just get one of those audita querela cases

As a civil procedure buff, I enjoyed this How Appealing post, which describes this Sixth Circuit opinion, as holding that the prohibition in the rules against the writ of audita querela does not mean what it says.

The opinion, quoting AmJur, says that "The common-law writ of audita querela is a remedy granted in favor of one against whom execution has issued or is about to issue on a judgment the enforcement of which would be contrary to justice, either because of matters arising subsequent to its rendition, or because of prior existing defenses that were not available to the judgment debtor in the original action because of the judgment creditor’s fraudulent conduct or through circumstances over which the judgment debtor had no control.” Well, ok, then. The case involved a woman about to be deported to Nigeria.

State board to consider easing test score requirements for teachers

The Norfolk paper reports here ("Proposals would ease teacher testing standards," 1/7/2004) that the State Board of Education is considering a proposal to reduce the test scores required for new teachers in Virginia, or even to accept their SAT scores instead, noting that some states accept SAT scores of over 1,000.

Hokies, Wahoos, and Tribe want to set own rates

This report ("Cash-starved Va. colleges want power to raise tuition," 1/7/2004) from the Norfolk paper says that the College of William & Mary, the University of Virginia, and Virginia Tech are seeking to become free of legislative limits on tuition, since they don't get much money from the Commonwealth anyhow.

Danville City Council, irate at Adelphia, might consider municipal cable service

The Danville paper reports in this story ("Council approves cable contract," 1/7/2004) that the City Council there is unhappy with its renewed franchise with Adelphia and might consider its own cable network.

Proposal would ban nude summer camps for teens in Virginia

The AP has this story on a legislative proposal to ban nude summer camps for teens in Virginia.

Proposal would allow court action against local school officials over unaccredited schools

The AP has this story on a legislative proposal that would allow local circuit courts to make school officials answer for failure to comply with state rules for schools.

More on motions in the Pocahontas murder case

The Bluefield paper has this article ("Triple homicide case back in court," 1/6/2004) on pre-trial motions heard in the murder case against defendants Gilmore and Church.

AG Kilgore opines on application of FOIA to party caucuses of legislators

This report ("Kilgore opinion letter leaves issue of closed caucus meetings hazy," 1/7/2004) in the Roanoke paper and this report ("Kilgore offers opinion on caucus meetings," 1/6/2004) in the Charlottesville paper describe the limited opinion of Attorney General Kilgore's office on the question of whether open meeting requirements of the Freedom of Information Act applies to party caucuses of legislators.

Maybe under AG Kilgore's FOIA proposals from earlier in the week, the caucuses would have to start making audio or video recordings of their closed sessions.

Burrow indicted again in D-Day memorial fundraising case

According to this article ("Burrow again indicted, faces 12 new counts," 1/7/2004) in the Roanoke paper, W.D. Va. prosecutors have obtained a new and improved indictment against Richard Burrow for fraud in fundraising for the D-Day Monument, whose previous trial ended with the jury unable to reach a verdict.

On the spoken word in Southwest Virginia

Fers is the word for "fellows" in Southwest Virginia, according to this report, which reminds of Patti Church's explanation that she lived in Wise County for a while before she camed to understand that the word pronounced "herkin" meant "Hurricane."

Using waste oil as fuel

This article from the Knoxville paper describes a Northeast Tennessee business that sells heaters that run on waste oil as the fuel source for heat.

I think my '94 Saturn (made in Tennessee by Tennesseans) has been running on waste oil for some years.

Fourth Circuit upholds ruling for government in Judicial Watch FOIA case

In Judicial Watch, Inc. v. U.S., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Luttig, and Motz affirmed the district court's decision that the Internal Revenue Service did not improperly redact portions of the records requested by the Judicial Watch group, which had asked for IRS records on Judicial Watch itself.

Postal employee's sex plus discrimination theory rejected

In Hess-Watson v. Potter, Chief Judge Wilson of the W.D. Va. ruled against the plaintiff "sex plus" discrimination theory, where she failed to prove that the employer gave less favorable working hours to women with small children.

Officers not liable for entry into jointly-owned property in domestic dispute

In Dingus v. Moye, Chief Judge Wilson ruled on the defendants' motion for summary judgment that the defendant officers either had consent for their acts on the jointly-owned property or that they were protected by qualified immunity for those acts.

Court of appeals reverses dismissal of conviction where jurisdiction at issue

In Jones v. Com., the Virginia Court of Appeals, sitting en banc, reversed its earlier panel decision, and reinstated the defendant's conviction, concluding that there was sufficient evidence to support the trial court's exercise of jurisdiction over the case, where the defendant entered a no contest plea and the prosecution produced evidence of a crime but not where it happened. The en banc court agreed with the Commonwealth that the nolo contendere established jurisdiction. The panel decision to the contrary was written by Judge Benton, joined by Judge Annunziata, with Senior Judge Coleman dissenting.

Suit challenging 40 hour week for judges dismissed

Via VLW, this article ("Judge's suit challenging policy dismissed," 1/6/2004) from the Richmond paper reports that a Virginia judge's lawsuit challenging the 40 hour work week has been dismissed.

