U.S. Supreme Court affirms Judge Williams in Privacy Act case

In Doe v. Chao, the U.S. Supreme Court agreed with Judge Glen Williams of the W.D. Va. and disagreed with the majority decision of Judges Karen Williams and Luttig of the Fourth Circuit (with Judge Michael concurring in part), in holding that there is no statutory damages claim for violation of the federal Privacy Act without proof of actual damages.

The transcript of oral argument is here. Thanks to Howard Bashman for this post about the case. SCOTUSblog has this post about the case.

Special grand jury blasts Sussex County government

The Richmond paper reports here ("Panel blasts Sussex County government," 2/24/04) on a rare use of the special grand jury, this one targeted at waste, fraud, and abuse in the government of Sussex County.

Tobacco companies duke it out over sticking small fry with settlement

The Richmond paper reports here ("Cigarette makers deadlock in battle over legislation," 2/22/04) on the dispute between large and small tobacco companies on legislation proposed by Delegate Kilgore and Senator Puckett from Southwest Virginia that would have the effect of making smaller companies pay more towards the national tobacco settlement.

U.Va. law hosts symposium on Brown v. Board of Education

The Cavalier Daily has this report on the recent symposium held at the law school of the University of Virginia on the Supreme Court's Brown v. Board of Education decision, from 50 years ago.

North Dakota trying to horn in on Lady Luck?

The AP reports here that there is the possibility of litigation over North Dakota's plan to promote its lottery with "Lady Luck," when Virginia has been using "Lady Luck" for 14 years as the spokeswoman for its lottery.

On the declining use of gavels in the courtroom

This delightful story on the declining use of gavels in the courtroom comes from South Dakota but could have been written in Southwest Virginia.

One of the South Dakota judges explained that his only use for a gavel was to let kids play with them while he held adoption hearings involving small children.

I once heard Judge Glen Williams say the only time he took the notion to use a gavel to bring the courtroom to order, he looked around the bench and couldn't find one.

1,000+ Wise County auto accidents mapped

My Wise County.com has this story on the mapping of the locations of almost 1,200 recent auto accidents in Wise County.

I played with this a bit - one of the hotspots was the cloverleaf this side of Norton, where Alt 58 joins 23; no surprise there.

Homeowner suing Danville official over glass door that allegedly broke zoning rules

The Danville paper reports here ("Danville's 'Door War' continues," 2/19/04) on a section 1983 lawsuit against the zoning administrator for the City of Danville brought by a homeowner who claims he was wrongfully prosecuted for violating the city's zoning ordinance by his choice of material and design for the front door on his house.

On gender and prison time

This article ("Women often avoid prison," 2/22/04) in the Lynchburg paper addresses between the prison sentences or lack thereof as between male and female convicts.

Lack of ban on open containers costs Virginia millions in federal road money

The Lynchburg paper reports here ("Virginia paying a price for open-container law," 2/22/04) that Virginia's failure to enact a law banning open containers of alcohol in motor vehicles has cost the Commonwealth roughly $14 million per year in federal road money.

I understand why some states dislike these anti-state power, anti-libertarian federal spending clause carrots, but who can say that passengers drinking in moving vehicles is a good thing?

Rather switch than fight - one teacher gives up public school over SOLs

From the Washington Post (registration required), a former public school teacher offers this account of why he chucked it all and moved to a private school because of the Standards of Learning tests.

Bill to add circuit court judgeships still alive

As reported here ("Bill to add judges gets second chance in Senate," 2/21/04) in the Norfolk paper, legislation that would add five new circuit court judgeships, including one for the 29th Circuit including Buchanan, Dickenson, Tazewell, and Russell counties, is still alive in the Virginia Senate, though it was rejected by the House for lack of money.

In the 29th Circuit, there is no resident judge in Tazewell County, with Judge Vanover in Clintwood, Judge Williams in Grundy, and Judge Moore in Lebanon. (This fact evidently does not mean that the new judge, if there is one, will be from Tazewell County.)

1,200 bills waiting disposition this General Assembly session

This AP story says that Virginia legislators have 1,200 other things to consider besides the budget in the remainder of this session.

The Washington Post (registration required) has this article ("Virginia Bills Aid Lone Firms, People" 2/22/04) describing the single-industry focus of many bills introduced in the General Assembly.

Juvenile court conviction not predicate for federal gun offense

In U.S. v. Walters, the Fourth Circuit in an opinion by Judge Duncan, joined by Judge Niemeyer and Judge Williams, concluded that juvenile adjudications in Virginia could not be the predicates for the federal gun offense involving possession of firearms by persons who had been convicted of offenses involving punishment of more than a year.

What does while mean in an insurance policy

In Allstate Ins. Co. v. Bridges, Judge Jones of the W.D. Va. granted summary judgment for Allstate on the issue of whether the policy did not coverage "to an owned vehicle being operated by the insured at the time of the accident because the vehicle was not described in the policy."

Race and execution in Virginia

The Richmond paper reports here ("Study examines race and execution," 2/20/2004) on a new study which shows that the chances of a black person being sentenced to death for killing a white in Virginia are 18 times greater than those of a black person who kills another black, and are roughly three times greater than for a white person who kills a white or a white who kills a black.

Appomattox County to pay $225,000 in fees for illegal biosolids ordinance

This report says that Appomattox County has agreed to pay $225,000 in attorneys' fees to farmers who successfully challenged the County's biosolids ordinance before Judge Moon of the W.D. Va.