Next chapter of the David Stanley story

This account ("Stanley arrested in California, may be extradited to Virginia," 1/6/2004) in the Coalfield Progress describes the latest arrest of convicted embezzler David Stanley.

The article notes that "Stanley pleaded guilty in Wise County Circuit Court in 1989 to 24 charges, including committing securities fraud, embezzlement and obtaining money under false pretenses. He pleaded guilty to 31 similar charges in Tennessee."

AG wants executive sessions recorded

This story ("Kilgore to offer sunshine bills," 1/6/2004) from the Free Lance-Star says that Attorney General Kilgore will seek reforms to the Freedom of Information Act, including one proposal that the closed sessions of local government bodies will be recorded for purposes of incriminating the boards if there is a challenge to whether improper matters were discussed in executive session.

Plaintiffs can't proceed anonymously in suit over alien college admissions

In this AP story it is reported that Judge Ellis of the E.D. Va. has ruled that the plaintiffs in the lawsuit concerning the admission of illegal aliens to Virginia's public colleges and universities cannot proceed anonymously.

Lawyers in Pocahontas murder case want more info on jailhouse informants

The AP has this story on the efforts of lawyers for Charles Gilmore and Walter Lefight Church to get more court-ordered discovery from the federal prosecutors in their murder case.

Judge Turk's ruling for employer reversed in Title VII retaliation case

In Lauer v. The Schewel Furniture Company, Inc., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Traxler and Duncan reversed Judge Turk's decision to grant the motion for judgment as a matter of law of the defendant employer on the plaintiff's claims of employment discrimination, after the jury had found for the plaintiff on her retaliatory discharge claim and awarded $20,000 in compensatory damages. Incredibly, there is not a single reference to the Reeves case in this opinion, unlike the Hill v. Lockheed Martin case decided on the same day. Does Reeves not apply in retaliation cases? If Reeves applied, would the Court have to consider whether the evidence of pretext was enough to support a verdict for the plaintiff?

Also, Judge Turk ruled that if he was reversed on the merits, there should be a new trial rather than judgment on the verdict. The court of appeals agreed that this ruling was within the bounds of what was proper, and remanded the case for a new trial. So, the plaintiff still gets no money, not even the option of a remittitur - but, maybe on the next trial, the jury will get fired up and award a few more dollars.

Fourth Circuit swats away cat's pay theory of Title VII liability

In Hill v. Lockheed Martin Logistics Management, Inc., the Fourth Circuit sitting en banc voted 7-4 to affirm the district court's granting summary judgment against the plaintiff's claims of employment discrimination. Judge Traxler wrote the opinion for the majority, which included Chief Judge Wilkins and Judges Widener, Wilkinson, Williams, Luttig, and Niemeyer. The dissent was written by Judge Michael and joined by Judges Motz, King, and Gregory. The appellant employer was represented by Ronald Rayson, who though from Knoxville strangely enough is not affiliated with the excellent Kramer Rayson firm.

A major focus of the case is the viability of the cat's paw or rubberstamp theory of showing that the decisionmaker was influenced by a subordinate with discriminatory motives. The majority more or less says that theory doesn't carry any weight with them. The dissent buys the "substantial influence" theory advanced by the EEOC and the appellee employee.

I once wrote a little article that touched briefly on the cat's paw/rubber stamp theory as one way of showing discriminatory intent, but I'm not sure that it is anything more than a way of talking about the facts, rather than some kind of vicarious liability for hidden motives.

I suppose that critics of this decision would also complain that there is too much talk about the facts in this opinion. But, as I have tried to argue, just because there are a lot of facts does not mean that there are a lot of facts in material dispute.

Virginia and West Virginia - more like different countries

Blawger Brian Peterson says here that the differences between the law of Virginia and West Virginia are in some respects more like different countries than different states, referring to the death of the at-will employment doctrine in West Virginia law.

Tennessee lawyer benched for 30 days, called female judge Honey

Via this post from How Appealing, this Tennessee lawyer story ("Tenn. high court upholds suspension of Nashville lawyer," 1/1/04) describes the 30-day suspension of a former judge for threatening some judges and calling other judges and lawyers "honey."

Electronic filing coming to the E.D. Tenn. in May

The Kingport paper (registration required) has this article ("Federal courts in East Tenn. to be online by May," 1/02/2004) on the coming of electronic filing to the Eastern District of Tennessee. I believe the courts elsewhere including the W.D. Va. are on a similar timetable.

I've been working on a case in federal court in Ohio where CM/ECF is already in place, and it is some fun to access all the case documents from my desktop, particularly since I almost never find myself in Ohio.

New office of defenders for Southwest Virginia death penalty cases

The Capital Defense Unit for Southwest Virginia is now open for business in Christiansburg, according to this report ("New office to aid poor in capital defenses," 1/04/2004) from the Roanoke paper.

Who wouldn't want a friendly chat with Delegate Kilgore?

This article ("Legislators lack formal review for judge panels," 1/04/2004) in the Daily Press says that the standard of review for determining whether sitting judges should be reappointed is rather mild, as demonstrated by the easygoing exchange between one judge and Delegate Kilgore, with the exception being those cases where some local legislator has a specific complaint about the judge. But, legislators say, eventually they will get a system in place for a more thorough review of what the judges are doing.

Prayer at government meetings in the Fourth Circuit

This article ("Council prayers spark debate," 1/4/04) on prayers at government meetings in Maryland says there is a case pending out of South Carolina that will set the limits in the Fourth Circuit on what government officials can and cannot do at their meetings.

Methadone treatment in Southwest Virginia

With controversies brewing in Roanoke and Bristol, Virginia legislators are considering new laws that would require notice to local governments when clinic operators seek approval for methadone clinics in their localities, according to this report ("Legislators plan to submit bills restricting methadone clinics," 1/4/04) in the Roanoke paper. The Roanoke paper also has this report ("Methadone a booming business in Western Virginia," 1/3/04) on the booming business for some methadone clinics in Southwest Virginia.

More on the unpaid contractors' suits regarding SWVA pipeline construction

In this Roanoke Times article ("New pipeline opens gusher of lawsuits," 1/3/2004), the claims of various unpaid construction contractors against the Murphy Brothers pipeline construction company are discussed. The Duke pipeline passes through 5 Southwest Virginia counties.

Union not liable for claims of laid-off airline workers

In Jeffreys v. Communication Workers of America, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judge Traxler and District Judge Payne upheld the dismissal of the appellants' claims that their union failed to fulfill its duty of fair representation in connection with layoffs by their employer USAir.

Interestingly, William B. Poff of the Woods Rogers firm in Roanoke appeared for the 15 laid-off workers, so I would say they were more than fairly represented before the Court of Appeals.

Maryland firm dips too far into Virginia to avoid comp liability

In Mark Five Construction Co. v. Gonzalez, the Court of Appeals in an opinion by Judge Benton for a panel including Chief Judge Fitzpatrick and Judge Clement held that a Maryland contractor had enough connection to Virginia to be subject to Virginia's worker's compensation laws for the claimant's injuries.

Court of Appeals splits on administrative law issues about gas tank fund

In 7-Eleven, Inc. v. Department of Environmental Quality, the en banc Court of Appeals reversed an earlier panel decision, concluding that the DEQ erred in its determination of how much money 7-11 was entitled to receive in reimbursement from a state fund for leaking gas storage tanks, after 7-11 settled a claim with Home Depot for damage to the Home Depot property. The majority, in an opinion by Judge Benton (the lone dissenter on the original panel, joined by six members of the en banc Court), ruled that 7-11 by not including the settlement as recoverable costs. The dissenters Judge Humphreys (joined by Judge Bumgardner) and Judge Annunziata were the majority from the panel, and they complain, among other things, about the majority's lack of deference to the agency's view of the case, in violation of established administrative law principles.

I suspect that this case will be taken up further by the Commonwealth, having suffered a reversal of fortune before the en banc court of appeals.

Judge Jones upholds joinder of DirecTV defendants

In DirecTV v. Adkins, Judge Jones of the W.D. Va. denied the motions of some of the local defendants sued by DirecTV to be severed from the rest of the bunch. The opinion notes that different districts have taken different views on this issue. Compare, e.g., DIRECTV v. Loussaert, 218 F.R.D. 639, 642-43 (S.D. Iowa 2003) (requiring severance of defendants), with DIRECTV, Inc. v. Hosey, No. CIV.A.03-2278-GTV, 2003 WL 22463055, at *2 (D. Kan. Sept. 11, 2003) (denying severance).
I would suspect that the Court revisit this issue if other and better facts were presented - e.g., if DirecTV admits that it got the plaintiffs' names in different ways, and the proof as to different defendants will involve widely different stories. On the other hand, if all the Southwest Virginia names came from the same source, maybe joinder/consolidation is the right thing.

Whites from Southwest Virginia eligible for money from Tech

In this article ("Money to help prepare students for doctoral studies," 1/1/04) about Virginia Tech's receipt of some $2.7 million from the federal government to help people pursue graduate studies in the biomedical sciences, Tech officials emphasized that persons eligible to receive the funds are not limited to racial minorities: "For example, white residents from Southwest Virginia who are first-generation college students could easily fall under the program's umbrella, said Larry Moore, one of VT-PREP's co-directors."

Were there Republicans checking out Boucher's website?

This story ("Boucher has to rethink links," 12/31/03) from the Richmond paper says that somebody figured out that there were two improper links on Congressman Boucher's campaign website, improper in that they went to pages on his official House website. A Republican spokesman declared, more or less, that because of these links, people should not vote for Boucher.

I wish I was around when my old friend Mark Graham heard about this story.

Tax amnesty yields $98.3 million for Virginia

The Richmond paper reports here ("Va. gets tax evaders bonanza," 12/30/03) on the greater-than-expected proceeds from Virginia's tax-amnesty program.

DUI costs $20,000?

This article ("Drunken driving is expensive," 12/30/03) from the Richmond paper describes the real costs of a drunk-driving conviction in Virginia.

Atkins still on death row

This AP article describes the ongoing proceedings surrounding the death sentence given to Virginia inmate Daryl Atkins, whose case led to the Supreme Court's ruling that retarded persons cannot be executed.

Spammers take round in AOL case

This article describes a victory for spammers in a ruling by Judge Hilton in the E.D. Va. in a case brought by AOL in Virginia against bulk e-mailers in Florida. Despite allegations of conspiracy, the court concluded there was no Virginia jurisdiction over the defendants.