Revision of Virginia's criminal laws didn't quite work out

The Richmond paper reports here ("Revising crime laws in Va.," 2/22/2004) that the Virginia Crime Commission did not accomplish its goal of rationalizing the penalties for criminal offenses in Virginia, instead realizing a watered-down revision that was constrained by political realities.

Three get federal sentences from W.D. Va. for property scheme

The Roanoke paper reports here ("3 men sentenced for roles in bizarre property scheme," 2/21/2004) on the sentences issued by Chief Judge Wilson of the W.D. Va. to three men who had a scheme to sell timber off land they didn't own in Southwest Virginia.

Burrow case to be tried some place other than Roanoke or Lynchburg

The Lynchburg TV station reports here, the Roanoke paper reports here ("Burrow trial may be moved," 2/21/04), the Richmond paper reports here ("Fraud trial over D-Day memorial will move," 2/21/04), and the AP reports here that Judge Turk of the W.D. Va. has agreed to the prosecutors' request that the retrial of the D-Day fundraiser Burrow will be held in Abingdon, Big Stone Gap, or some place in the W.D. Va. other than Roanoke or Lynchburg.

Oral argument fun in the Seventh Circuit

How Appealing has this delightful post, and Denise at Bag & Baggage reposted it here, on the perils of talking about a sexual harassment case at oral argument.

I tried a sex harassment case in Kentucky one time where after a while, the judge told me, "Mr. Minor, this is a court of law, and we're not going to have any more talk about sex in this trial."

More on the Earl Washington case

Peter Neufeld, the DNA expert lawyer, representing the wrongfully-convicted Earl Washington, argued before Judge Moon of the W.D. Va. that the records of Washington's case should be made public, to prevent similar mistakes in the future, according to this account ("Ex-Death Row Inmate Seeks Evidence Release," 2/21/2004) in the Washington Post, this AP story, and this story in the Richmond paper ("No charges near in crime tied to key case," 2/21/04).

The Washington case is the subject of a speaker scheduled to appear in Abingdon at the BLI conference in March.

Bar association says no to delegate's appeal for input on new judge

In a strange twist, a Peninsula-area delegate has concluded that since he has the votes to bounce a sitting circuit court judge, he wanted the views of the local bar as to whom he should propose as the successor, but the bar association is refusing to cooperate, as reported here ("Gear seeks input on replacing Andrews," 2/20/04) in the Daily Press.

I never heard of a bar association refusing to vote on anything, and I also thought that the local bar associations' views were carrying less weight these days.

Fourth Circuit refuses to free Lentz pending appeals

In the E.D. Va. case including reversals of jury verdicts and findings of prosecutorial misconduct, the Fourth Circuit refused to free kidnapping defendant Jay Lentz, as reported here ("Appeals court rejects arguments that convicted killer be freed," 2/20/04) in the Norfolk paper.

More on the dismissal of the defendant in the Shenandoah Park murder

Lawyers for the man accused of murdering two women in the Shenandoah National Park, only to see the charges dropped, are claiming the federal prosecutors made up the case against him, as reported here ("Feds invented case, Rice's lawyers say," 2/20/04) in the Roanoke paper and here by the AP.

For a good time call

I loved this post from Marcia Oddi regarding the auctioning on eBay of 867-5309, a telephone number the fame of which is second only to BR-549, the number for Samples Auto Sales on "Hee-Haw."

Nobody left to stop tax increases in Virginia

That's the conclusion in this editorial from the Washington Times, following Monday's vote in the House, which notes that Republican AG candidate Robert McDonnell did not vote either way on the revenue measure.

Somewhat similarly, the Virginian-Pilot opined here that nobody is at the helm of Virginia government in matters of finance.

Closing FOIA loophole for information on economic development deals

The Daily Press reports here ("Legislators want info loophole on deals shut," 2/19/2004) that the General Assembly is considering another expansion of the exceptions to the open records requirement of the Virginia Freedom of Information Act, to protect documents in the hands of local officials containing information regarding prospective economic development deals.

No college degree required for home schooling in Virginia?

According to the couple from Charlottesville who sit behind me at Scott Stadium, the delegate who looks most like be is Robert Bell. (One of us is surely defamed by that comparison.) Anyhow, Del. Bell is sponsoring a measure to reduce the educational requirements for parents to homeschool their children, and the measure is still alive in the Senate, as reported here by the AP.

So what if AOL is in Virginia?

The lawyer for a spam defendant from North Carolina questions whether spam sent via AOL was transmitted through Virginia, and is seeking dismissal of charges against him, according to this report.

More on the VMI dinner prayer appeal

From the Legal Times via law.com, this article examines the appeal to the U.S. Supreme Court in the VMI dinner prayer case.

AOL sues spammers under Virginia Computer Crimes Act

As reported here, AOL has sued a bunch of spammers in Florida, on legal theories including the Virginia Computer Crimes Act.

Hospital has no right to medical malpractice panel

In Lovelace v. Rockingham Memorial Hospital, Chief Judge Wilson for the W.D. Va. concluded that a hospital has no right to the referral of a medical malpractice case to a panel under the Virginia statute, Va. Code 8.01-581.1, et seq., for a case filed originally in federal court based on the Court's diversity jurisdiction, notwithstanding the requirements of the Erie doctrine. Judge Wilson went on to deny the hospital's motion to certify the case for interlocutory appeal.

Challenging the constitutionality of Virginia's post-conviction page limits

The Legal Reader has this post, which says a Virginia man facing the death penalty is claiming that "the state's 50-page limit on post-conviction petitions made it impossible for his attorneys to present all the different arguments that might persuade courts to reverse his sentence," linking to this story from the Boston Globe.

I think the actual rule, Rule 5:7A, actually allows a habeas corpus petition to exceed 50 pages with leave of a single justice of the Court, but I don't expect that any of the justices are much interested in accommodating petitions of more than 50 pages. Just this past weekend, I retold the story that I once filed a 105-page paper in support of a motion, and even my wife said that's not a "brief," and when I told the judge of her comment, he added, "did she also say what would be perfectly obvious to anyone else, which is that there's no way you can expect me to read all that?"

Fiber-optic connection in downtown Big Stone Gap

The Coalfield Progress provides this update ("Fiber-optic telecom pipeline coming to downtown," 2/18/2004) on the Lenowisco project to bring fiber-optic telecommunications to downtown Big Stone Gap.

Worth reading - from the Virginia Lawyer

I don't know if this is a true story by Colin Thomas from Staunton, but I suspect that it is.

No federal forum for landfill fee refund suit

As reported here ("Federal court will not hear landfill use fee lawsuit," 2/17/2004) in the Coalfield Progress, Judge Jones of the W.D. Va. has dismissed for lack of jurisdiction the federal class action suit filed for refunds of the Wise County landfill fee that has been declared unconstitutional.

In Indian Creek Monument Sales v. Adkins, Judge Jones based his decision on the Tax Injunction Act. Judge Jones identifies the state law remedy as based on Va. Code 8.01-186, which says nothing in particular about taxes but does allow courts issuing declaratory judgments to proceed with entering further relief beyond declarations. I would not have thought that this statute authorizes any kind of remedy against the government which is not authorized in some other statute - if the fee really is a tax, the tax statutes ought to provide the remedy, such as under Va. Code 58.1-3990. Indeed, there are Virginia cases suggesting that there is no state law remedy at all when a "tax" is declared unconstitutional, that the ruling applies prospectively only, and the taxpayers must depend on the largesse of the taxing authority for retrospective relief.

The Court goes on to discuss the availability of class-based relief in state court, concluding that he sees no reason why one claim could not be made in state court for all of the money. I think this was a mistake, surely unnecessary to the jurisdictional issue, possibly wrong on the law, and probably bad for the administration of justice, since the issue will almost surely come up again before the state courts - they'll have to decide whether Judge Jones' advisory opinion on this point is correct, and if they disagree, that won't exactly increase public confidence in the court system. (In any event, perhaps a gang of plaintiffs will join together in one big case, under Va. Code 8.01-267.5). The other thing that will be missing from a state court action, presumably, is a statutory right to attorneys' fees - which would have been available to the prevailing party in federal court under 42 U.S.C. 1988, and might well exceed the fees at issue. See Russell County Social Services v. O'Quinn, 259 Va. 139, 523 S.E.2d 492 (2000) (no attorneys' fees authorized under Declaratory Judgment Act).

The Court also concludes that the landfill fee was a tax, particularly since the idea of a "tax" under the Tax Injunction Act need not correspond with what is a "tax" under the Virginia Code.

Connected wirelessly in Dickenson County

The Coalfield Progress reports here ("County's new wireless project providing new connections," 2/11/2004) on a demonstration of the Dickenson County Wireless network ("DCWIN"), the first of its kind under a new Virginia law passed last year.

House of Delegates playing ball on increasing revenues

Delegate Bryant opines here ("Inching toward a budget agreement," 2/16/2004) that his colleagues have finally come to their senses and are engaged in finding solutions to Virginia state government's money problems.

The Roanoke paper reports here ("GOP: Bill is revenue-raiser," 2/17/2004) that the House will vote today on a measure that will eliminate some sales tax exemptions for businesses.

No jury, no 1981a damages for retalation claim under ADA

In January, a panel of the Seventh Circuit held in the case of Kramer v. Bank of America Securities, LLC that a plaintiff with a retaliation claim under the Americans with Disabilities Act is limited to the old-fashioned Title VII remedies, cannot recovery punitive or "compensatory" damages under 42 U.S.C. 1981a, and has no right to a jury trial.

Different kind of No. 1

This press release details a presentation to the Marshall-Wythe School of Law (as it was called when I was there) of the College of William & Mary (my law school) honoring its claimed status as "America's Oldest Law School."

You'd think that if they were not going to call it "Marshall-Wythe" any more, they would stop trying to call it "America's oldest."

We're No. 1?

The AP reports here that Virginia is the state where persons convicted of capital murder are most likely to be executed.

On deadlines for removal and default

The Insurance Defense blog has this post unraveling this published opinion by Judge Jones of the W.D. Va. on how to determine the timeliness of a notice of removal and responsive pleadings when service is made on the Commissioner of the Department of Motor Vehicles, who is the statutory agent for service of process on out-of-state motorists involved in Virginia accidents.

Studying Virginia's birth-related neurological injury law

The LitiGator has this post studying the birth-related neurological injury compensation schemes of Virginia and Florida, noting this overview of the two programs, and referencing this analysis by Duke University Medical Center of both programs.