Allowing non-drinkers to carry guns in Tennessee bars

From back before Christmas, this report ("Law allowing carrying concealed gun in bar proposed," 12/19/03) in the Bristol paper describes a legislative proposal in Tennessee to allow bar patrons to carry their concealed weapons into the bars with them. The article says that "[t]he proposed law would allow people with permits to carry concealed weapons to take their guns into restaurants or bars as long as they did not consume alcohol."

Ah, a seizure-less malicious prosecution case brought under section 1983

Some time ago, I was ruminating over case law about the relationship between malicious prosecution and constitutional claims under section 1983. It looks like lawyers Tim McAfee and Henry Keuling-Stout are fighting over one now, as the plaintiff who has filed suit for being summonsed for not paying the landfill fee in Wise County was not arrested, according to this report in the Coalfield Progress.

The article says that Judge Williams denied the defense motion to dismiss and converted the motion to one for summary judgment, so we'll have to see whether he has anything to say on this question.

No appeal in BSG annexation case

The Town of Big Stone Gap will not appeal its ignominious defeat in the recent annexation case, according to this report in the Coalfield Progress, which also reports here that the town's legal fees were just over $500,000, mostly to the Richmond law firm of Troutman Sanders.

Southwest Virginia cops who won't eat donuts

The Roanoke Times has this report ("Doughnuts and cops - you gotta laugh," 12/26/03) on Southwest Virginia policemen who refuse to be seen eating doughnuts while in uniform.

Virginia inmates reform dogs

The Washington Post has this story ("In Prison, Reclaiming Forsaken Lives - Va. Inmates Help Antisocial Dogs Become Adoptable," 12/27/03) on a program in which Virginia inmates teach dogs to behave.

Opposing views on the Malvo verdict

The Baltimore Sun opined here that the Malvo verdict was just, while the writer of a letter to the editor posted here says the Malvo verdict was so bad, Saddam Hussein will want his case heard in Virginia.

Verizon looks for local phone deregulation in Virginia

The Times-Dispatch reports here ("Verizon set to seek deregulation plan," 12/27/03) that Verizon, the largest provider of telephone service in Virginia, will seek new laws from the General Assembly deregulating local telephone service. In the article, an State Corporation Commission official says that under existing law, Verizon could make a pitch before the SCC for relief from the regulations where it can show competition.

Cold Mountain locals bummed by Cold Mountain the movie

The locals in Western Carolina think their home is nothing like Romania, where Cold Mountain was filmed, according to this report ("Left out in the cold," 12/28/03) in the Knoxville paper.

Schapiro plays Santa

Jeff Schapiro offered this Christmas list for Virginia politicians.

Still at-will in Virginia

In this story ("Employers Have the Right to Fire Away", 12/28/03) the Washington Post says that in Virginia, employment at-will remains the rule, rather than the exception.

Nothing new here until some time after the Continental Tire Bowl on December 27.

Of Jefferson Davis, Robert E. Lee, Allen Iverson and Julian Bond

This AP article was in the paper here today.

I noticed that at one point, the article attributes to U.Va.'s own Julian Bond the following statement: "If it had been up to Robert E. Lee, these kids wouldn't be going to school as they are today. They can't help but wonder about honoring a man who wanted to keep them in servitude."

On down the page, the article notes that Ernestine Harrison, who is leading the fight to have a Jefferson Davis school renamed, "dropped an effort to rename Robert E. Lee Elementary in Hampton after learning that Lee was reluctant to battle the North and did not own slaves." Apparently, Ms. Harrison and Professor Bond have different viewpoints on R.E. Lee.

The article quotes one parent as saying the Jefferson Davis school should not be renamed for basketball player Allen Iverson.

Southwest Virginia creditors pursue international pipeline builder

This article from the Quad Cities online describes the efforts of subcontractors and others working on a pipeline project in Southwest Virginia to record mechanic's liens and secure injunctive relief against the assets of an international pipeline that owes its creditors $120 million, according to documents filed in the divorce case of the William Murphy, president of the company, Murphy Brothers, Inc.

Taxes, morality, beavers, and Nittany Lion license plates

Hugh Lessig from the Daily Press has this lively summary of the agenda for the coming session of the Virginia General Assembly.

Parole board member rues decision's after death of parolee's girlfriend

Parole has been abolished in Virginia, except for those put in prison before the early 1990s.

This article from the Daily Press reports the death of a parolee's girlfriend, which has caused one member of the Virginia Parole Board to conclude that the board made a bad mistake in letting the man out of prison early.

False Claims Act, unfiled tax returns, FCRA, gun shots and dischargeability, domain name deals

In Friday's opinions from the Fourth Circuit:

In U.S. ex rel. Harrison v. Westinghouse Savannah River Co., the Fourth Circuit in an opinion by Judge Shedd joined by Judge Williams and Senior Judge Hamilton affirmed a jury award in a qui tam action against a government contractor under the False Claims Act. The Court rejected arguments that the company's false representation to the government was not material, and that it lacked the requisite intent, and that plaintiff's fraud evidence went beyond the pleadings. The Court also rejected the plaintiff's issues regarding the limits of what he was awarded in damages, expenses, and attorneys' fees.

In Moroney v. IRS, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Traxler and District Court Judge Payne, held that the belated and half-hearted efforts of a bankruptcy debtor to file income tax returns were insufficient to allow for a discharge of tax debts.

In Ausherman v. Bank of America Corp., the Fourth Circuit in an opinion by Judge Motz, joined by Judge Traxler and Judge King, held that the defendant have acted negligently or deliberately to violate the Fair Credit Reporting Act. The defendant had no good reason for accessing the plaintiffs' credit reports, but presented evidence that it didn't mean to do it, basically that there was some computer or data entry error between the defendant and the credit reporting agency.

In Parsons v. Parks, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Shedd and Senior Judge Hamilton reversed the ruling of Judge Williams of the W.D. Va. and sided instead with the ruling of the bankruptcy court that a judgment against the debtor for shooting a guy three times was not dischargeable in his bankruptcy case. I was about to say that I don't recall other cases where Judge Karen Williams of the Fourth Circuit voted to reverse Judge Glen Williams of the W.D. Va., but come to think of it, I was among a legion of lawyers in one such case, almost 10 years ago.

In Network Solutions, Inc. v. Hoblad, B.V., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Duncan and Traxler affirmed the trial court's decision in a case about an alleged breach of contract relating to the sale of second-level domain names. The opinion explains that "SLDNs are the names immediately to the left of 'top-level domain' designations such as '.com' and '.org'—for example, the name 'google' in 'google.com.'" The Court found that the defendants had contractually agreed to jurisdiction in the Rocket Docket of the E.D. Va., and that they had breached their contracts by failing to pay for some 4,000+ SLDNs.

Summary judgment affirmed in unregistered securities case

In Partington v. Pennington, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Shedd and Senior Judge Michael of the W.D. Va., affirmed the rulings by Judge Turk in a complex case brought by a group of clergy, lay persons, and churches, claiming they were ripped off in the investments made on their behalf. Judge Turk ruled, among other things, that the lead plaintiff was without standing to raise some of its claims under the federal securities laws.

The Court described the allegations about what happened to the money:

"Partington claims that, in 1999, one R. Ray Levy approached Charterhouse and induced it to purchase viatical insurance contracts as investments for the trusts Charterhouse administered, promising above-market returns. Clients of Charterhouse apparently invested more than one million dollars in these viatical contracts; it invested more than $34,000 in funds from the Partington trust. The viatical contracts were purchased from Financial Federated Title & Trust ("FinFed") using a broker controlled by Levy. In late 1999, Partington received notice that the entire investment from his trust in the viatical
contracts was lost. All in all, of the 115 million dollars nationwide that was given to FinFed for the purpose of purchasing viaticals, only about six million dollars was actually so used.

Allegedly, Levy also persuaded Charterhouse to advise its clients to purchase senior notes from defendant U.S. Capital Funding, Inc. ("U.S. Capital"), a company Levy controlled, which notes purported to fund U.S. Capital’s loans to well-known companies. Partington claims that Charterhouse used over $52,000 in funds from the Partington trust to purchase such a note from U.S. Capital, and that Charterhouse defendants persuaded numerous other ministers to invest in these notes. He asserts that members of his proposed class purchased over seven million dollars of these notes. U.S. Capital is now in bankruptcy, and has refused Partington’s requests for payment on the note. Partington claims the investments made for the benefit of the Partington Trust all were made after consultation with and direction from him, without any input from his church."

Fourth Circuit rules for CLEC in contest over interconnection agreement

The Telecommunications Act of 1996 allows competitive local exchange carriers access to the assets of the incumbent local exchange carriers, to provide local telephone service. The Act provides for state utility commissions to arbitrate the interconnection agreements between the CLECs and ILECs. In MCImetro Access Transmission Services, Inc. v. BellSouth Telecommunications, Inc., the Fourth Circuit in an opinion by Judge Williams, joined by Judge Luttig and Judge King, reversed the trial court's judgment and held in favor of the plaintiff CLEC that the arbitration award by the North Carolina utilities commission violated the Act as construed by the FCC on a number of issues and remanded the case for reconsideration of another in light of a recent FCC ruling.

One interesting aspect to the whole scheme is that the state utility commissions decide these interconnection disputes, but their views are entitled to no deference, instead the Court's task was to measure the North Carolina decision against the rulings of the FCC.

Gilmore and Church trial stays in Abingdon, for now

In the latest U.S. v. Gilmore opinion, Judge Jones again refused to a transfer of venue motion, concluding that he can decide during voir dire whether it is possible to seat a jury not tainted by the years of publicity about the Pocahontas murder cases.

Student loan discharge in old bankruptcy case voided

In Educational Credit Management Corporation v. Doane, Chief Judge Wilson of the W.D. Va. ruled that the debtor's bankruptcy discharge was void at least to the extent it purported to discharge her student loan debt, and the creditor could obtain relief from the judgment under Rule 60(b)(4), despite the passage of years since the bankruptcy court's judgment.