House panel approves Verizon-endorsed bill to allow higher rural phone bills

The Richmond paper has this report ("Panel OKs bill sought by Verizon," 2/13/2004) on the Verizon-backed bill that would allow higher rural phone rates.

Two-minute warning for first half of legislative session

The AP has this report on the waning hours of the first half of this year's session of the General Assembly.

Next mass tort defendants - Hollywood?

Not that this article in the Washington Post has anything to do with anything, but it does mention how a thirty-something woman joked about suing because there was no real guy like the character in "Sixteen Candles," and the article includes this sentence: "And anyone who went to high school in the 1980s understands how difficult it can be to turn away from "Sixteen Candles" or "The Breakfast Club" or "Ferris Bueller's Day Off," no matter how busy they are, how many times they've seen it, or how many commercial breaks come along."

Gone with the wind - Atlantic states' old tobacco barns

The Washington Post (registration required) has this article ("As Tobacco Fades, Barns Wilt," 2/15/2004) on the disappearance of tobacco barns, in states where tobacco has been grown since the 1600s.

House backs off mandatory three days for first-time DUI

This story ("House drops part of DUI bill," 2/14/2004) in the Norfolk paper explains how theHouse of Delegates stepped back from proposed anti-DUI laws that would have been among the toughest in the nation.

My sister told me once that the laws against drunk driving in Sweden were so punitive that there were no drunk drivers, but to her observation in that country there were, however, an awful lot of drunk walkers.

Old man who killed Staunton's favorite dog gets $1,500 fine

The Richmond paper reports here ("Jurors convict man who shot dog," 2/13/2004) on the criminal trial and verdict in the case of a man accused of shooting a big dog who was the unofficial mascot of downtown Staunton.

Judge Bork to educate at Richmond law school

The Richmond paper reports here ("Bork to join faculty at UR," 2/13/2004) that former D.C. Circuit Court of Appeals and Supreme Court nominee Robert Bork will teach next year at the T.C. Williams School of Law of the University of Richmond.

Economics of the Malvo and Muhammad cases

The AP reports here that so far, the defense costs for the sniper Muhammad are $886,516, and the defense costs for the sniper Malvo are $1,021,337.

Economics of I-81 expansion considered

In articles here from the Roanoke paper ("Panel gives Star's plans green light for 1-81," 2/15/2004), here ("VDOT panel says STAR plan closest," 2/15/2004) in the Bristol paper, here ("I-81 Expansion May Toll Truckers," 2/14/2004) from Channel 11, and here ("Panel wants all drivers to pay," 2/14/2004) in the Richmond paper the finances of the expansion of Interstate 81 are discussed.

Apparently, it would take a big increase in the gas tax to pay for the interstate widening project, and since the General Assembly would never agree to that, the cost will be paid through tolls on users, the incidence of which will fall mostly on locals in Western Virginia from Bristol to Winchester, since the interstate traffic will find other routes, including Interstate 95 in Virginia, which I always thought was more dangerous than 81. People will do weird things to avoid paying the government, ask any Bristol Virginia employee with employees from Tennessee.

I guess I'll never understand these things, but it seems to me that all of these facts have always been true - if it took local money, there were be no interstates. If interstate traffic is what makes the expansion necessary, then federal money should be the solution. If tolls on Virginians are what is required, then put the tolls on every mile of road in the state. If taxes are the only solution, then put in a new bunch of legislators. What is intolerable is Western Virginians paying the bill for what ought to be a statewide and national expense. (Let's see, I drive on the Interstate about 20 miles per day, at 20 cents per mile, that $4 per day, 25 days per month, 12 months per year, that $1,200 - guess I'll be taking Jonesborough Road or Route 11 or swinging around by the lake to get to and from Bristol.)

Constitutional challenge to the 21-day rule

The Roanoke paper has this article ("21-day rule is taken to court," 2/15/2004) on the case of a Roanoke defendant who is claining on appeal to the Virginia Supreme Court that the 21-day rule as applied to him is unconstitutional.

More on the Sarb-Ox case from Floyd County

This week's ABA ejournal has this account of the successful whistleblower claim of an executive against his former employer the Bank of Floyd.

I'm informed that this was not, however, the first case of its kind.

Plaintiff seeks judgment for default in discovery by defendant in sex case

Via VLW, this article ("Plaintiff asks for judgment in harassment suit," 2/11/2004) in the Charlottesville paper tells of how the plaintiff in a sexual harassment case is seeking entry of judgment against the employer/defendant for flagrant discovery violations. The article says the defendant is in the process of switching lawyers.

How to go into closed session under the FOIA in Virginia

I try to see that this short little memo gets the widest possible distribution - it is from the Virginia Freedom of Information Advisory Council, on how to make a motion to go into closed session in Virginia.

More on the new suit by TN commissioner against ROA and others

The Norfolk paper has this article ("Tennessee official files suit to recover insurance assets," 2/12/2004) and Insurance Journal has this article ("Tenn. Commissioner Files Suit on Behalf of Reciprocals' Policyholders," 2/11/2004) on the lawsuit filed in federal court in Memphis against the Reciprocal of America, its board members, and others, on behalf of American National Lawyers Insurance Reciprocal ("ANLIR") and others. ANLIR at one time was the bar-endorsed malpractice insurer for lawyers in Virginia and in Tennessee.

Stuff going on, but no time to blog it

Four published opinions from the Fourth Circuit and an opinion from Judge Williams of the W.D. Va. - and I haven't time to read them.

What I'm really trying to do this week is figure out how to drive from the Philadelphia airport to Fort Dix, New Jersey.

Hide-bound rules freak

In defiance of the training of everyone else who ever worked here, I never, never put two spaces after a period - a point on which Woody's Office for Mere Mortals almost agrees.

2004 Bar Leaders Institute in Abingdon

This year's big conference put on by the Virginia State Bar's Conference of Local Bar Associations in March 19 in Abingdon, here is the registration form. For some inscrutable reason, I can't find the itinerary online, but I have a printed copy in my hand, and it says that Justice Cynthia Kinser of the Virginia Supreme Court, Judge James C. Turk of the W.D. Va., Judge C. Randall Lowe of the 28th Circuit, Judge Suzanne Fulton from Wise and Judge Talevi from Roanoke will be on the panel in the afternoon, and James McCauley from the VSB (who has this ethics website) and Paul Fletcher of Virginia Lawyers Weekly.

Tennessee insurance commissioner sues ROA in W.D. Tenn. for ANLIR, et al.

Tennessee's Insurance Commissioner, Paula Flowers, has filed suit in the U.S. District Court for the Western District of Tennessee, on behalf of American National Lawyers Insurance Reciprocal ("ANLIR") and others against the Reciprocal of America and others, seeking recovery for alleged "racketeering, fraud, unjust enrichment, misappropriation of funds and negligence," according to this report. Here is the Insurance Commissioner's press release. Here is the complaint.

Earlier, the receiver of ROA filed suit against many of these same persons and institutions, in the E.D. Va.

Straight from the Hokie huddle

This commentary from the Virginia Tech paper says "Homosexuals already have equal rights for marriage."

I compare this to the most profound thing I ever wrote in my college newspaper days, which was that the Coach was justified in benching Don Majkowski after the quarterback walked into a roomful of coaches in a bar after curfew. (Hey, it was even reprinted in the Maryland Diamondback, before Scott Secules started in place of Majik and won the game anyhow.)

When sobriety is not enough

Under the headline, "Woman accused of using 10-year-old daughter as designated driver," this story from the Kingsport paper (registration required) describes the criminal charges facing a Northeast Tennessee woman "stemming from allegations that she used her 10-year-old daughter as a designated driver last week because she was too intoxicated to drive."

Washington Times - don't let the Senate raise Virginia taxes

This opinion from the Washington Times asks the House of Delegates to just say no to the tax-raisers in the Virginia Senate.

One of the interesting things about the tax debate is that former Senator Harry F. Byrd, Jr. (born in 1914), has endorsed the Governor Warner plan. Senator Byrd last ran for office in 1976, his second term as an independent. He had a nice cardinal cartoon on his bumper stickers. I was then in the sixth grade. Back then, the Commonwealth had a dynamic duo of senators, Byrd and William Scott.

The Bristol article in Virginia Business

I love this article about Bristol and the BVU fiber-to-the-home project, from the Virginia Business magazine.

Increase in state minimum wage law rejected

The Senate rejected a proposed increase in the state's minimum wage, as reported here ("Minimum-wage bill rejected," 2/10/2004) in the Richmond paper.

House of Delegates votes General Assembly out of FOIA

Incredibly, the House of Delegates voted 52-48 to add new protections from applicability of the FOIA open meeting laws for proceedings of the General Assembly, as reported here ("House puts assembly outside law," 2/10/2004) in the Richmond paper, here ("Va. House Relaxes Open Meetings Act," 2/10/2004) in the Washington Post (registration required), and here ("House votes to exempt Assembly from FOI act," 2/10/2004) in the Roanoke paper. Among the locals, Del. Kilgore voted in favor, Delegates Johnson, Stump, and Phillips voted against it. Delegate Robert Marshall voted against it. The vote count is shown here.

Why wouldn't the governor veto this? Nobody outside of General Assembly would have a good word to say for it. Heck, it's worse than a pay increase for legislators.

Governor Warner endorses Kerry

With the clock winding down before the Virginia primary, Governor Mark Warner has endorsed Senator John Kerry for the Democratic nomination, as reported here ("Virginia Governor Endorses Kerry," 2/8/2004) in the Washington Post (registration required).

W.D. Va. to get public defenders' office

The Roanoke paper reports here ("Federal public defender in works," 2/8/2004) that the U.S. District Court for the Western District of Virginia will soon have a public defenders' office, and includes Chief Judge Wilson's explanation that the criminal docket has doubled in the last 12 years.

No relief from 21-day rule for those who plead guilty

As reported here ("Senators' effort on 21-day bill falls short," 2/6/2004) in the Roanoke paper, a Senate committee rejected an amendment to the 21-day rule that would allow felons who plead guilty to get submit evidence of innocence more than 21 days after the entry of the final order in their criminal cases. As reported here ("Senate Votes to Lift Time Limit on New Evidence," 2/7/2004) in the Washington Post (registration required), the Senate passed a more limited alteration to the 21-day rule, that may face difficulties in the House of Delegates.

E.D. Va. prosecutors blast Judge Lee's rulings on appeal of the Lentz case

According to this AP report, the lawyers for the U.S. Attorney's office in the Eastern District of Virginia have harshly criticized the rulings of the trial court in the kidnapping case of Jay Lentz. The trial judge found, among other things, deliberate misconduct by one of the trial counsel for the government, in a case where improper evidence somehow turned up in the jury room for their deliberations.