Judge Wilson's opinion in the case of the nurse claiming wrongful discharge

In Swain v. Adventa Hospice, Inc., Chief Judge Samuel Wilson of the W.D. Va. granted the defendant employer's motion to dismiss the plaintiff's wrongful discharge claim. The plaintiff claimed that she was discharged because after she corrected the medication for a patient, saving the patient's life, the employer was embarrassed and fired her.

Judge Wilson explained that there are only three scenarios in which wrongful discharge claims are allowed in Virginia: (1) when an employer violated a policy enabling the exercise of an employee’s statutorily created right; (2) when the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a
member of that class of persons directly entitled to the protection enunciated by the public policy; and, (3) when the discharge was based on the employee’s refusal to engage in a criminal act.

Judge Wilson made three points about the plaintiff's claim: (1) "without a refusal to perform a unlawful act element, very little would focus the factual inquiry, and the employment at-will doctrine would lose considerable vitality, (2) "where the unlawful act alleged is a failure to conform to a standard of care or reach an appropriate professional judgment, there is no bright line to guide and limit the employer – a hallmark of the public policy exception," and (3) "when the challenged decision falls within the professional’s or expert’s domain, not only do bright lines informing the employer’s decision disappear, but employment litigation also digresses."

Supreme Court refuses to vacate stay in Virginia death penalty case

According to this AP report, the Supreme Court declined earlier this evening to vacate the stay ordered by the Fourth Circuit of the execution of a Virginia inmate, scheduled for tonight.

Adelphia bankruptcy explained to Lee County supervisors

Regarding the renewal of the cable franchise in Lee County, a spokesman for the company explained why promised extensions of service in the County have not been made, as reported in the article ("Lee grants franchise extension to Adelphia Communications," 12/17/2003) from the Kingsport paper (registration required).

The Adelphia spokesman "said the promise was made before bankruptcy was filed, and part of the reason the extension had not been made is because of the bankruptcy - which was brought on by the company expanding to areas that were not adequately populated to provide enough return on the investment."

Virginia mediation news

This newsletter on mediation in Virginia state courts has several worthwhile articles, including more information about how a number of retired judges have been trained for settlement conferences under Rule 1:19. It also describes a program in Chesterfield County, where all litigators have sign a sort of mediation awareness certificate.

A glossary of legal terms

When I was a young man, every month I took the multiple choice vocabulary quiz in my mom's Reader's Digest, in the section called, "It Pays to Increase Your Word Power" (or something like that).

Now, for whatever reason, the Virginia judiciary website has posted this glossary of terms used in court.

It includes some but not all of the words that sound strange to some out-of-state lawyers - motion for judgment, grounds of defense, demurrer, special plea in bar, motion to crave oyer. The first time I saw a motion craving oyer, I burst out laughing, thinking what are they doing to me now? I had carefully alleged a breach of contract without including any mention of the bad contract terms, and here was this motion blowing the whistle on me for doing just that! What a great concept, I thought, I need to file some of these myself, and so I have.

Litigating the triangle

In Northland Ins. Co. v. Berkebile Oil Co., Judge Michael dealt with the case of a insurer seeking a declaration that a third party was not covered by the contract of its insured, which was not joined as a party to the case. The Court surmised: "One can visualize the relationship between the three parties as a right triangle, with the insurance agreement between Northland and Hydrosol forming the upright segment and the indemnity agreement between Hydrosol and Berkebile forming the lateral segment. Northland’s argument is that the sole issue in this case involves the hypotenuse." The Court concluded that the insured was an indispensable party, and granted the motion to dismiss.

Fourth Circuit reinstates death penalty for South Carolina inmate

In Wilson v. Ozmint, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Widener and Chief Judge Wilkins, overturned the ruling of the district court on the post-conviction relief sought by a South Carolina inmate, reinstating his death sentence. The AP has this report on the case.

Environmentalists say Fourth Circuit nominee Haynes is not for the birds

How Appealing has this post with a link to this site, with a story titled "Bush Judicial Nominee: Bombing Birds Benefits Birdwatchers."

The story begins: "For all the attention on the president's judicial nominees, one of his most recent candidates has remained under the radar screen -- despite a legal record that includes arguing on behalf of the Bush Administration that bombing birds is good for birdwatching."

More on punishing adultery in Virginia

This Findlaw article ("Punishing Adultery in Virginia - A Cheating Husband's Guilty Plea Is A Reminder Of the Continued Relevance of Adultery Statutes," Joanna Grossman, 12/16/2003) discusses the recent case involving the lawyer in Luray, Virginia who entered a plea of guilty to charges of adultery brought by his paramour.

Fifth Circuit says malicious prosecution does not equal a constitutional claim

Via law.com, this story describes the Fifth Circuit's opinion in Castellano v. Fragozzo, which says a claim against state actors for malicious prosecution without more (such as some kind of pre-trial "seizure," within the meaning of the Fourth Amendment) does not establish a constitutional claim. The opinion cites, among others, the Fourth Circuit's decision in Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000).

This area of the law is very interesting, because it is so confusing, starting with the Supreme Court's opinion in the Albright v. Oliver case. I've tried to jump on the bandwagon a time or two but I haven't really had the facts to support it - the idea that there was no constitutional claim because plaintiff has nothing but a malicious prosecution claim. Maybe next time.