Hoping for an employee discount at the Cheese Shop

According to this report ("Study shows W&M faculty looking for other jobs," 2/6/2004) in the Norfolk paper, a recent survey found that one-third of the faculty at the College of William & Mary have looked for other jobs in the last couple of years.

Senator Robb back in the news

I noted that former U.S. Senator and Virginia Governor Charles Robb was among those named by President Bush to the panel to investigate intelligence failures leading up to the war with Iraq. The Richmond paper describes here and the AP describes here the background of Senator Robb, who is still identified in part as the "son-in-law of the late President Lyndon Johnson."

Senator Robb's story is pretty well-known to Virginians: Marine marries the President's daughter, becomes a lawyer, gets elected to a succession of greater offices, gets bored with it all, gets run out of town for a scandal involving a beauty queen, lives happily ever after.

In his last successful campaign, Senator Robb defeated Iran-contra figure Oliver North, of whom Robb declared that North was a "document-shredding, Constitution-trashing, Commander in Chief-bashing, Congress-thrashing, uniform-shaming, Ayatollah-loving, arms-dealing, criminal-protecting, résumé-enhancing, Noriega-coddling, Social Security-threatening, public school-denigrating, Swiss-banking-law-breaking, letter-faking, self-serving, election-losing, snake-oil salesman who can’t tell the difference between the truth and a lie," according to Bartleby's.

U.S. drops charges in Shenandoah Nat'l Park double-murder case

The Roanoke paper reports here ("U.S. to drop Rice's charges," 2/7/2004), the Richmond paper reports here ("U.S. moves to drop Rice charges for now," 2/7/2004), and the Washington Post (registration required) reports here ("Charges Dropped In Hikers' Slayings," 2/7/2004) that federal prosecutors are dropping all charges against the defendant accused of murdering two women in the Shenandoah National park.

Carroll County Courthouse tragedy

This column from Roanoke.com provides a summary of the shootout in 1912 at the Carroll County courthouse.

Lawyers in Super Bowl halftime lawsuit - do as I say, not as I do

Blog 702 has this post with a link to this page from the website of the Tennessee lawyer who filed the class action on behalf of all the victims of the Super Bowl halftime show.

The Supremes' Greatest Hits

Tim Sandefur is working out here the 10 most important Supreme Court opinions every lawyer should read (or something like that).

I haven't the breadth and depth to answer the question, but I can say which ones have the greatest effect on my work in section 1983 cases:

1. Monroe v. Pape, 365 U.S. 167 (1961)
2. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978)
3. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)
4. Harlow v. Fitzgerald, 457 U.S. 800 (1982)
5. Malley v. Briggs, 475 U.S. 335 (1986)
6. Graham v. Connor, 490 U.S. 386 (1989)
7. Heck v. Humphreys, 512 U.S. 477 (1994)
8. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)
9, 10, 11, 12. Pickering/Connick/Elrod/Branti

Also, my top two personal favorites:

1. Garcia v. SAMTA - a case I studied to death in college, only to find it on a law school exam the next fall, resulting in a book award
2. Stanley v. U.S. - what I once wrote about this case got me onto the Law Review and helped get me into a U.S. district court clerkship

Protecting our troops

Incredibly, with a local reserve unit about to deploy Iraq, local people have been raising money to buy for them bullet-proof vests. The failure to provide this equipment would be quite a scandal, and Republican congressional candidate Kevin Triplett is trying to pin the blame on Congressman Boucher, as reported here ("Ninth District hopeful Kevin Triplett lashes out at Boucher," 2/7/2004) in the Bristol paper. On Thursday, for what it's worth, military officials gave assurances that the reservists from Southwest Virginia would all be fitted with the proper gear before leaving Fort Dix, New Jersey, according this report ("Officials say soldiers assured of receiving body armor ," 2/6/2004) in the Bristol paper. Senator Allen's office put out this press release that he had been reassured by the Defense Department that the Southwest Virginians would get their body armor.

Clark and Edwards come to Bristol

The Bristol paper reports here ("Wesley Clark cites war as "last resort" of foreign policy," 2/7/2004) and the Kingsport paper (registration required) reports here ("Clark serves up red meat rhetoric," 2/7/2004) on the Wesley Clark visit to Bristol, while the Bristol paper reports here ("Edwards: 'We can't change this country without you,'" 2/7/2004) and the Kingsport paper (registration required) reports here ("Edwards campaigns in Bristol ," 2/7/2004) on the John Edwards visit to Bristol on Friday.

The Norfolk paper reported here ("Clark pulls ads, puts most of his focus on Tennessee," 2/6/2004) on Friday that Clark was giving up somewhat on Virginia and focusing more on Tennessee, to save money, particularly since TV ads in Northern Virginia cost a lot of money. Earlier in the week, former Governor Baliles endorsed Senator Kerry, as reported here by the AP.

Oops

This correction by the Fourth Circuit reads as follows: "The court amends its opinion filed January 23, 2004, as follows: On page 4, line 6 -- the phrase 'term of sixty years' is amended to read 'term of sixty months.'"

Another corner heard from - SENATOR Warner takes on state budget

U.S. Senator John Warner is on board with a group that says new state taxes in Virginia are necessary, according to this report in the Richmond paper and this report in the Washington Post.