New federal rules in lieu of train whistles

The trains don't stop in Abingdon, but they do whistle, or they did.

This AP article describes new rules from the Federal Railroad Administration, which purport to preempt local laws to require extra safety measures at crossing, in plains where trains can't whistle.

FERC denies Virginia's request for delay in AEP case

Reuters reports here that the Federal Energy Regulatory Commission ("FERC") has denied Virginia's request to delay implementation of the ruling that allows American Electric Power ("AEP") to join the PJM multi-state electricity transmission group.

At the same time, one member of the House of Delegates declared that even further delay in allowing Virginia utilities to join regional transmission groups would be necessary to protect Virginia consumers, according to this article in the Richmond paper.

This case seems to be heading for a showdown on the respective powers of state and federal governments over interstate electricity transmission.

Fourth Circuit grants stay of execution in Montgomery County case

The Richmond paper reports here ("Court puts hold on man's execution - Defense says lead trial attorney did not handle the case properly," 12/18/03) and the Roanoke paper reports here ("Appeals court grants stay of execution for murderer," 12/18/03) that the Fourth Circuit has granted a stay in the case of the man scheduled to be put to death on Thursday for murdering an octogenarian woman in Montgomery County.

Here's Waldo

Some fellow in Blacksburg, having emigrated from Charlottesville, has added me to his blogroll - and he has this commentary on the upcoming session of the General Assembly, including the text of his letter to Del. McDonnell.

Unrelated to this, some time ago I discovered that Virginia Tech has had a president named Minor and another named Conrad. It says here that Minor was ousted for a fist fight with a professor, while Conrad was a spy for the Confederacy, and at one time was suspected to be a co-conspirator to the Lincoln assassination. I can understand how it is that none of my Minor or Conrad relatives brought this history to my attention, and that there is no Minor Hall in Blacksburg (though there is this one in Charlottesville).

Error on the law school-Red Wings connection

I'm told that the founder of the Ave Maria law school, Tom Monaghan, "never owned the Detroit Red Wings. He did own the Detroit Tigers."

I stand corrected, and ought to know better.

More on marijuana and interstate commerce

In Raich v. Ashcroft, the Ninth Circuit bought the argument that the federal marijuana laws are not within the authority of Congress to regulate interstate commerce - as applied to medical marijuana, rather than I guess just plain party marijuana. The decision notes that in 5 prior decisions, the Ninth Circuit had rejected Commerce Clause challenges to the Controlled Substances Act, but somehow felt they were distinguishable.

This is a bogus distinction that I doubt will pass muster if and when the Supreme Court is heard on this issue.

Roanoke TV station wins defamation case on motion to strike

The Roanoke Times reports here ("Judge strikes libel suit brought by Holdren's against WDBJ-TV," 12/17/03) on a circuit court's decision to strike the evidence in a defamation case against a Roanoke television station brought by a local business.

Apparently, the suit was originally filed in 1997 - so it took 6 years to get to trial?

First, the car tax; now, homeland security

According to this press release, the Gilmore Commission report on Homeland Security is now available. The Gilmore is former Virginia Governor James Gilmore, whom I think was in military intelligence at some stage in his career.

Expert testimony on the methods of drug dealers

Blog 702 has this post on the Fourth Circuit's ruling in the case of U.S. v. Gwynn, a per curiam decision for the panel of Judges Wilkinson, Traxler, and Gregory, in which the Court upheld the admissibility of "expert" testimony about the methods of drug dealers, noting that "[i]n the context of drug cases, this court repeatedly has upheld the admission of expert testimony of law enforcement officers, especially about the methods of drug dealers."

I'm wondering just what the expert says in those cases - "I know drug dealers, and the defendant acts just like one"?

Chief Judge Wilson rules no wrongful discharge claim for nurse who sought medicine change

According to this story ("Judge dismisses suit filed by nurse who was fired," 12/16/03) in the Roanoke Times, Chief Judge Sam Wilson of the W.D. Va. found no cause of action under the Bowman-through-Mitchem line of Virginia law cases within the allegations of a "nurse who claimed she was fired after she asked for a change in a patient's medication that saved her life."

Best law school in Michigan

Via Politics & Law, this story ("Hail Mary Passes - How to build a great law school," 12/2/03) from the National Review Online about the Ave Maria Law School in Michigan makes me think that this kind of success is what Dr. Pat Robertson had in mind for Regent and what the Rev. Jerry Falwell hopes to accomplish with the law school coming to Lynchburg, but neither of them ever owned Domino's Pizza (or the Detroit Red Wings).

Finding the governor's tax calculator

Here is the Governor Warner's online tax calculator.

You can count us in among the alleged 65%, our estimated tax savings worked out to be $32.28.

NAACP gets on Warner for race discrimination in state agencies

The Washington Times reports here ("NAACP rips Warner on hiring, diversity") that the NAACP in Virginia is criticizing Governor Warner for not doing more to resolve complaints of race discrimination in state agencies, particularly the Department of Social Services.

Boies possibly out as counsel for the Florida vote litigation in 2004?

This law.com article says Al Gore's old attorney David Boies has some kind of bar discipline charge against him in Florida, which could affect his ability to appear pro hac vice in Florida cases. Florida's Abstract Appeal has this post on the case.