Primary fever strikes Southwest Virginia, Northeast Tennessee

The Richmond paper reports here ("Southwest eager for primary," 2/6/2004) and the AP reports here ("Clark, Edwards campaign in southwest Virginia," 2/6/2004) on the excitement in Southwest Virginia about the Virginia presidential primary. The Roanoke paper reports here ("Democrats fear storm of confusion at primary," 2/6/2004) that it will be possible to vote for the candidate of your choice and attend a monster truck show on the same day in Roanoke. This article and this article say the Kerry, Edwards, and Clark campaigns were on the loose today in Eastern Tennessee.

Supposedly, Wesley Clark is having a rally right now down the street from here on the Tennessee side at the Stateline Grille.

With primaries on both side of the line, Bristol is in fact the center of the political universe this week, at least until Tuesday.

Another possible Republican candidate for Lt. Governor

The Gainesville Times reports here ("Connaughton considers bid for lt. gov. ," 2/6/2004) that the chairman of the Board of Supervisors of Prince William County may run for the Republican nomination for lieutenant governor in 2005.

Delegates want Va. S.Ct. to change rule to encourage electronic filing

The Coalfield Progress reports here on this House resolution submitted by Delegates Phillips and Kilgore asking the Virginia Supreme Court to change Rule 1:17 to eliminate the language that says ""by the consent of the parties and agreement of the clerk" and replace it with "by election of any party to the litigation." The resolution notes that "the Office of the Executive Secretary of the Supreme Court of Virginia is now preparing for a statewide electronic filing system to be enabled during the next year." (That's news.)

The change in the Rules might be a noble concept, but I found out the other day that there are some lawyers in Bristol, Virginia, who have no fax machines, much less e-mail or Internet access. I'd say that's the case for a few lawyers in every jurisdiction in the state. Would it be beyond the bounds of zealous advocacy to require electronic filing of such a lawyer on the other side of a case?

No new birth certificates for children born in Virginia adopted elsewhere by gay couples

I'm not entirely sure what this case is about, but I think the article says that Judge Johnson of the Circuit Court for the City of Richmond agreed with the Attorney General's office that new birth certificates should not be issued for children born in Virginia who were adopted by out-of-state same sex couples.

I never heard that anybody could get their birth certificates re-written, that sounds like some kind of scam. It sounds like rewriting history.

On state lines and horses' behinds

Rory Perry has a link to this delightful speech by an Australian judge who explains why the width of the booster rockets for the space shuttle is limited to twice the width of a horse's behind (the historic width of the railroads, including existing tunnels still in use), as an introduction to the problems of integration national legal practices in Australia to overcome entrenched local differences among the states there.

We are on the state line here in Bristol, and once upon a time I encounter stuff that I can't understand over on the other side, but I wouldn't attribute it to horses' behinds.

Ernie on the use of magistrate judges and summary judgment motions

Ernie the Attorney has this post regarding the use of magistrate judges in his ongoing "law clerk" chronicles.

Ernie asks: "But why would a district judge routinely refer dispositive motions to a magistrate for decision? Whoever loses the motion before the magistrate is probably going to appeal to the district judge, who will have to conduct de novo review of the merits of the motion. This practice seems like a complete waste of everyone's time: the litigants, the lawyers, and the magistrate."

Ernie goes on to say that his judge would not grant motions for partial summary judgment unless they were sure-fire winners or unless they would save time at trial. Of course, all of my motions meet that standard.

Then again, maybe not. One time I filed for summary judgment on some issue about 10 years ago and when the judge wouldn't rule I told him I needed to at least know which way the wind was blowing, a figure of speech which was very poorly received. On the top 10 list of stupidest things I've said or done as a lawyer, that would make the list.

Woman files class action as representative for all who saw Super Bowl halftime show

This delightful post from Shots Across the Bow and this post from Instapundit and this post from Overlawyered tell the story of a Knoxville woman who has filed a class action on behalf of 80 million Americas who watched the Super Bowl and suffered emotional distress because of the halftime show.

This post from the Trademark Blog makes the point that the last thing we need is for the law to recognize an implied contract between TV and TV viewers.

New standing order on CM/ECF for the W.D. Va.

Here is the new standing order for the W.D. Va. on case management and electronic filing - which a reader from Roanoke pointed out to me earlier this week.

The order says, among other things, that "[a]ll attorneys appearing before this Court on or after December 13, 2004, shall be required to file all documents electronically, unless otherwise authorized by the presiding judge or the electronic filing procedures."

I saw a memo last summer listing the members of a committee for electronic case filing in the W.D. Va. The members of the committee at that time (July 9) were stated as Chief Judge Wilson, Magistrate Judge Sargent, Jeremy Carroll of Danville, Henry Keuling-Stout of Big Stone Gap, the Clerk John Corcoran, Norman Kinnier from Lynchburg, AUSA Julie Dudley, Deputy Clerk Patti Nelms, Bill Eskridge, Bill Poff, and Gary Kendall from Charlottesville. Of the lawyers, I know that Mr. Poff is a real cyberdog, I don't know about the others, but maybe a panel of tech-savvy people is not what was desired.

I imagine the procedures once promulgated will be something like these I have been studying from the Southern District of Ohio.

Amendment to rule for production from non-parties

This week posted on the Virginia judiciary website was an amendment to Rule 4:9:

Rule 4:9. Production of Documents and Things and Entry on Land for Inspection and Other Purposes; Production at Trial.

(c) Production by a Person Not a Party.
(1) Subpoena duces tecum issued by clerk of court. Upon written request therefor filed with the clerk of the court in which the action or suit is pending by counsel of record for any party or by a party having no counsel in any pending case, with a
certificate that a copy thereof has been served pursuant to Rule 1:12 upon counsel of record and to parties having no counsel, the clerk shall, subject to paragraph (c-1), issue to a person not a party therein a subpoena duces tecum which shall command the person to whom it is directed, or someone acting on his behalf, to produce the documents and tangible things (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form) designated and described in said request, and to permit the party filing such request, or someone acting in his behalf, to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 4:1(b) which are in the possession, custody or control of such person to whom the subpoena is directed, at a time and place and or the period specified in the subpoena; but, the court, upon written motion promptly made by the person so required to produce, or by the party against whom such production is sought, may (1) quash or modify the subpoena if it is unreasonable and oppressive, (2) condition denial of the motion to quash or modify upon the advancement by the party in whose behalf the subpoena is issued of the reasonable cost of producing the documents and tangible things so designated and described or (3) direct that the documents and tangible things subpoenaed be returned only to the office of the clerk of the court through which such documents and tangible things are subpoenaed in which event, upon request of any party in interest, or his attorney, the clerk of such court shall permit the withdrawal of such documents and tangible things by such party or his attorney for such reasonable period of time as will permit his inspection, photographing, or copying thereof.
(2) Subpoena duces tecum issued by attorney. In a pending civil proceeding, a subpoena duces tecum may be issued by an attorney-at-law as an officer of the court if he is an active member of the Virginia State Bar at the time of issuance. An
attorney may not issue a subpoena duces tecum in those civil proceedings excluded in Virginia Code § 8.01-407. An attorneyissued subpoena duces tecum must be signed as if a pleading and be accompanied on the subpoena by the attorney’s address, telephone number and Virginia State Bar identification number. A copy of any attorney-issued subpoena duces tecum must be mailed or delivered to the clerk’s office of the court in which the case is pending by the attorney on the day of issuance with a certificate that a copy thereof has been served pursuant to Rule 1:12 upon counsel of record and to parties having no counsel. If time for compliance with an attorney-issued subpoena duces tecum is less than fourteen (14) days after service of the subpoena, the person to whom the subpoena is directed may serve on the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection or testing should not be had. If an objection is made, the party issuing the subpoena shall not be entitled to the requested production, inspection or testing, except pursuant to an order of the court in which the civil proceeding is pending. If an objection is made, the party issuing the subpoena may, upon notice to the person to whom the subpoena is directed, move for an order to compel the production, inspection or testing. Upon a timely motion, the court may quash, modify or sustain the subpoena as provided above in subsection (c)(1) of this Rule.

Wasn't all this already in the Rules somewhere, or am I thinking of FRCP 45?

Still the champ

In Harris v. Holland, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams, Motz, and King, with Judge Williams dissenting, affirmed the ruling of Judge Glen Williams against the UMWA Funds on a disability pension claim.

I think Judge Glen Williams knows more about these claims that anyone.

Six more weeks of?

Punxsatawney Phil saw his shadow, meaning six more weeks of winter. In an unrelated development, Judge Jones denied in this opinion the last round of pre-trial motions to dismiss in the Gilmore and Church cases, meaning six more weeks of trial.

Judge Richard Williams overturns Virginia abortion law

Just in time for the General Assembly session, Judge Richard Williams of the E.D. Va. has overturned the new partial-birth abortion law from last year's General Assembly session, as reported here on lifenews.com, here on newsmax.com, in this article ("Abortion curbs ruled illegal," 2/3/2004) from the Richmond paper, in this article ("Va. Late-Term Abortion Ban Struck Down," 2/3/2004) from the Washington Post, this article ("Federal judge overturns ban on late-term abortion in Va.," 2/3/2004) in the Norfolk paper, and this AP article.

P.S. The Attorney General's statement is here, and the Lieutenant Governor's statement is here.

Satellite-based internet service available in parts of western Virginia

This press release declares the availability of a satellite-based internet service for some rural areas of western Virginia, with connection speeds at 400 kbps, though the Rockbridge Global Village.

Preliminary caseload statistics for Virginia state courts

Posted on the Virginia judiciary website are preliminary statistics for the circuit courts and the district courts.

Southwest Virginia chools fear claims of employees who got detention?

The Bristol paper reported here ("School systems targets for alleged violations of Fair Labor Standards Act," 2/1/2004) over the weekend that some local school systems are worried about overtime claims under the Fair Labor Standards Act.

I never heard of an FLSA against a school system in Southwest Virginia, more common are claims of emergency workers - rescue and law enforcement workers.

Court-appointed lawyers in Virginia doing a bad job?

The Richmond paper has this report ("Va. cited for weak counsel," 2/2/2004) on a study which concludes that the lawyers receiving appointments by Virginia's state courts to represent the indigent are doing a bad job.

Environmentalists don't like proposed coal-burning power plant for Southwest Virginia

As you might expect, the environmental lobby has nothing good to say about the proposed new coal-burning power plant to be built in Southwest Virginia, as reported here ("Coal plant derided as dinosaur," 2/2/2004) in the Roanoke paper.

Doctors come to Richmond to cure what ails medical malpractice law in Virginia

The Roanoke paper reported here ("Doctors to swarm Richmond," 2/1/2004) on the lobbying efforts of the medical establishment for reform in the law of medical malpractice in Virginia.