Boies along with Johnnie Cochran are the headliners at the VTLA convention coming up this April at the Greenbrier. I may have to re-mortgage the house and go out to the Greenbrier just to hear and see those two.

Natural Bridge Zoo bears with worse luck than Saddam

As the Roanoke Times reports here ("Hunter shoots 2nd bear from Natural Bridge Zoo, 12/16/03), the second of a pair of zoo bears on the loose because of the inadvertent failure to secure their pen has been killed. The second bear was shot by a hunter who didn't know there was a fugitive Asiatic black bear at large in the woods of Rockbridge County.

Unrelated to this, 10% of New Jersey's bears were killed and one governor is on the hotseat as the result of that state's recent bear season, as reported here.

State Senator Bolling launches campaign for lieutenant governor

The Roanoke paper has this report ("Bolling to run for lieutenant governor," 12/16/03) on the official start to the campaign of Bill Bolling, a Republican state senator from Hanover County, for election as Virginia's lieutenant governor in 2005.

Virginia law standards for the insanity defense

This Richmond Times-Dispatch article ("Defense hinges on illness definitions - What Malvo's attorneys call a disorder is seen as willful to the prosecution's expert," 12/15/03) discusses the law and the evidence on the insanity defense in the Malvo case, still ongoing in Chesapeake.

Virginia inmate faces Thursday execution date

In this article ("Man's execution set for Thursday -
Brain-damaged alcoholic faces death for murdering Christiansburg woman, 87," 12/15/03), the Richmond paper describes the issues being raised by lawyers for a Virginia inmate scheduled for execution this week for murdering an 87 year-old woman in Christiansburg.

The issues include the alleged incompetence of the defendant's lawyer:

"Reid's lead attorney at the time, Peter Augustus Theodore, said he had tried numerous capital-murder cases and other criminal jury trials. He said experienced lawyers he had consulted advised him to have Reid plead guilty. He said it was his experience that juries in Montgomery did not believe in the so-called voluntary-intoxication defense.

But Theodore was not being honest. In fact, last year the Virginia State Bar reprimanded him for making false and misleading statements in the case, and it took away his license to practice law until a physician and a psychiatrist say he is competent to continue.

Neither Theodore nor the lawyer who represented him before the state bar could be reached for comment. According to the bar order of Oct. 22, 2002, Theodore said he suffered from kidney stones "and takes a variety of prescription medications to address this and other health difficulties."

The bar order said there was evidence that three lawyers advised Theodore not to plead Reid guilty before Grubbs. The bar also found that Theodore apparently had never had a criminal jury trial in Montgomery, nor could he identify a case there in which voluntary intoxication was used as a defense in a capital-murder case.

Reid's petition argues that Theodore was unqualified to take a capital-murder case, and that he lied about his qualifications to get the case, for which he was paid $50,000. They also charge that he was not qualified to handle Reid's initial appeal to the Virginia Supreme Court."

The Institute was heard from in Iraq on Saturday night

The Richmond paper has this terrific article ("A VMI grad with eyes like 'two deep caves' directed the raid," 12/15) on Colonel James B. Hickey, a graduate of the VMI class of 1982, and commander of the 4th Army Division brigade that apprehended Saddam Hussein on Saturday.

It ends with this:

"For Richmonder Robert Louthan, another VMI classmate of Hickey's, words of Civil War general and one-time VMI professor Thomas J. 'Stonewall' Jackson came to mind. 'I sent out an e-mail recalling what Jackson said before Chancellorsville: "The Institute will be heard from today."'"

Governor Warner's tax reforms don't help the poor and the elderly

This article ("Warner Tax-Cut Proposals Won't Benefit Va.'s Poor, Elderly," 12/14/03) in the Washington Post takes the position that Governor Warner's tax reform plan does not "help" the poor and the elderly. The article notes that there will be no income tax reduction for those who do not pay any income taxes, and suggests that poor people are affected more by an increase in the sales tax. There some mention that the removal of the sales tax on food would help the poor, but no attempt to quantify this effect.

More on the contenders in the Virginia presidential primary

Eight Democrats plus Lyndon Larouche filed to be on the ballot for Virginia's Democrat presidential primary next February 10, as reported here in the Richmond paper, which reports that Professor Larry Sabato believe Howard Dean is strong in Northern Virginia, while Wesley Clark and John Edwards have support in Southside and Southwest Virginia.

Spamming suspect turns himself in

The AP reports here that the second of the two North Carolina men charged under Virginia's anti-spamming law has turned himself into the authorities.

William & Mary president talks about the funding gap

Here is William & Mary President Tim Sullivan's "clear-eyed look at the higher-education funding gap."

Oral argument earlier this month at William & Mary

The Dog Street Journal had this report on oral arguments before a panel of the Fourth Circuit December 5 held at the McGlothlin courtroom ("the world's most technologically advanced trial and appellate courtroom") in the law school of the College of William & Mary.

"Dog Street" refers to Duke of Gloucester Street in the lingo of Williamsburg residents, the McGlothlins for whom the courtroom is named are the parents of the McGlothlins of the United Company based in Bristol, and the Fourth Circuit panel that day included Judges Widener, Michael, and Shedd.